Scottish Court of Session Decisions

This was a petition under the 7th and 8th sections of the Entail Amendment Act 1875 (38 and 30 Vict. cap. 61), presented by Mrs Jane Mathie Laurie Fogo, heiress of entail in possession of the entailed estate of Row, and her husband, the Rev. John Lawrie Fogo, for leave to charge the entailed estate with certain sums for improvements on the mansion-house, partly already executed, and partly in course of execution, or only contemplated. The Lord Ordinary remitted to Mr George Dalziel, W.S., as a man of business, and to Mr David Ballingall, as a man of skill, to report on the petition. As regarded the sum for improvements executed prior to this application, the Lord Ordinary granted the desired authority, after deduction of a trifling sum for certain items of improvement which had been altered or removed by subsequent operations.

But the petitioner further asked to be allowed to charge the estate with a sum of upwards of £3000 for contemplated expenditure. The improvements were reported by Mr Ballingall to be of a substantial nature, but excessive when compared with the rental of the estate. And it appeared that the free rental, which, exclusive of the mansion-house, amounted to £670, would be reduced by the proposed charges to £220 per annum. Mr Dalziel, the reporter, suggested that in these circumstances it might be necessary to make some provision for the protection of the younger children of the petitioner, in favour of whom and of her husband the petitioner Mrs Fogo had executed a bond of provision, dated 9th September 1843. That deed provided for payment of au annuity of £225 to her husband during his life in the event of his surviving her, and of £1500 to the younger

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children of the marriage. Both these bequests were restrictable in terms of the Aberdeen Act.

Mr Dalziel also remarked in his report—“It is submitted for your Lordship's consideration whether an expenditure on the mansion-house of an entailed estate, the effect of which is to reduce the income from the remainder of the estate to such an extent as to be totally inadequate to enable the heir of entail personally to occupy the mansion-house, can be treated as being ‘beneficial to the estate' in the meaning of the Act.”

The next heir of entail, Mr David Fogo Lawrie Fogo, concurred in the application. Mr Bruce Johnston, W.S., who had been nominated factor ad litem to the two others of the three next heirs of entail, who were children of Mr D. F. L. Fogo, stated in a minute—“The result of these inquiries has been to satisfy the curator ad litem that the property has all along had a mansion-house of some sort, and that the house now existing, as improved and enlarged, is not out of keeping with the nature and extent of the property. He is also satisfied that an increased rent, corresponding to the amount proposed to be charged in respect of additions to the mansion-house and offices, may reasonably be expected, and has indeed been obtained, on a five years' lease. At the same time, it appears to the curator that the free rental obtained from the estate otherwise would by itself be inadequate to enable an heir of entail to reside on the property. Whether the expenditure on the mansion-house is properly chargeable on the entailed estate in the view of its being beneficial only in the sense of the house being let to a third party, is a question which the curator ad litem desires to leave in the hands of the Lord Ordinary; but, on the assumption that, in the circumstances stated, the expenditure proposed to be allowed by Mr Ballingall's report can be competently charged, the curator does not oppose the prayer of the petition being granted.” It was stated that the petitioner's younger children consented to the authority being granted. The question therefore came to be, whether the prospect of an increased rent for the mansion-house as a residence was sufficient to bring these improvements under the category of being “beneficial to the estate?”

The Lord Ordinary ( Adam) thereupon pronounced an interlocutor in which, inter alia, he allowed the proposed expenditure for contemplated improvements to the extent of £1500, and authorised the petitioner to charge the entailed estate, other than the mansion-house, with a bond of annual-rent accordingly.

The petitioner having obtained leave, reclaimed.

At advising—