Woolley and Another v. Maidment [1818] UKHL 6_Dow_257

UKHL
Woolley and Another v. Maidment
[1818] UKHL 6_Dow_257
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1818.58 Geo. III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 10

Woolley and Another Appellants v. Maidment Respondent

March 13 , May 27 , 1818 .aliment sustained , super jure naturæ super jure naturæ in the court below. But the judgment reversed in the House of Lords.ALIMENT. — JUS NATURÆ. — ENGLISH SETTLEMENT, &C.Action for aliment by a son against his mother. The mother had been a ward of Chancery, and having, when fifteen years of age, married Maidment, the Respondent's father, a settlement of her property real and personal was then made, under the direction of the court, by which the interest of the personal estate was made payable to her for life, and the principal to her children, in equal shares at her death; but their interests to be vested, as to sons, at the age of twenty-one, and, as to daughters, at the age of eighteen, or on their marriage. As to the freehold, copyhold, and leasehold estates, they were to be sold, and the money to be invested in purchase of freehold and copyhold estates, of which the mother was made tenant for life, with remainder to her first and other sons in tail, &c. The Pursuer was the first son. The father died. The mother advanced 100 l . as a fee, to a clerk to the signet, into whose office the son entered with a view to the profession of an advocate, the mother then residing in Scotland. The mother married again, and refusing to allow her son a certain annual sum for his maintenance, he brought the action for aliment, being then past the age of twenty-one, and the claim to

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The Lord Chancellor being of opinion that the interests of the respective parties were settled by the English settlement which could not be undone, and being of opinion that as the son had a vested interest in the property with which he might deal in the market, he had sufficient aliment without aid from his mother.Marriage articles, May 16, 1791.Jane Woolley , the Appellant, being in 1791 entitled to considerable real and personal property, under the marriage settlement and will of her grandfather Robert Barnvelt, merchant in London, and being then only 15 years of age, and a ward of Chancery, was in that year married to Mr. Maidment, the Respondent's father; and on that occasion, under the directions of the Court of Chancery, marriage articles were executed between the Respondent's father and the Appellant. They commence with a recital that his mother, the Appellant, was entitled to a third share of certain heritable estates that had been settled on her and her two brothers, by her grandfather, in the year 1767; and also that her grandfather by his will of 1785, had vested certain other heritable estates, and certain sums of money for behoof of the Appellant's mother; and after that person's death, for behoof of the Appellant and her other children, when they should attain the age of twenty-one, till which time it was to be accumulated by trustees; and then it is declared that in contemplation of the marriage, the parties “covenanted, provided, and agreed to assign, transfer and set over, settle and

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after last mentioned and contained, equally, share and share alike, the shares of sons to be interests vested in them at their respective ages of twenty-one years, and of daughters at their respective ages of eighteen years, or days of marriage, which shall first happen, and to be paid, assigned and transferred, at such respective days or times, if the same shall happen after the death of the said Jane Anne Woolley, but if before, then immediately after her death; provided always, that if any such children shall die before his or their portion shall become vested as aforesaid, then and in such case, the part or share, parts or shares of her, him, or them so dying, shall go to the survivor or survivors, and others of them equally between or among them (if more than one), share and share alike; and the same shall become vested interests (if more than one), share and share alike, and be paid and payable at the respective days and times, and shall go in the same manner as is thereby provided and declared, touching his, her, or their original portion or portions, and such condition or benefit or survivorship of accruer shall extend as well to the surviving or accruing, as to the original shares. That as to the right and interest of the said Jane Anne Woolley of and in the said freehold, copyhold, and leasehold estates, they shall hold them in trust, to sell and dispose of the same, either entirely or in parcels, to any person or persons who shall be willing to become the purchaser or purchasers thereof, for the best price or prices that can or may be reasonably had or gotten for the same; and to lay out and invest the money arising from such sale, in the purchase of such freehold or copyhold messuages, lands or tenements of inheritance, to be situated in some part of England, as the said James Maidment and Jane Anne Woolley, during their joint lives, and the survivor of them, shall by note or writing under their or his or her hands or hand, testified by two credible witnesses, direct and appoint, and to settle, convey, and assure the messuages, lands, and hereditaments so to be purchased, to the uses, upon the trusts, and to and for the intents and purposes, and under and subject to the powers, provisions, declarations, and agreements herein-after mentioned, expressed, and declared, of and concerning the same; that is to say, to the use of the said James Maidment and his assigns, for and during the term of his natural life, without impeachment of waste, with remainder to trustees to preserve contingent remainders, with remainder to the said Jane Anne Woolley, during the term of her natural life; with remainder to the use of the first son of the body of the said James Maidment, or the body of the said Jane Anne Woolley, lawfully to be begotten, and the heirs of the body of such first son.”
“and from and after the decease of the said Jane Anne Woolley, in trust for all and every the child and children of the said intended marriage, subject to the proviso herein-

