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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lovat and Others v. Fraser, et e contra [1866] UKHL 265 (3 March 1866)
URL: http://www.bailii.org/uk/cases/UKHL/1866/01SLR0265.html
Cite as: 2 ScotLR 265, 1 ScotLR 265, [1866] UKHL 265
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SCOTTISH_SLR_House_of_Lords
Page: 265↓
House of Lords.
v.
Subject_Entail — Executor — Entailer's Debts — Expenses.
Facts:
A deed of entail having been executed under burden of all the entailer's debts— Held (rev., in part, Court of Session, diss. Lord Kingsdown) that an heir of entail, who was also the entailer's executor, was not entitled to charge the entailed estate with expenses incurred by him, after the entailer's death, in resisting payment of unjust demands.
This is an appeal from an interlocutor of the First Division of the Court of Session.
The late Hon. Archibald Fraser was heir of entail of the estate of Lovat, and proprietor in fee-simple of the lands of Abertarff and others, in the parish of Inverness, in the purchase of which a grant to him under the Privy Seal, vested in trustees, had been applied. He was also possessed of a considerable amount of personal property. In the year 1805 he executed a deed conveying those fee-simple lands to himself and his heirs-male, and to any subsequent series of heirs which he might name by writing under his hand. His eldest son, Colonel Simon Fraser, being then dead, the respondent, his grandson, was the sole descendant of the family. On the 25th June 1808, Archd. Fraser executed in favour of the respondent a general disposition of various subjects lying in the burgh of Inverness and the village of Campbeltown, and of all his property, heritable and moveable, which he might leave undisposed of at the time of his death; the deed also contained a declaration that its revocation should not be inferred from implication or construction, but only from an express writing. Thereafter, on the 15th of August in the same year, he executed a strict entail of the lands of Abertarff and the lands of Auld Castlehill, of which he was owner in fee-simple in favour of Thomas Alexander Fraser of Strichen, now Lord Lovat, and a certain series of substitutes, amongst whom the respondent was not included, under burden, however, of all his just and lawful debts due and addebted, or which might be due and addebted by him at his death; which said debts he declared should in noway affect or diminish his executry, or other funds, property, or effects, unless such executry should be given and conveyed by him to the said Thomas Alexander Fraser of Strichen and the other substitutes mentioned in the deed. This deed contained a reservation of power to revoke or alter. On the 2d July 1812, Archibald Fraser executed another deed, which proceeded upon the narrative that he had some years ago executed an entail of the lands of Abertarff and others, and that he intended in the exercise of the power therein reserved to alter and revoke that deed to a certain extent. He accordingly disponed the lands to the heirs of his body, whom failing to the respondent and the heirs-male of his body, whom failing to the other heirs and substitutes mentioned in the deed of entail, but always with and under the several provisions, conditions, burdens, &c., contained in that deed, and under certain other additional provisions — viz., that the respondent and his heirs-male succeeding to him should take the name of Archibald, and that he should disencumber the lands in the parish of Inverness of the debts affecting them out of the executry, or by burdening the other lands, In April 1813, Archibald Fraser executed an entail of the lands of Castlehill in favour of the respondent; and on the 2d of August in the same year he executed a general conveyance by which he disponed to certain persons as trustees, tutors and curators, of the respondent, all the lands, houses, heritages, and heritable subjects (that is to say, all the lands not included in the deed of entail), and all the goods, gear, effects, and moveable subjects of every description, which he had destined, given, disponed, and conveyed to his grandson, the respondent. Archibald Fraser died in December 1815, and the respondent succeeded to the estate of Abertarff, and also as general disponee and residuary legatee to the whole fee-simple estates and executry which belonged to the deceased.
