Scottish Court of Session Decisions

In January 1916 Mrs Helen Mackie or Kirk or Barlass, widow of James Barlass, ironmonger, Perth, who died on 5th November 1915, pursuer, brought an action in the Sheriff Court at Perth against Alexander Barlass and others, trustees acting under her husband's trust-disposition and settlement, defenders, for payment “(first) of the sum of twenty-six pounds sterling for aliment payable as at the term of Martinmas last for the half-year immediately following, and (second) the sum of twenty pounds for mournings.”

The facts of the case appear from the note of the Sheriff-Substitute ( Sym), who on 14th February 1916 found “that the deceased Mr Barlass died survived by his wife, and leaving a small moveable estate and also heritable estate which is burdened with bonds; that he left a settlement under which he made no provision for his wife, and that she is claiming terce and jus relictœ, but that it is still impossible to have these correctly adjusted: Finds in law that his said wife is entitled to a reasonable sum for mournings and to aliment out of the estate until her legal rights can be adjusted: Repels the defences, grants decree against the defenders for the sum of £14 in respect of mournings, and decree at the rate of £1 per week beginning from the death of Mr Barlass, and continuing until the adjustment of the said legal rights or until further orders of Court.”

Note.—“On record there is not much difference as to material facts, and the parties wisely endeavoured to put the Court in possession of facts sufficient to make proof unnecessary. Mr Barlass married a second time late in life. He was unhappy in this marriage, and separated from his wife, and allowed her £1 per week. It was found when he died that he had left her nothing, and that he had parted, or professed to have parted, with a good business which he carried on in Perth. But he left a small moveable estate and considerable heritage. Though there is debt on the latter the appearance of the estate prima facie is that there will be a considerable surplus, and it is clear that the income of this estate must have supported the spouses when living apart even if the business was gone. In such a state of matters the widow is entitled to support until the trustees of Mr Barlass have had reasonable time to go into his affairs and settle as to her legal rights. The plea that interim aliment and mournings cannot be claimed for many months after the death is almost ludicrous. The adviser of the trustees is much alarmed by the case of The Heritable Securities Investment Association, Limited v. Miller's Trustees, 1893, 20 R. 675, 30 S.L.R. 354, the doctrine of which the Sheriff-Substitute had to follow in a recent dispute in this Court. There is no doubt that in that instance the doctrine pressed hardly on a respectable man who, being a trustee, had paid away to beneficiaries money which really belonged to creditors. But then mournings are part of the funeral expenses, and the widow has a right to be kept in life till the estate is fully investigated. That adviser ought also to understand that the decree of a competent court will protect the trustees from being thought to have rashly paid away money which—taking a very timid view of the prospects of the estate—they say might have to be kept for creditors.”

On appeal the Sheriff ( Johnston) on 27th March 1916 adhered.

Note.—“There can be no doubt of the soundness of the general principles contended for by defenders that beneficiaries cannot claim payment until creditors are satisfied and that testamentary representatives are not to be harassed by actions within six months. But these principles are not applicable in the case of such claims as are here made. They are claims that

Page: 592↓

must be satisfied at once. The law does not compel the widow to buy on credit, and does not assume that she can get credit. She is entitled to mournings now, when her husband has just died, not six months hence when weeds ought to be beginning to relax. Aliment, too, for wife or young children is an immediately emerging need, and by universal practice is provided from the date of death from all estates not manifestly insolvent. An interim pittance to a widow appears to me a most unsuitable matter for appeal to the Supreme Court.”

