Scottish Court of Session Decisions

James Tawse, bleacher, Downfield, Dundee, died on 6th September 1886, survived by his wife and a daughter by a previous marriage. He left a trust-disposition and settlement dated 15th September 1885, by which he appointed his wife his sole trustee and executrix. After providing for payment of his debts and deathbed and funeral expenses, he provided that his widow should during her lifetime not only be entitled to the free liferent use and enjoyment of the whole trust-estate, but should also be entitled from time to time, as she should think necessary, to use and appropriate such parts of the capital of the estate as she might require for her own personal use and maintenance, and that upon her death the residue of his estate should be divided into three equal shares, of which his daughter was to get one.

The said daughter Mrs Rachel Tawse or Morrison claimed legitim, and accordingly brought an action of count, reckoning, and payment against the executrix Mrs Tawse in the Sheriff Court at Dundee to have the amount of her legitim determined.

The Married Women's Property (Scotland) Act 1877 (40 and 41 Vict. c. 29), sec. 3, provides that “the jus mariti and right of administration of the husband shall be excluded from the wages and earnings of any married woman, acquired or gained by her after the commencement of this Act in any employment, occupation, or trade in which she is engaged, or in any business which she carries on under her own name, and shall also be excluded from any money or property acquired by her after the commencement of this Act through the exercise of any literary, artistic, or scientific skill, and such wages, earnings, money, or property, and all investments thereof, shall be deemed to be settled to her sole and separate use, and her receipts shall be a good discharge for such wages, earnings, money, or property, and investments thereof.”

At the time of her marriage in 1868 Mrs Tawse was a washerwoman, and after her marriage she continued to take in washing.

In 1869 James Tawse received payment of a legacy of £40. In the same year, on the death of his son, he received £200 from an insurance company. From his marriage in 1868 until his death in 1886 he made on an average £1 a-week as a bleacher. Upon 1st March 1870 the sum of £240 was lodged in the National Bank of Scotland, Dundee, upon a deposit-receipt in favour of the said James Tawse and his wife, “payable to either or survivor.” After that date various sums were lodged in the same bank upon deposit-receipt in similar terms until 11th April 1881, when the amount, being £400, was uplifted and lent to the Dundee Provident Property Investment Company upon a deposit-receipt in favour of the said James Tawse and his wife, and bearing that that sum was to be repaid “to either or survivor.” This Investment Company went into liquidation on 12th March 1884, at which date £14, 16s. 10d. of interest was due upon said sum of £400. In January 1885 £51, 17s. 1d., or a dividend of 2s. 6d. per £1, was paid, leaving a balance of £362, 19s. 9d, which was still unpaid.

Upon 22nd November 1881 the said James Tawse and the defender opened an account with the Dundee Savings Bank in their joint names, “to be paid to either of them and the survivor,” and on 24th September 1884 they opened another account with said Savings Bank in the same terms. The balances at the credit thereof at the date of the death of the said James Tawse were respectively £144, 18s. 5d., and £108, 3s. 2d., which with interest amounted together at the date of the action to £261, 16s. 6d.

The defender alleged that at the date of the marriage she had £104; that during her marriage she made from 24s. to 28s. a-week by washing; and that she was entitled to £28, 2s. 6d. as aliment, at the rate of 12s. 6d. a-week for forty-five weeks, from the death of her husband until

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the date when the pursuer intimated her intention to claim legitim.

She pleaded—“(3) The defender is, as well (1st) in respect of the terms of and circumstances attending the lodgment of the foresaid sums in said banks and with the said Investment Company, as (2d) under the Married Women's Property (Scotland) Act 1877, entitled to at least one-half of the said sums in her own right, and that over and above her legal or conventional rights, and prior to any division for ascertaining the amount, if any, to which the pursuer Rachel Tawse or Morrison may be entitled as legitim.”

At a proof before the Sheriff-Substitute the pursuer deponed that the house occupied by her father and the defender was her property, that for five years after her father's marriage she had asked no rent for it as certain repairs had been made upon it by him, but that now she got £14 a-year for it. She admitted her father had told her the defender often made £1 a-week by washing, but said it was against her father's wish that the defender worked so hard.

The defender deponed that at the time of her marriage she had £104, and her husband had nothing; that she paid his debts, and gave him money to buy clothes; that they put up a washing-house for their own convenience, and repaired the house; that she made about 28s. a-week by washing; that she kept both the money she made herself and what was given to her by her husband, and that with it she paid for whatever was required for the house; that she kept the deposit-receipts in repositories belonging to her, and that if her husband wanted them he had to ask her for the keys.