Various litigations arose between the appellant,
Page: 266↓
Lord Lovat, and the respondent, as to the import of the deeds above mentioned, and in particular as to whether the respondent was bound to execute an entail of the lands of Abertarff and others specified in the deeds of entail of 1808 and of 1812. This question was raised by Lord Lovat in 1818, and the Court of Session, on the 24th of June 1823, assoilzied the curators of the respondent, who defended the action, from the conclusions of the summons. In 1824, however, the Court altered this decision, and found that the respondent was bound to execute an entail, and that finding was affirmed on appeal to the House of Lords in 1842. Previous to 1828 the respondent had made up his title as proprietor in fee-simple of all the lands disponed to him, whether under the deed of nomination of 1812, or the general disposition of June 1808. In that capacity, and while the question whether he was heir of entail or owner in fee-simple was pending, he constituted various burdens upon those lands. He also paid the debts of Archibald Fraser, amounting to £6186, os. 7 d., and incurred £2791, 1s. 9d. in law expenses in ascertaining and adjusting the claims brought against him. 1 4 On the 31st of December 1851 (after the decision that he was only heir of entail of the lands), Abertarff (the respondent) raised this action of declarator against Lord Lovat, and the other substitute heirs of entail, concluding to have it found and declared that all the lands included in the deed of entail of 1851 were held under the burden of the just and lawful debts of the Hon. Archibald Fraser, due and addebted by him at the time of his death, and in particular of certain specified debts, amounting to £6186, os. 7
d.; and that the said lands and estates were liable in payment of the said debts, and might be attached and sold therefor; and further, that the pursuer was entitled to be relieved out of the lands so entailed of the sum of £2791, 1s. 9d., as the expenses of litigation incurred by him bona fide and beneficially for the defenders as heir of entail. On the 17th of June 1853, Lord Anderson (Ordinary) found that by the deed of entail of 1851, prepared under the directions of the Court of Session, which directions were confirmed on appeal to the House of Lords, the lands libelled were held under the burden of payment of all the just and lawful debts of the late Archibald Fraser, and this judgment was affirmed by the First Division. On the 20th November 1855, Lord Handyside (Ordinary) found that the debts specified in the summons, and amounting to £6186, os. 7 1 4 d., were just and lawful debts due by the said Archibald Fraser; but that the pursuer was not entitled to relief out of the entailed lands of the sum of £2791, 1s. 9d. of expenses incurred by him in litigation. Upon reclaiming notes, the Lords of the First Division recalled the latter finding of the Lord Ordinary, and remitted to him to allow parties an opportunity of substantiating their respective averments as regarded the claim for £2791, 1s. 9d. On the 8th of June 1858, Lord Kinloch (Ordinary) found that the entailed lands were subject to certain of the expenses claimed for litigation; and the pursuer having produced discharges of the encumbrances he had created over the entailed lands during the time he supposed himself to be proprietor in fee-simple, the Lord Ordinary, on the 17th June 1858 found that the entailed lands were liable in payment of the sum of £6186, os. 7 1 4 d. The Lords of the First Division found that the reclaiming note for Lord Lovat was not insisted in as regarded Lord Kinloch's interlocutor of 17th June 1858, and therefore refused the desire of the reclaiming note, in so far as it prayed for the recall of that interlocutor; recalled the interlocutor of the 8th of June 1858, and in place thereof found the pursuer entitled to expenses of litigation to the extent of £331, 4s. ( 21 D. 1154. 1 4 Lord Lovat appeals against the whole of this judgment, while Mr Fraser of Abertarff, in a cross appeal, complains of so much of it as limits his right to recover the expenses of litigation to the sum of £331, 4s.
The Lord Advocate submitted, first, that Abertarff was bound to pay all the personal debts of the late Archibald Fraser out of the executry to which he had succeeded, and was not entitled to burden the entailed lands with them. He proceeded to comment upon the different deeds.
The
Attorney-General said that matter was already
res judicata between the parties and could not be made the subject of appeal. Lord Kinloch's interlocutor of the 17th of June 1858 had declared that the entailed lands were liable for the payment of debts amounting to £6186, os. 7
The Lord Advocate urged that it was as a matter of form they had reclaimed against Lord Kinloch's interlocutor.
The
Lord Chancellor—The judgment of the Appeal Committee seems to exclude you. It must be taken that those lands are liable for the payment of debts to the extent of £6186, os. 7
The Lord Advocate said he would not press the matter further, but bow to the decision of the House. The only point remaining was as to the sum of £331, 4s. having been allowed as expenses of litigation with Mr Hugh Fraser, W.S. That litigation arose in this way:—The forfeited estate of Lovat had been restored in 1744 to Lieutenant-General Simon Fraser, under burden of heavy debts to Government. He entailed the estate under burden of a trust-deed, whereby he disponed the lands to certain persons in trust for the purpose, inter alia, of applying an annual sinking fund to the amount of £400 towards payment of the debts with which the estate was burdened. When the General died, the amount of the debt was £74,000. The Hon. Archibald Fraser succeeded, and upon his death, Mr Hugh Fraser, as judicial factor appointed to see the payments made to the sinking fund, brought an action against the respondent for the payment of fifteen years' arrears due by Archibald Fraser. The respondent resisted the claim, and it was reduced to a certain extent, but only upon his agreeing to pay his own expenses. The respondent could not be held entitled to redress as having litigated for the benefit of the heirs in entail. The case of Fraser v. Vans Agnew ( 5 Wilson & Shaw, App. Cas., p. 249) showed that an heir of entail was not bound to pay costs incurred by a preceding heir, though a large part of the estate would otherwise have been lost. This was a debt, not due by Archibald Fraser, but incurred by the respondent, who was therefore alone liable for its payment.
Mr Rolt, Q.C., then followed on the same side.
