Scottish Court of Session Decisions

The late Marquis of Breadalbane, who died upon 8th November 1862, was heir of entail in possession, under a deed of strict entail dated 5th May 1775, of the lands of Breadalbane in Perthshire, and of Netherlorne and Glenorchy in Argyleshire. Taymouth Castle was the mansion-house on the Perthshire part of the property, and the principal residence of the family; but there was also a mansion-house known as Ardmaddy Castle on the Netherlorne property. It existed prior to the year 1834, when the Marquis succeeded to the property, and was an integral part of the entailed estate, and subject to the provisions and fetters of the entail.

Shortly after the Marquis succeeded as heir of entail, in 1834, he had certain repairs and additions made upon the mansion-house of Ardmaddy, and offices were built. During the period between Martinmas 1837 and Martinmas 1839 a sum of £3275, 3s. 7d. was expended. Of that sum £2456, 7s. 8 1 4d., being three-fourths, was constituted a burden upon the estate by decree of Court, upon the footing that the operations were improvements to the entailed estate under the Act 10 Geo. III. cap. 51. Plans were subsequently obtained by the Marquis from Mr Gillespie Graham, architect in Edinburgh, in furtherance of a resolution the Marquis had formed to pull down a large portion of the old house and to rebuild and reconstruct it. These were not acted upon at the time, but in May 1862 they were laid before Mr Robert Baldie, architect, Glasgow, who prepared additional sketches or plans, with the view of realising the Marquis' intention to rebuild. Schedules of measurement of the different kinds of work, under reference to these plans, were then prepared, with which tradesmen desirous of offering for the execution of the work were furnished; and under that system contracts were entered into for partially taking down the mansion-house and reconstructing it according to Mr Baldie's plans. After the contracts were entered into, further changes were made upon the plans under advice of Mr Bryce, architect, and in accordance with these the rebuilding and restoration proceeded.

The operations were only in course of being executed when the Marquis died, upon the 8th November 1862, and shortly after his death a correspondence took place between the succeeding heir of entail and the Marquis' trustees as to the respective rights and obligations of parties. The trustees ordered that certain of the works in progress should be completed, that the walls should be finished, and a roof put on a portion of the building which was without protection.

This was an action at the instance of Gavin Campbell, Earl of Breadalbane, the second heir of entail in possession since the death of the Marquis, against George Auldjo Jamieson, C.A., Edinburgh, judicial factor upon the Marquis' trust-estate. The summons concluded, inter alia, for declarator “(1) that the defender is bound to erect and construct or to complete the erection and construction of the mansion-house of Ardmaddy conform to the plans prepared by Robert Baldie, as the same were altered and adjusted by James Bryce and approved of and settled by the said Marquess of Breadalbane; (4) that the defender, as judicial factor foresaid, is bound to erect and construct a mansion-house on the said entailed lands of Netherlorne, suitable for the said estate, and of such form, structure, and dimensions as our said Lords may fix and determine, and being at least equal in point of size, accommodation, architectural style, arrangement and construction, to the mansion-house on the said estate before it was taken down or dismantled by the said Marquess of Breadalbane in or about 1862; (7) that the defender, as judicial factor foresaid, is bound to restore the said mansion-house of Ardmaddy to the same state or condition as that

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in which it was at or immediately prior to the date at which it was taken down and dismantled by the said Marquess of Breadalbane, in or about 1862; (10) that the materials furnished by the contractors or one or other of them under the contract or contracts entered into by the said Marquess of Breadalbane for the rebuilding or restoration of the said mansion-house of Ardmaddy as hereinafter condescended on, which were on the ground of the said entailed lands of Netherlorne in the course of or about the month of February 1863, were heritable, and belonged to the late John Alexander Gavin, Earl of Breadalbane and Holland, the pursuer's father, then heir of entail in possession of the said entailed lands and estates, and that the cost or value thereof at the present current prices for supplying similar materials is now due and belongs to the pursuer as the heir of entail now in possession of the said entailed lands and estates.”

The pursuers stated—“Not merely was the said entailed estate not improved by the said operations, but in consequence of the dilapidated and uninhabitable condition in which the mansion-house of Ardmaddy was left by the late Marquess at his death, great injury was done to the entailed estate, and both the late Earl of Breadalbane and the pursuer have thereby suffered serious inconvenience, discomfort, and loss.” The Marquis' trustees had refused to proceed with the re-erection of the house in terms of the plans, or to restore the building “to the state and condition in which it was previous to any interference with its fabric by the Marquis.” Hence the action had been raised.

