Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Miss Henrietta Moncreiff
v.
Fairholm of Pilton, her father-in-law, and Mrs Fairholm, her mother.

Date: 27 January 1736

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The pursuer's portion, consisting of 12,000 merks, was liferented by her mother, who contracted a second marriage with the defender Fairholm. By the contract of marriage, Mr. Fairholm became bound to aliment and educate the pursuer until she should be married, or until the death of her mother, conform to her rank and quality.

Miss Moncreiff raised an action, concluding for a liquid sum in name of aliment, upon the ground, 1mo, That it was due by the law of nature, seeing the pursuer was entitled to aliment from her mother, who liferented her fortune, and must, therefore, have a similar claim against her mother's husband. 2do, Upon the common law, which, on the analogy of the statute concerning wards, gives an aliment to every fiar whose fee is liferented. 3tio, On the obligation in the contract of marriage.

In defence, it was pleaded that it was only to the heir of a landed estate that aliment was due by a liferenter; that, moreover, such aliment was due only while the heir was minor, whereas the pursuer was of age; and, lastly, that at all events, Mr. Fairholm was only bound to entertain her in his own family, but not to give her a separate aliment.

The Court found the pursuer entitled to demand a separate aliment. Lord Kilkerran has the following note of the case.

" Whether a father-in-law, in his contract of marriage, obliging himself to aliment his wife's daughter of a former marriage, according to her rank and quality, her whole portion being liferented by her mother, will be obliged to give her a certain sum for her aliment. Or if he can say, it is sufficient that he aliment and educates her in his family ?

“I say this is the question as to the topic “ jus naturæ. I doubt that would not extend to a second husband.

“And as to the topic of liferentrix, though that will extend to the husband who, when he marries the wife, undertook that burden, yet it has never yet been determined, if that held where the liferent was of a personal debt; and indeed the original extension of the act anent wardatars being obliged to aliment the minor, to that of liferenters, seems never to have had any foundation, either from the Act of Parliament, or from analogy of it, when that act speaks of two things that lie upon the wardatar, namely, to aliment the minor, and keep the houses in repair; and when it comes to speak of liferenters, omits the first.”

Nota.—“The Lords refused to decide the point as to the liferenter of a sum, in 1667, as far as obliged on the act. But now, as to the question, when put upon Fairholm's obligation, I observed, that in every case where one is obliged for aliment, except that of jus naturæ, he cannot free himself by offering aliment in his house; and so a superior cannot durante warda; but would it not seem that so was here the intention ?

“When this case come to be reported, Newhall observed, that where aliments are only craved super jure naturæ, the person craving it must accept of it in family, with the father or others liable in it. But that in respect of the obligation in this case, and that the granter was not father, but father-in-law, he thought the pursuer entitled to a separate aliment, and to choose her own residence.

“Elchies again that he thought it dangerous to put it upon the footing of an obligation, because often there were such obligations in contracts of marriage to aliment children, e. g. daughters to a certain age. But that he thought it should be laid upon the third point, viz. the Act of Parliament obliging the liferenter to aliment the fiar.

“The President finding none of the Lords to be against giving a separate aliment, proposed it should go in general, for which reason no more was said, and it went in general; but had it come to question upon what particular ground to lay it, I had been of Newhall's opinion, agreeable to what I noted yesternight, on readin of the informations.”