Scottish Court of Session Decisions

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Cite as: [1894] ScotLR 31_661, [1894] SLR 31_661

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, May 25. 1894.

31 SLR 661

Howard's Executor

v.

Howard's Curator Bonis and Others.

Subject_1Husband and Wife
Subject_2Aliment
Subject_3Claim of Widow for Aliment out of Estate of Husband.
Facts:

A died intestate leaving a widow who was insane, but no children. He left personal estate which, after payment of debts and expenses, amounted to about £200. Held that the widow was only entitled to the moiety of the estate which fell to her as jus relictæ, and that A's executor was not bound to retain the other half of the estate, which fell to the next-of-kin, in order to provide for prospective claims of aliment to the widow.

Headnote:

George Frederick Howard died intestate on 26th April 1892. He was survived by his widow, who was insane, and also by his father, a brother, and a sister. He left no children. The deceased left personal estate amounting, after payment of debts and expenses, to about £200.

The present case was presented to the Court by (1) Mr Howard's executor-dative; (2) John Walker, C.A., who had been appointed curator bonis to the widow; and (3) the father, brother, and sister of the deceased, the judgment of the Court being craved on the following questions—“(1) Is the second party entitled in the circumstances to require the first party to retain the estate and apply it, so far as it will go, for the maintenance of the deceased's
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widow, or to require payment of one-half of the estate now, and to insist that the first party should hold the other half thereof until it is ascertained whether it is required for Mrs Howard's maintenance? or (2) Are the third parties entitled to payment at once of one-half of the deceased's estate as the father and next-of-kin of the deceased, the second party being paid the other half in full of the widow's claim on the estate?”

The following statement was made in the case—“Mrs Howard has no means other than her interest in her late husband's estate. Dr Clouston, the physician in the asylum where Mrs Howard is confined, writes on 29th December 1893—‘Mrs Howard is still suffering from melancholia, and it is difficult to give any reliable opinion as to her chances of recovery. There are no symptoms at present in her case contra-indicating recovery. She may or may not recover.’ The parties adopt Dr Clouston's letter as an accurate statement of Mrs Howard's present condition and prospects. The second party contended that in respect of Mrs Howard's insanity and inability to earn her own livelihood, her maintenance—she being without means of her own—was a burden upon the residue of her husband's estate, and that therefore so long as she remained in such condition the executor was bound to hold the estate and apply it, so far as it would go, for the maintenance of Mrs Howard. The third parties, on the other hand, contended that the second party was only entitled to one-half of the estate, as jus relictæ, and that they were entitled now to the other half thereof as father and next-of-kin of the deceased.”

Argued for the third parties—It was admitted that the widow's claim for aliment out of the deceased husband's estate was not a claim of debt, and that was enough to dispose of the claim made by the curator bonis. The cases in which it was held that the Court had a right to award aliment to a widow out of the husband's estate were where the husband had left a considerable estate, and the widow was insufficiently provided for—Stair, i. 5, 10. The present case was conspicuously different, for here the estate was small in amount, and one-half fell to the widow as jus relictce. In such a case no obligation lay upon the other parties who took a share of the estate to provide out of their share for the widow's aliment— Mackintosh v. Taylor, November 5, 1868, 7 Macph. 67; Stuart v. Court, June 10, 1848, 10 D. 1275.

Argued for the second party—A claim for aliment might transmit as a debt against the executors of a party deceased— Oncken's Judicial Factor v. Reimers, February 27, 1892, 19 R. 519. While a widow's claim for aliment could not compete with the claims of her husband's creditors, she was among heirs a creditor for a proper maintenance. It was well settled that if the legal provisions in favour of the widow were inadequate, the Court had the power of ordering additional aliment—Fraser, ii. 968; Thomson v. M'Culloch, 1778, M. 434; Young v. Campbell, January 27, 1790, M. 400; Smith v. Smiths, March 11, 1812, F.C.; Hobbes v. Baird, February 22, 1845, 7 D. 492. Looking to the authorities, the Court had power to order the executor to retain in his hands the moiety of the estate which did not fall to the widow as jus relictæ, to afford her aliment if necessary in the future.

