Mrs Catherine Chalmers, 3 Sydney Street, Glasgow, and her husband, John Chalmers, as tutor and administrator-in-law of his infant son, brought an action against the Corporation of the City of Glasgow, as the public authority charged with the care and administration of the public streets of Glasgow, and against J. B. Wills, as representing the proprietors of heritable subjects at 505 Great Eastern Road, Glasgow, for payment, jointly and severally, or severally, of (first) £250 to Mrs Chalmers, and (second) £100 to the said John Chalmers,

as tutor and administrator-in-law foresaid, as reparation for injuries sustained in falling owing to a hole in the pavement.

The averments and pleas of the parties, as well as the terms of the Glasgow Acts founded upon, will be found in the previous report.

On 8th June 1923 the Lord Ordinary (Morison) sustained the defenders' pleas to the relevancy and dismissed the action.

The pursuer reclaimed, and on 30th November 1923 the Court recalled the interlocutor reclaimed against and approved of the issue proposed for the trial of the cause. Opinions were expressed that the legal position of the parties would depend upon the facts established at the enquiry.

Counsel for Pursuers, Fraser, K.C., Gibson; Agents, Warden, Weir & Macgregor, S.S.C., for George C. Mearns, Glasgow.-Counsel for Glasgow Corporation, Gentles, K.C., Russell; Agents, Campbell & Smith, S.S.C., for Sir John Lindsay, Glasgow.-Counsel for J. B. Wills, Watt, K.C., Duffes; Agents, Macpherson & Mackay, W.S., for G. & G. Richards Bradley, Glasgow.

W. R. G.

Poor-Aliment-Claim by Parish Council-Executor dividing his parent's estate equally between himself and his sister, who was insane and chargeable as a pauper lunatic- Parish Council objecting to the distribution of the estate, on the ground that when the share of the parent's estate effeiring to the insane sister was exhausted, an obligation to aliment her transmitted to the effect of attaching the half share of the estate to which the executor had succeeded-Held that the executor was entitled to distribute his parent's estate.

Special Case.

The Parish Council of the City Parish of Edinburgh having objected to the distribution teacher, Dunbar, by his executor until the of the estate of Hugh Kinghorn Couper, music latter had made due provision for the aliment of Mrs Jessie Anderson Couper or Simpson, a widowed daughter of the deceased, who had become chargeable to the Parish Council as a pauper lunatic, a special case was presented for the opinion and judgment of the Court upon the questions raised.

The Parish Council were the first parties to the case, and Matthew Anderson Couper, as executor-dative of his father, Hugh Kinghorn Couper, and as an individual, was the second

party.

The case set forth :

1. Hugh Kinghorn Couper, music teacher, who resided in Marine Road, Dunbar, died on 16th January

1922 intestate and domiciled in Scotland. He was

predeceased by his wife, and was survived by one Mrs Jessie Anderson Couper or Simpson, widow of son Matthew Anderson Couper, and one daughter Allan Boak Simpson, who died in Leith on 30th January 1909. The said Matthew Anderson Couper was appointed executor-dative qua next-of-kin of the said Hugh Kinghorn Couper, and as such and as an individual is the party of the second part.

2. . . The said Mrs Jessie Anderson Couper or Simpson has been a pauper lunatic since 16th January 1913, and is at present chargeable as such to the said Edinburgh Parish Council, who are the

parties of the first part. She is forty-two years of age. was until the death of her father the said Hugh 3. The said Mrs Jessie Anderson Couper or Simpson Kinghorn Couper possessed of no means of her own, and the said Hugh Kinghorn Couper was under legal liability to aliment and support her from the date when she became chargeable as a pauper lunatic as aforesaid. After she became chargeable a claim was intimated on behalf of the Parish Council. . . . to the said Hugh Kinghorn Couper for repayment of

her board in the said asylum, but in respect that the said Hugh Kinghorn Couper undertook the maintenance and support of the said Mrs Jessie Anderson Couper or Simpson's two pupil children Margaret Simpson, who was born on 22nd January 1906, and Allan Hugh Simpson, who was born on 8th February 1907, the said claim was not insisted in. The said two children were maintained by the said Hugh Kinghorn Couper until the date of his death.

