Scottish Court of Session Decisions

Paul Gerhard Oncken, merchant in Leith, died in June 1888 leaving a trust-disposition and settlement by which he conveyed his whole estate to trustees, whom he directed (1) to pay his debts; (2) to pay legacies of £250 to his brother and his eldest son; (3) to convey his business to his eldest son, subject to a condition that he should bind himself to pay a sum of £50 a-year to each of the testator's three younger children; and (4) to divide the residue of his estate among his said younger children on their attaining the age of 25.

The testator was survived by his brother and the four children mentioned in the settlement.

On July 15, 1890, William John Valentine, C.A., was appointed judicial factor on the trust-estate. After the estate had been realised and the legacies paid, there remained in the hands of the judicial factor a balance of £1296.

On 18th November 1891 the judicial factor, with the concurrence of two of the testator's younger children, and of William Walker, who had been appointed curator bonis to the third younger child, presented a petition to the Court for special powers and for discharge.

The petitioner stated—“The judicial factor is ready to divide the estate, but a difficulty stands in the way of a division being made by the existence of an imbecile illegitimate son of the testator, named Alexander Gerhard Reimers, who is twenty years old, and is at present boarded at Bonnyrigg, Midlothian, at a cost to the estate of £30 per annum. There can be no doubt that the testator recognised the paternity and maintained the child, and

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the judicial factor considers that the estate under his management is liable for the maintenance, at all events to some extent, of Reimers. His mother cannot be traced, and it is believed that she is dead. She was a domestic servant in the employment of the testator. The judicial factor does not think he could be maintained for a less sum than £30 per annum. It is a question as to what extent the estate is liable for his maintenance. The beneficiaries consider that in a question between them and Reimers the latter is only entitled, if entitled at all, to have an equal share with them in the residue, and that he is not entitled to any preference over them.”

The petitioner craved the Court (1) to fix what sum, if any, he was bound to retain and administer in order to meet the claim for the maintenance and support of the said Alexander Gerhard Reimers, and the expenses to be incurred in connection therewith; (2) to authorise him to divide and make payment of the balance of the trust-estate in his hands, after setting apart such sum as may be fixed aforesaid, and the law expenses and the factor's commission, equally among the testator's three younger children; (3) to authorise him to divide and make payment in like manner upon the death of the said Alexander Gerhard Reimers of the balance, if any, that may remain of the sum to be set apart for his maintenance; and (4) upon a production of discharges in the petitioner's favour by all parties entitled to the estate, to approve of his actings as judicial factor, and to discharge him of all claims in respect of his intromissions with the trust-estate, and to ordain the Accountant of Court to deliver up his bond of caution.

On 19th December 1891 the Lord Ordinary ( Kincairney) reported the cause to the First Division of the Court.

When the case was called in Single Bills counsel for the petitioner intimated that it was his intention to maintain that the illegitimate child had no claim for aliment on the estate of his deceased father, and accordingly the Court on his motion appointed James Patten Macdougall, advocate, to be curator ad litem to Reimers.

The curator thereafter lodged a minute, in which he stated, inter alia—“The curator ad litem submits that the claim of his ward for aliment is a debt due by the truster, the father of the ward, and transmits against the truster's representatives—the beneficiaries in the estate. It ought, therefore, to be provided for before any division of the estate takes place. The ward was always maintained by the deceased truster during his lifetime… . Upon the question of amount the curator submits, in the second place, that the Court ought to give effect to the opinion of the Accountant of Court, viz., that the sum of £750 should be set aside in the hands of the judicial factor to meet the ward's board and maintenance. The ward is both hopelessly imbecile and physically deformed, and can neither speak nor walk. He can do nothing, therefore, for his own maintenance… . From inquiries which the curator has personally made, he is able to confirm the statement of the judicial factor that the ward cannot be maintained at Mrs Milligan's for a less sum than £30 per annum. The cost of the maintenance of pauper lunatics in the asylums of Scotland is little, if at all, short of that figure.”

The petitioner argued—The claim of a bastard against its parent for aliment was founded neither on contract or delict, but arose ex jure naturali. It was therefore not a claim of debt which would transmit against the estate of the deceased father— Ker v. Moriston's Trustees, 1692, M. 1363. The case of Clarkson v. Fleming, which was the chief authority for the opposite view, was an action of relief at the instance of the mother. The mother's claim, however, was one on quite a different footing from that of the child— Reid v. Moir, July 13, 1866, 4 Macph. 1060, per Lord Justice-Clerk, 1064, and Lord Benholme, 1067. The only recent case on the subject was also an action of relief at the mother's instance— Downes v. Gourlay, July 7, 1886, 13 R. 1101. That the child's claim was not one of debt in the ordinary sense of the word appeared clearly from the case of Marjoribanks v. Amos, Nov. 30, 1831, 10 S. 79, where it was held that a bastard's claim for aliment was not affected by the father's sequestration and discharge. Assuming the claim to be well founded, the amount which the Accountant proposed should be set aside was excessive. The petitioner had ascertained that an annuity of £30 could be purchased at a much smaller sum.

Argued for the curator ad litem—A bastard was a filius nullius, and his claim for aliment in no way depended on his being one of the family. It was thus essentially distinct from the claim of a legitimate child, and whether it arose ex jure naturali or not, it was a claim of debt—Bell's Comm. i., 680–1, and transmitted against the representatives of a deceased parent— Clarkson v. Fleming, July 7, 1858, 20 D. 1224; Gairdner v. Munro, February 8, 1848, 10 D. 650; Fraser on Parent and Child, 124. In Clarkson's case no doubt the action was at the instance of the mother, but that was no valid ground of distinction, for the mother could have no claim of relief against the father's estate unless that estate were first liable for the child's aliment. The dicta in Reid v. Moir to the opposite effect were obiter. The case of Marjoribanks in no way conflicted with the view that the aliment of a bastard was a debt due by the parent, for the claim then sustained was for aliment falling due after the sequestration. Ker v. Moriston's Trustees had been overruled. Assuming the claim to be well founded, the ward could not be maintained under £30 a-year, and the amount which the Accountant of Court suggested should be set aside was not excessive.

At advising—