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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Anderson's Trustees and Others [1899] ScotLR 36_369 (28 January 1899)
URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0369.html
Cite as: [1899] SLR 36_369, [1899] ScotLR 36_369
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
A widow is entitled, as a creditor, to aliment out of the capital of her husband's trust estate, although she has accepted a liferent of the estate in lieu of her legal provisions under his settlement, which proves inadequate for her maintenance.
Howard's Executor v. Howard's Curator Bonis, 21 R. 787, distinguished.
Alexander Anderson, farmer, Kirriemuir, died in 1877 survived by his widow and two children, and leaving a trust-settlement whereby he gave to his widow a liferent of the household furniture in their
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dwelling-house and of the whole income of the residue of his estate. The provision was declared to be in full satisfaction of her claim for jus relictæ and terce, or of any other claim, legal or conventional. On the widow's death the residue was to go to certain beneficiaries in fee. The income of the residue of the whole estate came to about £19 yearly. An action was raised by the widow against the trustees under the trust-settlement, and against the ultimate beneficiaries, craving the Court to ordain the trustees to make payment to her of £35 yearly by way of aliment out of the trust funds.
The pursuer, who was ninety-eight years of age, averred that she was bedridden, and that the income of the residue of her husband's estate was insufficient for her maintenance.
Defences were lodged by the trustees and the beneficiaries. The former averred that they were willing to increase the allowance had they the power to do so, but that they had been unable to obtain the consent of all the beneficiaries to their doing so. The defenders further averred that the liferent enjoyed by the pursuer was in excess of her legal rights as widow of the deceased.
The Lord Ordinary ( Stormonth Darlling) on 21st December 1898 granted decree in terms of the conclusions of the summons, and found the compearing defenders liable in expenses.
Opinion.—“This is an action for aliment brought by the widow of a farmer against his trustees and beneficiaries, on the ground that the free income of the estate which she receives under the will is insufficient for her support. If there is authority in law for granting the pursuer's demand, there could hardly be a stronger case for doing so. She is ninety-eight years of age, bedridden, deaf, and blind. The capital of her husband's estate is £665, and the income which she receives a little over £19 a year. The estate is intact and undivided in the hands of his trustees, for no division is to take place (and apparently no vesting) till the widow's death. The beneficiaries will then be the surviving grandchildren and their issue.
The liability of the representatives of a defunct to aliment those whom he was him self bound to maintain has been the subject of many decisions, and the result of them is, I think, accurately expressed in Lord Ivory's note to Ersk. Inst. 1. 6, 58, thus—‘It would seem that in every case the representatives of a person deceased, whether the degree of relationship be nearer or more remote, and whether the succession by which they are lucrati consist of heritables or moveables, are out of this succession liable in aliment to those whom the deceased himself was under a natural obligation to maintain.’ This passage is quoted with approbation by Lord Mure in Spalding v. Spaldiny's Trustees, 2 R. 254 (which was a case about a posthumous child), and his Lordship goes on to add that trustees under a father's trust-settlement are in the ordinary case under the same liability. If that be so in the case of a child, it must hold with at least equal force in the case of a widow.
In most of the older cases of liability ex jure representationis the person found liable to aliment the widow was the heir. Such were the cases of Thomson v. M'Culloch (1778), M. 434; Lowther v. Maclaine (1786), M. 435; and Hobbs v. Baird 7 D. 492. But in the case of Blake v. Bates, 3 D. 317, the widow's claim was successfully made against her husband's trustees, although she had repudiated a provision in her husband's settlement and claimed her legal rights. In other relationships than that of husband and wife instances of successful claims against the trustees or executors of the defunct are to be found in Scot v. Sharp, 1759, M. 440; Spalding cited above, and A v. B, decided by Lord Moncreiff in 1893, and reported in the Poor Law Magazine for that year, p. 339.