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And it further “agreed and declared, that in the mean time, until the said freehold, leasehold, and copyhold estates shall be sold and disposed of, in pursuance of the trust herein-before contained, the rents and profits of the same freehold, copyhold, and leasehold estates shall be received by the same persons as would be entitled to the rents and profits of the freehold and copyhold estates

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The marriage contemplated in these articles was solemnized: and Mr. Maidment, the Respondent's father, in obedience to an order from the Court of Chancery, executed an endorsement on them, by which, on the 22d July, 1793, “he assigned, transferred, and set over to the before-named Jacob Caseneuve Troy, Thomas Lomas, Richard Burton, and Robert Withey, and the survivors and survivor of them, and the executors, administrators, and assigns of such survivor, all the right, share, and interest, which I, the said James Maidment, have, in the several respective funds, whether vested or contingent, and mentioned in the within indenture, to, for, and upon the several respective trusts, intents, and purposes in the said indenture particularly mentioned, expressed and contained.”James Maidment the father had no property when he married, and the family was maintained out of the mother's property the subject of the above settlement, by which her interest in the property was made only a life interest, when she would, otherwise, have had the whole, which by the settlement or articles was given, upon her decease, to her children. James Maidment, the Respondent, was the eldest son of the marriage. The father died in 1804, and in 1814 the mother, residing in Scotland, married Captain Landers. A short time before this the Respondent went into the office of a clerk to the signet, to acquire a knowledge of the

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This action having come to be debated before the Lords of the first division, and their Lordships having advised the libel, and heard the counsel for the parties, they decern at the Pursuer's instance against the Defender, his mother and her present husband for his interest, for the payment within ten days from this date, of the sum of 50 l . sterling, in name of interim aliment, as also for the dues of extract if payment shall not be made within the period above-mentioned, and allow the said interim decree to be extracted, without abiding the order of the minute-book. And further, the Lords appoint the parties to prepare, print, and box memorials, on the whole cause, on or before the first box-day in the ensuing vacation, under an amand of 10 l . each; and appoint the parties mutually to subjoin to their memorials condescendences of the funds and, effects in the hands of the Defenders.”The Appellant put in a petition against this judgment. She there contended, that the Respondent was not only major, educated to a genteel

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But their Lordships “refused the prayer of the petition, and adhered to their former interlocutor complained against.”Of same date (26 May, 1815) their Lordships pronounced judgment upon the mutual memorials and condescendences by which judgment they sustained “the Respondent's claim and process of aliment super jure naturæ super jure naturæ against the Appellant, his mother, and her husband for his interest; but before modifying the annual amount thereof, they appointed Respondent to print, lodge, and box within ten, days from this date, an additional and more articulate condescendence of the funds and income in the possession of the Appellant.”From these interlocutors, the Appellant appealed: and the reasons of appeal in the printed case were these:I. Because the action is incompetent, aliment being only due to children from parents who are minors, impotent, or unable to work for themselves, whereas the Respondent is major, educated to a profession, and is thereby able to earn a living.II. Because no action for aliment is competent at the instance of a child against a parent, but where such child is in want, deprived of the necessaries of

