Scottish Court of Session Decisions

It is probably true that his legal rights were excluded, because it was assumed that he would succeed to the estates, but I do not think that that amounts to an obligation securing that he shall succeed.

The next question has regard to the value of the estate upon which the expectancies or interests of the next heirs fall to be computed. A remit was made to Mr Fletcher Menzies to report upon the value of the estates, and he has valued them at £24,358, 11s. 8d. Objections were lodged by the second and third heirs to Mr Menzies' valuation on the ground that it was too low, and they subsequently lodged a report by Mr James Hope valuing the estates at £37,000. I again remitted to Mr Menzies to reconsider his report in view of the objections and of Mr Hope's valuation, and Mr Menzies lodged a second report adhering to his original opinion. I have since had an interview with Mr Menzies, and received full explanations from him upon various points.

It will be observed that the main differences between Mr Menzies and Mr Hope are (1) as to the value of the hill pasture, and (2) as to the number of years' purchase upon which the capital value of the estate should be ascertained.

In regard to the yearly value of the hill pasture I have no hesitation in accepting Mr Menzies' valuation, because not only is he a neutral man chosen by the Court, but he possesses great knowledge and experience of hill lands, and his valuation was the result of a most detailed examination of the lands.

As regards the number of years' purchase, however, I think that Mr Menzies has proceeded upon an erroneous principle. He explains that the estate is in an exceedingly dilapidated condition; and in his second report he says that he has taken only twenty years' purchase of the annual value, because a purchaser would have to expend £7000 or £8000 upon necessary buildings, improvements, and repairs. ‘I considered it better,’ he says, ‘to reduce the number of years' purchase to suit the dilapidated condition of the estates than to take off a fixed sum.’

Now, Mr Menzies has estimated the yearly value of the estate as it at present exists, that is, in its present dilapidated condition, and he informs me that the number of years' purchase of the rental which an estate in the district in which Whytbank and Yair are situated might be expected to bring is twenty-six. As, however, an expenditure of £7000 or £8000 would be required to put the estate into thoroughly good order, he allows only twenty years' purchase. It seems to me that by following this method of calculation Mr Menzies has to some extent deducted the depreciation of value caused by the dilapidated condition of the estate twice over. No doubt if money is not spent on the estate it will become still more dilapidated and of still less yearly value. But the £7000 or £8000 of which Mr Menzies speaks is not only the sum which is necessary to keep the estate up to its present value, but also what would be required to convert it into an estate in thoroughly good order and repair, including the building of an additional farmsteading. But if the estate was put into thorough order it would become of greater yearly value than it is at present, and the increased yearly value would represent the return which the purchaser would expect to get for his additional expenditure. He would get an estate of the present value for his purchase-money, and would increase the value of that estate by spending £7000 or £8000 more. What Mr Menzies has really done, therefore, is to take the present value of the estate, calculated according to the ordinary rules of valuation ( i.e., twenty-six years' purchase of the present yearly value), and then to deduct from that the sum required to make the estate more valuable. I do not think that that is a sound principle, and therefore while I accept Mr Menzies' estimates of the present yearly value, I shall allow twenty-six years' purchase of that value, which he tells me is what might reasonably be expected for a residential estate in the district. I therefore take twenty-six years' purchase where Mr Menzies has taken twenty (except as regards the feu-duties at Clovenfords), and the result is to bring out a total value of £30,184, 11s. 8d. instead of £24,358, 11s. 8d.

I should further explain the view which I take of the principle upon which the woods and plantations (other than those around the mansion-house and in the policies) should be valued in a case of this sort, because I heard a good deal of argument upon this point. Mr Menzies reports that almost all the woods are of that age that they might be cut down and sold by the heir in possession. In these circumstances, it was suggested on the one hand that no value should be given for the woods at all as the petitioner might cut them down and sell them; and on the other hand, that as the woods have not been cut down, they form part of the estate, and that their full value—that is the value of all the trees—should be included.

I do not think that either of these extreme views is sound. In valuing an estate upon which there are woods and plantations the valuer would assume that the woods would be dealt with in the ordinary course of prudent administration — that ripe or backgoing trees would be cut, that young plantations would be thinned, and that the removal of old trees would be accompanied by a reasonable amount of planting. Upon such an assumption only can the value of woods be properly estimated, because the value of woods to an estate does not lie wholly in the value of the timber. For example, one use of woods is for shelter, and another is as a covert for game, and both of these

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