(1846) 5 Bell 280
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1846.
Subject_Fiar and Liferenter. — Provision to Heirs. &c. —
In ascertaining the free rents of lands, in order to fix the amount of a widow's annuity, the fiar of the lands is not entitled to deduct a proportional part, either of the expense of maintaining an embankment against the encroachments of a river, paid by himself and not forming a deduction from the rent payable by the tenant of the lands;—of the expense of repairs upon the parish church;—or of the amount of a factor's fee.
Subject_Ibid. — Ibid. — Game. —
In ascertaining the amount of a liferentrix's provision out of the rents of lands, credit must be given for the money annually received by the fiar from third parties, for the right of shooting the game upon the lands; and for the rent obtained for the home-farm, although “the mansion-house and policies and enclosures thereto belonging,” were excepted from the provision.
An annuity given to his widow by an heir of entail, under a power in the entail to provide wives in a liferent infeftment, not exceeding three-fourths of the free rents of the lands, is to be a fixed annuity, calculated according to the amount of the rents in the year in which the heir, granting the annuity, died; not one varying de anno in annum, according to the amount of rents actually received.
Subject_Ibid. — Tailzie. — Trust. —
A widow's annuity given by her contract of marriage in exercise of a power in an entail to provide widows, and in the form of an obligation upon the husband, “and the heirs of entail succeeding to him in the tailzied estate,” is payable not only out of the lands actually entailed, but out of personal estate held by the trustees of the entailer's will upon trust to be invested in the purchase of lands to be entailed, and out of lands purchased, but not entailed, in the lifetime of the maker of the provision.
On the 4th of September, 1789, Mc Pherson executed a bond and disposition of entail of his lands in favour of a series of
“As also, it is hereby provided and declared, that it shall be lawful to the whole heirs and members of tailzie foresaid, as they shall come in course to succeed to the said lands and estate, to grant liferent infeftments, by way of annuity, but not of locality, to the extent underwritten, to their spouses, in satisfaction to them of all terces, courtesies, and other legal provisions, from which their said spouses are altogether hereby debarred and excluded, payable at Whitsunday and Martinmas, by equal portions, to be uplifted and taken furth of the first and readiest of the rents, maills, and duties of the foresaid lands and estate, herein-above resigned, lying and described in manner above mentioned: But it is hereby likewise provided and declared, that the said liferent infeftments, by way of annuity, shall not exceeed one-fourth part of the free yearly rent of the said lands and estate, as the said free yearly rent shall stand at the time of the death of that heir of tailzie upon whose death the said annuities shall respectively become due, after deduction of every public and private burden affecting the same, of whatever kind or nature the said burdens may be; so that, in case the spouse of any heir of tailzie shall come into possession of an annuity upon the said lands and estate during the existence of a prior annuity, or annuities upon the same, such spouse shall be entitled to no more than one-fourth part of the free residue of the said rents, after deducting therefrom the said prior annuity or annuities, as well as deducting the annuities to younger children, hereinafter mentioned, procreated in any prior marriage, and all other private or public burdens whatsoever; but providing and declaring, that in case of the existence of two or more spouses holding annuities, as aforesaid, at the same time, the larger annuity shall, upon the death of the spouse holding the same, devolve upon the spouse holding the immediate lesser annuity, if such lastmentioned
spouse should be existing at the time, in lieu and place of such lesser annuity, which lesser annuity is to be no longer payable to the spouse so succeeding to a greater annuity.”
On the 7th June, 1793, Mc Pherson executed a last will and testament which, after referring to the entail of 1789, and giving a variety of legacies, contained the following direction as to his residuary estate:—
“I request and direct the executors of my will hereafter mentioned, to consolidate into one fund, the whole of my fortune and moveables, which fund they are to lay out in purchasing lands in Scotland, to be entailed upon the series of heirs specified in the bond and deed of entail already mentioned, according to the strict forms of the law of Scotland.”
On the 19th September, 1795, Mc Pherson superseded the entail of 1789, by executing another entail which embraced the lands contained in that deed, and other lands which he had since purchased. This entail contained the following power in regard to providing wives and husbands:
“Nor shall the said lands and estate, or any part thereof, be affectable, or subject to, any terces or courtesies, or to any annuities or liferent provisions to the wives or husbands of the heirs and substitutes above written: but with this exception, nevertheless, from the foresaid limitation, that it shall be lawful to, and in the power of the said heirs, male or female, of my body, and whole other heirs of entail before specified, and each of them, to provide their wives and husbands, and the wives and husbands of their apparent heirs, an annuity, not exceeding a fourth part of the free rents of the said estate, after deducting former liferents, if any be, interest of entailer's debts, feu and teind duties, cesses, land-taxes, minister's stipend, and any other burdens that may affect the same, so that subsequent annuities shall not exceed a fourth part of the surplus rents, but may increase proportionally, as the former annuities and debts
shall cease and be paid off; and for which annuities to be granted in virtue hereof, the heirs of entail succeeding in virtue hereof, shall, under the declarations after mentioned, be subject and liable; but declaring always, that the annuities so to be granted to the wives or husbands of heirs, shall not in any event be the ground of any adjudication of the said entailed lands and estate, or any part thereof, or of any diligence that may be the ground of any eviction of the same; but, that the claim of the said wives or husbands shall extend no farther than to a personal claim against the heir of entail in possession for the time; and that an heir of entail succeeding to the said estate, shall not be liable for the arrears of any annuities that may be granted to the said wives or husbands further than to the extent of one year thereof, and that only after discussing the executors or representatives of the heir of entail in possession, when the said arrears were incurred: and declaring that the wives or husbands of such heirs, shall, in no case, have right to possess the mansion-house of Belleville, or policy, or inclosures thereto belonging, which shall be always reserved for the heir of entail for the time.”
This deed also contained a direction as to payment of the entailer's debts, in these terms:
“And in order to render this deed of entail and settlement more effectual, I hereby bind and oblige me, and my heirs of law, executors and successors whatsoever, to free and relieve my entailed lands and estate before specified, and the heirs named, or to be named, to succeed thereto, off and from the payment and performance of all debts and obligements, in which I, for myself, or as representing any of my predecessors, shall be liable at the time of my death, and off and from all claims and demands whatsoever, whereby the said lands and estate, or any part thereof, may be evicted from my said heirs of entail.”
On the same day that he executed this last entail, Mc Pherson executed a trust-disposition, which reciting that he held
“But in trust always, and under the provision underwritten: Providing and declaring, that my said trustees, and their foresaids shall be bound and obliged, as soon as they shall enter upon their office of trustees, in virtue hereof, to demand payment of the foresaid principal sum of 4,600 l., contained in the heritable bond before narrated, and haill interest that may be due thereon; and upon receipt of the said principal sum and interest, they shall be bound to employ the same in such manner as they shall think most proper and expedient for the purposes of the trust committed to them. And they shall, as soon as an opportunity of what shall appear to them to be a proper purchase, or purchases, shall occur, be bound to lay out the same in the purchase of one or more parcels of ground lying in the county of Inverness, and as near my said entailed lands and estate as can be procured. And, so soon as the whole of the said principal sum, interest thereof, and profits that may arise therefrom, or from such partial purchases as they may make, shall be laid out in the purchase of lands, the said trustees and their foresaids shall be bound and obliged to execute an entail of the whole lands so purchased by them, upon the heir of entail who may be in possession of my said entailed lands and estate, in virtue of the foresaid deed of entail executed by me upon the heirs thereby substituted to him, under the conditions, limitations, restrictions, clauses irritant and resolutive, contained in the said deed of entail, and precisely in the terms thereof.”
