Scottish Court of Session Decisions

Miss Anne Jane Wharton Duff, who was born in 1813, succeeded as heiress of entail to the estates of Orton and Barmuckity, situated in the county of Elgin, in 1874. The deed of entail under which she succeeded to and held these estates contained no special provisions which need be adverted to, with the exception of a prohibition against cutting wood within the policy attached to the mansion-house “unless in the course of necessary management and thinning, except such trees as have begun to decay.”

The gross rental of the properties was about £1700 a-year, the net rental between £1300 and £1400. The moveable estate of the ward at the time of her succession amounted to £18,927. It should be added that Barmuckity, though held under the same deed of entail, was a separate estate from Orton, and seven miles distant therefrom.

On 14th March 1874 Colonel James Duff of Knockleith House was appointed curator bonis to Miss Wharton Duff, who laboured under mental incapacity. He entered upon office and administered the estate until his death on 5th February 1898. At that date the ward's moveable estate amounted to £22,151. On 5th April 1898 John Otto Macqueen, S.S.C., Aberdeen, was appointed curator bonis to Miss Wharton Duff in succession to Colonel Duff, upon an application for the appointment of a new curator and the discharge of Colonel Duff, to which the parties were John Wharton Tod, next heir of entail entitled to succeed to the estates of Orton and Bannuckity, Mrs Anne Helen Tod or Chancellor being along with Mr Tod the ward's heir in mobilibus, and Colonel Duff's representatives.

In this petition Mrs Chancellor lodged a minute opposing the discharge of Colonel Duff on the grounds (1) that he had omitted to charge certain improvement expenditure incurred by him on the entailed estate, and (2) that he had mismanaged the woods on the estate and failed to crop them properly.

After sundry procedure the Lord Ordinary ( Pearson) remitted to Mr Macqueen, the new curator, to inquire into the points raised by Mrs Chancellor in her minute. The curator presented an interim report in which he stated that improvements to the extent of over £3000 had not been charged on the estate, which he now proposed to charge, and further that he proposed to cut and sell timber to the extent of at least £10,000. He therefore recommended that the discharge of the late curator should not be granted in the meantime. Upon this report Lord Pearson superseded consideration of the petition for Colonel Duff's discharge in hoc statu.

On 7th November 1898 the curator presented a petition to the Court for authority to charge the entailed estates of Orton and Barmuckity with improvement expenditure to the extent of £3340.

The petitioner averred that between 1878 and the date of his death the late curator, apart from certain expenditure on Barmuckity which had already been charged on the estate to the extent of £1570, had expended in permanent improvements sums amounting to £4581. Of this amount, sums amounting to £3017 were expended with the authority and approval of the Court, obtained in applications presented by the late curator under sec. 7 of the Pupils Protection Act. The cost of certain of these improvements, to the extent of £800, was charged by the late curator on the estate, leaving a balance of £3781 still uncharged. “The said improvements are, as at the date of this application, of a

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substantial and permanent nature. The petitioner is advised by a man of skill whom he has consulted that these improvements are beneficial to the entailed estates to the extent of at least the sum of £3340 over and above the sum of £800 already charged upon the estate as aforesaid, conform to report by Mr George Gordon Jenkins, C.E., and valuator, Aberdeen, herewith produced.”

Answers were lodged by Mr John Wharton Tod, the next heir of entail, in which, inter alia, he submitted, under reference to the Entail Acts, and in particular to sec. 11 of the Entail Act of 1882, “that the petitioner's averments in support of the present application are irrelevant, and that the petition should accordingly be dismissed. The petitioner nowhere avers that the application is for the benefit of the ward on whose behalf it is made, and the respondent denies that it is for the benefit of the ward.”

A minute was also lodged by Mrs Chancellor, in which she stated that she approved generally of the prayer of the petition.

The Entail Act 1882 (45 and 46 Vict. cap. 53), sec. 11, enacts that “in every case in which it is competent for an heir in possession of an entailed estate being of full age and not subject to any legal incapacity to make an application to the Court under the Entail Acts, it shall hereafter be competent for an heir in possession, though a minor, with consent of his curators, or for the tutors of an heir in possession if he is a pupil, or for his curator or other administrator if he is otherwise incapacitated, to make such application, not being an application for authority to disentail the entailed estate or any part thereof, and to execute or carry into effect any authority which may be given by the Court. Provided that the Court shall not grant such application unless they are satisfied that it is for the benefit of the heir by whom or on whose behalf it is made.”

