Scottish Court of Session Decisions

Mrs Margaret Gilbert or Corstorphine, residing at Kirknewton, died on 1st May 1894, predeceased by her husband but survived by her daughter Elizabeth Corstorphine,

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who had been since 1861 a lunatic and chargeable to the parish of Kirknewton.

Mrs Corstorphine left a trust-disposition and settlement by which she bequeathed to trustees sums amounting to £1350 or thereby. It was proved that she was possessed of this sum, or a large part of it, in May 1875, but it did not appear how she obtained it or whether she had any funds prior to that date. She had all along concealed the amount of her resources and declined to contribute to the support of her daughter on the plea of poverty. In 1883, however, under pressure from the inspector of poor, she had agreed to contribute three shillings a-week and had done so ever since.

The present action was brought at the instance of the Inspector of Poor of Kirknewton against Mrs Corstorphine's trustees, and concluded for payment of £1424, 1s. 7d., being the amount paid by the parish of Kirknewton for the support of Elizabeth Corstorphine from the year 1861, with interest, but under deduction of the amount paid by Mrs Corstorphine as above stated.

On 10th December the Lord Ordinary pronounced an interlocutor finding the pursuer entitled to the principal sums claimed from 1st January 1875, with interest from the date of the advances at 4 per cent., under deduction of payments to account made by Mrs Corstorphine, and quoad ultra assoilzied the defenders, and found the pursuers entitled to expenses.

Opinion.—“The Parochial Board of Kirknewton claim from the trustees of Mrs Gilbert or Corstorphine, who died on 1st May 1894, payment of £1424, 1s. 7d., being the amount of arrears of aliment, with interest added, expended upon the maintenance of Mrs Corstorphine's lunatic daughter between April 1862 and November 1894.

In my opinion there is no difficulty as to the defender's liability for the principal sums claimed from the beginning of 1875 onwards, because it now appears that at latest in May of 1875 Mrs Corstorphine was possessed of a sum of £1071, because she deposited that sum with the City of Glasgow Bank. Whence it came, whether it represented a legacy paid her at that time or years before, or whether it was the accumulation of the savings of a lifetime, there is no evidence. But it is proved that in 1875 she was possessed of that sum, and at the date of her death it had increased to very nearly £1500.

Now, down to 1883 she represented to the inspector of poor that she was absolutely unable to contribute to the support of her daughter. But in that year the inspector received a hint that she had some funds of her own. She protested that she had only a few bawbees, and the inspector credited her statement and with considerable difficulty induced her to subscribe three shillings a-week, which she protested was more than she could conveniently do. It seems a little strange that having been led to suspect that Mrs Corstorphine had some means, the pursuer should not have probed the matter further. If he had done so the hoard would have been discovered. But I take it that she acted her part so well that he was completely deceived.

It is pleaded for the defenders that Mrs Corstorphine was not bound to trench upon her capital, and that as the average annual return at deposit rates did not exceed £30 a-year the sum of £7, 16s. a-year which she agreed to pay was a fair proportion. I do not think that that is a correct view of her liability. The extent in money of the liability of a person who is bound super jure naturœ to aliment another, whether ascendant or descendant, depends on circumstances. And it is in the discretion of the Court to decide how it is to be measured. In the cases with which we are most familiar the contribution enforced is usually a proportion of the income; because to encroach upon the capital of persons in humbler circumstances would practically be to ruin and speedily pauperise the person upon whom the obligation to aliment lies. But in the present case there is no difficulty. The pauper was Mrs Corstorphine's only child and only dependent. If the hoard of £1300 or £1400 had been more profitably invested at 3 3 2 or 4 per cent., it would have yielded enough both to support Mrs Corstorphine, and to pay the full board—£22—of the daughter. Or if such an investment could not have been obtained, Mrs Corstorphine, who was a woman of over seventy in 1880, could for £400 or £500 have obtained an annuity on her own life of £50 a-year; and if anything more was required there would have remained nearly £1000 to be applied in one way or another towards the maintenance of the daughter.