The entailer died in February 1796. Some years afterwards, and posterior to the date of the contract of marriage to be afterwards noticed, the trustees executed the trust as to the Blairgowrie
In the year 1802, the trustees of the entailer's will purchased, with the proceeds of his residuary estate, the lands of Fairburn; and on the 7th of June, 1802, took a conveyance of them to themselves, upon the trusts of the will.
In the same year (1802), James Mc Pherson, the institute in the entails, both of 1789 and 1795, and one of the trustees of the will of the entailer, entered into a marriage with the respondent, and by antenuptial contract, bearing date 9th December, 1802, he granted the respondent the following obligation:—
“In contemplation of which marriage, and in consideration of the sum of money after mentioned, paid by the said Miss Maria Sophia Craigie to the said James Mc Pherson, and of the assignation and conveyance underwritten, granted by her, the said James Mc Pherson binds and obliges himself, and his heirs and successors, and also the heirs of tailzie succeeding him in the tailzied estate of the said James Mc Pherson, senior, his father, to content and pay the said Miss Maria Craigie, yearly, during all the days of her life after his death, in case she shall happen to survive him, a free annuity, equal to one-fourth part of the free annualrents, issues, and produce of the whole tailzied estate of the said James Mc Pherson, as after described; as also, to pay her yearly, in the event foresaid, an additional free annuity, equal to one-fourth part of the free annual profits, rents, interests, and produce of the said James Mc Pherson's whole estate and effects still under trust, or to which he has succeeded, or may succeed, by and through the will of his said father; all as permitted by and in terms of the entail executed by the said James Mc Pherson, senior, of date 19th September, 1795.”
In security of the fulfiment of this obligation, he conveyed the entailed lands, so far as authorized by the entail of 1795, and gave the following obligation:—
“And farther, the said James Mc Pherson hereby
assigns, conveys, and makes over to the said Miss Maria Sophia Craigie, in liferent during her life, in case she shall happen to survive him, one-fourth part of the free yearly proceeds, rents, profits, and issues of the said tailzied estate, with power to her to uplift the said yearly rents, issues, profits, and proceeds, to the extent aforesaid, or to concur with the heir of tailzie in possession of said estate in appointing a factor to levy the rents and issues thereof, and who shall be bound to account to her for one-fourth part of the free annual proceeds collected by him, and that half-yearly and termly, as the said rents and proceeds come into his hands, and that in payment and satisfaction to her of her said first-mentioned liferent-annuity, secured upon the said tailzied lands and estate: and further, the said James Mc Pherson obliges himself, and the heirs of tailzie succeeding him, and his heirs and successors whomsoever, to secure the said Miss Maria Sophia Craigie in one-fourth part of the free yearly rents, interests, and produce of the residue or reversion of the whole estate of the said James Mc Pherson, his father, which is not conveyed by the aforesaid entail, but to which the said James Mc Pherson, now of Belleville, has right by the will of his said father; and that, in payment and satisfaction to her of the said additional liferent-annuity above mentioned: and, accordingly, for her further security, and more sure payment of said additional annuity, as soon as the said separate estate of the said James Mc Pherson, coming to him by his father's will, which is still under trust, or at least not fully made over to him, shall be vested in land, or other real securities, he obliges himself and his foresaids, to infeft and sease his said spouse in liferent therein, to the extent of one-fourth part of the free annual proceeds of the said whole separate estate when so vested.”
The respondent accepted the provision given her by this deed in full of terce and jus relictae, and in return paid over to her husband 1200 l., and assigned to him her whole other real
Of the same date as the contract, (9th December, 1802,) Mc Pherson executed a disposition which recited the execution of the contract of marriage and the obligation in it to pay the respondent an annuity equal to one-fourth of the annual produce of the entailer's own estate stil un der trust, and the purchase of the lands of Fairburn, and continued thus:—
“And whereas said purchase was made for my behoof; but, the executors under my father's will, not having yet denuded themselves of the trust, and made over the said trust-effects to me, the titles to said purchase were taken in their names jointly with me: and whereas it is proper that the said Miss Maria Sophia Craigie should be infeft and seised in the said estate, for security of her liferent right to an annuity equal to one-fourth part of the rents thereof.”
On this recital the disposition conveyed the lands of Fairburn in implement of the obligation in the contract of marriage, and assigned to the respondent one fourth of the rents of the lands under reservation of a right to sell the lands, and a corresponding obligation to pay her one-fourth of the interest of the price or of the rents of the lands in which the price might be reinvested.
In the year 1803, James Mc Pherson, the respondent's husband, brought an action of declarator and adjudication, in which he obtained a decree in December of that year, finding that the entail of 1789 was revoked by the entail of 1795; that the fetters in the entail of 1789 were to be held as not referred to in the will of 1793, but were void and null; that the order in the will to entail the lands to be purchased did not apply to the fetters, or the series of heirs in the entail of 1795:
“but that, according to the true and legal construction of the said latter will and testament of the 7th June, 1793, when considered with due reference to the whole other settlements made and executed by the said deceased James Mc Pherson, and with the whole
other circumstances of the case, the lands and estate of Fairburn already purchased by the said executors with a part of the English executry funds of the said testator, and all other lands and heritages to be purchased by them with the balance of the said English executry funds in their hands, and with the capitals appropriated by the said executors for answering annuities as they fall, must be settled and entailed upon”
a series of heirs, “being that part of the series of heirs contained in the bond and disposition of tailzie of 1789, alluded to in the said latter will and testament, 7th June, 1793, remaining in force and unrevoked; and that the said lands and others already purchased, or to be purchased, must be so settled and entailed without prohibitory, irritant, and resolutive clauses, or other fetters or limitations whatsoever,” and ordaining a conveyance to be executed accordingly. Under this decree, James Mc Pherson established in himself a fee-simple title to the lands of Fairburn.
The executors under the will of the entailer, used inhibition against James Mc Pherson, and brought an action for reducing the decree which has just been mentioned, and in July, 1825, obtained decree of reduction containing a declaration “that the said James Mc Pherson, as the surviving disponee infeft in the lands of Fairburn, under the disposition thereof from Alexander Mackenzie, of Fairburn, granted to him, along with Sir John Mc Pherson and John Mackenzie, both now deceased, is not debarred from selling the same, for the bond fide purposes of the trust referred to in the said disposition: but, that he is bound to execute a tailzie, either of the said lands, free of all incumbrances, or of other lands to be purchased with the price thereof, in favour of the series of heirs specified in the tailzie 1789, and under the ordinary fetters contained in strict entails, restraining from altering the order of succession, contracting debt, or alienating the lands, all as authorized by the Act of Parliament 1685: approved,
All the trustees of the entailer's will died, with the exception of James Mc Pherson, who was thus the surviving disponee in the conveyance of the lands of Fairburn to the trustees of the will. James Mc Pherson died in April 1833, without having performed all the trusts of the will, leaving the lands of Fairburn vested in himself as surviving trustee, without having either sold them or executed an entail of them in terms of the interlocutor of July 1825.