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III. Because no aliment is due by parents but when they are able to give it. Whereas, the Appellant is not enabled so to do, in as much as by her marriage to Captain Landers her property was transferred to him, who super jure naturæ super jure naturæ is not bound to aliment the children of a former husband.IV. Because the annuity out of which any aliment shall be taken is settled upon the Appellant by the marriage articles which invests the fee in the Respondent, whereas any aliment to be taken from that annuity would be a direct violation of the provisions in those settlements, the superceding of which would necessarily vest the whole property in the Appellant, and make it disposable by her at pleasure.In the printed case for the Respondent, the three points already mentioned were insisted upon; and the principles contended for were supported as follows:That the Respondent, in the preceding observations, has not mistaken the principles of Scotch law applicable to such cases as the present, will be manifest upon the slightest attention to the following cases, which are selected amongst many that might be referred to. In the case of Straitons against

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“Edgar of Wadderlie being charged upon an indenture betwixt him and Samuel Chiesly, Chirurgeon, for payment of the sum therein contained, for his brother's prentice fee, and entertainment during his prenticeship; and having suspended the said bond, and intended a reduction thereof upon minority and lesion; the Lords found that the second brother having no other means nor provision, his eldest brother, who was heir to his father, and had the estate, ought to entertain him and put him to a calling; and did not sustain the reasons of lesion.”
The Respondent may also refer to the case of Ramsay against Rigg. (June 4, 1687, Morison, p. 391.) In this case, the claim of aliment rested partly on the act 1491; but that circumstance is obviously of no importance, because that statute only makes certain persons liable who were not so before, but does not affect any defence against aliment founded on the circumstances of the claimant. It is obviously therefore a

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“Simeon Ramsay pursues his mother for an aliment out of her jointure, because he was a minor (though the president said it imported not whether he was major or minor, if he could not live aliunde , and was bred not by his parents to a trade which could make him subsist), and she life-rented all, and was married again. Alleged , He was bound apprentice to a skipper, and was eighteen years of age, and had run away, and she had only 600 merks by year. The Lords modified to him 100 l . Scots yearly.”
From the cases which have now been mentioned, the Respondent apprehends it must be apparent, that, in awarding aliment, the Scotch law does not adopt any fixed or invariable rule, but adapts its decisions to the circumstances of each case; and the Respondent is confident that the Appellants will be unable to bring forward a single precedent in which the Court conceived themselves to be fettered by a strict rule, and were not guided by the specialties of the question. This being the fact, he has no great apprehension respecting the result of this appeal, as he trusts it is impossible to deny that the Court of Session have rightly considered the circumstances of the parties, and duly applied the law. It happens, however, curiously enough, that the very question now under review was decided in the case of Ayton against Colville, July 25, 1705, which was stronger than the present in this respect, that the party found liable to aliment was not his mother but his step mother, who life-rented his father's estate, and that

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“ The name of employment will not afford a man bread, and officium nemini debet esse damnosum. Neither is the race always to the swift, nor the battle to the strong; for many advocates have risen to great eminency who, at the beginning, have had little or no business. ”
It is proper to attend also to the extent of aliment decreed. “The Lords,” the report bears, “modified the fourth part of the lady's life-rent for the Pursuer's aliment; and decerned her to make payment to him accordingly, albeit he was quarrelling her life-rent in a reduction; seeing if he prevailed therein, the aliment would cease.”Hitherto the Respondent has confined himself to the mere law of the case, and argued on the supposition that the Appellant had done nothing to create or strengthen her obligation. But, 2dly, It is obvious that in this case res non sunt integræ res non sunt integræ . The Appellant, as already stated, has all along directed the Respondent to the profession of the law, and never, till the unfortunate event which necessitated this action, denied him the means of finishing his education, and obtaining every requisite accomplishment. If there be any fault in his having attached himself to such a profession, the blame rests with the Appellant entirely. It is owing to her at least as much as to the Respondent, that he is not in a situation to maintain himself without assistance. Her selection, therefore, of this profession, would

