Scottish Court of Session Decisions

Isabella Gibson was born in the parish of Leslie on 13th September 1862. She was the daughter of George Gibson, sometime joiner in Leslie. George Gibson deserted his wife and family prior to 1869, and no trace was afterwards found of him. He had no means or estate.

For some time previous to 1878 Isabella Gibson was of unsound mind, and in February 1878 she became chargeable as a pauper lunatic to the parish of Leslie as the parish of her birth. On 22nd February she was removed to the Fife and Kinross District Lunatic Asylum, Springfield, near Cupar.

George Gibson was a son of Robert Gibson, flax and waste merchant in Kirkcaldy. The latter had previously supported the wife and family of his son George before Isabella Gibson's illness. After she became a lunatic he was applied to by the Parochial Board of Leslie Parish for payment of the sums disbursed for her maintenance in the asylum. After some correspondence he on 4th December 1878 repaid to them the sums disbursed by them from 22nd February of that year, and down to the date of his death he continued to repay the sums thereafter disbursed by them for her maintenance. These payments were at the rate of £21 a-year, under deduction of the lunacy grant.

Robert Gibson died on 13th May 1891, predeceased by his wife and by all his children, except George Gibson, as to whom it was not known whether he was alive or dead. Robert Gibson left a trust-disposition and settlement dated 8th November

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1888 by which he left all his means and estate to trustees. He bequeathed his heritable estate to his granddaughter Miss Jessie Black. He left various pecuniary legacies amounting in all to £670. Among these was a legacy of £100 to his son George Gibson it he appeared and claimed it within six years from the date of the testator's death. During these six years, if George Gibson did not appear, the trustees were to invest the £100, and apply the revenue to the maintenance of Isabella Gibson, and in the event of her death or recovery for the benefit and maintenance of George Gibson's wife and her three children. In the event of George Gibson not appearing and claiming the legacy within six years from the date of the testator's death, it was to be divided equally among his wife and three children including Isabella Gibson. The residue of the moveable estate was left to Miss Jessie Black.

At his death Robert Gibson, the testator, left heritable estate to the value of £900, and moveable estate, after payment of debts and charges, of the value of £1231, 7s. 6d. The trustees set aside the one-half of the estate, viz., £615, 13s. 9d. as the amount of George Gibsons legitim, and applied the other half in payment of the pecuniary legacies contained in the testator's settlement.

After the death of Robert Gibson the Parish Council of Leslie, who had taken the place of the Parochial Board, continued to expend the necessary sums for the maintenance of Isabella Gibson, and paid her asylum accounts as they fell due. They in this way, up to the term of Whitsunday 1898, expended the sum of £147, 16s., from which £67, 2s, or thereby fell to be deducted as the amount of lunacy grant received from Government. The balance due to them in 1898 was £80, 14s., exclusive of interest on the advances. Upon the death of Robert Gibson the Parish Council intimated to his trustees that they held them liable in relief of all sums paid or to be paid by them for the maintenance of Isabella Gibson. The trustees were willing to account to George Gibson for his legitim should be appear and claim it, and they were also willing to administer the legacy of £100 provided to him or his family in terms of the settlement, but they did not admit that he or any of his family had any other claim against the trust estate. They were willing to apply Isabella Gibson's interest in the legacy towards the expenses of her maintenance by the Parish Council.

For the settlement of the point a special case was presented to the Court by (1) the Parish Council of Leslie, and (2) Robert Gibson's trustees.

The questions of law were—“1. Is the maintenance of the said Isabella Gibson from and after the date of the death of her grandfather the said Robert Gibson, so long as the said chargeability exists, a debt chargeable upon the estate administered by the second parties? 2. Are the second parties bound to free and relieve the first parties of all sums paid or to be paid by them in respect thereof to the extent of the trust estate now under their management? Or 3. Are the second parties' obligations limited to making the said Isabella Gibson's interest in said legacy furthcoming to the first parties to account of the sums disbursed by them for her maintenance since the truster's death?”

It was stated in the special case—“The yearly sum hitherto paid for the maintenance of the said Isabella Gibson is £21, but owing to an increase in the asylum charges the sum necessary for the future will be £25 yearly, less the Government Lunacy Grant. The medical superintendent of the asylum considers her case to be very unfavourable as regards prospect of recovery.

Argued for first parties—The obligation of Robert Gibson to maintain his indigent lunatic granddaughter transmitted to his representatives and was a burden on his estate, and they were entitled to reimbursement from the second parties of all outlays in respect of the maintenance of Isabella Gibson bygone and in time to come so long as the chargeability exists, to the extent of the estate now in their hands.

Argued for second parties—They were not liable to make any payment to or on account of Isabella Gibson beyond her interest in the legacy of £100 and the income thereof. It the grandfather had been alive, there was no doubt that he would have been liable. But his estate was not liable. A claim for aliment was not a claim for debt in ordinary circumstances; it ended with the death of the person against whom the claim could be made— Howard's Executor v. Howard's Curator Bonis, May 25, 1894, 21 R. 787. No doubt brothers or sisters succeeding to the estate of their father were bound to aliment out of that estate other brothers and sisters. But although claims for aliment were good against the representatives of a father, this doctrine should not be extended to the representatives of grandparents—decision of Lord Fraser in Smith v. Smith's Trustees, March 14, 1882, 19 S.L.R. 552. Otherwise it would practically result in making one cousin support another. In Lemon v. Semple's Trustees, May 27, 1880, 8 P.L.M. 433, Lord Fraser had decided that the trustees of a grandmother of pupil children were bound to repay advances made by a parochial board for behoof of the children, but in that case the argument appeared to have been less exhaustive than in the case of Smith and the latter case was the later in date.