Scottish Court of Session Decisions

General Monteath Douglas, succeeding under an entail conferring powers to execute provisions in favour of younger children, executed a bond of provision in the following terms:—“And further, considering that I have two daughters, viz., Amelia Murray Monteath of Kepp, and Augusta Emmeline Monteath Douglas, neither of whom is the next existing heir or substitute in the entail of the said estate of Rosehall called to the succession of the said entailed estate after me, and that, therefore, in the view of my said daughters not succeeding to the said estate upon my death, I am desirous to exercise the power competent to me, as heir of entail in possession thereof, of granting provisions to them in manner afterwritten, and that in the contract of marriage executed or to be executed simul ac semel with the execution hereof in contemplation of the marriage about to be solemnised between William Scott, Esq., younger of Ancrum, and the said Amelia Murray Monteath, my eldest daughter, I have bound myself to grant and secure to the said Amelia Murray Monteath, if she shall not be the heir of entail succeeding to the said estate of Rosehall at my death, such a provision, payable to her from the said estate of Rosehall, or by the heirs of entail succeeding thereto, as my powers will admit of my granting to her on the footing of, and without prejudice to, my giving to each of my children not succeeding to the said estate, an equal share of the total amount of the provisions which I am entitled to grant to or for behoof of all my children not succeeding to the said entailed estate. Therefore, and in the exercise of the powers competent to me under the entail of the said estate of Rosehall, and also in implement of my obligation before mentioned contained in the said contract of marriage, I do hereby bind and oblige the heirs of entail succeeding to me in the said entailed estate of Rosehall and others, to make payment to the said Amelia Murray Monteath and Augusta Emmeline Monteath Douglas, equally between them, and their respective heirs, executors or assignees (subject to the provisions and declarations hereinafter written) of the sum of £25,000 sterling, at the first term of Whitsunday or Martinmas after my death, with interest of the said principal sum of £25,000 at the rate of five per cent. per annum from and after my death to the said term of payment, and thereafter during the not payment of the said principal sum: Providing and declaring always, in terms of the limitation before mentioned, contained in the said

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deed of entail, that in case the said sum of £25,000 shall exceed three years' free rent of the said entailed estate, in so far as the same shall not be affected at my death with liferent infeftments (if any such shall be existing), and after the deduction of the yearly interest of former debts and provisions and burdens to which the said entailed lands may be subjected, the said provision shall be restricted to such a sum as shall be equal to three years' free rent of the said entailed estate, and the provision and obligation before written shall be valid and effectual to my said daughters only for payment to them of the sum so restricted, and shall be held to be extinguished as to any excess beyond the amount of three years' rent: But in case the said sum of £25,000 shall not be equal to the amount of three years' free rent of the said entailed estate, then I bind and oblige the heirs of entail succeeding to me in the said entailed estate to make payment to my said two daughters, equally between them, or their foresaids, of such further sum as will, with the said sum of £25,000, make up to them a provision from the said entailed estate equal to three years' free rent of the said estate, bearing interest from my death, and payable at the first term of Whitsunday or Martinmas thereafter, in the same manner as is herein before provided with reference to the said sum of £25,000.”

At the date of the death of the said General Sir Thomas Monteath Douglas, the minerals on the estate were let on a lease for thirty-one years, commencing at Whitsunday 1866. Previous to the commencement of the new lease the minerals had been worked under a lease dated in 1837, two years of which had yet to run, but which was renounced when the new lease was entered into. In the old lease the minerals are described as “all and whole the seam or seams of coal and ironstone.” In the new lease the subject let is described as “all and whole the coal, ironstone, bituminous shale, and fire-clay.” The fixed rent under the old lease was £700; under the new lease it is £1500. There was under both leases the alternative of a lordship, the rates of which were largely increased under the new lease, and lordships imposed on a variety of products not mentioned in the old lease

The rental of the estate for the year during the currency of which General Monteath died was £7238, 2s. 11d., three years of which amounts to £21,714, 8s. 9d.

The average rental calculated on the seven years including and preceding the year of death was £6240, 14s. 0d., three years of which amounts to £18,721, 2s. 0d.

The average rental calculated on three years as £6991, 5s. 6d., three years of which amounts to £20,977, 16s. 6d.

The questions of law for the opinion and judgment of the Court were—

“(1) Whether, in calculating the free rent of the said estate, with a view to fix the amount of the provisions due to the said marriage-contract trustees, under the said bond of provision, the rental derived from lordships on minerals in the estate is to be taken at £21,714, 8s. 9d., being the amount of such rental due for the year ending Whitsunday 1869, being the year current at the death of the granter of the Bond? or,

(2) Whether, in calculating the free rent of the estate for the purpose foresaid, the amount of the rental derived from the foresaid minerals is to be taken at the sum of £18,721, 2s., being an average of the seven years including and immediately preceding the death of the granter of the bond? or,

(3) Whether, in calculating the free rent of the estate for the purpose foresaid, the amount of the rental derived from the foresaid minerals is to be taken at the sum of £20,973, 16s. 6d., being an average of the three years including and immediately preceding the year of the death of the granter of the bond, and being the period of the currency of the new lease? or,

(4) Whether, in calculating the free rent of the estate for the purpose foresaid, the amount of the rental derived from the foresaid minerals is to be estimated on any other footing, and fixed at any other sum, and, if so, what other footing or sum, than as referred to and specified in the preceding questions?”

Gifford and J. M. Duncan for the Rev. Sholto Douglas.

Solicitor-General and Mackay for the Marriage-Contract Trustees of Mrs Yorke and Mrs Monteath Scott.

The Court unanimously held that the decision in Wellwood, 20th December 1848 ( 11 D. 248), settled that, in the case of a mineral lordship, an average must be taken in order to ascertain the fair annual rent or value of the estate; but as in this case a new lease had been granted, with a greatly increased lordship two years before the year current at the date of the granter's death, that the proper average to be taken was that of the last three years' lordship, and not of seven years, as had been done in the case of Wellwood.