Scottish Court of Session Decisions

David Whyte, stockbroker's apprentice, Edinburgh, brought an action against his mother, Mrs Sarah Jane Wildsmith or Whyte, widow of the late David Whyte, live-stock agent, Cupar-Fife. The conclusions of the summons were that the defender should be ordained “to make payment to the pursuer of the sum of £100 sterling yearly in name of aliment and expenses of learning his profession of stockbroker, or of such other sum, more or less, as our said Lords shall think just and reasonable in the situation of the parties … aye and until his mother shall receive him back into her house, or until he is set out in his profession and is able to support himself without the assistance of his mother.”

In his condescendence Whyte averred that he was twenty years of age, had been well educated, and was now, with his mother's approval, a clerk in a stock-broker's

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office in Edinburgh with a view to entering that profession, in which capacity he earned a salary of £40 a-year, which formed his sole means of support, and was insufficient to maintain him in his position in life. He further averred that the defender was possessed of considerable means, and had turned him out of her house and refused to receive him back.

Mrs Whyte lodged answers, in which she averred (Ans. 5) that the pursuer had “shown an overbearing and ungovernable disposition,” and had caused her much grief and pain by his rude and unkind behaviour towards her. She denied that her means were considerable.

She pleaded, inter alia—“(3) The pursuer being nearly twenty-one years of age, and being well qualified and able to earn his own living, is not entitled to obtain a pecuniary allowance from the defender, and the defender is entitled to absolvitor.”

Proof was led which established the facts as averred by the pursuer and summarised above. Mrs Whyte was examined as a witness, but no questions were put to her relative to the pursuer's conduct to her. She deponed that her income, apart from a house in Dublin Street, Edinburgh, in which she resided, was less than £100 a-year.

On 16th March 1900 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor—“Decerns against the defender to make payment to the pursuer of the sum of £12 sterling yearly in name of aliment, payable as concluded for in the summons: Finds the pursuer entitled to expenses,” &c.

Opinion.—“The conduct of the defender here is so extraordinary that it is almost impossible to find anything analogous to it in the reported cases. She is the mother of a lad of twenty, her only son. She gave him an education at school where the cost of it was, on her own admission, something like £100 a-year. About a year and a-half ago he entered with her approval the office of a respectable firm of stockbrokers, where in reality, though not in name, he is an apprentice and anxious to learn that business. I am entitled to take it from the evidence of the representative of that firm, that he is learning his business and giving satisfaction to his employers. His conduct in every respect is regular and good. In these circumstances, six months ago the mother suddenly turned him out of her house, and intimated that she would on no account receive him back. He has ever since then been living in lodgings and doing the best he can upon the modest salary he receives in his office, namely, £40 a-year. He says that is not sufficient for his decent support, according to the station in life he occupies and the business in which he is engaged. I think it may be accepted that upon £40 a-year no man can live respectably and without incurring debt who has to appear everyday at an office of the description in which the pursuer is, and to discharge the duties he has to discharge. Two things in law which are perfectly settled are, that aliment cannot be demanded by a child from a parent where the child is in a position to maintain himself, having health and strength to enable him to do so, but that aliment is awarded when it can be shown that the child is unable to keep himself. The age at which a youth may be expected to earn his livelihood differs according to his station in life. A youth of twenty in the working classes may quite well be able to maintain himself without any assistance, but a youth who has been educated like the pursuer, and kept at school till he was sixteen years of age, and who has since been living with his mother in a house the assessed rental of which is £60 a-year, is, I think, fairly entitled to expect that he shall be put into something of the nature of a profession, or at all events into a business which it may take him a little while to learn; and that is the position of the pursuer at this moment. The case of Smith v. Smith (13 R. 126) establishes that after a son has been put into a profession, although it may be totally insufficient to keep him, the father is not bound to pay aliment so long as he offers to take his son back to his house.

“There are two differences between that case and this. This young man has not been able to start in his business—he is still learning it; and the defender denies him the shelter of her house. At any moment she might have put an end to this action by offering to take him back, but she declines to do that. The question then is, whether the law can compel her to give that exceedingly modest rate of aliment, which is all that a Court can award, and which will to some extent take the place of her refusal to entertain him in her house. As to this, I think, there is not much doubt. The pursuer is, in my view, entitled to receive from his mother, while things remain as they are, some supplement to his small income. I think she is not entitled, living as she does—whether wisely or foolishly I have no right to inquire—she is not entitled in law any more than in good feeling to turn him out into the street, and throw him upon the benevolence of other people. On the other hand, when one comes to the rate of aliment, I say it must be reduced to the smallest possible proportions, because in the case of a youth who has the misfortune to have a parent whose affections have been alienated, and who is unwilling to do anything out of goodwill, the law will award only what is barely enough to keep him in the way I have described. I think I should not be justified in awarding this pursuer more than £12 a-year and the expenses of the action.”

The defender reclaimed, and argued that the pursuer having attained an age at which he might be expected to maintain himself was not entitled to aliment from his mother. In support of this proposition the following authorities were cited—Fraser, Parent and Child. p. 104; Ayton v. Colvil, 1705, M. 390; Maidment v. Lauder, May 25, 1815, F.C.; Maule v. Maule, July 9, 1823, 2 S. 464, and June 1, 1825, 1 W. and S. 266; A v. B, March 9, 1848, 10 D. 895; A v. B, March 6, 1858, 20 D. 778; Bain v. Bain, March 16, 1860, 22 D. 1021; Thom v. Mackenzie,

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December 2, 1864, 3 Macph. 177; Smith v. Smith, November 4, 1885, 13 R. 126.

Counsel for the respondent were not called upon.