Sir Thomas Moncrieff, Bart. v. Thomas Moncrieff, Esq. [1735] UKHL 1_Paton_162

UKHL
Sir Thomas Moncrieff, Bart. v. Thomas Moncrieff, Esq.
[1735] UKHL 1_Paton_162
The Court of Session having modified aliment to a son, the same was restricted to the allowance which had originally been voluntarily given by the father.Judgment for the appellant ex parte .The respondent having by his marriage and conduct in other respects offended his father, (the appellant,) a quarrel unhappily arose, notwithstanding which, the latter made him an allowance of 2000 merks Scots, equal to L.111, 2s. 2 1 ⁄ 3 d. sterling.Jan. 17, 1734.The respondent raised an action before the Court of Session for a larger aliment, on the ground that jure naturœ jure naturœ , his father was obliged to provide for him according to the extent and circumstances of his estate. The Lord Ordinary “ordained either party to give in a condescendence of the defender's estate.”A condescendence was given in by the son, and the case being reported to the Court, they “ordained the defender to give in a condescendence

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January 31.The defender petitioned against this interlocutor, on the ground that the sole foundation of the cause was for an aliment ex jure naturœ ex jure naturœ , and having voluntarily given his son 2000 merks per annum, it ought to be found that this was a sufficient aliment, and that he was not bound to expose his circumstances by giving in a condescendence of his estate. The petition was refused, and afterwards the following interlocutor was pronounced:
“On report of the Lord Justice Clerk, the Lords having considered the condescendence given in by Mr. Moncrieff, Sir Thomas declining to make any, modify L.200 sterling of yearly aliment, beginning the petitioner's payment at Whitsunday last, being the first term after citation for the preceding half year, and so to continue yearly thereafter, payable at two terms, Whitsunday and Martinmas, by equal portions.”
February 19.Along with a petition against this interlocutor, the defender gave in a condescendence, stating his real estate at between L.500 and L.600 a-year, and his personal at about L.5000, whereupon the cause was remitted to the Lord Ordinary to hear parties, and upon his report the petition was refused.Entered Feb. 19, 1735.The appeal was brought from the interlocutors of the 17th, 25th, 29th, and 31st days of January last, and the 6th and 19th days of this instant February.

Pleaded for the Appellant:— Pleaded for the Appellant:— Without arguing

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There is no doubt that parents are bound to maintain their children while they are unable to provide for themselves; but that a son should, beyond a necessary maintenance, be entitled to a determinate part of his father's estate, is a claim which is unprecedented in any country, and contrary both to the law of Scotland and to reason, and fraught with the worst consequences.As it is certain that any man may disinherit his son, and deprive him of his estate after his death, it follows that during his life also, he has the same absolute power over it, and may dispose of it as he pleases. And as the father only knows what fortune, he intends to give his son hereafter, he only can judge what maintenance is suitable to his condition, so that he may not be unfitted by present abundance for his future situation in life.There is little danger of the parental power being used with too much rigour; the excess is seldom on the severe side. But if a child, whether dutiful or undutiful, may demand a certain quantity of his father's estate, the father will be deprived of all power of rewarding virtue or discouraging

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It would invert the order of nature, and subject parents to their children, were it in the power of the latter, from caprice or undutifulness, to compel their father (as has been done in the present case,) to expose his private circumstances to the world; by which it may happen that he sustains irreparable injury.The present action is brought upon the law of nature only, and not upon any positive statute; but nature knows no distinction between the oldest and the youngest child; they are equally entitled to the parent's care and affection. The appellant has four other children who have the same right to maintenance that the respondent has; and therefore the exorbitance of the proportion allowed by the Court of Session must be apparent, as it amounts to nearly a fourth part of his whole income.If the present claim is well founded, it must follow that a son, living in his father's house, may complain that his father does not live so well, or keep so good a table as his fortune might afford, and therefore pray to have a maintenance suitable to his circumstances. The economy of every man's private family is left to his own direction; and in questions of this sort, the income of the father ought no otherwise to be considered than with the view of excusing him altogether from the maintenance

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March 21, 1735.“Counsel appeared for the appellant, but none for the respondent; and the appellant's counsel being fully heard, the several interlocutors of the Lords of Session complained of were read; as likewise a petition of the appellant to the said Lords of Session, praying, “that the aliment allowed to the respondent may be restricted to 2000 merks Scots per annum;” and due consideration had of what was offered in this cause, at the bar;Judgment.It is ordered and adjudged, &c. that the said interlocutors be so far varied, as that the allowance for the maintenance of the respondent be modified to 2000 merks Scots per annum.”Counsel: For Appellant, Dun. Forbes and W. Murray.