On 7th December 1898 the Lord Ordinary ( Pearson) pronounced an interlocutor making the usual remits to a man of business and a man of skill.

Opinion.—“In this case the ward, who is an old lady of eighty-six, has been under curatory since 1874. The late curator having died in February 1898, it was found by his successor, the present petitioner, that a large amount of money had been expended on improvements upon the estate of Orton, of which the ward is heir of entail in possession. Part of it was charged on the estate, and in this petition the curator seeks to charge the balance to the extent of £3340, 6s. 7d.

The application is made under section 11 of the Entail Act 1882, which empowers (among others) the curator of an heir in possession who is incapacitated to present any petition under the Entail Acts which would have been competent to an heir of entail in possession, being of full age and not subject to any legal incapacity, except petitions for disentail. But the power is conferred subject to this proviso—‘Provided that the Court shall not grant such application unless they are satisfied that it is for the benefit of the heir by whom or on whose behalf it is made.’

The petition is opposed by the heir of entail next called to the succession. He maintains that the petition is irrelevant, because it nowhere avers that the application is for the benefit of the ward. The petitioner, however, explains that his case under the proviso does not rest on any specialty, but on the general proposition that even where there is ample moveable estate, as there is here, it is for the benefit of the ward, within the meaning of the statute, that her disposable estate should be increased by charging the expenditure on the entailed estate. I think the admitted facts are sufficient to raise this question, which was fully argued.

The actual expenditure on the improvements was defrayed out of the ward's moveable estate, the curator being authorised thereto by warrants of the Court granted under the first part of section 7 of the Pupils Protection Act 1849. That section further empowers the Court, in the case of an entailed estate, to authorise the curator to take proceedings for charging the improvement expenditure under the Montgomery Act or the Rutherfurd Act up to one-half the amount with which the heir in possession could have charged the estate if he had not been under incapacity. I understand that no part of the expenditure founded on in the petition has been so charged.

The late curator did charge certain improvement money on the estate, and the respondent avers that he arrived at the sum to be charged ‘after careful and deliberate consideration of the special circumstances of each application, and after obtaining the approval of the Accountant of Court.’ I see nothing in this which should hinder the new curator from now charging the undercharged expenditure under his wider powers provided he can show that the improvements on which he founds are beneficial to the estate as at the date of this application to the extent sought to be charged, and also that the application is for the benefit of the ward. The former will be cleared up by remit in the usual way. The latter I have now to consider.

It is urged on the part of the next heir that this not being an act of ordinary administration, the curator must make out a case—if not of necessity, at least of high expediency. It is pointed out that there is ample moveable estate, and that it has substantially increased during the curatory, and that no case is attempted to be made out of personal benefit to the ward. The kind of case contemplated by the proviso of section 11 was (it is suggested) where the ward's own subsistence or comfort or health is concerned, and where the maintenance of the income could not be secured except by such expenditure (on farm-steadings for example) as the moveable estate was insufficient to meet. In this case all that can be said is that the application will result in increasing the

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disposable estate of a person not competent to dispose.

As I have said, section 11 is not confined to petitions to charge, but extends to all petitions competent under the Entail Acts, except for disentail. And I do not doubt that with reference to each application it is the duty of the Court to ascertain whether it is truly for the benefit of the heir.

But I cannot give those words so narrow a meaning as is contended for by the respondent. I think the augmentation of the ward's estate as a whole is to be regarded as a benefit within the proviso. This is not the mere transference of a burden from the moveable to the heritable estate in order to recoup the one for improvements on the other. That might be so if the heritage were held in fee-simple. But the condition of section 11 is that there is an entailed estate, which in the case of improvement expenditure, will go to the succeeding heir without this burden unless it is charged now. And altogether, apart from considerations touching the curator's duty not to alter the quality of the ward's succession, which might have place if the heritage had been hers in fee-simple, the fact that her disposable estate will be materially increased is, in my opinion, sufficient to satisfy the proviso. The ward may convalesce, or she may leave a valid will; and in either case it would, in the ordinary sense of the term, be for her benefit that her estate should be as large as possible, just as it would be to her loss or disadvantage if it were diminished. It is true that in one sense the universitas of her succession is neither increased or diminished by the operation; for the entailed estate goes to the heir of provision, as the fee-simple heritage to the heir of line, and the moveables to the heirs in mobilibus. But, regarded practically, the petition results in her being better off than she was before to the extent of the sum charged.

