Scottish Court of Session Decisions

On 5th July 1898 Mrs Maria Ann Liot Bankes, heiress of entail in possession of Letterewe and Gruinard, presented a petition for authority to disentail these estates. The petitioner was born in 1839, and the deed of entail under which she held her estates was dated 31st March and 25th April 1883, and recorded in the Register of Tailzies on 18th June of the same year. The three next heirs entitled to succeed to the entailed estates were Mrs Ada Jane Bankes or Anderson and her two sons, all of whom were of full age and subject to no legal incapacity.

The petitioner averred—“The said Mrs Ada Jane Bankes or Anderson, Allan Meyrick Anderson, and Robert Holme Anderson have not as yet consented to this application, but the petitioner is prepared to pay the values of their expectancies or interests, as the same may be determined by your Lordships, in terms of the foresaid statutes in the event of their not consenting, or in the event of their consenting to this application she will produce in the course of the proceedings to follow hereon a deed or deeds of consent duly executed by them.”

The Entail Amendment (Scotland) Act 1875 (38 and 39 Vict. c. 61), sec. 5, sub-sec. (2) (to which the petitioner referred), enacts—“In the event of any of the foresaid heirs, except the nearest heir for the time, … declining or refusing to give … his consent, the Court may dispense with such consent in terms of the provisions following (that is to say), ( a) when any of the foresaid heirs entitled to succeed except the nearest heir for the time declines or refuses to give … his consent, the Court shall, on a motion to that effect by the petitioner in the application, and on a statement by him of the declinature or refusal … of such heir or heirs aforesaid, … ascertain the value in money of the expectancy or interest in the entailed estate with reference to such application of such heir or heirs declining or refusing to give consent as aforesaid.”

The Entail (Scotland) Act 1882 (45 and 46 Vict. c. 53), sec. 13, enacts that the provisions of sec. 5 of the Entail Amendment Act 1875 shall apply to the nearest heir as well as to other heirs.

On 4th October 1898 Lord Pearson, as Lord Ordinary officiating on the Bills, remitted to the Hon. J. W. Moncreiff, W.S., to inquire into the regularity of the procedure, to Mr J. J. Davidson to inspect the estates, and to report what in his opinion was their net value, and to Mr George M. Low, actuary, to value the interests or expectancies of the three next heirs of entail in the said lands. The three next heirs appeared by their agent at the proceedings in the Bill Chamber, and it was upon their suggestion that Mr Davidson was substituted as the man of skill for the reporter originally nominated by the Lord Ordinary.

On 17th January 1899 Mr Davidson presented his report, in which he stated that the estates extended to 69,627 acres, of which 51,450 acres were under deer forest; that the property was mainly and essentially a sporting one; that in his judgment the present sub-division of the property for sporting purposes was probably as judicious an arrangement from the letting point of view as could be adopted; that the sporting rental of the property might be taken at £2500 per annum, the crofting and farm rents amounting to £726 besides; and that in his opinion the present value of the property was £65,000.

It appeared that on his visit to and perambulation of the estate Mr Davidson was accompanied by the local agent of the three next heirs.

On 9th May 1899 Mr Low presented his report, in which he valued the expectancies of the three next heirs at a total sum of £17,288, or alternatively, and upon the footing that their interests should be valued as prospective rights of liferent merely, at a total sum of £12,115,

The petitioner lodged objections to Mr Low's report, based chiefly upon the ground that in estimating the probable duration of life of the petitioner and the next heir of entail he had followed the rule of the Carlisle Tables, which apply to

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male lives only, whereas the probability of life of females of the same age is higher.

The three next heirs lodged objections to Mr Davidson's report, and relying upon a report furnished by a neighbouring factor maintained that the value of the estates was £87,584.

The respondents subsequently lodged amended objections to both reports, in which, with reference to Mr Davidson's report they averred and offered to prove that the present arrangement of the property was a bad one from a letting point of view, specifying in detail the disadvantages attendant upon it, and with reference to Mr Low's report they made the following averment:—“The heiress in possession is in a precarious state of health, suffering from extreme physical debility, more or less bronchial trouble, and great stomachic derangement, combined with nervous symptoms of an anxious kind, which seriously affect her expectation of life, and the respondents maintain that these facts are proper subjects of preliminary inquiry, and that the result must be taken into account in the reporter's calculations.”

On 29th June 1899 the Lord Ordinary ( Pearson) pronounced an interlocutor by which he (first) remitted of new to Mr Davidson to consider the objections to his report; (second) remitted of new to Mr Low to report with regard to the objections to his report, and (third) remitted to Dr Byrom Bramwell “to examine the petitioner, and to inquire into the facts and circumstances averred in the amended objections for the respondents, touching the petitioner's state of health, and to report whether and to what extent (if any) her expectation of life is thereby affected.’