The Attorney-General, on the part of the respondent, said the only matter for discussion was whether the entailed estates were liable for the expenses incurred in ascertaining what debts could properly be charged against it. The Court below was wrong in disposing of the question whether the litigations were properly or improperly conducted on a mere presumption founded upon the result of these litigations, and without consideration of the nature of the claims resisted, and of the defences pleaded. It was a matter of everyday occurrence that trustees were found liable in expenses to an opposing litigant, and it had never been held that such a finding of itself rendered the trustees personally liable for the expenses of the litigation, or was equivalent to a finding that the litigation was
Page: 267↓
Sir Hugh Cairns, Q.C., then followed on the same side.
The Lord Advocate having replied, Mr Rolt, Q.C., claimed right to address the House on the cross appeal opened by the Attorney-General and Sir Hugh Cairns. Their Lordships said they certainly understood both appeals had been heard together.
Mr Rolt said he could not have addressed himself to the cross appeal until it had been opened.
The Lord Chancellor—It is better to err in hearing than in not hearing you.
Mr Rolt then submitted that Mr Fraser ought to be allowed to burden the lands with expenses of litigation to the amount of £331, 4s. as sanctioned by the Court below, but had not proceeded far when he was interrupted by the Attorney-General, who said his learned friend was discussing the general principle which had been already discussed in the original appeal.
Mr Rolt said if their lordships would not allow him to argue the general question he would sit down.
The Lord Chancellor—It seems to me personally that you are not precluded from using any argument which is germane to the cross appeal simply because it has been made use of in arguing the original appeal.
Mr Rolt then proceeded to argue principally that the fact of Abertarff believing himself to be proprietor in fee-simple, and therefore personally liable for the debts, would induce him to act very much more recklessly and obstinately than he would have done had he known he was only a trustee for others.
The Attorney-General having replied,
The Lord Chancellor said the House would reserve its judgment.
Thursday, April 26.
Judgment was delivered to-day.
The
Lord Chancellor said this was an appeal from several interlocutors pronounced in an action in which the respondent was pursuer and the appellant defender. The dispute between the parties arose originally upon the construction of two deeds. By the first of these, dated the 15th August 1808, the late Hon. Archibald Fraser executed a strict entail of the lands of Abertarff and the lands of Auld Castlehill, of which he was owner in fee-simple, in favour of Thomas Alexander Fraser of Strichen, now Lord Lovat, and a certain series of substitutes, amongst whom the respondent was not included, under burden, however, of all his just and lawful debts due and addebted, or which might be due and addebted by him at his death; which said debts he declared
should in noway affect or diminish his executry, or other funds, property, or effects,
unless such executry should be
given and conveyed by him
to the said Thomas Alexander Fraser of Strichen and the other substitutes mentioned in the deed. This deed contained a reservation of power to revoke or alter. By the second of the deeds, which proceeded upon the narrative that he had some years ago executed an entail of the lands of Abertarff and others, and that he intended in the exercise of the power therein reserved to alter and revoke that deed to a certain extent, he disponed the lands to the heirs of his body, whom failing, to the respondent and the heirs-male of his body, whom failing to the other heirs and substitutes mentioned in the deed of entail, but always with and under the several provisions, conditions, burdens, &c., contained in that deed, and under certain other additional provisions—viz., that the respondent and his heirs-male succeeding to him should take the name of Archibald, and that he should disencumber the lands in the parish of Inverness of the debts affecting them out of the executry, or by burdening the other lands. Archibald Fraser died in 1815, and did not bequeath his executry to Lord Lovat, so that his just and lawful debts due and addebted to him at the time of his death became charges upon the entailed lands. The respondent was then a minor, and his trustees disputed his obligation to execute an entail of the lands, contending that they belonged to him in fee-simple. A protracted litigation ensued, the result of which was that the respondent was declared to be under the obligation to which I have referred, and a deed of entail was executed under the direction of the Court. That deed contained the declaration of the deed of 15th August 1808, that the lands were to be held under burden of all the just and lawful debts of Archibald Fraser. On the 31st of December 1851 (after the decision that he was only tenant-in-tail of the lands), Abertarff (the respondent) raised an action of declarator against Lord Lovat, concluding to have it found and declared that all the lands included in the deed of entail of 1851 were held under the burden of the just and lawful debts of the Hon. Archibald Fraser due and addebted by him at the time of his death, and in particular of certain specified debts, amounting to £6186, os. 7
Page: 268↓
Certain interlocutors affirmed; one interlocutor in part affirmed and in part reversed; other interlocutors reversed.
Counsel for Lord Lovat and Others— The Lord Advocate (Moncrieff) and Mr Rolt, Q.C. Agents— Messrs Gibson-Craig, Dalziel, & Brodies, W.S., and Messrs Grahames and Wardlaw, London.
Counsel for Mr Fraser— The Attorney-General (Palmer), Sir Hugh Cairns, Q.C., and Mr J. F. M'Lennan. Agents— Mr Æneas Macbean, W.S., and Messrs Loch & Maclaurin, London.