I therefore make the usual remits to a man of business and a man of skill. It will be distinctly understood that all questions as to the amount to be charged, and the quality and value of the improvements, are reserved for discussion on the report.”

The reporters having presented their reports, the Lord Ordinary, on 25th April 1899, found that the improvements mentioned in the petition were as at the date of the application of a permanent and substantial character and beneficial to the estate to the extent of £3056, and granted warrant to and authorised the petitioner to charge the entailed estates of Orton to the extent of that sum.

On 21st March 1899 the curator presented a note under sec. 7 of the Pupils Protection Act 1849, craving the Court “to grant warrant to and authorise the curator bonis to sell for cutting such portions as in the opinion of a man of skill, to be appointed by your Lordships, are matured and ready for market of the following woods—[ Here followed an enumeration of the woods]—and further to grant warrant to and authorise the curator bonis to thin the wood in the policies of Orton at the sight of such man of skill to be appointed by your Lordships.”

The curator averred—“That the curator bonis has ascertained that a considerable portion of the woods on the said estates consists of matured timber, which has for some time been ready for market, and which should now be sold for cutting; that the value of such matured and marketable wood is estimated at from £10,000 to £16,000, and that a large part of such wood will deteriorate and lessen in value if left uncut. He has further ascertained that the trees within the policies require to be thinned for the proper development of the best of the standard trees therein. The curator bonis has obtained reports, which are herewith produced and referred to, from Mr C. Y. Michie, since deceased, who was forester to the Countess of Seafield at Cullen House, and Mr John Clark, forester to the Earl of Aberdeen at Haddo House. In the circumstances above stated the curator finds it necessary to apply to the Court for special powers. In terms of the 7th section of the Pupils Protection Act, the curator bonis lodged with the Accountant of Court a report narrating at length the whole circumstances of the case, and stating that he desired to obtain the authority of the Court to sell for cutting such timber on the entailed estates as was matured and ready for market, and to thin the wood in the policy, all in terms of said forester's reports. Said report by the curator and the Accountant's opinion, with the curator's remarks thereon, and also a report obtained by the Accountant from Mr William Gilchrist, forester on the Banffshire estates of the Duke of Fife, are appended and referred to, The curator bonis regrets that he cannot, consistently with what he believes to be his duty to his ward, limit his application in the manner suggested by the Accountant; but in deference to the Accountant's opinion, and in order to avoid any possibility of injury to the amenity of the estate of Orton generally, including the prospect from the mansion-house of Orton as a residence, he is willing to limit his application to the effect of craving authority to sell for cutting such portions lying without the policy of Orton House of the woods after mentioned, with the exceptions there stated, as in the opinion of a man of skill to be selected by the Court are matured and ready for market, viz.—[ Here followed an enumeration of the woods]. The curator bonis further, but without prejudice to his right to thin at his own hand such other woods and plantations on the estates as may require it in the proper management thereof, desires authority to thin the woods in the policies at the sight of a man of skill to be appointed by the Court.”

In the report previously submitted by the curator to the Accountant of Court the following passages occurred:—“The curator bonis has now obtained separate reports from these practical men, which he produces herewith. The substance of these reports may be stated as follows, viz.—That the woods on the estates extend approximately to about 500 acres, and are