The defenders appealed to the Court of Session, and argued—Onerous creditors of the deceased could not get a decree against his representatives till six months had elapsed since his death, and then they could be paid only if the estate was solvent. If his representatives made payments prior to that they could be called to account by the creditors— Heritable Securities Investment Association v. Miller's Trustees, 1893, 20 R. 675, per the Lord President (Robertson) at p. 691 and 694, 30 S.L.R. 354. To give the widow decree for immediate payment would give her a preference over onerous creditors of the deceased. While a widow's claim for mournings was undoubtedly a privileged debt— Griffith's Trustees v. Griffiths, 1912 S.C. 626, 49 S.L.R. 486, following Buchanan v. Ferrier, 1822, 1 S. 323—interim aliment had no privilege but was on the same footing as permanent aliment, which had no preference—Brodie's Stair, i, 4, 10; Buchanan v. Ferrier ( cit.), p. 324; Bell's Prin., sec. 1403; Ersk. Inst. i, 6, 41; Fraser, H. & W., ii, 965. It was not mentioned by the institutional writers in their lists of privileged debt, although the question must constantly have arisen—Stair, Inst., iii, 8, 64 and 72; Bankton, Inst., iii, 8, 22; Ersk. Inst. i, ( cit.); More's Notes to Stair, vol. ii, p. ccclxi. The presumption was against any extension of the class of privileged debts— Lawson v. Maxwell, 1784, M. 4473, and 11,854; Ridley v. Hall, 1789, M. 11,854. The principle upon which servants' wages were privileged was based on the benefit of their services to the deceased's estate, and this did not apply to aliment— M'Lean v. Shireffs, 1832, 10 S. 217. Mournings were privileged as being a necessary part of the deceased's funeral expenses and were limited accordingly— Hall v. M'Aulay and Another, 1753, M. 4854; Sheddan and Others v. Gibson, 1802, M. 11,855. Kirkland v. Burklae, 1682, Har. Dec. 122, reported also as Setoun v. Butter, 1 Fountainhall, 197, was not in point, for the widow had a jointure from which the payment could subsequently be recovered if necessary, and there was no proper competition of creditors. In Macmorran v. Campbell, 1706, 2 Fountainhall, 347, the widow had estate of her own from which, if necessary, the payment might subsequently be recovered. In Lindsay's Creditors v. His Relict, 1714, M. 11,847, there was a proper competition with creditors and no preference was given to interim aliment. To give the widow decree within the six months might result in a sale of the husband's estate to the prejudice of his creditors— Baroness de Blonay v. Oswald's Representatives, 1863, 1 Macph. 1147, per the Lord Justice-Clerk at p. 1154.

Argued for the respondent—The widow was entitled to immediate payment of interim aliment. The ordinary rule of practice was to make advances to the widow to carry her on till her legal rights became payable, but in law also the widow was entitled to payment—Stair, Inst., i, 4, 22, and More's Notes, vol. ii, p. ccclxii; Ersk., Inst., i, 6, 41, and 58, Ivory's Note, No. 191; M'Laren on Wills and Succession, vol. ii, p. 1165. Kirkland ( cit.) actually gave her the right to retain her husband's goods as against this claim. In that case and in Macmorran's case ( cit.) the aliment of the family till the next term was allowed. Lindsay's case ( cit.) was not in point, for the widow had available funds of her own. Buchanan v. Ferrier ( cit.) was not in point, for the widow had a separate provision. The Heritable Securities Investment Association v. Miller's Trustees ( cit.) was distinguished, for the payment was made to the widow and children as to beneficiaries under the trust as such. A payment of aliment to minor children was sustained against creditors though the estate ultimately proved insolvent— Harkness v. Graham, 1836, 14 S. 1015, per Lord Corehouse, at p. 1019. In Palmer v. Sinclair, F.C., 27th June 1811, the widow's claim was recognised—Fraser, H. & W., vol. ii, p. 965. In any event the widow would ultimately get her terce, which would be available to the trustees for their reimbursement. Terce did not run during a broken term—Ersk. Inst. ii, 9, 50—so that it was all the more necessary that the widow should be provided for till the terce became payable. If she was not entitled to interim aliment de piano she was at least entitled to it as an advance chargeable against her terce. In the Baroness de Blonay's case ( cit.) the passage referred to related to the case where the widow had other provision. That case and Moncrief v. Monipenny, 1713, M. 3945, showed that this claim was a real debt chargeable not only against the dead's part but against the whole executry.

At advising—