Upon the death of James Me Pherson, the appellant succeeded to him, as heiress under the entail and under the will. She made up her titles under the entail, and also took possession of the lands of Fairburn, and with the view of establishing her title to these lands and to the other estates derived under the will, she brought an action of declarator and adjudication against the parties interested. In this action she
The appellant expede a crown charter of adjudication upon this decree, on which she was infeft in April 1836.
During the dependence of the action at the instance of the appellant, which has been mentioned, the respondent brought an action against the appellant, setting forth the provision made for her in her contract of marriage with James Mc Pherson, and concluding to have the appellant decerned to pay her an annuity equal to one-fourth of the free rents of Belleville, (the entailed lands,) after deduction of any former liferents, and all public and parochial burdens; the annuity to commence at Whitsunday 1833—the first term after her husband's death—and to be under deduction of monies already received; and likewise to pay her an annuity equal to one-fourth of the rents and profits of the lands of Fairburn, and of the other trust-property, as these rents and profits stood at the time of the death of her husband, after deduction of the debts for which the trust-estate was liable, and public and private burdens; the annuity to commence from the first term after the death of her husband.
The appellant, after assuming possession upon the death of James Mc Pherson, had let the home farm, which, in the questions that arose in the action that has been last-mentioned, she maintained came within the exception in the entail 1795, of “the mansion-house and policies or inclosures thereto belonging;” and she also let from year to year the shooting of game upon the lands, at an average rent for the five years preceding 1833, of 180 l. And in the management of the estate she was, according to her statement, at a yearly expense of from 80 l. to 100 l. in maintaining an embankment to restrain the over-flowing of
In defence to the action of the respondent the appellant pleaded:—
I. That the claim of the respondent was to be dealt with as one merely personal against the appellant, her infeftment being in contravention of the entail, and otherwise bad.
II. That the respondent had no right to anything beyond a fourth part of the free rent of the lands of Belleville, entailed by the deed of 1795, as the same was actually realised from time to time; and that in estimating this fourth, the mansion-house and policy of Belleville, and inclosures thereto belonging, including the home farm were to be excluded.
III. That the respondent was not entitled to any part of the rent of the lands purchased with the proceeds of the Blairgowrie bond, as they were not included under the entail of 1795, the respondent's contract of marriage, or her summons.
IV. That the respondent was not entitled to any part of the rent of the lands of Fairburn, as they were never vested in James Me Pherson, otherwise than as trustee of the entailer's will; were now vested in the appellant as such trustee; and never were comprehended under the entail of 1795.
V. That the annuity of the respondent was subject to the following deductions:
1st. Of the interest of one-fourth of a debt for improvements upon the entailed lands, made by her husband, and constituted a debt against the heirs of entail under the 10 George III.
2nd. Of one-fourth part of the annual expenditure in maintaining the embankment of the river Spey.
3rd. One-fourth of the expense of repairing the parish church, and repairing and upholding the buildings, farm-offices, and fences upon the lands.
4th. One-fourth of a factor's salary and the necessary expenses of management.
VI. That in computing the respondent's annuity, the following items should not be taken into account:
1st. Unrecovered arrears of rent.
2nd. The rent of the home farm, as being included within the exception of the mansion-house policy and inclosures.
3rd. The money received annually for the right of shooting, as not being of the nature of rent and being variable in its amount from year to year.
The Lord Ordinary, ( Moncrieff,) reported the cause to the Court upon cases for the parties, but added to his interlocutor the following note:
“After much consideration of this cause, which appears to be of great importance to the parties, and involves matters of law of considerable moment, in so far as a very special case can do so, the Lord Ordinary has come to the opinion, that it is, in the circumstances, his duty to report it without pronouncing a judgment. His reason for doing so will be seen in the reference necessarily made to a former judgment of the Court. But, having given much study and thought to the case in the important points, and having been thereby brought to an opinion on those points, however difficult he may have thought them, he feels it to be his duty to explain his views of the case fully, and to give the party interested, whatever benefit she may derive from that opinion.
There is much able reasoning in these revised cases; but, in both of them, some which is not satisfactory to the Lord Ordinary's mind. When the defender maintains that nothing but an infeftment in an heritable estate could vest the powers of providing the annuity here claimed, and tries to illustrate the proposition by common rules applicable to land estates descending by succession on ancient titles, she evidently throws aside the fundamental fact, that there is no ancient title and that all depends on the will of one man, the immediate author of the granter of the onerous settlement in question. All the deeds executed by that gentleman, the predecessor
The defender says, towards the end of her paper, that this is not a question of intention but of power. It is a question both of power and intention on the deeds of the pursuer's husband; but as to the deeds of James Mc Pherson, the entailer, all the questions of power in relation to his heirs depend absolutely on the intention, as it may be found in all the deeds which he executed, when duly considered together. And more particularly, it can admit of no question, that, with reference to the personal estate left by him, the rights, interests, or powers, of his heir affecting it, must depend entirely on the will and intention expressed, or necessarily involved in all the deeds which he left in operation, and not merely on the single expressions of a particular deed. The Court is bound to look anxiously for the whole will of the testator.
On the other hand, when the pursuer assumes, that, because there was an ultimate end in view, all the natural consequences of it must take immediate legal effect, the process of reasoning is too rapid, and the conclusion unwarranted.
The fact which gives rise to the present cause is, that, in the year 1802, the late James Mc Pherson entered into an onerous contract of marriage with the pursuer, by which a provision in certain terms was settled on her. As to the meaning of that settlement in regard to the estate and funds over which it should extend, it seems to the Lord Ordinary to be impossible to make a serious question. Quite clearly, it was intended, and in words made to cover, not only all the entailed estate of Belleville, as it stood at the date of the contract, but also all the estate then standing in trust-funds; but expected to be converted into entailed estate. The terms
The question, therefore, is, whether the pursuer's husband power to engage for what he promised and bound himself to, or how far his honourable intentions towards the lady with whom he contracted, are defeated by the form or meaning of the deeds on which his rights and powers depended. She is certainly entitled to fair and full implement, in so far as her husband had, by any just and reasonable construction of the settlements of his predecessors, power to contract with effect in terms of her marriage-contract.
