Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ALIMENT.
Subject_3 The widow of an Earl is entitled to Aliment till the term of payment of her jointure, to mournings, and to a sum of money in lieu of a jointure-house, though she had received a separate aliment in her husband's lifetime, which reached to that term, and though a jointure-house on the estate was offered her.

Margaret, Countess-Dowager of Caithness,
v.
The Earl of Fife and Sir John Sinclair

Date: 27 February 1767

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[Faculty Collection, IV. p. 101; Dictionary, 431.]

Barjarg. Executor is liable for the interim aliment, and for mourning. The heir is liable for the house.

President. Quoted the case of Gordon in 1763, where the conventional aliment was found not to be the rule, but L.8 was raised to L.15.

Coalston. As to the interim aliment, we are not tied down to follow a proportion according to the conventional provisions during the marriage, or afterwards. The aliment, during the life of the husband, is not the rule, because an aliment was at that period also due to the husband. At the same time, the claims made by Lady Caithness are too high. As to the mournings, the burden of them lies upon the executor, as was established in the case of Tarsappie. In doubtful cases, I am not for departing from decisions. As there is no jointure-house upon the estate, I doubt whether the burden of the house ought to fall ultimately upon the heir.

Pitfour. The expense of mourning and aliment, to the term, lie upon the executor. A reasonable time must be given for settling the extent of the moveables of the deceased,—the next term is allowed for that,—meantime, the family of the deceased must be kept up. When a lady chances to live separately from her husband, the case is a little different; but still the principle of law is the same. The benefit she got from the aliment during her husband's life, is not to be reckoned. De minimis non curat prætor. The case of Boswell is the straitest that can be. The aliment was L.200, and the interest of her own money supposed L.100. I propose that she should have L.200 for the half year. I would give as high a sum for mournings as was ever given. As to the jointure-house, it has as much tractum futuri temporis as lands or bonds heritable by destination. Besides, the executry must be summed up at the term after the defunct's death, which is incompatible with a tractus futuri temporis. The case of an obligation to pay a certain sum, is different from an obligation to pay an annual sum; the first is pure and clear, the second is casual and of unknown extent.

The Lords found the executor liable in the aliment to the term, and the mournings; the heir liable in an annual sum in lieu of a jointure-house. They afterwards adhered to the Lord Justice-Clerk's interlocutor, modifying L.300 for mourning, and L.50 per annum for a jointure-house; and of consent modified L.200 for aliment to the term.

Act. J. Boswel. Alt. D. Rae, R. M'Queen. Reporter, Justice-Clerk.