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of the estimated value of at least from £15,000 to £20,000. That the trees are healthy, none having been cut that should have stood, and few trees (dead or dying) standing that should have been cut. That there is a large quantity of fully matured wood, which has been for some time ready for market, and which should be sold now for cutting. That the value, in the opinion of both reporters, of such fully matured and marketable wood is not under £10,000, while, in the opinion of Mr Michie, wood to the value of over £6000 beyond this £10,000 is matured and should now be sold. That the wood which should thus be sold, being outside of the policy, does not fall under the limitation in the deed of entail of the powers of the heirs of entail to cut trees within the policy only for the purpose of management and thinning. That the trees within the policy require to be thinned for the proper development of the best of the standard trees. Both of the experts recommend the curator to have the sale of the matured wood above referred to forthwith carried out, as the present is a favourable time for selling advantageously owing to the state of the timber market, making it probable that good prices would be obtained. In consequence of the reports from the foresters, the curator bonis conceives it to be his duty to exercise the powers possessed by the ward as heiress of entail of cutting and selling the ripe timber other than wood in the policy and of thinning the trees within the policy as an ordinary act of management for the proper development of the trees therein. He accordingly proposes to sell for cutting, as fully matured timber ready for market, the trees forming lots Nos. 1 to 9 inclusive of the tabular list forming pages 8 and 9 of Mr Michie's report, herewith produced, but excepting therefrom the trees mentioned in lot 4 under the title of ‘policies,’ and which latter are of the estimated value of £101, 9s. The value of the trees so proposed to be cut is estimated by Mr Michie to be £16,188, 0s. 6d. The curator proposed also to thin the woods in the policy for the preservation and improvement of the remaining trees therein, all in terms of the report by Mr C. Y. Michie before referred to.… The curator thinks it proper to submit for the consideration of the Accountant or of the Court the somewhat conflicting views entertained by himself and expressed to him by the heir of entail on the subject of cutting and selling wood on the estate. The curator conceives it to be his duty to exercise the right pertaining to the ward of cutting and selling such plantations and trees outside of the policy as are ready for market, which in the curator's opinion is the course which would be followed by a prudent and careful proprietor, and that he as curator is not entitled to leave this right of the ward unexercised during her life, and thereby forfeit the permanent money benefit which can be secured for her estate. The heir of entail, on the other hand, urges that in the time of the predecessors of Miss Wharton Duff on the Orton estate the administration of the woods on said estate has never been conducted in a commercial spirit and in order to secure a money return from them, but, on the contrary, was prompted by the desire to continue and enhance the amenity of the Orton estate, and of the district in which the mansion-house of Orton is situated, by preserving all timber growing on the estate so long as the trees will stand. As the proposal, however, involves extensive operations and affects so materially the respective and conflicting interests of the heir in moveables and the next heir of entail, he considers that the act may not be considered an ordinary act of administration, but one of a nature which requires the authority of the Court, and he accordingly proposes to make application to the Court for such authority. The curator bonis therefore begs to bring the matter under the consideration of the Accountant of Court, and requests his approval of the proposal to sell for cutting such timber on the said entailed estates as may be fully matured and ready for market, and to thin the wood in the policy, all in terms of the report by the said Mr C. Y. Michie.”

The Accountant, upon the curator's report, remitted to Mr William Gilchrist, forester to the Duke of Fife, to report upon the woods. Upon receiving Mr Gilchrist's report, the Accountant issued an opinion in which he thus summarised the facts relating to the woods on the estate—“It will be seen from the maps produced that the prominent feature of the Orton estate is the finely wooded nature of its grounds. The soil seems specially adapted for timber growth, and the amenity of the estate largely depends upon the preservation of the woods. During the lifetime of the father of the present liferentrix, and of her brother, who succeeded him, a period of over sixty years, the course of wood management appears to have been devoted to the preservation of this salient feature. There was no actual cutting for sale, only a careful thinning out of the weak and decaying trees. The late curator, who acted for twenty-four years, followed the same course of management, and the same judicious thinning, with the result that all the experts recently employed agree that the woods are in first-rate condition. Since the death of the late curator questions have been raised, partly with reference to his management of the woods, but chiefly as to how far it is incumbent on a curator to cut and sell timber, when, as in the present case, he manages an estate for a liferentrix upon whose death the heritable estate goes one way and the moveable estate another. The Accountant holds that the past management has been beneficial, and he is humbly of opinion that the future management should be on the same lines of judicious thinning, coupled with the gradual cutting down of such timber alone as is reported from time to time to be fully ripe and deteriorating in value.” The Accountant's recommendations amounted in substance to this, that certain woods should be cut and thinned at once to the extent of £3412,

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and that certain other timber amounting in value to £5503 might be cut at a later date upon a renewed application by the curator.

The curator issued remarks on the Accountant's report, in which he expressed his intention of modifying his original proposals to some extent in deference to the Accountant's views, and with a view to safeguarding the amenity of the mansion-house. He averred that according to this modified course only 30,000 trees would be cut out of a total of 52,000. He explained that, conceiving thinning to be within his ordinary powers of administration, he only proposed to ask authority to thin in the policies, and that “the power for which the curator is to ask the Court is power to cut those woods which have reached maturity, and the proceeds of which should be in bonis of the ward.” All these documents, together with the reports by the foresters Michie, Clark, and Gilchrist, were printed and submitted for the consideration of the Court.

