Scottish Court of Session Decisions

The late Robert Naismith junior, wine and spirit merchant, Leith, died upon 4th August 1878, leaving moveable property of about £1000 sterling in value. His widow Mrs Margaret Naismith was decerned executrix-dative qua relict, and she entered upon the management and possession of the means and estate of her deceased husband. She also continued to carry on his business as a wine and spirit merchant until her marriage to a second husband, William Henderson, when the licence was transferred to his name.

In May 1884 Elizabeth Naismith or Fairgrieve, a daughter of the deceased Robert Naismith junior, raised an action of count and reckoning in the Sheriff Court of the Lothians against her mother Mrs Margaret Naismith or Henderson, praying that Mrs Henderson be called upon to exhibit a full account of her intromissions with her deceased husband's estate as executrix-dative, so that the true balance due to the pursuer (which she placed at £150) might be determined, or alternatively to pay a sum of £150 with legal interest from 4th February 1879.

The pursuer, though claiming to be entitled to £150, offered to take as payment in full of her share of her father's moveable estate £96, less £16 already paid.

The defender refused to settle upon these terms, and claimed to deduct a certain reasonable sum to meet the cost of the pursuer's maintenance from the date of her father's death to the date of her marriage, about four and a-half years.

The pursuer averred that during part of the time that she lived with the defender she was employed in a shop in Edinburgh, and earned wages sufficient for hermaintenance and support, which wages were always handed over to the defender, and during the remainder of the time she was constantly employed as assistant in the defender's shop, and also as a servant in the house, and that it was understood that the wages and services were to be held as equivalent to and in satisfaction of any claims for board and lodging.

The defender, as already stated, claimed credit for the board and maintenance of the pursuer between her father's death and her marriage. “She explained that from the date of the death of the said Robert Naismith junior until the date of her marriage the principal pursuer was in the employment of third parties for a period of about twelve months only. During the first six months the wages she earned varied from 5s. to 6s. per week, and for the remaining six months of said period her wages at no time exceeded the sum of 8s. per week, which wages were duly accounted for to the principal defender. During the remainder of said period (from the date of her father's death until her own marriage) the principal pursuer frequently, but not daily, assisted the principal defender for two or three hours in the afternoon in the management of the shop at No. 1 Shore, Leith, but she was engaged in no other services, and earned no wages whatever. The defender had always a general servant to attend to the household duties. Very considerable expenses for medical attendance and otherwise were incurred on the principal pursuer's account to the principal defender, repayment of which has not been made.”

The pursuer pleaded that the defender was bound to count and reckon with her for her intromissions as executrix-dative aforesaid.

The defender pleaded—“(2) The defender having supplied the pursuer with board and maintenance for the period between the death of her father and her marriage, she is entitled to credit to a reasonable sum therefor in settling with the pursuer for her share of her father's estate.”

Other points in the action having been arranged, and in particular it being admitted that the pursuer's share of her father's estate was £96, 11s., from which certain deductions fell to be made for sums paid or credited to her since his death, which reduced it to £69, 13s., the interlocutor which it was sought to have altered by this appeal was pronounced on 18th May 1885 by the Sheriff-Principal ( Davidson), and was as follows:—“Finds, in terms of an arrangement between the parties, that the sum to be paid to the female pursuer as the share due to her of her father's personal estate is £69, 13s., and decerns against the defenders for payment of the said sum to the pursuers, with interest at 5 per cent. per annum on the sum of £96, 11s. from the date of the death of the father of the female pursuer on 4th August 1878 until the date of her marriage on 5th April 1883, being £22, 6s. 6d., and with interest at 5 per cent. per annum on the said sum of £69, 13s. from the date of her said marriage till this date, being £7, 7s, 6d., and decerns against the defenders for payment to the pursuers of the said sums of £22, 6s. 6d. and £7, 7s. 6d.: Finds the pursuers entitled to expenses, &c.

“ Note.—The only questions now remaining are as to interest and as to the expenses of process.

The female pursuer not having been at once paid her share of the executry estate, or that share not having been put aside for her use, she is of course entitled to the interest of it from the executrix, who retained it (with good intentions only) for the use of the business she adopted. The Sheriff does not see any reason, nor did the defenders suggest any, why, if interest is due at all, it should not be at the usual rate of 5 per cent.

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As to expenses, the pursuers could hardly avoid bringing this action. They offered to accept the sum of £96, 11s., under deduction of the £16 advanced, without further inquiry, but the defenders rejected that offer, and in somewhat peremptory terms. The defenders have been unsuccessful in their contention (plea 2), and have only prevailed on a subordinate point, which was hardly insisted upon by them.”

The defender appealed to the Court of Session, and argued—It was always a question of circumstances whether a mother was to be held liable for her child's aliment, and in a case like the present, where the child had independent means, the mother ought to be relieved. Had the child been without resources the case would have been different. At any rate, the defender ought to be allowed to set-off the claim for interest against the cost of maintaining the pursuer during the four and a-half years between her father's death and her marriage.

Authorities— Hamilton v. Stewart, July 11, 1834, 12 S. 924; Stewart's Trustees v. Stewart, February 21, 1871, 8 S.L.R. 367.

Replied for respondent—Services were given in return for board and lodging. When a parent aliments a child the aliment is presumed to be given ex pietate, even although the child has a little private means. The profits of the business might fairly be set against the claim for interest.

Authorities— Guthrie, M. 10, 133; Melville v. Ferguson, M. 11, 433; Galt v. Black, January 19, 1830, 8 S. 332; Menzies v. Livingstone, February 27, 1839, 1 D. 601; Hunter's Trustees v. Macan, May 25, 1839, 1 D. 817; Fraser on Parent and Child, p. 99.