Scottish Court of Session Decisions

William Briggs Constable of Benarty, in the county of Kinross, died in 1898, leaving a trust-disposition and settlement, whereby, inter alia, he directed his trustees, in events which happened, to hold and apply the residue of his estate for behoof of his children equally “after providing for all legal rights of my wife.”

The truster was survived by his widow and three children.

Page: 625↓

A special case was presented for the opinion and judgment of the Court by (1) Mr Constable's trustees, and (2) his widow.

The case stated, inter alia, as follows:—The truster died infeft in the said estate of Benarty in the counties of Fife and Kinross. On the said estate there is a mansion-house which has been let to the second party at a rent of £30, and the said estate also contains a mineral field which the truster let in 1888 on a thirty-one years' lease. By said lease the tenants bound themselves and their successors whomsoever to pay to the proprietor and his heirs and assignees a fixed rent, or, in the option of the proprietor, certain royalties. The truster elected to take the royalties stipulated for in said lease, and treated the sums so paid as income. The said trustees (the first parties) have continued to take payment from the lessees of the said royalties. Since the death of the truster the said lessees have opened no new mines in the said mineral field. Two questions have arisen between the parties to this case, the first relating to the application of the royalties received from the said mineral field, and the second to the rent of the mansion-house. The first parties maintain that the said royalties form part of the capital of the trust estate, and fall to be held by them for behoof of the truster's children only. The second party maintains that the said royalties form part of the free annual revenue from the truster's heritage, and that she is entitled to one-third of the sums so paid in name of terce. Further, the second party maintains that she is entitled to one-third of the rent of said mansion-house, but the first parties decline to admit her contention.

The questions of law which are the subject of this report were the following—“(1) Is the second party entitled to terce out of the revenue derived from the mineral field? (3) Is the second party entitled to one-third of the free rent of said mansion-house in name of terce?”

Argued for the second party—The right of a widow to terce from the profits of coal workings was supported by decisions and had been acknowledged by the institutional writers—Stair, ii, 3, 74; Ersk. ii, 9, 57; Craig, ii, 8, 17; Campbell v. Wardlaw, July 6, 1883, 10 R. H.L. 65, 20 S.L.R. 748: Baillie's Trustees v. Baillie, December 8, 1891, 19 R. 220, 29 S.L.R. 196. The mansion-house being let, the second party was entitled to one-third of the rent— Montier v. Baillie, June 29, 1773, M. 15,859; Logan v. Galbraith, January 26, 1665, M. 15,842; Ersk. ii, 9, 48.

Argued for the first parties—The second party's contention as to coal workings was founded upon a misconstruction of the authorities, in which a distinction was drawn between conventional and legal liferents— Waddell v. Waddell, January 21, 1812, F.C.; Wellwood v. Wellwood, July 12, 1848, 10 D. 1480; Fraser, Husband and Wife, ii, 1099; Lamington v. Lamington, February 14, 1682, M. 8240; Belschier v. Moffat, June 30, 1779, M. 15,863; Guild's Trustees v. Guild, June 29, 1872, 10 Macph. 911, 9 S.L.R. 569; Bell's Pr. 1598; Bell's Com. i, 57; Bankton, ii, 6, 11. The mansion-house afforded no terce—Fraser, Husband and Wife, 1097; Mead v. Swinton, February 24, 1796, M. 15,873; Bell's Com. i, 56; M'Laren, Wills and Succession, i, 90; Leith v. Leith, June 10, 1862, 24 D. 1059.

At advising—