The defender was corroborated generally by other witnesses.

The following are the interlocutors in the Sheriff Court so far as relate to the questions argued in the Court of Session:—

“ Dundee, 12th January 1888.—The Sheriff-Substitute [ Campbell Smith] having made avizandum, … Finds with regard to charge item 2, being £261, 16s. 6d. due by the Dundee Savings Bank to James Tawse and Helen Steele, his wife, to be repaid to either of them and the survivor, that the defender is bound to give the estate credit for the whole of said sum, and not merely for the half of it, in respect of failure to prove that one-half of said sum had become her property by donation or otherwise, or even to prove that the deceased knew of the distinct terms of the receipt for the money taken by her from said bank, when she, as keeper of the household purse, deposited the money in bank: Finds, with regard to item 3, being £362, 19s. 9d. of money due by the Dundee Provident Property Investment Company to the said deceased and his said wife, and payable to either or the survivor, that the defender has by facts and circumstances established her title to one-half of said debt, having proved more particularly that at the time of her marriage she was possessed of about £100; that she earned a considerable income by washing and dressing clothes, and that the deceased knew that her written title to said sum was a title joint with his own, and with such knowledge acquiesced in said title: Finds, with regard to the defender's alleged discharge, that the widow's claim for aliment falls to be disallowed to the extent of £25, and the agent's claim for work done under the trust-deed, which the pursuer repudiates to the extent of £5: Finds that the estate realised by the defender amounts to £261, 16s. 6d., and that the amount of moneys disbursed by her for which she is entitled to take credit is £41, 6s. 11d.; that therefore the estate at present divisible into thirds is £220, 9s. 9d.; Decerns against the defender for one-third of said sum, being £73, 9s. 11d.: Further, finds the pursuer entitled to a sixth share of the debt due to the deceased and the defender by the Dundee Provident Property Investment Company, conform to acknowledgment dated 11th April 1881: Grants warrant to the liquidator of said company to pay to the pursuer or her agent, upon production of a certified copy of this interlocutor, a sixth part of whatever dividend or dividends may hereafter become payable in respect of said debt: Finds the pursuer entitled to expenses modified to ten guineas, and decerns.

Note.—The defender in substance claims the half of the apparent goods in communion as her own property, and she next claims the third of the other half as falling within her legal rights as widow. To give effect to that claim would be, I am convinced, to do no inconsiderable injustice to the pursuer. Her father obtained £200 from an insurance on her brother's life, who was drowned, and he also received a legacy of £40 from her mother's father, and to these sums she certainly had an equitable right, and for aught I know a good legal right to a share of them. Her stepmother's claim involves four-sixths of these sums, or what is left of them, and the equity of that claim I have not been able to discover. No doubt the defender presented her second husband, who was by no means as thrifty as she, with a suitable marriage dress, and she says (and I don't doubt her veracity, though I doubt the meekness of her temper) that she took home £104 in money, which she spent partly in paying his debts and partly in building a washing-house, and otherwise improving a property of the pursuer, and partly in investing £400 with the unlucky building society. Further, she says that she toiled night and day as a washerwoman, and earned at least as much as her husband did. I believe she earned a good deal, and also that her husband grumbled a good deal about her devotion to the washerwoman business at untimeous hours. I am not able to see my way to apply the Married Women's Property Act of 1877 to the earnings of a washerwoman who works her business in her husband's premises, burns his coals, and perhaps in her eagerness to earn money neglects to cook his dinner or make his bed. If the wife be free to choose her own occupation, and to keep all her own wages, I think the husband ought to have due warning of the kind of partnership in which he is involved, and ought to have an opportunity of expressing either assent or dissent. At all events, if their interest be to be separated, their accounts ought to be kept separate. But in this particular household there were no separate accounts; there was not even a separate purse for husband and wife. There was only one purse, and the defender kept it. There was only one bank account, and the defender kept it in her husband's name and her own. Now, the presumption of law is, when there is only one conjugal purse, that it is the husband's purse, and that presumption would