I forgot to observe that the plea of prescription does not apply to such a case where the creditor's failure to sue for his debt is due to the fraud or concealment of the debtor— Caledonian Railway Company v. Chisholm, 13 R. 773.

There is more difficulty about the pursuer's claim for the period prior to 1875, because whatever suspicion there may be, there is no proof that prior to that date Mrs Corstorphine was possessed of the fund in question, and if she was not, it is not suggested that she could have contributed. The pursuer's counsel pleaded that it was enough to show that there was now sufficient funds to cover the arrears; but I do not think that that is the true view. By the 77th section of the Lunacy Act of 1857, it is enacted—“The expense incurred by any superintendent of any asylum, or by any other party, for or in relation to the examination, removal, and maintenance of any lunatic, shall be defrayed out of the estate of such lunatic; or, if such lunatic has no adequate estate, and if such expense shall not be borne by the relations of such lunatic, then the lunatic shall be treated as a pauper lunatic, and such expense shall be defrayed by the parish of the settlement of such lunatic, and the superintendent or other party disbursing such expense shall be entitled to recover the same from or out of the parties or estate liable to defray the same as aforesaid.”

Now, it seems to me that the liability of the relations of the lunatic who are bound

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to support her cannot in a question with the parochial board exceed their legal liability, that is, their liability had it arisen in a question with the pauper herself. The right of the parochial board as against the pauper is to insist that his or her existing estate shall be applied to the maintenance of the pauper. If the pauper has no estate, and no relative bound and able to support her, the parochial board are bound to support her, and if she subsequently acquires funds by succession, the parochial board is not entitled to reimbursement out of such estate for prior outlays which it has made. If, again, the pauper has no estate of her own, the parochial board may claim payment from those relations who are legally bound to support her; but the measure of their liability is what they can at the time afford after reserving enough for their own support, and if there is no superfluity they are assoilzied— Hamilton v. Hamilton, 4 R. 688. No doubt a relative who is liable for the aliment of a pauper, and is not at once proceeded against, continues liable in this sense that when discovered he is bound to pay arrears of aliment which has been advanced by the parochial board. But that is on the footing that when the advances were made the relation was not only bound but able to contribute. It may be that it lies upon the relation to prove that he was unable to contribute or pay when the advances were made; but that does not alter the legal measure of his liability. This point is noted by Lord Fraser in his elaborate opinion in the case of The Inspector of Poor of Kilmartin v. Macfarlane, 12 R. 713, in which he says—‘If there be an existing source from which the pauper can obtain maintenance without coming upon the parish, that must be drained dry before the parish can be burdened. But that is a totally different case from what we are here dealing with—of a pauper who had nothing at the time relief was granted, either in the shape of property of her own or of relatives who could support her. The argument would be of force if a claim could be made against a relative of a pauper for repayment of the expense of the maintenance of the pauper for nineteen years, on the ground that the relative had succeeded at the end of that time to a fortune. But no such claim can be made against the relative if it could not be against the pauper himself. This is indeed idem peridem. The past aliment has been absolutely given at a time when neither the relative nor the pauper had estate to meet it. Whatever may be the case as to maintenance given after the fortune has been acquired by either, the past maintenance grounds no claim for repetition.’

I was referred by the pursuers’ counsel to a case, Duncan v. Forbes, 15 S.L.R. 371, in which the late Lord President said—‘I must add that the question for us is not to settle whether he was unable to pay at the time that the aliment was paid, but whether he is able to do so now. For the parochial board when it aliments a person, always has a continuing claim for the sum against anyone who is bound to maintain the pauper.’ I cannot ascertain from the report what was the point in the evidence or argument with reference to which this observation was made. It may simply mean that a temporary deficiency of income in any one year will not excuse ultimate payment of arrears. But as no notice is taken of the dictum in the subsequent case of Kilmartin, in the absence of further authority to the same effect I feel justified in following the views expressed by Lord Fraser in the case of Kilmartin, with which I agree.” ….