Edinburgh Parish Council v. Couper

Hugh Kinghorn Couper, Marine Road, Dunbar, died on 16th January 1922 intestate. He was predeceased by his wife and survived by one son and a daughter, the latter having for some time been a pauper lunatic and chargeable as such to the Edinburgh Parish Council. Questions having arisen in regard to the obligation to maintain the lunatic daughter and the disposal of the deceased's estate a Special Case was presented. To it the parties were (1) the Edinburgh Parish Council, first parties , (2) Matthew Anderson Couper, second party .

The questions of law for the opinion and judgment of the Court included, inter alia , the following—“4. Was the second party entitled to distribute the estate as he did according to the said scheme of division?”

Argued for the second party—The insane child's legal share of the estate was not yet exhausted, and accordingly there was as yet no outstanding obligation to fulfil. The second party as executor was entitled to distribute to the children their legal share of their parent's estate. The obligation of the deceased to aliment his daughter did not transmit to his representatives after his death. Counsel cited the following cases— Stuart v. Court ( cit .) and Mackintosh v. Taylor , 1868, 7 Macph. 67 , 6 S.L.R. 68 .

The contention of the Parish Council is that he had no right to distribute the estate, that he ought to have retained it Page: 91 ↓

On those authorities the contention of the Parish Council as to the want of power on the part of the second party to distribute the estate as he has done is unsound. I think it would be unfortunate in the case of small estates if any such view as the Parish Council in the present case puts forward were to be given effect to. That really is the practical question in the case, because Page: 92 ↓