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her years of viduity must be deducted from the amount ascertained to be No. 117. due as jus relictae. The pursuers argued ;- The widow was in ignorance of her rights, and
borone of hon nichts and June 12, 1873.
Id Mackenzie v. never discharged her claim to jus relicta, which was transmitted to her Mackenzie's heirs. The executor was locupletior by reason of his failure to pay it. Trustees. At advising, —
LORD PRESIDENT.—My Lords, now that we have come to the bottom of this
a humble station in life, she seems to have lived with her eldest son Hugh at
* Defenders' Authorities.—Hume v. Huntly, Dec. 13, 1628, M. 2764 ; Robson
No. 117. If Hugh Mackenzie, the acting trustee, had set aside one-third of that, or
£2580 odds, he would still have had left £5165 odds to meet the legacies. June 12, 1873. Besides that, the trustees had extra funds conveyed to them. There was £2000 Mac!
ex in the Millbank bond, and they were entitled to the half year's rents of the Mackenzie's Trustees.
estate which were provided to meet these legacies, and not to go to the heir. Say that these amounted, as contended for the claimants, to £1500—even if they were not enough he could go against the rents of the portions of the estate which were specially assigned until he had got enough realised to meet all claims. But it appears that the funds actually in the hands of Hugh Mackenzie and his co-trustee, after the death of Murdo Mackenzie, were more than sufficient to meet all charges on the estate, even on the assumption that enough had been set aside to meet the jus relictæ. That being so, what is the result? The sum that would have met this claim remained in the hands of Hugh Mackenzie, and may have been spent, but an account of it is now called for. Where, then, is the hardship here? In so far as any claim was not satisfied, such as this for jus relicto, he was locupletior. If he had been the residuary legatee he might have said that it was a great hardship that having taken this as the free balance of the trust-estate and spent it he had now to refund. But he could not say that here, because any surplus belonged to the younger brothers and sisters along with himself. This is not a case of hardship at all, and the mere lapse of time is quite immaterial from a legal point of view. It is alleged that Hugh Mackenzie spent the sum the widow could claim in maintaining her, and if that be so he is entitled to set whatever was so expended off against this claim for jus relictae ; and therefore, though I am prepared to adhere to the Lord Ordinary's interlocutor, I think the trustee should be allowed to establish what moneys were so spent, and to get credit for them.
LORD DEAS.—The first thing here is to see how matters stood at the death of Murdo Mackenzie in 1845. Had his widow at that time a good claim to jus relictæ ? If she had, the only other question will be whether her representatives have now lost that claim.
Mr Mackenzie's settlements consisted of two deeds—one a deed of entail in favour of his eldest son Hugh and certain other parties of the lands therein described. That deed is dated in 1838, and in it be reserves full power to alter or innovate it at pleasure, and he specially reserves power to grant deeds providing for his younger children. It is plain that this deed was merely testamentary. It was made ou a footing which left him entitled to dispose of his heritable estate by any subsequent deed.
By his deed of 1844 he conveyed his whole estate, heritable and moveable, to his eldest son Hugh and others, as trustees, for the purpose of paying his debts, real and personal, and certain special provisions to each of his younger children in full of legitim, and of everything else which they could claim from or through him. It appears that the truster left a widow, of whom he makes no mention, and for whom he makes no provision in this or any other deed. It is plain, therefore, that in 1845, on the death of her husband, the widow was entitled to her jus relictæ, and that, if nothing to the contrary intervened, the right to it passed, upon her dying intestate, to her surviving children.
It is said on plausible grounds that, apart from his heritable estate, Murdo Mackenzie left sufficient personal estate to pay all the legacies, and also to satisfy the widow's claim for jus relicta. But whether that was so or not does not appear to me to be material, because the effect of Mr Murdo Mackenzie's two deeds taken together was to make the rents of his heritable property equally liable with his personal means and estate for payment of his debts and onerous obligations.
The widow died in 1856, and three out of her four surviving children, as her representatives, claim her jus relictoe in this action. The only answer which is made is that the truster, Murdo Mackenzie, had not in view the legal claim competent to his widow, and probably was ignorant of its competency and existence But it does not make the claim the less an onerous obligation against him that he was ignorant of it. The obligation therefore existed at Murdo Mackenzie's
leath, and the only other question is, has anything occurred since then to make No. 117. the obligation no longer exigible.
For eleven years the widow survived and made no claim, and for a further June 12, 1873. period of fifteen years her representatives also remained silent. But the right to Me
ht Mackenzie v.