The defenders averred, inter alia, “that the whole acts and proceedings of the said Marquess with respect to the said mansion-house of Ardmaddy were done and taken within his powers as heir of entail in possession of the said estate, and in particular within the powers conferred by the Montgomery Act. Prior to his said operations upon the said mansion-house the said Marquess had made very extensive alterations and improvements upon and additions to the offices at Ardmaddy, whereby the value of the same was greatly enhanced, and the estate and the subsequent heirs greatly benefited. The whole acts of the said Marquess with respect to the mansion-house itself were also done by the said Marquess in bona tide, and within his powers as aforesaid, for the purpose of improving the said estate, and even when the said operations were interrupted by his death the value of the building and other work which had then been performed by him; greatly exceeded the value of the buildings which existed before the said operations began, and the entailed estate and the subsequent heirs, including the pursuer, were in fact benefited by what was actually done.”

The defenders pleaded—“(1) The pursuer's statements are not relevant or sufficient in law to support any of the conclusions of the summons, (2) The pursuer's whole material statements being unfounded in fact, the defender ought to be assoilzied. (3) The whole acts and proceedings of the said Marquess with respect to the mansion-house in question having been done and taken in bona fide, and within his powers as heir of entail, and having been unavoidably interrupted by his death, the pursuer is not entitled to prevail in any of the conclusions of the summons. (4) The pursuer cannot in any view obtain decree as concluded for, in respect that the building and other work performed by the said Marquess upon the said mansion-house prior to his death exceeded the value of any buildings removed or dismantled by him, and that the estate and the subsequent heirs, including the pursuer, were benefited by what he did.”

A disentail of the estates in Netherlorne was carried through after this action was raised. The petition for authority to record the instrument of disentail was boxed on the 17th April 1872.

The Lord Ordinary ( Mure) on 18th June 1873 allowed parties a proof of their averments “applicable to the accommodation and condition of the mansion-house of Ardmaddy and offices thereto attached at the time when the late Marquess of Breadalbane proceeded to take down a portion of it with a view to its reconstruction, and of the condition and available accommodation of the said mansion-house as altered and partly rebuilt at the date of the death of the late Marquess, and to each a conjunct probation.”

The proof was afterwards made more general, in terms of a joint minute by the parties. It was led upon 2d June 1876, and the purport of it sufficiently appears from the Lord Ordinary's note and the opinions of the Court.

The Lord Ordinary pronounced the following interlocutor:—“Finds as matters of fact—(1) That the late John second Marquis of Breadalbane was, in 1862, when the operations on the house of Ardmaddy which are referred to in the record were performed, the heir of entail in possession of the estates of the family of Breadalbane; (2) that the said house was, and for long had been, the only mansion-house on their Argyllshire property; (3) that the extent of this property is about 180,000 acres, and the rental about £23,000 per annum; (4) that the said house, though an old house, was perfectly habitable in 1862, and if repaired from time to time as repairs became necessary, might have continued habitable for many years, but though habitable it was by reason of the fewness of its rooms and the consequent insufficiency of its accommodation not suitable as a residence for the heir in possession of so great a property as the Breadalbane estates in the county of Argyll; (5) that the said Marquis having, under the influence of this consideration, resolved on the erection of a new mansion upon the site of the old house, plans were prepared, and these having been approved of by his Lordship, there were begun in June 1862 the operations which were in progress at his death in the following November; (6) that in the course of these operations the greater part of the old building was taken down, and though the work had been carried on without interruption by the several tradesmen with whom the contracts for the new mansion-house were concluded, the buildings could not, when his Lordship died, be inhabited, and much money must be expended before a habitable house either upon the plans of the new buildings or on the plans of the old-which had, as aforesaid, been in great part removed-can be provided; (7) that the said building, of which the erection was in progress when, as aforesaid, John the second Marquis of Breadalbane died, would, if completed, be in all respects a suitable mansion-house for the heir of entail in possession of the Breadalbane estates in the county of Argyll;

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and (8) that the materials brought by the contractors to the ground, and not used in the said building when the Marquis died, were not his property, but were the property of the several contractors by whom these were provided for the work of their respective contracts: In the second place, Finds as matter of law that, the facts being as above set forth, the grounds of the present action are untenable, and that consequently the defender is entitled to be assoilzied; therefore sustains the defences; assoilzies the defender from the haill conclusions of the summons, and decerns, &c.

“ Note.—The late John second Marquis of Breadalbane was in 1862 the heir in possession of the entailed estates of the family. These estates consist in part of the Perthshire estates and in part of the Argyllshire estates. With the former parties have no concern in the present action. The latter are those to which the inquiry has been directed, and to which the law applicable to the case has to be applied. They are, as mentioned in the interlocutor, 180,000 acres in extent, and their yearly rent is £23,000.

