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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baillie's Trustees v. Baillie [1891] ScotLR 29_196 (8 December 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/29SLR0196.html
Cite as: [1891] ScotLR 29_196, [1891] SLR 29_196
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SCOTTISH_SLR_Court_of_Session
Page: 196↓
Court of Session Inner House Second Division.
v.
Facts:
A husband directed his trustees to hold his whole heritable estate for his wife, and to pay her, in the event of her surviving him, “during her lifetime, the free annual proceeds of said estate, and of minerals therein.” Certain parts of the estate had been opened by the testator in his lifetime with the view of being worked for minerals, but had
Page: 197↓
ceased to be worked, and were not under lease at the date of his death. Held that the trustees were entitled to lease such portions without the consent of the person to whom the estate was to be conveyed upon the expiry of the liferent, and that the liferentrix was entitled to the rents derived therefrom.
Case of Campbell's Trustees v. Campbell, March 15, 1882, 9 R. 725, aff. July 6, 1883, 10 R. (H. of L.) 65, distinguished.
The late Sir William Baillie of Polkemmet, Baronet, died on 21st July 1890 without issue, survived by his wife. He left a trust-disposition and settlement dated 10th April 1889, which contained, inter alia, the following provision—“Second, My trustees shall, from and after my death, hold my estate of Polkemmet, comprehending the whole lands, teinds, and other heritages in the county of Linlithgow belonging to me for the liferent use of Dame Mary Baillie, my wife, in the event of her surviving me, and they shall pay to her during her lifetime the free annual proceeds of said estate and of minerals therein, and allow her to occupy the mansion-house, offices, and policies.”
A special case was submitted to the Court by the trustees of the first part, Dame Mary Baillie, the widow, of the second part, and Sir George Baillie, Baronet, to whom the estate of Polkemmet was to be conveyed upon the death of the liferentrix, of the third part, which set forth the following facts—At the date of the said trust-disposition and settlement the minerals in certain portions of the estate of Polkemmet were let, and were being worked by the tenants thereof. These leases were still in force, and the minerals had been worked under them down to the present time. The first parties had recently received an offer from Messrs Robert Addie & Son for a trial lease of the minerals in certain other portions of the lands of Polkemmet. In the event of minerals being found which Messrs Addie might wish to work, they stipulated for a lease of thirty-one years from Martinmas 1892 at certain fixed rents, ranging from £200 to £400 per annum for the different periods therein specified, or in lieu of these fixed rents, in the option of the first parties, the lordships therein mentioned. The portions of the estate of Polkemmet referred to in the foregoing offer were the farms of Burnbrae, Swineabbey, East Whitburn, and West Foulshiels. The minerals in Burnbrae were let by the late Sir William Baillie for thirty years from Whitsunday 1857, with a break in favour of the tenant at the end of every third year for a fixed rent of £100, or in lieu thereof certain lordships. The tenant entered into possession and worked the minerals until 1865, when he gave up the lease. There was subsequently another lease of the Burnbrae minerals for twenty-four years from Martinmas 1873, but the lease was abandoned on the tenant's bankruptcy in 1881. The pit upon the farm still remained open, and could easily be made available for working. The minerals in Swineabbey were let by Sir William Baillie in 1857, at the same time as those in Burnbrae, and to the same tenant, but the tenant, after making borings to prove the mineral field, gave up the lease in terms of a reserved power to that effect without having worked the minerals. Again, in 1867, Sir William Baillie accepted a proposal for a thirty-one years' lease of the minerals in the farms of Burnbrae and West Foulshiels, and in 1886 he accepted a proposal for a twenty-five years' lease of the minerals in, inter alia, the farms of West Foulshiels, East Whitburn, Swineabbey, and Burnbrae. In each case the tenant gave up the lease after proving the mineral field without having worked it.
The opinion of the Court was requested upon the following questions of law—“(1) Have the first parties power to let the minerals in the portions of the estate of Polkemmet referred to for a period not exceeding thirty-one years (1st) without the consent of the third party, or (2nd) with his consent? (2) In the event of either alternative of the first question being answered in the affirmative, is the second party entitled to receive during her lifetime the free lordships or rents of the minerals in the said portions of the estate of Polkemmet?”