°Mackenzie's u8 relicte cannot be lost by mere lapse of time, if the period of prescription Trustees. pplicable has not run. Except the lapse of time—which is short of forty years -the only other thing said against the claim is that during the widow's surrivance she was maintained by her son Hugh. But unless this amounts to an assertion of an implied contract, that she was so maintained on the condition hat her claim to jus relictoe was abandoned, it is not a good answer.
In the case of Robson v. Bywater it required all the circumstances taken ogether to make out the abandonment of the claim. But the circumstances of hat case were very different from those here. I therefore think that the interocutor of the Lord Ordinary is well founded. At same time I see no objection o inserting the reservation proposed by your Lordship. If it does appear that Hugh maintained his mother it is quite possible that he may be entitled to credit or the expense of that maintenance, although it does not amount to an implied ibandonment of the claim for jus relictæ.
LORD ARDMILLAN.—This claim is now made after the lapse of a long period of time. But it is well settled, and settled before the case of Robson v. Bywater, that mere taciturnity, the mere lapse of a long period of time without the
laim being made, will not be held of itself to imply dereliction, or abandonment, or discharge. In the case of Bywater lapse of time was not held sufficient of itself, but taken in connection with the real evidence afforded by the conduct and actings of the parties abandonment or discharge of claim was held to be implied. In the case of Pringle the Court again decided that the mere silence of the widow was not enough. But silence in the circumstances which that case disclosed amounted to an election by her to take the annuity which was given to her by her husband's settlement in place of her legal right of terce. In this case there has no doubt been silence for a very long period; but I see no sufficient augmentation furnished by the actings of the parties here to the presumption suggested by this lapse of time. I see no real evidence coming in aid of taciturnity which will imply discharge. I have only to add that I agree in the propriety of the reservation which is proposed; because if Hugh supported his mother, and supplied her with funds during the period after her husband's death, then, in a question of accounting, he is fairly entitled to credit for these advances. But that remains to be considered, and in any view it is not a transaction from which discharge or abandonment can be implied.
LORD JERVISWOODE concurred.
This interlocutor was pronounced :-“ Adhere to the said interlocu
tor, but under reservation of the claim of Hugh Mackenzie's trustee
SKENE, WEBSTER, & PEACOCK, W.S.-MURRAY, BEITH, & MURRAY, W.S.-Agents.
No. 118. THE RIGHT HON. THE LORD ADVOCATE (on behalf of the Commissioners of
Woods and Forests), Pursuers.—Sol.-Gen. Clark—Ivory.
JAMES M'DOUALL, Defender.—Millar-Blair. v. M'Douall.
Salmon-fishing-Prescription-Possession.Circumstances in which held that a proprietor of a barony and of lands held under a Crown grant cum piscationibus, had not had such prescriptive possession of salmon-fishings in the sea as to
instruct a right of salmon-fishing. 1st Division. This action was raised at the instance of the Lord Advocate against Ld. Ormidale. James M Douall, the proprietor of the estate of Logan in Wigtownshire,
concluding for declarator that the salmon-fishings in the sea ex adverse of the lands of the defender, in the parishes of Kirkmaiden and Stoneykirk, specified in the summons, belonged to the Crown, and that the defender had no right to fish for salmon, grilse, or salmon trout in the sea ex adverso of his said lands by stake or bag-nets, or by net or coble, or in any other way, or to grant leases of such salmon-fishings.
The lands in question were held partly under a barony title, without any mention of salmon or other fishings, and partly under crown charters cum piscationibus.
The pursuers averred that the defender and his predecessors had not under their titles fished for salmon, grilse, or salmon-trout ex adcerso of the said lands for such a time or in such a way as to give them a prescriptive right to the salmon-fishings in the sea.
The defender averred that he had exercised such an exclusive right of salmon-fishing for time immemorial.
The pursuer pleaded ;-(1) The right of salmon-fishing in Scotland or in the sea round its coasts, and in the navigable estuaries, bays, and rivers thereof, so far as the same has not been granted out by the Crown by charter or otherwise, belongs exclusively to the Crown, and forms part of its hereditary revenue. (2) The Crown having never granted to the defender or his predecessors any such right, the said defender has no right by virtue of his titles to fish for salmon, grilse, or salmon trout in the sea ex adverso of the said lands or any part of the same, nor to grant leases of the whole of said salmon-fishings or any part thereof. (3) The titles to the lands secondly, thirdly, and fourthly described in the said conclusions containing no grant of fishings,' and the lands themselves forming no part of a barony, the defender has no right under his titles, and has no basis for acquiring a right by prescription, to the salmon-fishings in the sea ex adverso of these lands. (4) The titles of the said defender to the lands forming the barony of Logan, and to the five-merk lands of Crichen and of Carrachtree, containing no express grant of salmon-fishings, and the salmon-fishings ex adverso of these lands not having been possessed by the said defender or his predecessors for the prescriptive period under and by virtue of said titles, the said defender has no right thereto.