There was for many years on the Argyllshire estates a residence for the proprietor, known as the House of Ardmaddy. It had been but little used in recent times, and the late Marquis, who appears to have visited it more frequently than his predecessors, lived there for only a short period at a time, and went without what may be called an establishment. The truth is that the house was not such as was suited for the reception of such an establishment as the Marquis, had Ardmaddy been one of his ordinary residences, might have been expected to bring with him, and it was even more unsuited for the reception of visitors. Apart from insufficiency of size, the house appears to have been in no way objectionable. It was old, but if repaired when repairs were required it might have continued habitable for many years to come. The Marquis, however, in 1862 resolved to erect what substantially was a new residence on the site of the old. Plans were procured from Mr Baldie, architect in Glasgow; these were approved of by his Lordship, and in June 1862 the work was begun. The west wing of the old house and the passage connecting the two wings were taken down, and the east wing was unroofed that it might be enlarged. As soon as the ground was cleared the rebuilding of the west wing was begun; but soon after this Mr Baldie's plans were submitted to the late Mr Bryce, and changes upon these, intended to provide for the introduction of more ornament, as well as more accommodation, were suggested by Mr Bryce. The original plans thus altered were approved of by the Marquis of Breadalbane, and thenceforward upon these, so long as his Lordship lived, the work was carried forward. But he died in November 1862, while the house was not only unfinished but uninhabitable. His testamentary trustees in the course of the following winter, while repudiating any obligation to do anything, caused the building to be roofed in, to prevent injury, or, it may be said, ruin to the structure, and from that time to the present things have remained as they were then left.

It is necessary to add, however, that the several contractors for the work had brought materials to the ground which, when the Marquis died, had not been incorporated in the building, the work contracted for not having been completed. The claims of the contractors were compromised. They, in the first place, were allowed a percentage on all the work included in their contracts; they were also paid for the materials whether used or unused, and such as were unused were resold to them by the trustees of the Marquis.

In these circumstances the present action has been raised by the present Earl of Breadalbane to compel the trustees of the Marquis (1) to finish the erection of the House of Ardmaddy upon the plans of Mr Baldie as extended by Mr Bryce; or (2) to complete the buildings according to the plans of Mr Baldie; or (3) to restore to the ground a building equal to the old house as it stood at the time the late Marquis began his operations. There is, besides, a conclusion alternative to all these, in which decree is sought for the value of the materials upon the ground still unused when the Marquis died. The Lord Ordinary has assoilzied the defender from all these conclusions.

The House of Ardmaddy was a part of the entailed estate, but there are in the entail no special provisions by which its existence or its maintenance was fenced. The heir in possession for the time might, without a violation of any condition, express or implied, have left it to fall into ruin; nevertheless it was a part of the entailed estate, and he was not entitled to make spoil of it for his own benefit, and to the loss of those by whom he was to be succeeded. This is a point which was fixed by or was involved in all the cases cited by the pursuer. These are Boyd v. Boyd, 8 Macph. 637; Gordon v. Gordon, May 24, 1811, F.C.; and Moir v. Graham, 4 Sh. 737 (N.E.) And the Lord Ordinary does not consider that anything besides which has any bearing upon the present controversy was settled by any of these decisions. What is the subject of judgment on the present occasion is, in his opinion, a thing which is as much on the one side as on the other unforeclosed.

The question therefore which has now to be decided for the first time is, whether an heir of entail, who finds the house on the estate unsuitable for the property because it is unsuitable for his occupation in consequence of the insufficiency of its accommodation; who for that reason resolves to replace it by what shall be a suitable residence; who removes it that it may be so replaced; who has shown by his expenditure upon the work the good faith in which it was commenced, and so long as he lived was carried on; but who dies before the building is completed-transmits against his personal representatives an obligation to finish the structure as designed, or at anyrate to restore a building equal to what was on the ground when his operations were commenced? The Lord Ordinary is at a loss to understand upon what principle this contention could be sustained. An heir of entail, so far as unfettered, is full fiar. He is entitled to carry on the reasonable administration of the estate without incurring a penalty for so doing, and the question as to the unsuitability of an existing house, and the propriety or necessity of its being replaced by another, is one of the things upon which he may and indeed ought to decide. How far is the contention of the pursuer to be carried? Must every work that an heir begins be finished by his personal representatives if uncompleted at his death? Suppose that he has

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resolved upon the formation of a pond in his park, and while a portion of the estate has been rendered unfit for ordinary use, there is much cost to be incurred before what was intended can be accomplished; or that an old bridge too narrow for convenient use is removed and the new bridge by which it is to be replaced is left unfinished; or that the steading of the home-farm is unfit for modern requirements, and the new one by which an improvement was to be effected upon the property is only partially constructed. In these, or in any of these cases, which are only examples, is there a personal liability undertaken for the completion of the new work, or otherwise for the restoration of things to their original condition? The Lord Ordinary cannot come to this conclusion. In his opinion there is principle as well as policy against such a result, and, so far as he is aware, there is neither legal principle nor a decision by which it is sanctioned. The hardship inseparable from the opposite view, it is scarcely necessary to add, is all the greater that the representatives of a deceased heir have not the privileges of the heir conferred by the Montgomery Act. If they are to finish a mansion-house in the course of construction, the whole cost must be borne by them. None of it can be charged upon the entailed estate.