I. There can be no doubt that the pursuer has a good right to an annuity equal to one-fourth of the free rents and profits of the estate of Belleville proper, and all the lands comprehended in the entail 1795. This seems to be admitted. The mode of estimating it is a different question. But Mr. James Mc Pherson clearly had power to bestow such a right, and he has done so in very express terms. It is to
II. The Lord Ordinary is next of opinion, that the pursuer has right to an annuity equal to a fourth part of the rents and profits of the lands, which were purchased by means of the money recovered under the Blairgowrie bond of 4,600 l., with the interest and accumulations upon it. He cannot think this at all doubtful. That bond was specially conveyed by the trust-deed of the 19th September, 1795, executed on the same day with the second entail of the estate of Belleville, to which it expressly refers, as containing the destinations, conditions, limitations, &c. &c.; ‘and other clauses and conditions therein expressed;’ and the trust-deed bears, that it was the testator's wish and intention, that the money in the bond should “be laid out in purchasing lands, &c., to be entailed upon the same series of heirs, and under the same provisions, limitations, and clauses contained in the said deed of entail.” On this narrative, the bond and all the sums contained in it, and interest thereof, and the right of annualrent held heritably under it, were conveyed to the trustees, with power to uplift the same, and to hold all till they should vest it in lands, and make an entail thereof in the manner directed; with an obligation on them, as soon as a proper opportunity should occur, to lay out the whole principal and interest and accumulated profits in the purchase of lands, and then to execute an entail thereof “upon the heir of entail who may be in possession of my said entailed lands and estate in virtue of the foresaid deed of entail executed by me upon the heirs thereby substituted to him, under the conditions, limitations, restrictions, clauses irritant and resolutive contained in the said deed of entail, and precisely in the terms thereof.”
There can be no doubt concerning the meaning and effect of this settlement; and as any entail to be executed under it must necessarily have contained all the limitations in the
If the property so put in trust had stood in that trust, without an investment having been effected, or an entail executed, till the death of the pursuer's husband, though there might have been room for argument as to the operation of the provision in the marriage-contract as affecting it; and though, in consequence of a certain judgment of the Court in 1816, concerning the intermediate accruing interests of the bond, there might have been a necessary suspension of the beneficial interest in it, till lands were entailed, the Lord Ordinary would have had great difficulty in holding, that there was not, according to the true meaning of the whole settlement, such a right vested in James Mc Pherson, as might enable him to provide to his wife the proportional annuity intended by the entailer, to take effect as soon as the possible application of it should emerge by the due execution of the trust. But it seems to him to be unnecessary here to consider any such question, the actual state of the case removing in his mind all doubt. For, long before the death of James Mc Pherson, the pursuer's husband, the debt was realized, lands were purchased, and, though the deed is not in process, it is admitted that an entail was executed, which, the Lord Ordinary presumes, was in the precise terms of the entail 1795, on which James Mc Pherson stood infeft and in possession at the time of his death. As he, therefore, as the first heir of entail, did become vested in these lands, with all the powers given or reserved by the entail, the Lord Ordinary is of opinion, that it is of no consequence as to the efficacy of the settlement by marriage-contract in favour of his
III. The question whether the rents and profits of the lands of Fairburn purchased and held by the executors of the will of Mr. Mc Pherson, the elder, and generally, whether the personal funds and estate carried by that will, and the subsequent testament regarding the personal effects in Scotland, are effectually made subject to the provisions in the marriage-contract, is, in the Lord Ordinary's opinion, a question of very great difficulty; and he must confess, that in the course of his study of it, his impressions have occasionally varied. There is a specialty in relation to the funds, which stood, at the commencement of this process, invested in the lands of Fairburn, to which it is necessary to pay particular attention. But the general question, as to the whole personal estate, is greatly involved with the principles which must regulate that point.
The disposal of this personal property rests, in the first instance, on the will dated June 7th, 1793. That deed narrates and refers to the entail of the Scotch estates, which the entailer had executed in One thousand seven hundred and eighty-nine; and it professes to dispose of his whole other property. The material clause, after the special legacies, is in these words:—He requests his executors “to consolidate into one fund the whole of my fortune and moveables, which fund they are to lay out in purchasing lands in Scotland, to be entailed upon the series of heirs specified in the bond and deed of entail already mentioned, according to the strict
That judgment may perhaps be res judicata among the heirs of entail, though no entail was executed, and though in a question with the pursuer, the effect of it is to be considered.
It seems to be assumed by the defender, that, when Lord Meadowbank expressly, but the Court by implication only, found that there was no warrant for inserting in the entail all the particular clauses of the entail 1795 or 1789, it must be inferred, that the meaning and effect of this was, to exclude the power of the heir to make a provision for his wife, as reserved by both those entails. The Lord Ordinary has great doubt, whether it was in the contemplation of the Court, that their findings should have any such effect. The meaning appears to him to have been, that there was no warrant to make the entail stricter than the ordinary clauses would render it, and that the various more astringent clauses in the entail 1789, should not be adopted. But, as to the power of the heir to provide for his wife, he doubts much, whether it was at all in their contemplation to decide anything concerning it. The pursuer was no party to the proceedings, and her rights were never considered.
This is a matter which may affect all the personal estate,
But now, it is to be observed, that there is nothing in the clause of the will 1793 to warrant the trustees to accumulate, in their own hands, the interest of the personal estate when realized. And accordingly, the Lord Ordinary understands that the deed has all along been so construed; that the late Mr. Mc Pherson received all the rents of Fairburn from the date of the purchase till his own death; that after his death the whole rents were uplifted by the defender; that, since the lands were sold, a fourth part of the price has been consigned in the British Linen Company, to await the issue of the present question, and that the remainder of the interest has been uplifted by the defender as the heir of entail.
The case, therefore, is, that during Mr. Mc Pherson's life, there was an existing heritable estate purchased with the executry funds of the whole annualrents and profits of which he was in the actual possession and enjoyment till the day of his death; and that, since his death, the defender has been in the possession and enjoyment of the rents of that estate, as
The Lord Ordinary is sensible that there is great difficulty in this point. He does not think the pursuer's argument well founded, which is derived from her husband's infeftment on the fee-simple title, not singly, because that title stands reduced, but specially in respect that it had no existence at the date of the marriage-contract; and, therefore, whether it was absolutely null or not, in a question with third parties, who might have contracted while it stood unreduced, the pursuer, not having contracted on the faith of it, cannot have any benefit by a title, which was reduced, and ceased to exist, before her husband's death. He sees also, that there is, of course, no room for a claim of terce literally, as there might have been, if an entail of Fairburn had been executed, in the terms of the interlocutor of the Court, and if Mr. Mc Pherson had been infeft in such an entail. And, from the peculiar nature of the judgment, and the indefinite terms of the will, there is great difficulty in finding satisfactory legal data for doing that which is truly the justice of the case, viz., putting the pursuer in the same position, as if the lands had actually been entailed, with a power of making provision for wives, such as the testator contemplated in both the entails which he himself executed.
Nevertheless, the Lord Ordinary cannot think the difficulty
The decision in the case of Houston v. Stewart Nicholson, January 28, 1756, does afford a principle for such a construction. For in that case, the only power was given in the entail of the lands actually entailed; and by the words it was expressly limited to a liferent ‘out of the foresaid estate.’
