Scottish Court of Session Decisions

This was a petition by Lord Saltoun, heir of entail in possession of the estate of Philorth, in the county of Aberdeen. The object of the petition was twofold (first) to restrict provisions made by the last heir in possession, Alexander, Lord Saltoun, who died 1st February 1886, in favour of his

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widow of £2000 per annum of jointure, and a provision of £30,000 to his younger children, to £1935, 6s. 8d. of jointure, and £13,661, 3s. 7d. of younger children's provisions, which the petitioner considered to be the limits respectively of what was due to the widow and younger children under the deed of entail and the Aberdeen Act, and (second) for authority to the petitioner to charge the fee of the entailed estate of Philorth (other than the mansion-house, &c.) with the amount of the provisions due to the younger children. The petitioner set forth the sum for younger children's provisions in the following way—He stated the free rental of the estate of Philorth as at the date of the death of the late Lord Saltoun to be

	£6489	1	2½
Deduct annuity, which the petitioner stated as the widow's jointure	1935	6	8
Leaving	£4553	14	6½

three years of which taken for the amount of younger children's provisions made £ 13, 661, 3s. 7d. In arriving at the sum stated as the free rental at his father's death the petitioner deducted, inter alia, the sum of £995, 14s. 9d. as drainage rent-charges payable in 1886, the year in which the late Lord Saltoun died. The question therefore arose whether the petitioner was entitled, in striking the free rent, to deduct the whole instalment of the annual rent-charges payable in 1886 or only such portion thereof as consists strictly of interest, or, in other words, whether the whole of the said sum of £995, 14s. 9d. (consisting partly of principal and partly of interest) fell to be deducted, or only the sum of £435, 5s. 6d., being the proportion thereof which consisted exclusively of interest at £4, 10s. per annum on the capital sum of drainage money advanced and remaining unpaid.

In reference to this point the reporter (Mr H. B. Dewar, S S.C.), to whom the Lord Ordinary remitted to inquire into the circumstances set forth in the petition, and to report whether the proceedings had been regular and proper and in conformity to the statutes, reported that the practice on the point in question varied. He reported in favour of deducting not the whole instalment of the rent-charge, but only that portion which consisted of interest for one year at 4½ per cent. on the unrepaid portion of the capital of the drainage loan. He referred to Keith Macalister v. Finlay, July 10, 1867, 5 Macph. 1008, and 39 Jur. 558; Marquis of Queensberry, Petitioner, August 12, 1873, not reported (provisions for younger children)—Lord Shand's opinion is printed infra; Earl of Glasgow, Nov. 12, 1886, 14 It. 59 (in Session papers of which case Lord Shand's opinion in the Queensberry case was laid before the Court); Hamilton, March 11, 1857, 19 D. 723, and 29 Jur. 322; Irving, February 22, 1871, 9 Macph. 539 and 43 Jur. 306; Duke of Roxburghe, June 28, 1881, 8 R 862.

At advising—