These are the considerations upon which the foregoing judgment has been pronounced.

Had the pursuer contended that the old house was suitable or that the new house in course of erection was unsuitable, a different issue would have been raised. But neither of these points is matter of contention. The fact that the primary conclusion of the summons is for the constitution of an obligation against the trustees of the late Marquis, under which they are to be forced to complete the new building begun by his Lordship, contains an implication inconsistent with both.

As regards the materials upon the ground, the case appears to the Lord Ordinary to be plain. These were not the property of the late Marquis at the time of his death. They were not brought to the ground by him, and they might without his leave have been removed from the ground. This, as the Lord Ordinary thinks, is plain upon the proof, and consequently he is unable even to conjecture a reason for which they should be declared to have become by dedication or by any other consideration a part of the entailed succession.”

The pursuer reclaimed, and argued—I. The defenders were bound to complete the building according to the plans and specifications which had been obtained. That was so because (1) there was a manifestation of such a purpose on the part of the Marquis; and (2) he had entered into contracts under which he had bound himself to execute the repairs, and there was thus a legal obligation upon him. It was settled that if a person had incurred personal liability at the time of his death his executors were bound to discharge it. If one died after the execution of a contract of sale of heritage, the heir must sell, and the proceeds went to the executor. There was here a jus quœsitum tertio. The obligation was to rebuild, and if it was to be held that that fell by death, the succeeding heir would thereby be exposed to the risk of dilapidation. There was no obligation on the latter, and none could be put upon him except under the statute. II. The amount of the expenditure by the Marquis did not affect the claim of the pursuer to have a habitable house. The work should be completed, on the footing that the executors recovered nothing, or at most three-fourths of their expenditure. But the charge could not be constituted upon the estate after the death of the Marquis.

Authorities-Bell's Principles, 1475; Johnson v. Dobie, Feb. 25, 1783, M. 5443; Mattach v. M'Lean, Jan. 29, 1867, 5 Macph. 335; Robson v. Denny, Feb. 2, 1861, 23 D. 429; Cooper v. Jarman, Dec. 4, 1866, 3 L. J. Exch. 98; Brotchie v. Stewart, July 10, 1869, 7 Macph. 1031; Boyd v. Boyd, March 2, 1870, 8 Macph. 637; Moir v. Graham, June 20, 1826, 4 S. 730; Todd v. Moncrieff, Jan. 14, 1823, 2 S. 113, 1 W. and S. (H. of L.) 217; Douglas' Trustees v. Douglas, Jan. 17, 1868, 6 Macph. 223; Heron v Espie, June 3, 1856, 18 D. 917; Christie, Dec. 22, 1704, 2 Fount. 250, M. 5531, Erskine's Inst. ii., 2, 14; Arbuthnot, June 23, 1773, M. 5225; Gordon v. Gordon, Jan. 24, 1811, F.C.

Argued for the defenders—(1) The first ground taken by the pursuers was not tenable. It would hold equally if there had been no house in existence before, and was based upon the law of succession, which did not affect the present question. (2) The doctrine of implied obligation was foreign to entail law. The position of an heir of entail was that of a full fiar, except in so far as he was restricted by the fetters of the deed of entail. His powers of administration were large; and so long as he committed no contravention of the entail no exception could be taken by the heir. It was not said that there had been a contravention in this case. An interdict might have been asked, but only on grounds of suspicion and a reasonable apprehension of a contravention. The present action was irrelevant. (3) If there was any obligation it was that the heir of entail should not leave the estate worse for his successor. But the subject upon the evidence was more valuable now than before it was destroyed. By the disentail which had been carried out the estate was now still more valuable.

Authorities— Eglinton v. Montgomerie, Jan. 22, 1842, 4 D. 425, 2 Bell's Apps. 149; Chalmer's Note, Append. II., 4 W. and S. Apps.; Torrance v. Crawford, Dec. 1, 1820, F.C., and May 26, 1826, 2 W. and S. 429; Morison v. Earl of Kintore, June 30, 1847, 9 D. 1394; Marquis of Huntly, June 12, 1857, 19 D. 818.

At advising—