It is no objection, then, to this claim that it is brought against the husband's trustees instead of being brought against the grandchildren themselves as liable ex debito naturali. Neither can it be held an objection that the pursuer accepted the provision which her husband had made for her, because surely a widow who accepts a provision which turns out to be inadequate cannot be in a worse position as regards her right to claim aliment than a widow who repudiates her provision and claims her legal rights. There is ample authority for saying that when terce and jus relictæ are inadequate the claim of aliment arises. I fail to see why an inadequate conventional provision should be any greater obstacle to the claim. It was argued for the defenders that the legal provisions had never been supplemented except in cases where there was some heritable property which from its nature or the mode in which the title stood was exempt from terce. But this, I conceive, is a pure accident, and has nothing to do with principle.
The only real difficulty in the case to my thinking is that the claim involves an encroachment on capital. The circumstance is, so far as I know, not to be found in any of the decided cases, though the case of Scot v. Sharp (cited above) comes exceedingly near it, for there an executrix, who had received no more than £230 from her mother, was held bound to pay £12 a-year of aliment to a stepsister. But it seems to me that the question really turns on the circumstances of each particular case. I see no sanctity in capital where the decent maintenance of a man's widow is concerned. Of course one would never encroach on capital unless it were absolutely necessary, But once the jurisdiction to award aliment is conceded, why should the pursuer be denied the necessaries of life according to her present situation merely in order that the full sum of £665 should be preserved intact for the eventual beneficiaries? The defenders referred to the case of Howard's Executor, 21 R. 787, where a widow having received her half of the estate as jus relictæ, the Court held the next-of-kin entitled to immediate payment of the other half. But that was on the ground that there was no
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If aliment is to be awarded at all, nobody says that the sum claimed is excessive, and therefore I shall give decree for such an amount as, when added to the free income of the estate payable to the pursuer under her husband's trust-settlement, will make up the sum of £35 a-year. The pursuer must have her expenses, but I do not mean to suggest that the defence by the trustees was in any way improper. They were entitled to have a judgment for their own protection.”
Mr David C. Grant, one of the beneficiaries, reclaimed, and argued—The truster had discharged more than his legal obligation to the pursuer, and that was the full extent of any possible claim by her— Howard's Executor v. Howard's Curator Bonis, May 25, 1894, 21 R. 787. In any event, the Court would be slow to authorise an encroachment upon the capital of the sum which was to fall to the ultimate beneficiaries.
Argued for respondent—There was a proper claim for aliment against the trustees as representatives of the pursuer's deceased husband. It was a debt, and just in the same position as any other debt, so that it could not be maintained that the capital should be secured against it. See also cases quoted by Lord Ordinary, supra, and Oncken's Judicial Factor v. Reimers, Feb. 27, 1892, 19 R. 519. The truster thought that what he left her was sufficient for his widow's maintenance, and if it was not she was quite entitled to have it supplemented— Adamson's Trustees v. Adamson's Executor, July 14, 1891, 18 R. 1133; Ritchie v. Davidson's Trustees, March 15, 1890, 17 R. 673.
The case of Howard's Executor presents no difficulty, as it has been explained by your Lordship who took part in the judgment, because all that it appears to decide is that the widow's claim for aliment, although a personal claim against the husband's representatives, does not constitute a charge on the estate so as to create a burden over it, enabling her to prevent the distribution of the estate among the beneficiaries in order to provide security for the contingency of the claim for aliment emerging. It does not follow, as your Lordship has pointed out, that after the estate has been distributed the husband's representatives are not still liable in a claim for maintenance by the widow if such a claim emerges.
I agree accordingly with your Lordship and the Lord Ordinary. I do not understand, if the claim is good in law, that there is any objection to the terms in which the Lord Ordinary has given effect to it, or to the amount of aliment he has allowed.
The Court adhered.
Counsel for the Pursuer— Dundas, Q.C.— Donald. Agent— W. S. Harris, L.A.
Counsel for the Defender David Grant— A. M. Anderson. Agent— Charles George, S.S.C.