The defender pleaded ;-(1) The defender, in virtue of his writs and title-deeds, and the possession following thereon, is in right of the salmonfishing in the sea ex adverso of the barony of Logan, including therein the lands of Crichen and Carrachtree. (2) The defender and his predecessors having for upwards of forty years, or from time immemorial, possessed, enjoyed, and exercised the exclusive right of salmon-fishing in the sea & adverso of the lands of the barony of Logan, and of the said lands of Crichen and Carrachtree, the defender has a valid and indefeasible right to the said fishingg. (3) The defender having a good title to the salmonfishings above mentioned, the claim now made on behalf of the Crown
slariz,- All and in the paris, the coastbreddan
thereto is excluded; and the other fishings referred to in the summons No. 118. not being claimed by the defender he is entitled to absolvitor, with ex-, penses.
June 13, 1872.
, Lord Advocate A proof was taken, the import of which is given in the opinion of Lord . M'Douall. Ardmillan.
The Lord Ordinary pronounced the following interlocutor :-" The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof, finds it has been sufficiently proved that the defender and his predecessors have for more than forty years, or for time immemorial prior to the institution of this action, enjoyed and exercised, under and in virtue of good and habile titles, the exclusive right of fishing for salmon, grilse, and salmon trout in the sea ex adverso of the following lands belonging to them mentioned in the conclusions of the summons, viz.,-All and Whole the lands forming or embraced in the barony of Logan, situated in the parish of Kirkmaiden and county of Wigtown, bounded by the sea, extending, the coast of the said barony, on the Irish Channel or western side, from Drumbreddan Bay on the north to Crummag Head on the south, and on the Bay of Luce or eastern side from Chapel Rossan on the north to Kilstay or Palwhinrick Burn on the south, and the five merk lands of Crichen, and the ive merk lands of Carrachtree, also lying within the said parish of Kirknaiden and county of Wigtown: Therefore, quoad the right of fishing for salmon, grilse, and salmon trout in the sea ex adverso of said lands, issoilzies the defender from the conclusions of the summons, and decerns; ind in respect the defender does not claim and has not attempted to prove
right to fish for salmon, grilse, or salmon trout in the sea ex adverso of he following lands mentioned in the conclusions of the summons, viz.,he five merk lands of old extent of Mool, the croft of land commonly alled Croft Gregnan, the croft of land called Cove Croft in Mool, the ive merk lands of old extent of Altown, now commonly called Maryport, he five merk lands of Corgie, all lying in the parish of Kirkmaiden and ounty of Wigtown; the twenty shillings land of Genoch, five merk lands of Nether Tortys, forty-six shillings and eight-penny lands of Over Torrys, ind twenty shilling lands of Whytercrook and Croftling, lying within the jarish of Old Luce and sheriffdom of Wigtown: Therefore, quoad these ast-mentioned lands, finds, decerns, and declares in terms of the concluions of the summons: Finds that the other lands mentioned in the confusions of the summons are not to any extent bounded by the sea : Therefore, quoad these other lands assoilzies the defender from the conlusions of the action, and decerns : Finds the defender entitled to exjenses, allows an account thereof,” &c. *
* "NOTE.-The Lord Ordinary does not think that to the extent to which bsolvitor has now been pronounced any serious difficulty can be entertained on le proof; and in regard to that part of the conclusions of the summons for Thich decree has been pronounced in favour of the pursuer there could of course e no difficulty, as no dispute was raised in relation to it.
" All the lands, ex adverso of which the defender has now been found to have roved a prescriptive right to the salmon-fishing, are admittedly component arts of the barony of Logan, with the exception of the lands of Crichen and arrachtree, about which it is said to be not quite clear whether they form parts f the barony or not. This matter, however, is of no practical importance, beatize, whether they are to be held as forming part of the barony or not, they re held under crown charters cum piscationibus, which is sufficient to found a ight by possession for the prescriptive period to salmon-fishings; and as a Hrony title is sufficient for the same purpose there can be no question, and