There are other examples in which provisions granted by an heir of entail have been sustained, although it was afterwards found, that he was not in titulo to make them. See February 11, 1829, Kennedy v. Kennedy. That was on the Act 1695, as to apparent heirs, and may not be exactly applicable to the present question. It only shows that an actual and valid infeftment in the person of the heir is not always necessary to the effectual exercise of such a power.
On the whole, the Lord Ordinary is strongly inclined to think, that the pursuer's claim to one-fourth of the free rents of Fairburn, while these lands were held by the executors after her husband's death; to one-fourth of the free interest
IV. The second general question in this case, which relates to the rule by which the amount or extent of the pursuer's annuity, whether it shall hold to be well provided, is to be determined, is also attended with difficulty. But the Lord Ordinary will express the view which he has of the different points, very shortly.
(1.) He is of opinion, that as to the estate of Belleville, and the lands purchased with the proceeds of the Blairgowrie bond, her right is to have a fixed annuity, equal to one-fourth of the free rents of those lands, as they stood at the death of James Me Pherson, the heir. If this depended on the entail of 1789, there could be no doubt of it. But the Lord Ordinary conceives, that, in right construction, the clause of the entail 1795 has precisely the same effect. The clause in the first deed, apparently drawn in London, is more anxiously expressed in the particular points. But, though the style of the second, prepared in Scotland by an eminent man of business, is somewhat different, and, in the last part of it, seems to have been intended to simplify and render more consonant to the true intention what was perplexed and irrational in the former, it is in the main point not materially different in its substance. The power is, to provide their wives, &c., “in an annuity not exceeding the fourth part of the free rents of the said estate, after deducting former liferents,” &c. If this clause stood simply on these words, the Lord Ordinary conceives, that it would be construed to refer to the free rents, as they might stand at the death of the granter of the provision. For, for where there is no locality permitted, it could never be presumed that the entailer meant to create so harassing a
The defender comments at great length on certain clauses of the marriage-contract, as implying, on the part of James Mc Pherson, an intention to provide the annuity on a different principle,—and it is really not improbable, that he or the maker of the deed had some such idea. But the material part of the deed is perfectly clear and simple. He binds himself and the heirs of entail “to content and pay the said Miss Maria Sophia Craigie yearly during all the days of her life after his death, in case she shall happen to survive him, a free annuity equal to one-fourth part of the free annual rents, issues, and produce of the whole tailzied estate of the said
The Lord Ordinary will only further observe, that, when the defender speaks of it being a very easy matter to settle a claim for an annuity on her principle, the proposition is far from obvious. Not to speak of rents allowed to fall in arrear, the only compulsitor being in the heir's hands, what is to be made of a yearly accounting for the produce of all the land, which the heir may choose to take in her own hands? As it is, there is a question about a home farm. But what if the heir should let the whole, or a great part of the estate, fall out of lease, and keep it in her own hands,—a thing not at all uncommon, both in the Highlands and other parts of Scotland? It would be a very distressing position to put the widow in, that she could get no payment of her annuity, not only till the heir chose to realize its produce, and fix its value, but till a comparative accounting should take place upon all the expenditure and profit in every year. The Lord Ordinary cannot presume, that this was the meaning of the entailer, and neither does he think that it is the fair import of the marriage-settlement.
(2.) The clause of the marriage-contract relative to the
V. Various questions are discussed as to the deductions to be made before determining what is the free rental. In this part of the case, a good deal depends upon the rule to be adopted as to the nature of the annuity. The defender assumes her own construction. The Lord Ordinary will, therefore, say little on these points.
(1.) The defender claims a deduction for improvements. This must be out of the case, if the annuity shall be fixed at the death. But the statement of the claim shows how much the pursuer's annuity would be made to depend on the arbitrary discretion of the defender, and what a perplexing accounting it would involve, if the defender's construction were adopted.
(2.) A deduction is claimed for the expense of keeping up an embankment against the river Spey. The Lord Ordinary
(3.) The defender claims deduction on account of the repairs of the church. This supposes that there is to be no fixed annuity. But, taking it otherwise, the case of Anstruther, May 14, 1823, seems to be against the defender, that being the case of a liferent by locality.
(4.) The defender claims abatement for unrecovered arrears This brings out the effect of the defender's construction. The pursuer is to suffer abatement in every year, having no power to recover the rents, or to control the management; and it is to be observed, that even the power given to her contingently to appoint a factor could not be exercised till she could show that the heir had refused to pay rents actually recovered.
V. The defender claims deduction for a salary for a factor generally; and in support of this she says that she is seeking no advantage, but only that the estate should be treated as if it were placed under sequestration for the behoof of all parties. The Lord Ordinary can never think that it was the intention of the entailer that the estate should be so treated. And, in general, he sees no ground for this claim on any construction.
VI. A question is raised as to the mansion house and policy. The Lord Ordinary does not understand the pursuer
VII. A serious question arises with regard to extensive grounds let on account of the game. There may seem to be difficulty in this from the newness of the practice. But at present the Lord Ordinary is not satisfied with the defender's argument for excluding it. The ground is let for a rent. As it is so, it is no good argument to say that the proprietor may not let it, but leave it to go to waste unproductive. The practice of letting such ground, and the profitable returns obtained for it, have altered the nature of such property. The pursuer has a right to one-fourth of the rent of all the land which can be profitably let; and if the proprietor keeps it to herself, that should not alter the pursuer's right. If the defender's construction is to be taken, and if every year's rent is to be taken separately, it will not be easy to hold that the actual rent of the land part of the estate, perhaps amounting to hundreds of pounds, is to contribute no benefit to the pursuer. But, even if the estimate is to be made at once, for a fixed annuity, it does not appear that such land can be justly excluded from the reckoning. There may indeed be difficulty as to the mode of making the estimate in that case, as in all cases of rent, which is precarious from the nature of the subject.
VIII. Finally, there is a question as to the time, when the first term's payment shall become due. If the entail
Before any judgment had been given in the case, the lands of Fairburn were sold by the appellant, and 5000 l., one-fourth of the price, was consigned in a bank, to abide the result of the respondent's claim.
