CHAPTER XXVI.

LIABILITY OF WIFE TO CONTRIBUTE TO THE EXPENSES OF THE HOUSEHOLD OR TO ALIMENT AN INDIGENT HUSBAND.

IT is the duty of the husband to defray the expenses of the household, and to maintain and educate the children of the marriage. He is the head of the family, and the administrator both of his own and of his wife's funds.1

Where the husband is indigent, is a wife with separate estate bound to contribute ?—This has never been expressly decided. Bankton says, "If the wife has a subject exclusive of the husband's right, she must contribute proportionally towards the maintenance of their common children, and in default of the father she is simply liable." 2 It is undoubted law that when the father is dead, the mother is bound to aliment the children of the marriage.3 But there does not

6

appear to be any reported case where it was held that a wife is bound to maintain the children during the husband's lifetime if he is unable to do so. The doctrine, however, has the support of Erskine, of Mr. More, and of Lord Fraser. The last writer refers to Stair and Bankton, but the language of these authorities is consistent with the view that it is only after the husband's death that the wife's liability emerges. It would probably be held that a wife who is able to maintain her children must do so if her husband is incapable, subject to any claim she may have against him for relief. This would

1 Ersk. i. 6, 19, and 56.

2 i. 6, 15.

3 Fairgrieves v. Henderson, 1885, 13 R. 98; Buchan v. B., 1666, M. 411; Macdonald v. M., 1846, 8 D. 830; Ersk. i. 6, 56.

4i. 6, 56 (see note in Nicolson's Edition).

5 More's Notes, xxix.

6 Parent and Child, p. 86.

7 i. 5, 7.

8 i. 6, 15.

WHERE HUSBAND IS NOT INDIGENT.

265

seem to be the case when the spouses are living together, and the wife's liability is still more clear when the husband is a lunatic without means, or is in imprisonment, or is otherwise beyond the reach of the parochial law.

Wife's liability to contribute where husband is not indigent.—A different question is presented where the husband is not incapable of supporting his wife and children, and the wife has separate estate. To take an extreme case, a husband is a clerk with an income of £100 a-year. His wife has a separate estate of £1000 a-year. Is she legally entitled to allow her income to accumulate, or spend it wholly upon foreign missions, and leave her husband to support the children of the marriage and herself? Or, on the other hand, must she contribute to defray the common expenses in proportion to her means? Lord Fraser1 thinks that her liability to contribute is a legal consequence of recognising her right to hold separate estate, although he does not regard the point as free from doubt. It is submitted that there is no legal obligation upon her to contribute. At common law, a wife has no funds out of which to aliment anybody. If her separate estate is in virtue of a marriage-contract, her liabilities as well as her rights are to be looked for in that deed. And no such new liability will be held to have been imposed upon her by the Married Women's Property Acts, which contain no express references to the subject.2 In England, a wife with separate estate is by statute bound to prevent her husband from becoming chargeable to the parish, and is likewise bound to maintain her children and grandchildren, although probably in this case her liability only emerges if her husband is incapable of supporting them. But it was settled that at common law no liabilities of this kind attached to a wife, and it is thought that the principle of these decisions would be followed in Scotland where no statutory change has been introduced.5

1 i. 837.

2 See Fingzies v. F., 1890, 28 S.L.R. 6.

3 Married Women's Property Act, 1882, § 20.

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3

Wife not liable to aliment indigent husband.—It cannot be regarded as settled that a wife is bound to support her children during her husband's lifetime, although she may be in a position to do so. There is, as above shown, some authority for this proposition. But it seems pretty clear that she cannot be held liable to aliment her husband although he be incapable of supporting himself. In a recent case,1 in the Outer House, Lord Kyllachy expressed an opinion that at common law no such liability attached to a wife with separate estate, and that the Married Women's Property Act had made no change. The opinion was, however, not necessary for the decision in that

case.

1

Fingzies v. F., 1890, 28 S.L. R. 6.

CHAPTER XXVII.

RIGHT OF SURVIVOR TO ALIMENT-WIDOW'S

MOURNINGS.

Aliment to indigent surviving Spouse from Estate of Predeceaser. If one spouse die leaving estate, it is consonant with equity that the survivor should be entitled, if otherwise unprovided for, to aliment out of this estate. Such a right cannot compete with creditors. It is only after payment of all the deceased's debts that a claim may be made.1 At common law a husband had no jus relicti, and his right to courtesy was conditional on the birth of a living child. The husband of an heiress might accordingly be left penniless by his wife's death. Similarly the character of the husband's investments might be of such a nature as to yield no terce to the widow, and yet not to swell the jus relictae. This would be the case if he left heritage in which he was not infeft, or personal bonds bearing interest, or, formerly, burgage.

In such cases reasonable aliment will be awarded subject to such conditions as may seem to the Court expedient.

Ill.-Husband leaves heritable estate worth £240 a-year. He was only infeft in so much of it as gave the widow a terce of £40. In an action against the heir, her pupil son, the Court gave the widow an additional aliment of £20 a-year, for nineteen years, or until the same is recalled or altered by authority of the Court."2

Ill.-Husband died within year and day of marriage. By old law wife had not then terce or jus relictae. She claimed aliment. "A majority of the Court considered the

1 Fr. ii. 971.

2 Thomson v. M'Culloch, 1778, M. 434; also in Hailes, ii. 797.

claim of an indigent widow for aliment from the heir of her opulent husband as deeply founded in nature.”1

Ill.-Husband died possessed of burgage which was worth £80 a-year, but liable to annual charges of £20. The burgage was not terceable, and the widow otherwise unprovided for. Court granted her interim aliment of £20 a-year.2 Ill.-Husband left heritage worth £240 a-year. His sister succeeded as heir-at-law. The Court found widow entitled to an annuity of £60 "to continue until the same be recalled or altered by the authority of the Court."3

It would appear that an indigent husband has the same. claim.4

Claim barred by Ante-nuptial Contract.-The acceptance of a small provision in an ante-nuptial marriage-contract will bar the right to claim additional aliment. It was held in one case that such a contract settles irrevocably the rights of parties. The case, however, was not one in which the surviving spouse was indigent, the conventional provision, 700 Louis d'ors per annum, being adequate for maintenance though small relatively to the husband's estate.

If the provision was quite insufficient to support the widow-say £5 a-year-and considerable funds were left, it may be doubted whether the Court would not grant further aliment.

Widow's Mournings and Aliment to first term after husband's death.-A widow has a legal claim for mournings suitable to her husband's quality. This is a privileged debt, and preferable even against ordinary creditors.

As against the husband's representatives, but not in competition with his creditors, she is entitled to aliment from his

1 Lowther v. M'Laine, 1786, M. 435; Hailes, ii. 1012. Lord Hailes adds an amusing note: "Some of the judges who carried this question told me that they did not mean that Mrs. M'Laine should have any aliment in case she married again if so, they have shown little favour to a handsome young woman of irreproachable character."

2 Harvie v. H., 1828, 6 S. 1144.

3 Hobbs v. Baird, 1845, 7 D. 492; see also Lee v. Bates, 1840, 3 D. 317.

4 Lowther, supra, Hailes, ii. 1013, per L. Braxfield; Fr. ii. 969.

5 Countess Dow. of Seafield v. The Earl, 8 Feb., 1814, F.C.; Nicolson's Note to Ersk. i. 6, 41.

Sheddan, 1802, M. 11855; Bell's Com., 5th Ed. ii. 157; Fr. ii. 968.