Mr John Wharton Tod lodged answers to the note for the curator, in which, after pointing out the increase in the ward's moveable estate since 1874, he averred—“The ward's income is more than sufficient for her comfortable maintenance. The present application is presented not in the interests of the ward, who would strongly object to the destruction of her family estates by denuding them of trees as proposed by the curator, but in the interests of one of the ward's next-of-kin Mrs Chancellor, who has intimated that she holds the late curator liable in damages for not having cut and sold the timber on the estates. The curator proposes, without any necessity and without any advantage to the ward, to inflict an irreparable injury upon the estates, which the ward inherited from her father and brother, and for no reason except to convert a portion of the estate from heritable into moveable. Even if such an object were legitimate, the injury to the value of the heritable estate would greatly exceed the gain to the moveable estate.

The respondent refers to the opinion of the Accountant of Court and to Mr Gilchrist's report, as demonstrating that the curator's proposals are absolutely unjustifiable according to the rules of sound curatorial administration.…

The trees which the curator asks authority to cut down are in good condition and are not deteriorating. These trees were planted for the purpose of shelter and amenity, and they have admirably fulfilled that purpose during the lifetime of the ward and her predecessors. They have never been regarded as a subject of commerce, and could not be so treated consistently with maintaining the residential character of the estate. It would not be an act of prudent administration on the part of the proprietor of the said estates to denude them of timber by cutting down a large proportion of the trees on them. He could not do so without spoiling the beauty and amenity of the estates, and indeed of the whole district in which they are situated. The money obtained by the sale of the timber would not be equal to the diminution in the selling and letting value of the estates, while the use and value of the property for residential and sporting purposes would be destroyed for several generations.…

While the respondent agrees generally with the views expressed by the Accountant of Court, he submits that the Accountant has gone wrong in recommending the sale of certain portions of the timber. Even if it be the fact that the timber referred to is ripe, that is no reason for cutting it down if it adds to the beauty and so to the value of the estate.

With reference to the woods which the Accountant of Court recommends for cutting, the respondent begs to submit the following observations:—1. Barmuckity Woodland, Waulkmill Belt.—Barmuckity is a separate estate from Orton though held under the same entail. It is situated two miles from Elgin and seven miles from Orton. The wood which it is proposed to cut down is practically the whole timber on the estate, and while if cut it might yield about £650, its destruction would cause far more than £650 of loss to the estate, for without the wood the value and amenity of the property would be enormously depreciated. The dwelling-house on Barmuckity is superior to an ordinary farm-house, and is really the mansion-house of the estate. The woods are situated on knolls, and add greatly to the beauty and amenity of the estate, besides giving much-needed shelter. The estate as it stands forms a very desirable small residential property. Without the timber it would become a bare bleak farm of no residential value, and depreciated in value even as a farm from want of proper shelter. 2. Faith Wood.—The objection to cutting down Faith Wood is that it would deprive of shelter all the arable land lying along its edge.” …

On 4th May 1899 the Lord Ordinary ( Pearson) granted warrant to and authorised the curator bonis at the sight of Mr Gilchrist (first) to sell for cutting such portions of the following woods as are mature and ready for market, viz.—( a) Barmuckity Wood; ( b) the Scotch fir and larch portion of Waulkmill Belt; and ( c) Faith Wood: And (second) to thin the wood in the policies of Orton.

Opinion.—“The ward, who is over eighty-five years of age, is heiress of entail in possession of the entailed estates of Orton and Barmuckity, which lie about seven miles apart. The estates are well wooded. In particular, Orton has extensive woods, which contribute largely to its value, both in amenity and shelter. These woods have been carefully managed both since 1874 (when the curatory began) and previously. The result is that a considerable amount of the timber is now mature and ready for cutting.

So far as the wood is within the policy attached to the mansion-house, the entail prohibits the cutting of it ‘unless in the

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course of necessary management and thinning, except such trees as have begun to decay.’ So far as the policies are concerned, the curator now asks authority to thin the woods therein at the sight of a man of skill, to be appointed by the Court. A large amount of the remainder of the woods might properly be thinned; but the curator does not ask for any authority as to that, on the ground that it is within his ordinary powers of management. The authority is asked as to the policies only because it is desirable to avoid questions as to whether the prohibition contained in the deed of entail has been contravened.

The main question raised is as to the extent to which the curator should now be authorised to sell the mature timber for cutting. The curator, before submitting the matter to the Accountant of Court, obtained reports from two men of skill—Mr Michie, forester at Cullen, and Mr Clark, forester at Haddo. These gentlemen differed considerably in their view as to what timber was fully matured. Mr Michie included a good deal more than Mr Clark, who reported that lots 5, 7, and 8 of Mr Michie's list were not ripe for cutting.

