Scottish Court of Session Decisions

Mrs Jane Speer Montgomerie or Mackay raised the present action against the trustees of her deceased father-in-law Peter Mackay, slater, Greenock, seeking to recover aliment from the defenders.

The pursuer averred that her husband Daniel Mackay, sometime master slater in Greenock, who was the son of the deceased Peter Mackay, had got into financial difficulties in 1902, had turned her out of his house, and had gone abroad. She further averred that her husband had never made or had the means of making any payment of aliment to her; that he was resident in New Zealand, and was in indigent circumstances, and had received various remittances from the defenders towards his support. The nature of the pursuer's averments is further disclosed in the opinion of the Lord Ordinary infra.

The defenders pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons.”

On 8th December 1903 the Lord Ordinary ( Low) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“In this action the pursuer claims aliment at the rate of £50 a-year from the testamentary trustees of the deceased Peter Mackay, who was her father-in-law. The pursuer's husband Daniel Mackay, who is about thirty-three years of age, appears to have carried on business as a master slater in Greenock until early in 1902, when his affairs became embarrassed, and he granted a trust-deed for creditors. He thereafter went to New Zealand. The pursuer avers that her husband had turned her out of his house, that he did not communicate with her before going abroad, and that since he went abroad he has contributed nothing to her support. She further avers that he is incapable of steady work owing to his dissipated habits. The pursuer is living with her father. She says that the latter

Page: 397↓

is not able to support her, and that owing to bad health she cannot support herself.

“It is plain that Peter Mackay's testamentary trustees cannot be compelled to aliment the pursuer unless Peter Mackay would, if alive, have been bound to do so. The question of law therefore is, whether a man is bound to aliment the wife of his son who has deserted her?

The old authorities on the point are very conflicting, and, so far as I can find, the only case in which the question has been directly raised since early in last century was that of Reid v. Reid, which Lord Kincairney (whose judgment was acquiesced in) decided in 1897. That case is only reported in the Scots Law Times (vol. iv. p. 395), and there the opinion delivered by Lord Kincairney is considerably abridged. I have, however, obtained a copy of the opinion. In it Lord Kincairney, upon an elaborate review of all the authorities and a consideration of the principles involved, came to the conclusion that the claim of a daughter-in-law against her father-in-law for aliment could not be sustained.

I have examined the authorities with care, and I agree with Lord Kincairney. In these circumstances I do not think it necessary to repeat in my own language what has already been so well said by his Lordship, and I shall content myself with referring; to his opinion as stating the grounds upon which I have come to the conclusion that the pursuer's claim, in so far as it is directed against the testamentary trustees of Peter Mackay, is not well founded.

I shall therefore sustain the first plea-in-law for the defenders, and dismiss the action.”

The pursuer reclaimed, and argued—The pursuer was entitled to support from her father-in-law while his son remained her husband— Adam v. Lauder, March 1, 1762, M. 398, July 11, 1764, M. 400; Duncan v. Hill, February 17, 1810, F.C. Apart from these decisions, the question was not settled by authority— Belch v. Belch, December 1, 1798, Hume's Decisions 1; Hoseason v. Hoseason, October 21, 1870, 9 Macph. 37, 8 S.L.R. 8; Reid v. Reid & Reid, February 15, 1897, 4 S.L.T. 395. The quantum of aliment which a father was bound to pay for his son was measured by the wants not only of the son but also of his family. If her husband was a proper object of relief, which he appeared to be from the fact that remittances were sent to him, the pursuer had a right through him— Brown v. Brown, July 10, 1824, 3 S. 247.

Argued for the respondents—The weight of authority, as appeared from the cases cited, was against the pursuer's contention— M'Allan v. Alexander, July 7, 1888, 15 R. 863, 25 S.L.R. 606; Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.) 63, 28 S.L.R. 950; Chrystie v. Macmillan, July 6, 1802, M. App. v. Aliment No. 5, Fraser, Husband and Wife, vol. i. 863, vol. ii. 971; Pagan v. Pagan, January 27, 1837, 16 S. 399; De Courcy v. Agnew, July 3, 1806, M. App. v. Aliment, No. 8, Fraser, Parent and Child, 87, 105; Fea v. Trail, February 8, 1710, Forbes' Decisions. A wife's sole right was through her husband; she had no right independently of him.