On the 24th of May, 1839, the Court pronounced the following interlocutor:—
“Find the defender liable to the pursuer in a free liferent annuity, equal to one-fourth part of the free rents, issues, and produce of the entailed estate of Belleville, comprehending the lands entailed by the late James Mc Pherson, senior, of Belleville, and also the lands of Strone, and others, acquired and entailed under, and in virtue of, a deed of trust, executed on the 19th day of September, 1795, by the said James Mc Pherson, in favour of John Mackenzie, esquire, of the Inner Temple, London, counsellor-at-law; William Duncan, esquire, of Philpot Lane, in the city of London, merchant; and James Gibson, Writer to the Signet: Find that the said annuity must be estimated according to the amount of the rents of the said lands, as the same stood at the death of the late James Mc Pherson, second of Belleville, the husband of the pursuer, and must be equal to, but not exceed a fourth part of the free rents of the said estate, as they then stood, after deducting former liferents, if any, interest of entailer's debts, feu
and teind duties, cesses, land taxes, minister's stipend, and any other burden affecting the same; but to increase proportionally as former annuities and debts affecting said estate, shall cease and be paid off; Find the defender liable to the pursuer in an additional liferent annuity, equal to one-fourth part of the free annual rents, profits, interest, and produce of the whole free trust funds and property or executry, after deduction of debts of James Mc Pherson, senior, the first of Belleville, including the estate of Fairburn, until the same was sold by the defender, and the price thereof after the same was sold, as the said annualrents, profits, interest, and produce, accrued, or may yet accrue, from the date of the death of the said James Mc Pherson, the second of Belleville, until the said trust funds or executry shall be invested in conformity with the provisions of the deeds relative thereto, and thereafter, as the rents of the lands which may be purchased with the said price, and other executry or trust funds, and entailed in terms of said deeds, may stand at the time when they come into the possession of the heir of entail: Find the said annuities were and are payable half yearly, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first half year's payment at the term of Whitsunday, 1833, being the first term of Whitsunday or Martinmas after the death of the said James Mc Pherson, for the half year immediately preceding, and thereafter, at the terms of Whitsunday and Martinmas, in equal portions, during the lifetime of the pursuer, with the legal interest thereof from the time the same respectively fell or may fall due, and till paid, such annuities and interest thereof being payable by the defender to the pursuer, from the said term of Whitsunday, 1833, only during the defender's lifetime, and that under deduction of any sum or sums of money she can instruct already to have paid to account thereof. But reserving all questions
in regard to the rate of interest arising out of the consignation in bank of part of the price of Fairburn: Find, that in estimating the amount of the year's rent as at the death of the late James Mc Pherson, the pursuer's husband, according to which the said annuity falls to be fixed, no rent or value must be computed for the mansion-house, or for the policy or pleasure-ground thereto attached, but that the policy cannot be held to include any farm carried on by the proprietor for profit, whether the same was arable or pasture: Find, that in estimating the amount of said annuity and additional annuity, regard must be had and computation made of rents actually received for the game and fishings on the said lands: Find, that in ascertaining the amount of the said annuity and additional annuity, deduction must be made from the rents of the entailed estate, of the interest payable on so much of the alleged improvement debt as may be found in the proceedings now in dependence, to have been validly imposed a burden on the said lands or heirs of entail succeeding thereto, in terms of the Act 10 Geo. III., cap. 51. But, find, that in estimating the said annuity and additional annuity, no deduction falls to be made on account of the expense of constructing and repairing embankments against the river Spey, or on account of the repairs, annual or occasional, of the parish-church, or on account of any salary or allowance to a factor or collector of rents.”
A discussion then took place in regard to the amount of rent for the right of shooting game, which should be taken into account in fixing the respondent's annuity; and on the 15th February, 1843, the Court pronounced the following interlocutor:—
“Find, that, in estimating the rents, issues, and produce of the lands mentioned in the interlocutor of the Court, of date May 24, 1839, in order to fix the one-fourth, under the deductions stated in said interlocutor, as the liferent annuity payable to the pursuer, the amount of the sum to be taken
as the rent of the game on the said estate is to be of rent received prior to the death of James Mc Pherson; and is, by the consent of the pursuer, to be the average of the rents received for the game during the year in which the said James Mc Pherson died, and the five preceding years.”
Subsequently an interlocutor was pronounced, carrying out the findings in the two interlocutors which have been quoted.
The appeal was taken against these different interlocutors.
Mr. Stuart and Mr. Anderson for the Appellant.
I. It is not disputed that the respondent has a legal provision out of those lands which have been actually entailed by the entailer himself. The extent of that provision is another question. But the respondent has no such provision out of that part of the entailer's estate which was not so entailed, and is not even yet entailed; even assuming that her husband would have had power to grant her provision, if the entail had been executed in his lifetime. The obligation given by the contract of marriage is upon the heirs and successors of the husband, and “also the heirs of tailzie succeeding him in the tailzied estate” of his father, to pay her an annuity. The appellant is neither heir nor successor of the husband, neither is she his heir of entail in regard to lands purchased with the residuary estate of the entailer upon trust to be entailed no doubt, but which never have been entailed, and which, at his death, were vested in the husband, solely in his character of surviving trustee. Still less is she his heir of entail in regard to that part of the residuary estate which retained its original pecuniary and personal nature. In regard to both of these parts of the estate, the husband never attained the character of heir of entail, so as to entitle him to grant any obligation in that character, which could bind those who should attain it after his death. He had a jus crediti against the executors of the entailer, but he had not in his person the rights of a proprietor, any more than if he had been
A power to create a burden upon lands cannot be created by any one not infeft in them. It may be very true, that the respondent's husband in his lifetime would have been entitled to the income arising from the whole estate, whether invested in land or not, and whether that land were entailed or not, upon the authority of Stair 2 Wil. & Sh. 414. Or that, if he had been infeft as heir of entail, he might have given a provision not only to his own wife, but to the wife of his apparent heir, which is all that was decided in Houston v. Nicholson, Mor. 2338. But neither of these cases are of any authority to show that a party uninfeft having a life interest in trust estate, is entitled to create a charge upon the estate to subsist after his death.
II. But even if the entail had been executed in the husband's lifetime, it would not have authorized the provision given by the contract of marriage. The direction in the will was to invest the estate in the purchase of lands to be entailed on the same series of heirs as that contained in the deed of 1789, but not by a deed in the same terms or containing the same powers. On the contrary, the decree of the Court definitively fixed, that according to the true construction of the will, the entail to be executed, was an ordinary one, with the fetters prescribed by the Act 1685. This would not embrace a power to provide widows; so that even if the husband had at any time possessed a character which would have entitled him to impose an obligation upon the heirs of entail, he could not have imposed the obligation of this provision upon them, as the entail, if it had been executed, would not have given him power to grant it.
She was not, but her husband was, who claimed the power to insert the jointure in the contract of marriage.
There was no onerosity as against the testator, and those succeeding to him, which could entitle the respondent to this provision, or upon which to found an equity in her favour. Her rights, therefore, must depend upon the strict construction of the power and the deed executing it. All that the will prescribes is, that the property covered by it is “to be entailed upon the series of heirs specified in the bond and deed of tailzie already mentioned,” i.e. the deed of 1789. Although the entail is to be upon the same series of heirs, it does not follow that it is to be with the same powers to jointure. An entail with the usual fetters would amply satisfy the injunction of the will.
Even if this were not so, the provision cannot affect any estate but that which is embraced by the entail 1795. The obligation in the contract is to give the respondent an annuity, “as permitted by the entail of 1795.” Construing this strictly, it can only affect the lands covered by the entail of 1795; but the property which had not been invested at the date of that deed, was not subject to its fetters, nor to the powers given by it; that property was to be entailed under the direction of the will by an ordinary entail, without mention of powers to jointure. The effect of the entail of 1795 might very well be to supersede and revoke the entail of 1789, in regard to the lands embraced by it, but it could not have any effect in regard to the property not expressly embraced by it, so as to
If the appellant be right in this, his argument will apply a fortiori to that part of the estate covered by the will, which has never yet been invested in land.