4. The estate, which was wholly moveable, left by the said Hugh Kinghorn Couper, after payment of ordinary creditors, deathbed and funeral expenses, and the expenses of the executry, amounted to the sum of £280, 19s. 2d. The said Mrs Jessie Anderson Couper or Simpson and the said Matthew Anderson Couper are the sole next-of-kin and heirs in mobilibus ab intestato of the said Hugh Kinghorn Couper.

5. The second party duly entered upon the office of executor-dative of the said Hugh Kinghorn Couper, and he has prepared a scheme of division of the said balance of the moveable estate of the said Hugh Kinghorn Couper amounting as aforesaid to the sum of £280, 19s. 2d. between himself and the said Mrs Jessie Anderson Couper or Simpson as heirs in mobilibus of the said Hugh Kinghorn Couper. Under the said scheme of division the said estate is apportioned equally between the second party as an individual and the said Mrs Jessie Anderson Couper or Simpson to the extent of £140, 9s. 7d. each. On 22nd June 1922 the second party placed the sum of £140, 9s. 7d., the amount of the share apportioned to the said Mrs Jessie Anderson Couper or Simpson as aforesaid, in bank on deposit-receipt and appropriated to himself the sum of £102, 5s. 11d., the balance of the share of the estate falling to himself

under the said scheme of division, less sums amounting in all to £38, 4s. 8d. paid to the second party cut of the executry estate on 5th and 20th May and 5th June 1922. The said last-mentioned payments to the second party and the final division of the estate were made by the second party less than six months after the date of the death of the said Hugh Kinghorn Couper and in the knowledge of the fact that the said Mrs Jessie Anderson Couper or Simpson was being maintained at the public expense as a pauper lunatic. 6. The amount expended by the first parties or their predecessors the Parish Council of Leith on behalf of the said Mrs Jessie Anderson Couper or Simpson from 16th January 1913 until the death of the said Hugh Kinghorn Couper on 16th January 1922 was £303, 6s. 6d. For the period from 16th January 1922 until Martinmas 1922 the first parties have expended further sums on the maintenance of the said Mrs Jessie Anderson Couper or Simpson amounting approximately to £48.

The Questions of Law for the opinion and judgment of the Court included, inter alia: "4. Was the second party entitled to distribute the estate as he did according to the said scheme of division ? "

Argued for the First Parties: The executor was not entitled in the circumstances to distribute the funds under his charge. An obligation to aliment an insane child transmitted to the representatives of the parent and became

55

1923.

a debt chargeable upon the parent's whole free 2ND DIV. estate. Before division of the estate provision Edinburgh had to be made by the executor for what was Parish thus a debt of the estate (Bankton's Inst., Council v. I. vi. 16; Erskine's Inst., I. vi. 58 and Couper. note; Stair's Inst., I. v. 7; More's Notes to December 7, Stair, xxx.; Thomson, 1778, M. 434; Young, 1790, M. 400; Scot, 1759, M. 440; Riddells, 1802, M. App. Aliment," No. 4; Ormiston v. Wood, 1838, 11 Sc. J. 232; Spalding, 1874, 2 R. 237; Parish Council of Leslie, 1899, 1 F. 601; Davidson's Trs., 1907 S.C. 16; Anderson v. Grant, 1899, 1 F. 484; Urquhart's Exrs., 1899, 1 F. 1149; Howard's Exr., 1894, 21 R. 787). The case of Stuart (10 D. 1275) was distinguishable.

:

Argued for the Second Party: The present case was ruled by the cases of Stuart (1848, 10 D. 1275) and Mackintosh (1868, 7 M. 67). There was here no outstanding obligation to be met, as the legal share of the executry estate effeiring to the insane child was not yet exhausted. Even if the obligation to aliment an insane child transmitted, such transmission did not prevent distribution where all the children were receiving their legal share of their parent's estate. The cases cited for the first parties were distinguishable.

On 7th December 1923 the Court answered

the fourth question of law in the affirmative.

Lord Hunter. The first parties to this special case are the Parish Council of the City of Edinburgh, and the second party is Matthew Anderson Couper, as executor-dative qua nextof-kin of the late Hugh Kinghorn Couper and as an individual. From the stated case it music teacher, died on 16th January 1922, that the late Mr Couper, who was a appears intestate and domiciled in Scotland. He was predeceased by his wife and survived by one son, the second party, and by a widowed daughter, Mrs Simpson. Mrs Simpson is a lunatic; she has been confined in an asylum since the year 1913, and, so far as appears from the case, there is no immediate prospect of her recovering her sanity. She is forty-two years of age. The estate left by the deceased amounted to the sum of £280, 19s. 2d. 22nd June 1922 the second party divided that estate equally between himself and his sister, placing £140, 9s. 7d. on deposit-receipt in the name of or for the benefit of his sister, and crediting himself with £102, being the balance left after deducting some £40 which he had already received, from £140, 9s. 7d.