Opinion.—“This is a petition to disentail, in which the three next heirs have refused their consent. In such a case the statutes enjoin the Court to ascertain the value in money of the expectancy or interest of such heirs in the entailed estate with reference to the application.

Remits were made to a valuator and an actuary according to the ordinary practice.

The valuator has reported the value of the estate to be £65,000, and the net rental £2715, 1s. 5d. The respondents object to this valuation as being considerably under the true value; and they have lodged in process a valuation obtained on their own instructions, which brings out a value of over £87,500, and a net rental of £3808. The estate is mainly a sporting one, consisting largely of deer forest ground. The main objection of the respondents is that hitherto the most has not been made of the estate, and that in order to draw the full annual value of it, it ought to be redivided and let according to a different scheme. The respondents asked to be allowed a general proof on the subject of the value of the estate.

It seems to me that no reason has been shown for departing from the ordinary practice in this case. Indeed, it appears to me to be a strong case for following it, because the objections are based largely on matters of mere opinion, and raise questions as to what the rental would have been if the estate had been differently divided and differently managed. I do not say that the considerations urged by the respondents are irrelevant. But in my judgment the proper way to deal with them is not to allow a proof at large, but to remit them to the reporter for his consideration.

I was unwilling however to make the report of the respondents' valuator the subject of the remit, it being virtually a precognition; and I have allowed the respondents to formulate their averments in amended objections now lodged. I propose to remit of new to Mr Davidson to consider these objections and any answers thereto which the petitioner may lodge, and to report. It remains to be seen whether this will result in an alteration of Mr Davidson's figures. If it does, there will require to be a new remit to the actuary.

The report of the actuary is also objected to, and by both parties.

1. The actuary assumed, as he was bound to do in the absence of objection, that the petitioner's life was an average one. The respondents now object to this assumption, and make averments as to her state of health, alleging that her expectation of life is seriously affected. The averments are, in my opinion, sufficient to warrant inquiry into the matter. The respondents stated their preference for an inquiry by way of proof on this head also. But the petitioner, through her counsel, expressed her willingness (if the averments are considered to be relevant) to submit to be examined by a medical man selected by the Court; and I am clearly of opinion that this is the proper course in the circumstances of this case. It is easy to figure cases in which this course might not be appropriate, as where the averments relate to matters of old date. Here all the averments touching the petitioner's health are founded on present symptoms, and (I should suppose) admit of being tested by examination in the ordinary way, in the light of such information regarding the history of the case and the surrounding circumstances, as the medical man may think material. If he should find any difficulty in obtaining the necessary information, it is open to him to present an interim report to that effect.

The petitioner, on the other hand, objects to the actuary's report, on the ground that he has underestimated her expectancy of life, and that of her sister, the heir-presumptive, and has thus overestimated the value of the expectancies of the two postponed heirs, who are males. This is said to have resulted from the actuary having calculated the expectations of life upon tables which are applicable to male lives only, it being averred that the probabilities of life of females of the ages of the petitioner and her sister are materially higher. I see no objection to asking for an explanation from the actuary on this head, and I shall do so by way of a supplementary remit,”

The respondents reclaimed, and moved

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for a proof both as to the value of the property and as to the health of the petitioner. Argued—1. With regard to the value, no doubt a remit was the usual mode of ascertaining the facts, but here the circumstances were complicated and peculiar, and the determination of questions involving serious pecuniary interests should not be left to the opinion of one man of skill. Mr Davidson had already given his decision, and to refer the objections to him for reconsideration would be idle. It was doubtful whether a remit was competent when one of the parties objected to it,— Quin v. Gardner & Sons, Limited, June 22, 1888, 15 R. 776. 2. With regard to the petitioner's health, the respondents had a right to inquiry. The most appropriate form for that inquiry to take was a proof, and proof had been allowed in Macdonalds v. Macdonald, March 19, 1879, 6 R. 869, rev. March 15, 1880, 7 R. (H.L.) 41. [Counsel for the respondents intimated that, although he had refrained from putting them into print, he was in a position to make averments as to the petitioner's health which would necessitate the facts of her past life being inquired into]. De Virt v. Wilson, Dec. 19, 1877, 5 R. 328, also referred to.

Argued for the petitioner—The Lord Ordinary had taken the proper course on both matters. 1. With regard to value, a remit to a reporter was not only the usual but the appropriate method of arriving at what at the very best was necessarily matter of opinion— Pringle v. Pringle, June 12, 1891, 18 R. 895. But, in any event, if the respondents desired a proof, they were too late now in asking for it. They had consented to the original remits, and could not now propose to supersede that mode of inquiry. 2. With regard to the petitioner's health, the averments here were of a nature easily distinguishable from those in the case of Macdonald, ut sup. There certain historical facts in Captain Macdonald's life were averred which were eminently suitable for proof in the ordinary way. Here, the averments, one and all, dealt with symptoms presented by the petitioner at the present time, and therefore most readily tested by medical examination, to which the petitioner was quite willing to submit.