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It is again objected, that the action was not competent before the Court of Session, and that Chancery was the proper forum for the determination of the question.It is answered, this objection is in perfect consistency with the rest of the Appellant's conduct; but it is apprehended that an action of aliment is, from its nature, so urgent, as to be entitled to a decision in any court to which it can be legally carried with most ease and expedition. Now, it is not denied in this instance, that both parties were completely within the jurisdiction of the Court of Session; indeed, the Appellant, Mrs. Landers, had been domiciled, and had spent her ample income in Scotland for several years before. In these circumstances, to send the Respondent to Chancery is an utter evasion, and implies, besides the monstrous inconsistency of making a person who is at this moment comparatively indigent, seek expensively in another country that redress which he might obtain more cheaply, and with as much justice, at home. It is obviously a matter of no consequence whence the Appellant derives her income,—from what country or from what source: the great and leading point is, that she has a large income, and is the Respondent's mother,—bound by nature, as well as by her own conduct towards him, to support him in a manner becoming his station. Whence the income is derived is a mere matter of history, and can have no influence upon obligations, which

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Mar. 13, 1818.Lord Eldon , (C.) It is quite clear that by the settlement the issue could touch nothing till her death, except the 200 l . which she had power, with consent of the trustees, to raise for them. This was the case of a settlement made by the Court of Chancery in England upon a ward of that Court on her marriage at fifteen years of age; and the Court, settling a bargain, as it were, between her and the issue, gives her a life interest in the personal property,

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I see the common lawyers have taught the Scotch lawyers to talk about the delays of the Court of Chancery. As to that I say only “ sat cito, si sat bene. ”Judgment.May 27, 1819.Lord Eldon , (C.) When we consider the nature of this case, the opinions of the Judges of the Court of Session are certainly rather a surprise on an English lawyer. But we ought to recollect, and if we do not admonish ourselves, others will give us the admonition, that we ought not to consider Scotch cases under the influence of English impressions. ( Lord Redesdale. This is an English case.) The Noble Lord says that this is an English case; and when we look at the notes which we have of the observations and comments of the Judges, if we ought, in the administration of Scotch law, to recollect that we are English Judges, I venture very respectfully to hint to them that, when they are dealing with questions of English law, they should recollect that they are Scotch Judges. This is an English case; and it appears very strange on English principles, that when the children are by a marriage settlement made purchasers of the principal of the subject, and the parent of the interest of it for life, they should be entitled not only to their own share, but that jure naturæ jure naturæ they should be entitled to a part of the parent's share.This settlement was made and the marriage solemnized in 1791. Maidment was in debt, and died in 1804, and he and his creditors being out of the question, she was entitled for her life according to the marriage articles. The Respondent stated in his

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The case is to be considered, not merely with reference to the point of the jus naturæ jus naturæ , and the means of the parent to aliment, and other circumstances but with reference to the doctrine of Scotch law, when applied to the effect of an English settlement. I do not state any of the adjudged cases as to life-renters and fiars, as this case cannot be considered in that view. The real question is whether, after a contract had been made, by which the children were to have the principal of her fortune, and she was to have her own maintenance for life out of the funds, she was obliged to aliment the Respondent out of her share. The obligation between parent and

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Now in this case it does appear to me impossible that on the ground either of the jure naturæ jure naturæ , or the office of advocate, this judgment can be sustained. Here is the case of one who need not wait the delays of the Court of Chancery. He has an immediate vested interest in a large share of the property, and may deal with it in the market, in which his interest would be better than that of his mother; and he is first tenant in tail in remainder of the lands to be purchased; and he had therefore sufficient aliment. It does appear to me therefore, in considering these circumstances, that this is not a case where aliment ought to be allowed according to the law of Scotland.I propose therefore that the judgment be reversed with something of this nature, that the Lords having regard to the marriage settlement, and the provisions of it, therefore reverse the judgment.

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Mr. Warren .—Would your Lordships give costs to the Appellants.Lord Chancellor .—I am apprehensive we cannot give costs, where three Judges out of four are with the Respondents.Judgment accordingly REVERSED.