III. The effect of the interlocutor is to give the respondent a fixed annual sum equal to one-fourth of the free rents, as at the date of her husband's death, but there is no authority for this; the annuity is to vary, de anno in annum, according to the amount of rent actually levied from the occupiers. The power in the entail is to grant an annuity not exceeding a fourth-part of the free rents. There is nothing in the terms used to show that the annuity is to be fixed according to the free rents in any given year; and the provision given by the husband, in execution of the power, is an annuity “equal to one-fourth part,” not of the rents merely, but “of the annual rents,” that is, of the rents as annually paid. This construction, in regard to the lands entailed, is confirmed by the terms of the provision in regard to that part of the estate which had not been invested in entailed lands. The produce of this part of the estate must necessarily have varied from time to time, according to the variation of its investment; it was impossible, therefore, for the provision out of it to be fixed in amount. Further, the lands are conveyed
IV. In computing the respondent's annuity a proportion of the expense annually incurred in maintaining the embankment of the river Spey should be deducted. In truth the rent paid for that part of the estate is not strictly a return for the produce of the land, but for the money thus expended by the landlord, and without which expenditure the tenant would be driven to make it himself. The expense, ranging from 80 l. to 120 l., per annum, is not an expense of management, it is indispensable for the actual preservation of the corpus of the land; without it, the river, one very rapid and stormy in its current, would break in and lay everything waste. The appellant might in his management let these lands with an obligation on the tenant to maintain the embankment, receiving in return a deduction from the rent otherwise payable. If so, the free rent could only be taken after allowing for this deduction, and it cannot
V. The respondent cannot be entitled to have the money paid for the right to shoot game included in the account of the free rent. It is not rent in any sense of the term—it is a sum paid in gross for the temporary exercise of a personal franchise. Whatever could be ascertained to be a fair occupation-rent may be the subject of the annuity; but how could an occupation-rent be fixed in the present instance? by what standard could the value of this franchise be measured? If a proprietor retains lands in his possession, the worth of them to him may be ascertained in that way as easily as if he had let them to others. But if a proprietor does not choose either to grant, the right of shooting to others, or to exercise it himself, or if the proprietor be like the appellant, a female, who does not choose to have the privacy of her estate encroached upon by communicating this franchise to others, of what value is the right to him or her, or of what value can it be said that it ought to be?
I. Whatever defect in the title of James Mc Pherson to grant the respondent the provision in her contract of marriage, there might be at the date of that deed, was remedied by what occurred subsequently. With regard to the proceeds of the Blairgowrie bond, that was not only invested in land, but the land was entailed according to the directions of the will, in his lifetime, and he was infeft under the entail. From that time he was unquestionably in titulo to grant the provision, and the title he had thus acquired accresced to the respondent upon the maxim jus superveniens successori accrescit. The same maxim
But, in truth, there was no necessity for any infeftment in James Mc Pherson, in order to validate the provision, or that any investment in lands at all should have been made. If the estate had all continued personal, he would still have been entitled to grant the provision on the authority of Houston v. Nieolson, Mor. 2338, where the right to grant a provision out of the profits of money directed to be invested in the purchase of lands to be entailed was expressly sustained, upon the principle that there being no doubt of the intention, the case was to be viewed as if the intention had been carried into execution. Moreover, in the present instance, the provision to widows does not require to be made a real charge upon lands or to affect them in any way; it is expressly limited by the power to a personal obligation upon the heirs.
II. Assuming the provision to have been granted in a form that would make it binding, there can be little question of the power of the granter. The fair and reasonable construction of the will is, that the testator intended the entail thereby directed to be made, to be similar in its terms to the one he had himself made, which expressly gave power to grant this provision. It can hardly be supposed, in the absence of any express terms requiring that effect, that he would desire that his estates should be held by the same heirs upon two different entails containing
But, on the other hand, if the will did not authorize the provision, it would still be sustainable on another ground. The respondent's right to terce was no way excluded; nor was it dependant upon her husband's infeftment, Bartlett, 21st February, 1811, F.C. Her husband was, therefore, entitled to grant her a reasonable provision, so long as it did not exceed the terce, Cant v. Borthwick, Mor. 15554; Rose v. Fraser, Mor. voce Terce App. I. The radical right was in the husband, and that was sufficient to support the provision. Houston v. Nicolson goes to this, that, although land was not purchased, there was power to grant a provision out of the money directed to be entailed. In that case, the provision was sustained because of the intention, although the form prescribed by the power was a locality, a form applicable to lands and not to money.
But, still further, the annuity would be good under the 5 Geo. IV. cap. 87, which had passed in the lifetime of the respondent's husband. The contract of marriage, though executed prior to the Act, did not take effect until after it. It was a plain expression of intention to grant the provision; and the statute does not make it necessary that deeds granting provision should recite or refer to it.
III. It is impossible to read the contract of marriage without seeing, that the intention of James Mc Pherson was to execute the power given him by the entail in the terms and to the extent to which it was given. According to the interpretation which has been put upon powers similarly expressed, the extent of the provision is to be measured by the amount of the rents, as at the death of the heir granting the provision, Mackgill, Mor. 15451; Glencaim v. Graham, Mor. Heir Appar. App. I; Douglas, 15 May, 1822, F. C.; Rothes, 7 Sh. 339. Mc Donald v. Lockhart,
But the terms of the provision would justify the construction the respondent contends for. If a fourth of the rents as they were actually realized had been intended, there would not have been any occasion for the use of the word “ annuity” but the provision is of an “annuity equal to one-fourth,” which must mean something different from the actual fourth itself.
IV. The deductions to which the annuity is to be subject in calculating the free rents are specified in the entail, with a conclusion of any “other burden,” that is, any other burden of a nature similar to those enumerated; but the expense of the embankment is neither specified, nor is it a burden, and still less a burden similar to those specified. It is not a charge upon the rent in any way whatever, but an expense disbursed by the proprietor out of his own pocket, and very much resembling those permanent repairs which in no view could be a charge upon the annuity.
V. The entail allows a certain proportion of the revenue derived from the lands to be settled by the heirs upon their widows. An annual revenue has for many years been derived from the sale of the right to shoot game. So long as game was not allowed by law to be sold, the privilege was not one of any ascertainable value; it was strictly a personal franchise communicable by the proprietor to others, but not for any consideration of pecuniary value. But so soon as the sale of game was permitted the matter was changed. The franchise then
My Lords, the two questions which principally detained your lordships from giving judgment when this case was heard, and which appear to require, perhaps, further consideration, were these:—First, whether the expenses of keeping the estate clear and defended, and free from the waters of the adjoining river, and which expenses were said to be of such constant occurrence, that they might almost be reckoned an annual outgoing in the management of the estate; whether those expenses should be deducted for the purpose of ascertaining what the clear rent was, to one-fourth part of which the widow was entitled. The next question was, whether an account should be taken of the game, there being a large extent of territory let, and which was let, manifestly, for no other purpose than for shooting and sporting thereupon.
