Scottish Court of Session Decisions

George Buckham Davidson, Upper Pitforthie, Arbuthnott, Kincardineshire, died on 29th December 1895, survived by his widow and by five sons and three daughters. One of his sons, Patrick Liddle Davidson, was a lunatic, an inmate of the Royal Lunatic Asylum, Montrose.

By his trust-disposition and deed of settlement Davidson conveyed to his trustees his whole estate in trust for the ends, uses, and purposes, and with the powers thereinafter mentioned. The purposes of the trust were as follows:—After providing for payment of his debts, for the transfer of his household furniture to his widow, and for the carrying on after his decease of the farm of which he might be tenant at the time of his death, the testator, in the fourth place, directed his trustees, on the expiry or sooner termination of the lease of said farm, to realise and convert into money the whole crops, stocking, etc., and having invested the sum realised therefrom, to pay the free annual proceeds thereof and of the residue and remainder of his estate to his widow during all the days of her life as an alimentary allowance. In the fifth place, the testator directed his trustees, as soon as convenient after the death of his widow, to realise and convert into money the whole of his means and estate under their charge, and to pay out of the first and readiest of the proceeds the following legacies to his children, viz.—To his son Robert Hebden Davidson £100, which, with the sums he had already received, the testator declared would make up a larger sum than his legal share of the estate; to his son James Cathie Scarth Davidson £800; to his son Andrew Davidson £800; to his daughter Jane Davidson £800; to his daughter Roberta Davidson £800; and to his daughter Annie Davidson (Mrs Annie Maitland) £800. By the sixth purpose of the said trust-disposition and settlement the testator directed his trustees, in the event of there being any residue of his means and estate remaining after fulfilling the foregoing purposes, to pay and divide the same to and among his said daughters equally, share and share alike. By a later clause the testator declared that the acceptance of the foresaid provisions in favour of his widow and children should be deemed and taken to be in satisfaction to them of all claims legally competent to them upon his decease.

The said sixth purpose also contained a clause in the following terms:—“With reference to my son Patrick Liddle Davidson, presently a patient in the Royal Lunatic Asylum, Montrose, I hereby declare that my said wife, and after her death my said children, James Cathie Scarth Davidson, Andrew Davidson, Jane Davidson, Roberta Davidson, and Annie Davidson, equally among them, shall be liable as a condition of their receiving the provisions hereby made to them respectively, for his comfortable maintenance and support in a suitable asylum or other suitable institution or private home.”

Questions having arisen, on the death of the widow on 1st May 1900, in regard to the obligation to maintain the lunatic son and the disposal of the balance remaining of the estate, a special case was presented. To it the parties were (1) David Forbes and Arthur Wellesley Kinnear, the surviving trustees, original and assumed, acting under the testator's trust-disposition and settlement, first parties; (2) the said James Cathie Scarth Davidson, Andrew Buckham Davidson, Jane Davidson, Roberta Davidson, and Mrs Annie Davidson or Maitland, with consent of her husband, second parties. The second parties were the beneficiaries under the settlement other than the son, Robert Hebden Davidson, who had received the small legacy of £100.

The total moveable estate left by the testator amounted in value to £4003, 5s. 7d. At the date of the testator's death his son Patrick, born on 2nd March 1859, continued insane, and when the special case was presented he was still confined in the Montrose Royal Lunatic Asylum. He had been an inmate of that institution for over twenty years, and there was no prospect of his recovery. The average cost of his maintenance there was £33 per annum, and it was agreed that the Royal Lunatic Asylum was a “suitable asylum” in the sense contemplated by the testator, and that the sum of £33 was a proper sum to expend for his comfortable maintenance and support. The trustees had regularly paid the cost of his maintenance out of the income of the trust estate. The balance of income had in terms of the testator's directions either been paid to the widow up to the date of her death, or accounted for to her executrix. Subsequent to that date the trustees had realised the assets of the estate and converted them into money. After deducting expenses of management, etc., the balance of free estate available for distribution, including advances made to the legatees, was £3670, 12s. 8d., which was insufficient to meet the legacies in full. The parties were agreed that the share of the estate which effeired to the son Patrick in name of legitim was £150 or thereby. The trustees had since the date of death of the testator expended on his maintenance sums amounting, in cumulo, to the sum of £332, 17s. 2d. The said Patrick Liddle Davidson was possessed of no means.

The second parties maintained that they were now entitled to receive payment of the legacies bequeathed to them under the settlement on granting to the first parties their obligation to make provision for the comfortable maintenance of the said Patrick Liddle Davidson. They further maintained that they were under no obligation to purchase an annuity or otherwise grant security for the fulfilment of their said obligation. On the other hand, the first parties, as the trustees under the settlement,

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maintained that the maintenance and support of the said Patrick Liddle Davidson was and continued to be a debt chargeable on the estate administered by them; that they were bound to make due provision for his future maintenance and support by retaining in their hands such a sum as might be deemed by them reasonably sufficient for this purpose; or, alternatively, that the second parties, as a condition of the first parties paying over to them the balance of the estate at present in their hands, were bound to secure the said Patrick Liddle Davidson in such an allowance by the purchase of an annuity or otherwise to the satisfaction of the first parties.