Argued for the first and second parties—The trustees were entitled, under the Trust Act 1867 (30 and 31 Vict. c. 97), sec. 2, sub-sec. 3, to enter into the lease proposed, and the liferentrix was entitled to receive the rents. The case of Campbell's Trustees v. Campbell, March 15, 1882, 9 R. 725, aff. July 6, 1883, 10 R. (H. of L.) 65, relied on by the third party, was clearly distinguishable in several points—(1) the word was here “proceeds,” and not merely “produce” or fruits; (2) “minerals” were explicitly mentioned; (3) the parts it was proposed to work had been opened by the testator; which (4) gave an “irresistible indication of the testator's intention there desiderated by Lord Blackburn.
Argued for the third party—This case was ruled by that of Campbell, and the arguments there submitted applied. The testator knew when he made his will what parts of his estate were yielding mineral rents. It was not to be presumed that he wished his widow to have more even if the fields were opened up. There was not here the clear intention desiderated in Campbell's case, and the words employed were not really of a wider scope.
At advising—
Page: 198↓
The statement of facts in the case brings out that at various times during the lifetime of Sir William Baillie the minerals had been opened up and leases given. It also appears from the statement of the case that the working of these minerals did not turn out profitably for the tenant, and that the tenant ceased to work them, and that the pit upon the farm still remains open and could easily be made available for working. That applies to the Burnbrae minerals and the Swineabbey minerals, and the question which is put to us is, whether the trustees have power to let these minerals fields which have already been opened up without the consent of the heir who is ultimately to succeed to the estate, or with his consent?
Now, the first question of course is, whether they have the right or not. This case is peculiar in this respect, that the settlement contains the express declaration that the widow is to have the free annual proceeds of the estate and of the minerals therein; and the only question put to us is, whether the mineral fields that have been already opened up are available to her as part of her liferent—whether the trustees are entitled to carry on the working of these mineral fields by letting them and to give the widow the benefit of these mineral fields. It seems to have been pretty clearly and distinctly laid down in the case of Campbell. I read from the opinion of the Lord President in the case of Campbell's Trustees, 1882, reported in 9 R. 725, “that where a mineral field has been opened up and made part of the fruits of the soil, or has provided an income during the lifetime of the testator, the liferenter of the estate is entitled to continue to have those fruits as part of the free income of the estate,” but that where they have not been opened up in the lifetime of the testator, and the minerals have not practically become part of the fruits of the soil, then the liferenter is not entitled to enjoy them.
Now, I think, giving the best consideration I can to the facts stated here, that the widow is entitled to the benefit of the fruits of these fields that were opened up. They were opened up during the lifetime of the testator. He drew the fruits as long as the tenant was able to pay them. Local or temporary circumstances may have prevented the tenant carrying on the work at a profit, and they may have been stopped for a time, but they were opened up in the lifetime of the testator, and to bring the doctrine in Campbell's case, where the testator has given the liferent of the minerals as he has expressly done in the second head of his settlement, it is difficult to see what minerals he could have meant unless it was the mineral fields already opened up or the whole minerals. Now, it is not necessary to decide whether the trustees could open up any new mineral fields in any other part of the estate. That is not the question put to us. The question is, whether they have power to let the minerals on the estate referred to in the case, and on that matter I have come to the opinion that they are so entitled, the widow being entitled under the deed to the proceeds of the minerals, and these mineral fields having been opened up. The only other question is, whether the consent of the third party is necessary? and I am of opinion that the consent of the third party is not necessary, the question being of the nature I have indicated, and the law laid down in the case of Campbell being as I have stated. Therefore I think we should answer the first question in the negative, and the second in the affirmative.
The Court found that the first parties were entitled to let the minerals in the portions of the estate of Polkemmet referred to without the consent of the third party, and answered the second question in the affirmative.
Counsel for First and Third Parties— W. Campbell.
Page: 199↓
Council for Second Party— H. Johnston— Macfarlane.
Solicitors: Agents for First, Second, and Third Parties— Tods, Murray, & Jamieson, W.S.