To both of those questions I shall shortly now advert, stating, that I have come to the conclusion at which Lord Moncrieff arrived, he having, at different times, no doubt felt
He says, that he considers that this outgoing is not to be deducted from the clear rent. The argument for deducting it is this; that, suppose a lease had been granted, what they call there a tack had been granted to a tacksman, and the tenant had taken upon himself the expenses of those embankments, necessary for the preservation of the land, that would pro tanto have diminished the rental. The argument is put thus: suppose the expenses were 80 l. a-year for the embankment, and the gross rent would be 280 l. if the landlord paid for the embankment; and suppose, that by the terms of the lease the tenant was to pay for the embankment, he would deduct the 80 l., and the whole clear rent would only be 200 l., instead of 280 l. Then, contends the appellant, the owner of the estate, “I have no right to reckon the whole 280 l., but only the 200 l.” That is, neither more nor less than deducting the expense of the embankment.
Now Lord Moncrieff's answer to that appears to me perfectly conclusive. He says it may be so, if that was a bargain—it may be so, if that was the lease. But, in the first place, this is assuming that the embankment is a yearly expense, like one of the ordinary expenses to which the owner of an estate is liable in the manurance of his property. But, non constat, that it is a yearly expense. I look upon the expense of an embankment to be very much the reverse of an annual expense. I know a little of embankments myself, and I am perfectly aware that they are never regarded as an annual expense of the
Now what is the consequence? Is that to be deducted as a yearly expense and outgoing in the management of the property? No such thing. It is a positive improvement of a permanent nature, the benefit of which goes to the fiar; and, therefore, the burden of it ought to fall upon the fiar who enjoys the benefit. It is true that the widow will get a benefit in the proportion of one-fourth part, but she is not to pay for that embankment merely because the owner chooses to embank, and by so embanking greatly increases the value of the corpus of the estate.
I take, therefore, a most manifest distinction, founded on the whole view which I have taken of such a case, between
But, then, says my Lord Moncrieff, admitting it to be an annual outgoing, admitting that they are right in saying that, if there had been a lease, and it had been a term of the lease that the lessee should pay the expense of the embankment, then the landlord would receive, therefore, so much less rent; in that case, past all doubt, the fourth part of the widow would suffer a deduction—because she is only to get a fourth part of the clear rent; and she could not come into Court and complain that 80 l. had been allowed to the tenant, because the settlement which gives this right to the widow, assumes that the management of the estate is to be in the fiar; and if he is to retain the management of the estate, as is most justly and accurately observed by Lord Moncrieff, he is to manage it for his own benefit. Miss Mc Pherson, the present fiar, is left to manage it in the way she thinks best for her own benefit. The widow is liable to suffer if she mismanages it. She has no power to interfere. She cannot come into Court to stay her from proceeding in a way which is injurious to the widow's rights. She cannot come into Court to call upon the Court to stimulate the fiar to get more out of the land than she gets. She cannot call upon the fiar by any process of law, or in any way whatever to alter the management of the estate. So far she suffers from the management of the fiar, if it turns out to be injudicious. But precisely in the same way if the fiar chooses, as Lord Moncrieff justly observes, not to make that kind of bargain with the tenant, but herself to pay the expenses, the benefit of that, if it is to be called a benefit, accrues to the widow, just as the detriment would accrue to the widow, in the contrary case which I have supposed.
I am, therefore, of opinion with his lordship upon that ground, that this expense of the embankment—and there are
The next point, my Lords, is with respect to the game. It no doubt was very ably and strenuously argued as a matter that ought not to be included for the benefit of the widow, that a certain tract of country was only let for the purpose of keeping so much grouse as a matter of pleasure; and that the fiar need not have let it, but might have kept it in her own hands. My Lord Moncrieff's answer to the case of the tacksman just applies to that, namely, if she had done that—if she had not let the game. If the game had been unlet, I am not called upon to say what my opinion would have been, as to whether the widow would have had a right to say, I am not to be a loser, because Miss Mc Pherson chooses to shoot instead of letting the game. I am not called upon in supporting the judgment below, and in arguing in favour of my opinion for affirming that judgment, to say what would have been the case, if the game had not been let. Because I apprehend that is not one of the matters here in dispute; but I have a very clear opinion, (though I am not called upon to give judgment upon that ground,) that the widow would be entitled even in that case. All the cases that have been decided would go to that extent.
There is the case of Sinclair v. Duffus, which really appears to me to take away all controversy upon this, and which appears to me to have received the consideration of all the Judges, and the consulted Judges also. The consulted Judges gave their opinion, and the Court there held, I think
My Lords, upon these grounds, therefore, I have no hesitation in recommending to your lordships that the judgment of the Court below be affirmed.
Then having so bound himself, the only question is, had he
I apprehend, therefore, my Lords, that the title of the widow is clearly made out to a fourth part of the income arising from this property. I am also of opinion that the measure of that right is that which has been laid down by the learned Judges in the Court below.
The earliest inhabitants of the Highland hills I fancy were the red deer; then came the black cattle; and sheep afterwards were found to be more profitable. But now the most profitable purpose to which the Highland hills can be converted, is the rearing of grouse, and the sheep are in many instances laid aside because they interfere with the eggs of the grouse in the spring; and instead of sheep, the whole territory is devoted to grouse rearing.
Now a very important question arises,—extremely important for widows in Scotland,—whether, if they are entitled to a certain proportion of the free annual rents of a Highland estate, the sums received by way of rent for the shooting shall be included or excluded. If they were excluded, in many instances the widow would be left entirely destitute; but I can see no reason in the world why, if the produce of the ground is devoted to the feeding of grouse, the profit thence arising should not be considered the annual rent of the land, just as much as if the produce of the ground is devoted to the feeding of four-legged animals, deer, cattle, or sheep. It is a rent received substantially for the use and occupation of the land.
There are some subtleties arising from the right of shooting being considered a franchise; but when we construe a settlement of this sort, whereby a certain proportion of the annual rent is given as a provision for the widow, we must suppose that the author of the settlement is a man of sense, reason, and understanding, and that he looks to the manner in which the land is occupied and to the source from which the profits are to arise. I am clearly of opinion, therefore, upon principle, that the rent received from the right of shooting upon these moors is to be considered as part of the annual rent of the land. And I am very glad to think that we have not only principle and good sense to proceed upon, but the decided case of Sinclair v. Duffus, to which my noble and learned friend who first addressed your lordships, has alluded.
I concur entirely, therefore, with the great majority of the learned Judges below and with my two noble and learned friends who have preceded me, that the rent from the shooting should be included, and that the widow is entitled to one-fourth of that as much as she is entitled to the portion of the rents arising from the rest of the estate.
It is ordered and adjudged. That the said petition and appeal be, and is hereby, dismissed this House, and that the said interlocutors
Solicitors: G. and T. W. Webster — Richardson and Connell, Agents.