The Accountant, when the matter was submitted for his opinion, obtained an independent report from a third gentleman, Mr Gilchrist, forester on the Banffshire estates of the Duke of Fife. Mr Gilchrist, while not differing very much from Mr Clark's results, took a still more moderate view of the amount that should be cut; and he further advised that the sales should be spread over several years, He at first suggested four biennial sales, extending over a period of six or eight years, from £2000 to £3000 worth of timber being offered at each sale; but he afterwards fell in (to a certain extent) with the Accountant's suggestion that there should be two sales.

The Accountant reports his opinion (1) that the curator may now be authorised to sell three lots of the estimated value of £2224, 4s. 6d.; (2) that other five lots should be well thinned, the estimated value produced being £1188, 11s. 4d.; and (3) that after this is done the curator should approach the Court as to the advisability of cutting portions of the remaining four lots, as recommended by Mr Gilchrist. These proposals of the Accountant fall considerably short of the extent to which the curator now seeks authority to cut and sell the timber; while the heir-presumptive, who has lodged answers, maintains that even the Accountant goes too far in his recommendations, and that the note should be refused.

The difference is to a certain extent one of principle, depending on the view taken of the duty of a curator bonis in such circumstances towards the ward, and towards the estate under his charge.

As regards the ward personally, it seems to be agreed that so long as she remains under curatory it will make no difference to her whether her moveable estate is increased by the sale of timber or not. She lives at Orton House, and the income available for her maintenance was stated to be about £2000 a-year. The net rental of the landed estate is about £1400, and the remainder is made up by the interest of the moveable estate, which amounts to about £22,000. From this point of view, therefore, there is no demand, either of necessity or expediency, for the proposed sales of timber.

As regards the curator's duty to the estate, the views of parties are widely divergent.

It is maintained for the next heir that the curator's sole duty is preservation. He refers to the words of Lord Mure in the case of Morison's Curator ( 1880, 8 R. 213)—‘I have always understood it to be a general rule in regard to the management of a lunatic's estate, that when a curator was appointed it was his duty to preserve the estate in substantially the same condition in which it was at the time of the appointment; so that if the party should recover, the estate should be handed over in as nearly the same condition as it was when the curator was appointed to manage it.’

If the ward here were proprietrix in fee-simple, this rule (in the absence of special circumstances) might apply against authorising the sale of any timber which was not actually deteriorating. The sales of timber would in that case not augment the sum of her disposable estate (except to the extent of the interest on the price realised), and the rule would operate undisturbed by any such consideration. But here the ward's ‘estate’ consists in part of her interest as heir of entail in possession of timbered land; and it is argued that the duty to preserve the ‘estate’ is qualified by a duty to enlarge it as occasion offers, by putting the woods judiciously on the market. It is true that in so far as the wood is realised by the curator the ward, if she should convalesce, will be deprived of her option to leave it uncut; while if she should not convalesce, the estate will turn out to have been enlarged for the personal benefit of her heirs and not for herself. But I must recognise it to be part of the duty of a curator bonis to administer the estate to the best advantage on prudent and judicious lines; and I cannot hold that where an opportunity offers of so enlarging the disposable estate of the ward he should refrain because of the rule as to the preservation of the estate.

On the other hand, the argument of the curator bonis seems to me to err in the opposite direction. It really amounts to this—that as it is the right of an heir of entail in possession to cut and sell all mature timber which is not required for the reasonable enjoyment of the mansion-house ( Boyd, 1870, 8 R. 637), this right becomes a duty as soon as the heir in possession comes under curatory, and the curator bonis should be empowered to fulfil that duty. I do not say that the powers craved are quite so extensive as that, but I think this view is at the foundation of the curator's arguments. Thus the curator, in his remarks appended to the note, describes the power which he seeks as a power to cut

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the woods which have reached maturity, ‘and the proceeds of which should be in bonis of the ward.’ And so in the argument before me the cutting of mature wood by the curator was likened to the reaping of crops or the gathering of fruits,—an analogy which would be apt to lead too far. I am not prepared to affirm the existence of any such duty in general terms—I mean the duty on the part of the curator bonis (on entering office and obtaining authority) to exercise the full rights of an heir of entail in possession in the matter of cutting timber. I think the statement of the duty would require to be qualified in several particulars. For one thing, regard must be had to the state of the timber market (see Threipland, 1848, 10 D. 1234, 20 Jurist, 450), though that is at the present moment favourable. Further, I think that some account should be taken of the character and the practice of the estate, as determining the probable action of an heir of entail in possession in the matter of cutting ripe wood, and that it should also be considered with some reference to the ward's pecuniary requirements. If these should demand it, I have no doubt that the full rights might be properly exercised; but if not, this would make it the more probable that these rights would not have been pressed by the heir in possession himself. I do not pursue this further, for it is not in accordance with practice to prescribe the extent to which, or the considerations upon which, the curator is to exercise the powers which he obtains. I have said so much lest it should be supposed that in granting authority to cut wood not actually deteriorating I intend to affirm to the full extent the argument urged for the curator.

