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Scottish Court of Session Decisions >>
Margaret Anderson and Rachel Gibson, v James Gibson and his Curators. [1754] Mor 427 (25 January 1754)
URL: http://www.bailii.org/scot/cases/ScotCS/1754/Mor0100427-065.html Cite as:
[1754] Mor 427
Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Margaret Anderson and Rachel Gibson, v. James Gibson and his Curators
Date: 25 January 1754 Case No. No 65.
A person succeeded to the estate of a distant relation. His mother and sister being poor, claim aliment. He admits the mother's claim. The sister, who was past 21, found not entitled.
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James Gibson having succeeded as heir to his grand-uncle John Jack, James Gibson's mother, Margaret Anderson, and his sister Rachel Gibson, brought a process against him and his curators for an aliment.
The defender admitted, that an aliment was due to his mother; but contended, That his sister, who was past 21 years of age, had no legal claim against him for an aliment.
Pleaded for Rachel Gibson: That by the civil law, persons who are able, are bound to aliment their brothers and sisters who are in want; l. 1. § 2: ff De tutel. et ration. distra. l. 13. § ult. ff. De admin. tut. and Voet, ab tit. De agn. et alend. liberis: And as this obligation is founded on the law of nature, and proeeeds ex æquitate et charitate sanguinis betwixt brothers and sisters, it ought to take place with us; and so it has frequently been decided, particularly 10th November 1671, Hasty contra Hasty, No 53.; and 23d July 1715, Children of Knapperny against their elder Brother, No .62.
Answered for James Gibson and his curators: That although he would be very ready to relieve his sister when in need, yet he is under no legal obligation to aliment her. The texts cited from the civil law, only permit tutors and curators to make reasonable debursements out of the pupils or minors estates, for the education and maintenance of unprovided brothers and sisters, but by no means make it necessary for the minor or his curators to make such debursements. And all the decisions of this Court, whereby a brother has been found obliged to aliment his brothers and fillers were, upon this foundation, that he, as heir to his father, was liable to the same obligations to which his father was liable; and therefore to aliment the children of his father. And even in such cases, the obligation reached no farther than to aliment them during their pupillarity, or at farthest minority. But, in the present case, the defender does not represent his father, but succeeded to his grand uncle, who was under no obligation to aliment the pursuer Rachel Gibson, and she is past the years of minority.
‘The Lords found, That Rachel Gibson was not entitled to an aliment.’
Act. Dav. Dalrymple.Alt. Dav. Rae.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 23. Fac. Col. No 97. p. 147.