On the

The contention of the Parish Council is that he had no right to distribute the estate, that he ought to have retained it intact in order to meet their claim for future aliment in respect

56

2ND Div. of Mrs Simpson who was being maintained by them in an asylum. They make no claim Edinburgh Parish against the second party in respect of any Council v. aliment that they paid during the lifetime of Couper. the deceased Mr Couper. Their claim deals December 7, entirely with the future.

1928.

I sympathise with the laudable desire of the Parish Council to save the ratepayers expense, but at the same time I think the contention put forward by them in this case is of a startling character. If given effect to, it would or might have both anomalous and disastrous results. But, so far as I am personally concerned and I am dealing with the question as to whether the second party was entitled to distribute the estate as the really practical question in this case-I am satisfied that that question is clearly decided against the contention of the Parish Council by previous decisions. I refer, in particular, to the case of Mackintosh v. Taylor (7 M. 67), and the later case of Howard's Exr. v. Howard (21 R. 787). In the case of Mackintosh, the rubric is in general terms: 'Held .. that a father's natural obligation to support his lunatic son ceases at his death, and that his executor is not bound to set apart executry funds for that purpose beyond the legal share falling to the son at his father's death. Criticism was made of the accuracy of that rubric, and it may be that it is open to criticism, because there are certain senses in which such an obligation as the obligation of a father to support an indigent child does transmit against his undistributed estate. It may even be that it transmits against his representatives. But the important point is that Mackintosh's case, so far as I see, affords a complete justification for the distribution of the estate of a deceased father among the children having legal claims to it, without the necessity of holding it up in consequence of some future or contingent claim. In giving judgment in that case, Lord Ormidale said (at p. 68) : The claim of the advocator in this case is of a very peculiar and, so far as I am aware, unprecedented character. It is made by the inspector of poor for the parish of Brechin, against the respondent, for the maintenance in an asylum of his lunatic brother; and the ground on which the respondent is sought to be made responsible is, that his and the lunatic's father was under an obligation to have provided for the support of his lunatic son, and that the respondent having succeeded to part of his father's inheritance, is to that extent liable jure representationis in the present claim." Lord Mure says (at p. 70): I find no authority for holding that, in such a case" -that is the case where one member of the family was a lunatic and in fact was, at the date of the death of the parent, being main

tained in a lunatic asylum-" the whole estate is, if necessary, to be applied in support of the brother chargeable to the parochial board, even at the risk of reducing the rest of the family to poverty." In the case of Howard, the widow was the lunatic. She had got her rights in the estate; but, in addition, it was claimed on her behalf by her curator bonis that the whole estate should be held up in order to meet possible claims. No doubt there was an alternative claim, and the Vice-Dean has suggested that this case is not a decision on the point in question. With that view I do not agree. I think the point in this present case was precisely raised in the case of Howard, and the decision is a complete authority against his contention. In giving judgment in that case, Lord M'Laren said (at p. 789): “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.”

That case was explained in the subsequent case of Anderson v. Grant (1 F. 484). There the Court gave an additional allowance to a widow who was not in receipt of a sufficient competence from her husband's estate though she had received her conventional provisions. The important point of Anderson's case, so far as the present case is concerned, is that the Lord President explains the decision in Howard's case and explains it, to my mind, in a way which makes it a complete authority against the contention of the Parish Council. His Lordship said (at p. 486): The reclaimer's point is that the Court cannot decern for aliment to a widow out of the capital of her husband's estate. This, I think, is unsound in law. The claim, if it exists, is that of a creditor, and to a creditor there is no distinction between the capital and income of the debtor's estate. The case of Howard's Exr. does not support the reclaimer's contention. In that case, so far as the controverted fund was concerned, there was no existing claim of debt. There was merely an apprehension that in the future a claim might arise, and the proposal of the widow was that the whole of the estate should be retained to meet that contingency.' Lord Kinnear said (at p. 487): The case of Howard's Exr. 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