As to the extent to which the powers asked should now be granted, I have been guided mainly, though not entirely, by Mr Gilchrist's report as modified by the Accountant. I think the Accountant applies a somewhat severe test (owing perhaps to his viewing the ward as ‘a liferentrix’) when he describes the wood to be cut as ‘such timber alone as is reported from time to time to be fully ripe and deteriorating in value.’ No doubt all the woods of which that can be predicated should be cut at once (subject to the state of the market). But I think there must be a stage of maturity, short of actual deterioration, which would warrant the power being given; and after a careful examination of the reports I arrive at the conclusion that the authority should extend at this stage to the Barmuckity Wood proper, and so much of the Waulkmill Belt as is not hardwood; and also to Faith Wood, on the estate of Orton. I exclude Maryhill Wood hoc statu, because, although the Accountant includes it in his proposed first sale, Mr Gilchrist (while saying it is thoroughly matured and may be cut at any time) postpones it to the fourth sale,—six years hence; while Mr Michie and Mr Clark appear to exclude this plantation, or the bulk of it, from the timber which should be cut. This question of cutting down Maryhill Wood requires to be further cleared up; but it is enough for the present purpose to point to Mr Gilchrist's reason for postponing its realisation, namely, ‘That a large proportion of the trees are more thriving and vigorous, and would yield a better return if allowed to remain for a few years.’ With regard to Black hill Wood, the curator points out that in Mr Gilchrist's opinion all old trees standing amongst young growing ones should be immediately cut and removed,’ and that the Accountant has not made any provision for this being done. Looking, however, to Mr Gilchrist's description of Blackhill Wood, I think all he means is that for the sake of improving the younger trees the older ones should be taken out. In so far as this imports merely thinning, the curator does not ask for authority to do it. Beyond that it may either await a further application as to Blackhill generally, or may be the subject of motion in this note, should the curator, upon advising with Mr Gilchrist, consider it to be urgent.

I have not thought it desirable in the circumstances to tie the curator to a particular course of realisation by suggesting that future sales should be biennial or otherwise, or that the woods should be taken in a certain order. I think the proper course is to grant powers for the present to the extent expressed in the interlocutor, and to continue the note, that the curator may avail himself of it for future applications if so advised,”

The curator reclaimed against this interlocutor. Mr Tod also reclaimed against this interlocutor, and likewise against the interlocutor of 25th April pronounced in the petition to charge. The reclaiming-notes in the note and the petition were heard together.

Argued for the respondent Mr Tod.—I. On the Note for Power to Cut Wood, &c.—The note should be refused, in respect that the curator had made no relevant averment in support of his application. The sole ground upon which he based his application was that the trees were mature and ready for market; and it was an unsound proposition that mere maturity would entitle a curator to cut timber. The curator's case rested upon the assumption that trees were not partes soli, but ordinary fruits like corn; but such a view was negatived by Stair, ii, 1, 2; Ersk. Inst., ii, 2, 4; and Paul v. Cuthbertson, July 3, 1840, 2 D. 1286, per Lord Moncreiff at 1305. Esto that an heir of entail in possession who was sui juris could cut all the ripe timber on his estate, it by no means followed that if he were insane or a minor his curator or tutor was entitled to do so. This was a case upon the law of curatory, not upon the law of entail. Cutting and selling wood—the conversion of heritage into moveables—was outwith the ordinary course of curatorial administration—Ersk. Inst., i, 7, 16, 17; Stair, i., 6, 8; Mackenzie's Observations, p. 157; and to entitle a curator to extraordinary powers he must make out a case of necessity, or at all events of high expediency.—Fraser, P. and C. 462;

