Scottish Court of Session Decisions

George Sackville Sinclair-Wemyss of Southdun, in the county of Caithness, died on 30th March 1882. Previously to his death he had disentailed the estate of Southdun, but had not, as was his intention, executed a new entail, and the destination of the estate contained in the entail had therefore not been evacuated, though the estate was held by Mr Sinclair-Wemyss in fee-simple.

Mr Sinclair-Wemyss was survived by a widow and two daughters, the elder of whom was born in June 1879, and the younger in September 1880. By his disposition and settlement Mr Sinclair-Wemyss nominated his widow to be tutor and curator to his children, with all the powers pertaining to that office.

This petition was presented by Mrs Sinclair-Wemyss as tutor to her elder daughter, who was now proprietor of Southdun under the existing destination, for authority to build a mansion-house upon the estate, on a site selected and according to plans approved by her husband before his death for a mansion-house which he contemplated building. She also asked authority to borrow £3500 for that purpose upon the security of the estate, and to apply the surplus rents to that amount in defraying the cost of the mansion-house. The free rental of Southdun after deducting public burdens and interests on existing family provisions and other debts was £1175, but this was subject to an annuity in favour of the petitioner for £400, so that the pupil's clear annual income was £775.

It appeared from the statements made in the petition and at the bar that at one time Southdun was part of a larger estate, and that it had been disjoined therefrom about 1815, the larger part of the estate on which the mansion-house stood having come into other hands than those of the proprietor of Southdun. Thereafter for 40 years the proprietor of Southdun lived with a relative on an adjoining property, and so no mansion-house had been built on Southdun in his time. Mr Sinclair-Wemyss and his immediate predecessor Mr David Sinclair-Wemyss had both rented the mansion-house of Hempriggs, which was on the property adjoining Southdun, but at the time of the death of Mr Sinclair-Wemyss he had been informed that the proprietor of Hempriggs was about to resume possession of that house, and it was in view of that fact that he had procured the plan for a mansion-house on Southdun above referred to. At the time of presenting this petition the petitioner had been informed that her occupation of Hempriggs must shortly terminate. She averred—“It is absolutely essential, for the efficient management of the estate by the petitioner, as tutor to her infant daughter, the proprietrix, that she should reside upon or near the estate; and not only is there no residence upon the estate, but the petitioner is in a position to say, after making every inquiry, that there is none in the county which she could obtain as a tenant. Besides supplying a necessary want, a suitable dwelling-house for the owner would of course enhance the value of the property, at least in proportion to the cost of its erection. The two heirs next entitled to succeed to the said estate under the subsisting destinations are (1) the petitioner's second daughter, Marion Australie Sinclair-Wemyss, who was born on the 2d day of December 1880; and (2) Robert Dunbar Sinclair-Wemyss, lieutenant in the Gordon Highlanders, presently stationed at Anglesea Barracks, Portsmouth, the immediate younger brother of the said deceased George Sackville Sinclair-Wemyss, who is of full age, and who is most willing that the prayer of this petition should be granted.”

No answers were therefore lodged.

Argued for petitioner—The only case in which it seemed to have been directly decided that a tutor cannot build a mansion-house on the pupil's estate was E. of Hopetoun, M. 5599, and the circumstances there, and the form in which the question arose, distinguished the case from the present. There was here a great expediency and a permanent benefit to the pupil's estate in the proposed erection of a mansion-house. It would give her the residence on the property she needed, and would increase the value of the estate if she ever wished to sell it. “Necessity” had been construed in such cases as the present to mean evident and positive advantage.

Authorities—Erskine, i. 7, 25; Bellamy, November 30, 1834, 17 D. 115 (borrowing on security of heritage to pay debt); Somerville (whole Court), February 6, 1836, 14 S. 451 (borrowing on security of pupil's estate); Crawford, July 6, 1839, 1 D. 1183 (borrowing on security of pupil's estate); Tweedie, January 16, 1841, 3 D. 369 (completing houses begun by the ancestor); Vere v. Dale, 1801, M. 16, 389; and Campbell, July 17, 1867, 5 Macph. 1052 (feuing part of pupil's estate); Lord Clinton, October 30, 1875, 3 R. 62 (feuing part of pupil's estate). Other authorities— Mackenzie, January 27, 1855, 17 D. 314 (selling heritage to pay off heritable debt); Campbell, June 26, 1880, 7 R. 1032 (feuing part of pupil's estate); Fogo, December 14, 1877, 15 Scot. Law Rep, 221 (improving mansion-house on entailed estate).

At advising—