The questions of law for the opinion and judgment of the Court were—“(1) Did the maintenance of the said Patrick Liddle Davidson become, as from and after the date of death of the testator, a burden on the estate administered by the first parties? (2) Are the first parties, before distributing the said balance of the trust estate, bound to retain in their hands such a sum as will be sufficient to provide for the future maintenance and support of the said Patrick Liddle Davidson during all the days of his life? Or (3) are the second parties entitled to receive payment of the said balance of the estate in the hands of the first parties only on condition of providing security for the maintenance and support of the said Patrick Liddle Davidson by the purchase of an annuity or otherwise, to the satisfaction of the first parties? Or (4) are the second parties entitled to receive payment of the said balance under the said obligation without giving any security for the fulfilment thereof?”

Argued for the first parties—There was an obligation on the deceased to aliment his lunatic child, and this obligation transmitted against his trustees and executors—Ersk. i, 6, 58, Lord Ivory's note, referred to by Lord Stormonth Darling in Anderson v. Grant ( infra); Fraser on Parent and Child, 2nd ed. p. 107; Thomson v. Wilkie, July 23, 1678, M. 419. They admitted that it was only a debt if there was free estate after paying ordinary debts of the testator, and that the lunatic being legitimate was not in so favourable a position as an illegitimate child, but nevertheless his aliment was a debt. Thus a widow's claim for aliment had been held to be that of a creditor and payable even out of capital— Anderson v. Grant, January 28, 1899, 1 F. 484, 36 S.L.R. 369—and children had been held entitled where legitim failed to the expense of their upbringing out of their father's estate— Urquhart's Executors v. Abbott, July 12, 1899, 1 F. 1149, 36 S.L.R. 896. The indigence or otherwise of the beneficiaries who took the estate did not affect the question. They only took the estate subject to the debts of the testator being discharged. Thus the obligation to provide for a posthumous child was a debt on the estate which executors were bound to meet— Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237, 12 S.L.R. 169. The trustees as executors and intromitters with the estate would be personally liable if they did not retain sufficient to satisfy the debt— Heritable Securities Investment Association, Limited v. Miller's Trustees, December 17, 1892, 20 R. 675, 30 S.L.R. 354. If the trustees parted with the estate and the lunatic came on the rates they would become personally liable to the parish council— Parish Council of Leslie v. Gibson's Trustees, February 23, 1899, 1 F. 601, 36 S.L.R. 426. The case of Mackintosh v. Taylor, November 5, 1868, 7 Macph. 67, 6 S.L.R. 68, was inconsistent with other authorities; in any case the rubric in it was wrong, for the assumption of the decision was that the heir was not lucratus. The argument for the second parties was inconsistent with the fact that actions had been allowed against mere official holders of estates in the following cases— Blake v. Bates, December 19, 1840, 3 D. 317; Spalding's Trustees ( supra); Anderson v. Grant ( supra). Lord Kyllachy asked for a reference to Beith v. Mackenzie, November 30, 1875, 3 R. 185, 13 S.L.R. 113.

Argued for the second parties—The obligation to aliment a legitimate child was in no proper sense a debt on the father when alive nor on his estate when deceased; its nature appeared in the opinion of Lord President (Inglis) in Reid v. Moir, July 13, 1866, 4 Macph. 1060, at p. 1063, 6 S.L.R. 199. The obligation ceased at the father's death— Mackintosh v. Taylor ( cit. supra); it was not a burden on his estate, just as the maintenance of a widow was not a burden on her husband's estate— Howard's Executor v. Howard's Curator Bonis, May 25, 1894, 21 R. 787, 31 S.L.R. 661; but the child had a personal claim on equitable grounds, originally only against the heir, and then extended to a universal legatory— Scott v. Sharp, 1759, M. 440—and then to those representatives taking substantial benefit—Ersk. i, 6, 58—the origin of the rule being the superfluity of the heir and the destitution of the testator's child— Ormiston v. Wood, December 22, 1838, 4 Sc. Jur. 232; Riddells v. Riddell, March 6, 1802, M. voce Aliment App., No. 4. Thus while the aliment of an illegitimate child was a debt, that of a legitimate child was not— Clarkson v. Fleming, July 7, 1858, 20 D. 1224; Downs v. Wilson's Trustee, July 7, 1886, 13 R. 1101, 23 S.L.R. 776; Oncken's Judicial Factor v. Reimers, February 27, 1892, 19 R. 519, per Lord Adam at 523, 29 S.L.R. 384. In the Heritable Securities Association, Limited ( cit. supra) there was a debt. In Anderson v. Grant and Spalding's Trustees it was to avoid circuity that the action was against the executors, i.e., as debtors of the debtor. The Parish Council of Leslie was special in that the grandfather had admitted liability and the child was competing only with stranger disponees while there was £600 of the grandfather's estate in the hands of his trustees and due to the missing father, the person primarily responsible. In any case the lunatic here had had provision made for him, and the absence of provision was necessary before any claim could arise.

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