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Somerville's Factor, February 6, 1836, 14 S. 451; Pupils Protection Act, 1849, sec. 7. No such case had been attempted to be made out here. The ward was in perfectly comfortable circumstances, she required no addition to her income, and the only possible purpose or result of the application must be the aggrandisement of her moveable property at the expense of her heritage. If the ward had been a fee-simple proprietor the power asked for here would never be granted. Why should it be granted because she was a proprietrix under an entail? The true principle of curatorial administration was to preserve as far as possible the status quo.— Morison's Curator Bonis v. Morison's Trustees, December 3, 1880, 8 R. 205, per Lord Mure, 213. The matter might have been very different if the curator had been in a position to aver that the timber was in imminent risk of serious deterioration. But he made no such averment, and the reports of the curator's own men of skill were perfectly consistent with the view that the timber would last out the ward's lifetime without appreciable deterioration. Again, the matter might have been different if the curator had been able to say that this was a “timber-estate,” that is to say, an estate where timber was systematically grown and cut for the sake of revenue—( Honywood v. Honywood, 1874, L.R., 18 Eq. 306, per Jessel, M.R.). But the very contrary was the case, as the report of the Accountant showed. The practice of the estate was not to treat the woods as a subject of commerce. Threipland's case, June 7, 1848, 10 D. 1234, was really an application for authority to thin. II. On the Petition for Authority to Charge.—At common law the curator of a ward who was the proprietor either of a fee-simple or of an entailed estate must establish necessity, or at least very high expediency, before the Court would grant authority to him to sell or burden his ward's heritage— Colt's Tutor, 1800, M. Tutor, App. 1; Vere v. Dale, 1804, M. 16, 389; Finlaysons, December 22, 1810, F.C.; Boyle, February 19, 1853, 15 D. 420; Maconochie, February 3, 1857, 19 D. 300, per L. P. M'Neill 368, Lord Deas 369, Lord Neaves 373; Lawson v. Lawson, February 20, 1863, 1 Macph. 424, per L. J.-C. Inglis, 429, 430. Section 7 of the Pupils Protection Act 1819 proceeded on the same principle. Section 11 of the Entail Act of 1882 had undoubtedly enlarged the powers of curators of entailed proprietors, but it had not dispensed with the conditions attached by the common law to the granting to curators of extraordinary powers. On the contrary, the proviso at the end of the section practically incorporated the common law rule. Here the curator did not even aver that the proposal to charge was for the benefit of the ward, and the Lord Ordinary was wrong in interpreting the proviso as he had done. To increase the ward's disposable estate was not to benefit the ward. The ward was in perfectly comfortable circumstances and the addition of £3000 to her moveable estate could in no way benefit her.

Argued for the curator—I. On the Note for Powers to Cut, &c.—It was established by a long series of decisions— Cathcart, M. 15, 403; Hamilton, M. 15,408; Gordon, January 24, 1811 (F.C.); Mackenzie, March 1, 1824, 2 S. 643; Bontine, November 17, 1827, 6 S. 73; and Boyd v. Boyd, March 2, 1870, 8 Macph. 637—and indeed was conceded by the respondent—that an heir of entail in possession was entitled to cut ripe timber. What the curator proposed to do here was to exercise the option which the ward would have had if she had been sui juris, and to exercise it according to the standard of a prudent, enlightened, and fair-minded proprietor. The curator had limited his proposals so as carefully to preserve the amenity of the mansion-house. In his view a prudent proprietor would proceed to cut and sell the rest of the timber on the estate. It was admitted to be fully mature; only mature trees would be cut; and what was to be cut would not improve if allowed to stand. It was a curator's duty to increase his ward's estate, and he truly did so when he added to that portion of it of which if sui juris she would have an unrestricted power of disposal. The judgment in Morison's Curator Bonis, ut sup., proceeded upon the footing that if the ward there could not exercise her option between a legal and a testamentary provision it would be open to her representatives at her death to exercise that option. That view could not possibly apply here. The option of cutting timber could never be exercised at all if not during the ward's life. The fact that an heir of entail was entitled to cut timber showed that timber was regarded as a crop, and therefore that the separation of timber from the soil was not an alienation of heritage or an alteration of the character of the ward's succession. II. On the Petition to Charge—The object of this application was to redress the balance between the ward's heritable and moveable estate which had been disturbed by paying for permanent improvements on the heritage out of the movable funds to the extent of £3000. It was not therefore an attempt to alter the character of the ward's succession, but an attempt to undo such an alteration. The Lord Ordinary was correct in his view of what the statute meant by “benefit” of the ward. Any proposal which would have the effect of enlarging that part of her estate which but for her mental incapacity would have been at her disposal must necessarily be for her benefit.

At advising—