Scottish Court of Session Decisions

In the circumstances above set forth, the mansion-house not being habitable by the heirs of entail, and the fields not being kept up as policies but let as ordinary grass parks, it appears doubtful whether the rent obtained for the fields forms a proper deduction in the present instance.

Woodlands entered at £12, 13s. 6d. are also claimed as a deduction. The woodlands, it is understood, surround the fields in question, and would form a natural part of the policies if properly kept up. But if the fields are not to be regarded as policy the woodlands by themselves could hardly be so. The two entries should therefore, it is thought, stand or fall together.

In considering the whole question it is to be kept in view that in course of the procedure to follow on this petition a bond and disposition in security will fall to be granted by the petitioner in terms of the 21st section of the Rutherfurd Act and the 7th section of the Entail Amendment Act of 1851. The former Act provides that it shall be lawful for the heir of entail in possession to charge the fee and rents of the estate, other than the mansion-house, offices, and policies thereof, with the amount of provisions to younger children granted by any former heir of entail. Should policies be disallowed as a deduction from the rental, one of two courses might be followed in framing the bond—either the usual exception can be made, in which case the rental of the lands conveyed in security would be less than the rental on which the provision was calculated, or policies might be omitted from the exception in the bond on the ground ‘that there being no policies none can be excepted.’ It should be mentioned that a bond and disposition in security for £500, being a younger child's provision (then being paid off), which bond still forms a charge upon the entailed estate, was granted in 1864 by Charles, Marquess of Northampton, the heir of entail then in possession. Under this bond, which was granted at the sight of the Court and under the statutes of 1848 and 1853, the lands and barony of Kirkness are disponed in security to the lender, ‘but excepting always therefrom the manor or mansion-house of Kirkness, offices, and policies thereof.’ The narrative of the proceedings contained in the bond bears that the Lord Ordinary, after a remit to a reporter on receipt of his report, found, inter alia, that the free yearly rental of the estate for the year 1827, after making the deductions required by the said Act ( i.e., the Aberdeen Act) amounted to £817, 18s. 7d. It does not appear from this narrative that any question as to policies had been raised.”

In addition to the authority mentioned by the reporter, the cases of Macpherson v. Macpherson, 1834, 1 D. 794, and Grierson, Petitioner, 1887, 25 S.L.R. 544, were cited.

On 20th July 1898 the Lord Ordinary granted the prayer of the petition.

Opinion.—“I think the heir is entitled to make this deduction here. I take it as matter of fact that these parks were part of the old policy of the estate, and are now, as the mansion-house is dilapidated, let to tenants. This state of facts seems to me to approach more nearly to the facts in the cases of Leith and Grierson than to those in the case of Macpherson, though perhaps it lies between them. On the information before me I hold that the house (which is partly inhabited) and the parks are still in law the mansion-house and policies of this estate. The question is not so much what is a rent-producing subject, as what can the heir let for a longer period than his own life. These grass parks are, I have no doubt, let in the usual way from year to year, and I think they are rightly so let, because they fall under the description of ‘policies,’ which the heir could not lease for a longer period than his own life. I think, therefore, they are to deducted in computing the free rental under the Aberdeen Act.”