Scottish Court of Session Decisions

In 1849 Miss Emily Woolford Moffat, the daughter of a solicitor before the Supreme Courts in Scotland, married Mr Robert Foulis, who was a teacher by profession. He held at different times various appointments as a teacher in Edinburgh. In 1877, when he was headmaster of one of the Merchant Company's Schools, his health broke down, and he obtained an appointment as inspector of schools at Wanganui, New Zealand. Thereafter he was made headmaster of the New Plymouth High School there, and held that appointment until his death on 21st July 1885. After her husband's death Mrs Foulis was in very poor circumstances. For some time she held a situation as companion to an invalid lady, but found herself unable, from the state of her health, to perform the duties required of her, and was obliged to resign her situation. She had had fourteen children, of whom seven survived. In 1875 her eldest daughter married Mr Fairbairn, solicitor, Galashiels.

This action was raised by Mrs Foulis against Mr Fairbairn, concluding for payment of £40 yearly for aliment to her. She averred that she had no means of support other than what she received from her eldest son Dr Foulis, a medical practitioner in England, and that he and Mr Fairbairn, as representing his wife, were the only members of the family in a position to contribute to her maintenance. The defender averred that Dr Foulis gave his mother £52 yearly, and he declined to make the pursuer any separate allowance beyond this sum of £52. He averred that he had conceded his liability to relieve Dr Foulis of a portion of the latter's contribution upon being satisfied that the pursuer was unable to maintain herself.

The pursuer pleaded—“The defender being bound to aliment the pursuer, his mother-in-law, and the sum sued for being fair and reasonable as his proportion of the aliment to which the pursuer is entitled from the members of her family, she is entitled to decree in terms of the conclusions, with expenses.”

The defender pleaded—“1) The statements of the pursuer are irrelevant, and insufficient to support the conclusions of the summons. (2) The pursuer being able to aliment herself, the present action ought to be dismissed. (3) The pursuer being already in receipt of an allowance amply sufficient for her maintenance and support, the defender ought to be assoilzied.”

On 24th May 1887 the Lord Ordinary ( Lee) pronounced this interlocutor—“Finds it not disputed that the pursuer is in receipt of aliment from a son at the rate of £52 per annum; and finds that the allegations on record are not relevant and sufficient to support the conclusions of the present action: Therefore dismisses the action.”

The pursuer reclaimed.

The First Division allowed the summons and pleas-in-law to be amended, and allowed a proof. The summons as amended contained a conclusion against the defender for payment of the sum of “£40 sterling yearly, or such other sum as our said Lords shall determine to be fair and reasonable as his proportion of, or contribution to, the aliment to which the pursuer is entitled from members of her family.” For his second and third pleas-in-law the defender substituted—“(2) The pursuer not being indgent, the present action ought to be dismissed. (3) The defender being only the son-in-law of the pursuer is not liable to aliment the pursuer, or at least is not liable to contribute to the aliment furnished for her by her own children.”

A proof was taken before Lord Shand. It appeared that only Dr Foulis and Mr Fairbairn were in a position to contribute to the pursuer's support; that since the end of 1886 she had been endeavouring to get employment, but without success; and that though suffering from no disease, she was weakly and unfit for manual work, but that she might act as a lady's companion, or keep lodgings with the assistance of servants.

It was argued for the pursuer that the proof showed that she could not support herself, and that Dr Foulis and Mr Fairbairn were alone able to contribute to her support. It was settled that a son-in-law must contribute to the maintenance of his mother-in-law— Reid v. Moir, July 13, 1866, 4 Macph. 1060; Laidlaw v. Laidlaw, July 3, 1832, 10 S. 745. The expense of living had increased since the date of Thom v. Mackenzie, December 2, 1864, 3 Macph. 177, and therefore a sum larger than £40 in all should be awarded.

It was argued for the defender that, on the evidence, the pursuer was able to earn her livelihood. Consequently she was not indigent, and had therefore no claim for maintenance—Ersk. i. 6, 56. In Thom v. Mackenzie, supra, a judicial offer was made, and so the question of indigence did not arise for determination. Moreover, in making such a claim superfluity on the part of the person against whom the claim was made must be proved— Hamilton v. Hamilton, March 20, 1877, 4 R. 688. The case of Macdonald v. Macdonald, June 20, 1846, 8 D. 830, had not received due weight in Reid v. Moir, supra, and the latter case had been doubted—Fraser on Parent and Child, 115. As regarded the amount, that was settled by Thom v. Mackenzie..

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