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extend to a joint bank account, at least when the wife manages that joint account at her own discretion, and there was no evidence that the husband knew that the written title taken by the wife was in himself and his wife or the survivor. I do not think a bank receipt in these terms is sufficient evidence of any separate property in the wife, or of mortis causa donation on the part of the husband. Besides, in the present case the theory of mortis causa donation is not consistent with the husband's last will (and he could revoke a donation inter virum et uxorem), nor with a previous mutual settlement signed by both of them. Each of these documents seems to me to exclude the idea that the married pair had divided all their funds in their lifetime. If they had, I am not disinclined to think that it would have been a fair enough way of winding-up the quasi commercial joint adventures of this double second marriage. I think the wife, in consideration of her economy and industry, may fairly enough have been entitled to half of the funds, but I hardly think she was fairly entitled to half the funds as a joint adventurer made over to her inter vivos, and then to a third of the remaining half as widow. Therefore it is that I think the alleged making-over of half the moveable estate to her inter vivos requires to be established by clear evidence. Such evidence I have failed to find. I do not believe that either the deceased or the defender ever intended to defeat the pursuer's claim for legitim. I believe they thought she would be content with a third of the whole property when the defender was done with it, and perhaps so she might had reasonable precautions been taken to prevent the defender spending it all.”

The pursuer appealed to the Sheriff ( Comrie Thomson), who pronounced these interlocutors: —“7th March 1888.—Recals the interlocutor appealed from to the extent and effect following, viz., in the ‘discharge’ of the statement of the defender's intromissions, sustains the defender's claim for aliment to the amount of 7s. 6d. a-week for forty-five weeks: Sustains the item ‘solicitors' account,’ as the same shall be taxed by the Auditor of Court: Finds that by virtue of the Married Women's Property Act 1877, sec. 3, the jus mariti and rights of administration of the defender's husband were excluded from the defender's earnings as a washerwoman from 1st January 1878.”

“16 th April 1888.—The Sheriff having resumed consideration of the cause, … Finds that the defender is entitled to receive credit in the accounting between the parties for the following sums, namely—(1) The sum of £16, 17s. 6d., being aliment for forty-five weeks at the rate of 7s. 6d. per week; (2) the sum of £8, 8s. 5d., being the taxed amount of the defender's agent's business account; and (3) the sum of £175, being the amount to which the defender was entitled as earnings as a washerwoman from 1st January 1878, exclusive of her husband's jus mariti and right of administration: Finds that the estate, as valued by the defender, amounts to £261, 16s. 6d., and that the amount for which she is entitled to take credit is £235, 4s. 5d., leaving a balance of £26, 12s. 1d. available for division; that the pursuer is entitled to one-third of said balance, being £8, 17s. 4d., for which sum decerns against the defender as executrix of the deceased James Tawse: Finds no expenses due by either party.”

The pursuer appealed to the Court of Session, and argued—1. The respondent had no claim for maintenance against an estate of which she had been left the liferent. 2. No deductions fell to be made in consequence of the Married Women's Property Act 1877. That Act was intended primarily to protect married women living apart from evil husbands. Even if it could have been made to apply here, it could only have been by keeping the wife's earnings distinct from those of the husband, which had not been done. On the contrary, the wife had herself so put the earnings together, and so invested them, as to give her husband right to the whole fund. It was well-settled law that the terms of the deposit-receipts and of the bank account were not such as to give any portion of the money to the wife. The wife's £104 undoubtedly became the husband's jure mariti, and it was only after 1st January 1878 she could have separated her earnings, but there was no change in the way in which the spouses dealt with their money after that date.

Argued for the respondent—1. The appellant had been so long in lodging her claim for legitim that the respondent was entitled to aliment up to that date at the rate sued for, for she had arranged her expenditure on the understanding that she was to get the liferent of the whole estate. At any rate, she was entitled to aliment at that rate until the next term of Martinmas after her husband's death— Baroness de Blonay v. Oswald's Representatives, July 17, 1863, 1 Macph. 1147; Fraser on Husband and Wife, p. 990. 2. The Married Women's Property Act 1877 clearly applied. The Act said nothing about keeping the woman's earnings separate. She was entitled to make her claim at any time if she could show how much her earnings had contributed to the fund in question, and that they had not been consumed. Even if she had gifted her earnings to her husband—which was denied—she could revoke the donation in spite of his death—Fraser, p. 950; Laidlaw v. Laidlaw's Trustees, December 16, 1882, 10 R. 374. If the accounts were to be considered joint accounts, then the law presumed that a half belonged to each— Bank of Scotland v. Robertson and Others, January 12, 1870, 8 Macph. 391. In any view, the deductions allowed by the Sheriff fell to be made before division into thirds took place.