United Kingdom House of Lords Decisions

Lord Chancellor—With the greatest respect to the learned Judges who have decided this case in the Court below, I have not been able to follow the reasoning by which they have arrived at their conclusion. I rather conjecture that what the Lord Advocate has suggested has been the foundation of the judgment—indeed it was stated by the Lord President to have been the foundation of his judgment—and that the form of English conveyancing has somewhat misled the learned Judge as to what was the main purpose of the settlement. The machinery by which in the event of there being children the property should be equally divided between them, being provided for by a power of sale so as to turn realty into personalty—because that is the substance of it—is a device familiar in the ordinary form to the English conveyancer; and I think the learned Judge has been misled by that into assuming what he has more than once in the course of his judgment said, that the main purpose of the settlement was a sale, and all the other provisions were intended to be temporary. That has now been explained, and I observe that Mr Guthrie has not dealt with that part of the argument at all, but has allowed it to pass without observation. Therefore I think we may dismiss that as being decisive of this case, one way or the other, and we must look to see what has been the intention of the parties to this settlement apart from any such considerations as arise from the power of sale.

Now, as to that proposition, which is the one which your Lordships are called upon to decide, it appears to me that it is covered by authority. There is given what includes both the mineral estate and the other estate whatever there may be; and the question is what those words convey. Well, now, whatever might have been the case originally—and I am not prepared to defend the logic of some of the reasons given in the earlier decisions—at all events for obvious reasons—and I think if the Courts had the power by law to do it they were most useful and cogent reasons—they have treated the produce of the soil as including that which is in truth what Lord Cairns has described as the substance of the soil itself. In speaking of coal, for instance, we talk constantly about the “rent” and “royalty” of coal. The phrases are figurative; you pay rent in one sense it is true, but rent generally has been understood to be a return from the soil and not to be a consumption or taking away of the soil, whereas of course where the soil consists of coal and other mineral you are actually taking it away. But whatever may have been the original view of such questions, the matter has now become so perfectly well ascertained by a long course of decisions that wherever those general words are used, and the question is whether the tenant for life is entitled to what, in one sense, is called the usufruct, but I suppose in more strict language would be called part of the soil itself, where you are dealing with minerals it has always been held, so far as I know, without doubt or question for centuries, that the proceeds of open mines form part of that which may go to the tenant for life, and that he is entitled to take them as part of the proceeds of the soil. As I have said, I am not quite certain that if this matter were res integra, and if we were sent back 200 or 300 years one would be quite able absolutely to follow all the reasoning by which that result is arrived at, but it is immaterial to do so now, because that point has been ascertained and adjudicated upon over and over again, and finally in this House.

That being the state of the law, now for the first time, so far as I am aware, a new limitation is sought to be placed on that principle, and the proposition comes somewhat in this form, In dealing with a settlement or a will of this sort the Courts have said that you must put in the words “open mines,” as being part of what is settled or bequeathed; by construction you are to put in those words; whether the words occur or not they are imported into it by the construction which the law has placed on instruments of that kind. Now, for the first time it is suggested that the words “open mines” are not sufficient to convey what the law assumes to be the state of things, and you must add to them “mines opened by the settlor or testator.” The learned counsel for the appellants has given us a case in Peere Williams ( Clavering v. Clavering, 2 P. Wm. 3876), which goes a good deal further, but I was prepared without that case to say that the suggestion is absolutely a novelty. In all the cases—and there have been a great number of them discussed—the question has always been, what is the thing bequeathed or settled, and if there are open mines the consequence follows. The diligence and learning of Mr Guthrie, which is certainly not likely to

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