At advising—

Judgment:

Lord Adam—The way in which his case is put by the second party is that he is entitled “to require payment of one-half of the estate now, and to insist that the first party should hold the other half thereof until it is ascertained whether it is required for Mrs Howard's maintenance.” I am of opinion that we should answer that question in the negative. The widow, it is not disputed, is entitled to get £100. That is sufficient to maintain her for three or four years, but the proposition of the second party is, that because the widow may possibly remain of unsound mind and unable to support herself, the Court ought to say that that portion of the estate which would in the ordinary course of law go to the next-of-kin, shall not go to them but be retained for the maintenance of the widow. I know of no authority for that proposition. No doubt there were cited cases to the effect that where a husband has died possessed of considerable estate, leaving his widow unprovided for, she has been found entitled to aliment out of the income of the estate, but that is not what is asked here. What is said is, that on the arrival of an event which may never occur, the capital of that part of the estate which belongs to the next-of-kin shall be utilised for the widow's maintenance, and that it shall be kept up by the first party, and not paid to the next-of-kin, until it shall be seen whether that uncertain event will ever occur. I do not think that we can give effect to that proposition.

Lord M'Laren—I should be sorry to throw any doubt on the rule of law under which a child or a widow, unprovided for or insufficiently provided for by the deeds of the head of the family, has a claim for aliment against the father's or husband's representatives. That such a claim exists is stated by Lord Stair, with the limitation that it only arrives if the father has left a competent estate. The case mentioned by Stair is that between son and son, but of course the principle applies equally to the case between a widow and her husband's representatives. Such a claim is recognised in the cases cited by Mr Craigie—cases which are not recent but which are of undoubted authority. All those are cases where, from the way in which the estate was invested, the widow or child making the claim of aliment had not received a fair share of the intestate's succession.

In the present case the estate is moveable,

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and by operation of law it falls to be divided between the widow and the next-of-kin. Now, it seems to me that when a widow has received her full legal share of the husband's succession, this is complete fulfilment of the husband's obligation to provide for her. In the present case it is admitted that the widow is entitled to receive £100, the total amount of the estate being £200.

No authority has been cited for the proposed extension of the doctrine of the liability of the deceased's estate for aliment, and such extension might lead to very inequitable results, for the claim, if it exists at all, must continue through life, and it would be in the power, for example, of a child who had spent his share of the succession, to come down at any time upon his more provident brothers and sisters for aliment.

Some of the decisions relating to aliment are cases where the conventional provisions were insufficient. Such a state of matters may very easily happen. A father whose means are small may make what he thinks at the time a suitable provision for his wife and children, and yet that provision may be quite insufficient if the father dies in affluent circumstances. The reasonableness of a provision depends upon whether it is reasonable in all the circumstances of the estate. It must further be noticed that in some of the cases cited, the provisions in favour of the claimant were of the nature of annual payments out of income. Now here the curator is entitled to go on spending the £100 which the widow gets until it is exhausted. She is therefore not at present destitute, and the necessity for a further sum for aliment may never emerge. The widow may succeeed to money, or she may die before the £100 is exhausted, and so the necessity for aliment may stop. I see no justice or equity in the money which by law belongs to the next-of-kin, being held over to meet this event which may never occur.

Lord President—I have examined the cases in Morison cited by Mr Craigie, and I find in them certain features widely distinguishing them from the present.

(1) Where the Court has granted additional aliment there has been a great disproportion between the income of the heir's estate and the income from the widow's share. In the case of Thomson the husband died infeft in only a small portion of the lands, with the result that the yield of the terce amounted to only one-sixth of the free income of the whole lands of which the husband had died possessed. There the Court held that the mere fact that there was a legal provision for the widow did not exclude her claiming further aliment; and they acted on the view that the legal provision did not afford to the widow the sort of provision which the law holds to be just.

(2) There again what the Court gave to the widow was a payment out of income, and not out of capital of the legal share of the heir or next-of-kin.

(3) Further, the criterion of the amount of aliment to be given was not the amount of the widow's income, but the amount of the total income of the estate. That that is so is clearly brought out by what was said from the bench—“Where there are no conditional provisions the widow is entitled to an aliment out of her husband's estate, suitable to its free income. When her legal provisions of terce and jus relictæ are not adequate to this, she is entitled to an additional aliment out of it.”

Now, turning to the present case we find, in the first place, that there is no disproportion between the share taken by the widow, and that taken by the next-of-kin; on the contrary, the two shares are equal moieties of the whole estate. Second, What is asked by the widow here is not a part of the income of the husband's estate, but the capital of the whole of it; and third, the claim is put forward solely on the ground of the widow's needs, and so far from equitably adjusting the rights of the next-of-kin and of the widow, it would operate the total extinction of the rights of the next-of-kin in the succession. I think, therefore, that we should answer the second question in the affirmative.

Lord Kinnear was absent.

The Court answered the second question in the affirmative.

Counsel:

Counsel for the First and Third Parties— Graham Stewart. Agents— Irons, Roberts, & Company, S.S.C.

Counsel for the Second Party— Craigie. Agents— Snody & Asher, S.S.C.
1894