Scottish Court of Session Decisions

Lieutenant—Colonel Frederick Mackenzie Fraser died on 19th May 1897, leaving a holograph last will and testament dated 8th July 1895, in the following terms:— “I hereby leave to my wife Mrs Theodora Lovett Darby or Mackenzie Fraser, for her sole use and enjoyment during the term of her natural life, so long as she shall survive me, my whole lands and estates of Castle Fraser and Inverallochy, and the whole plenishing, furnishings, and articles in the mansion—house thereon; and after the death of my said wife I hereby dispone, convey, and make over my said lands and estates of Castle Fraser and Inverallochy, and the whole furniture, plenishing, furnishings, and articles which may be in the mansion-houses thereon, to Thomas Fraser Croft, son of Thomas Denman Croft and his wife Eleanor Fraser Tomlinson or Croft, and the heirs whatsoever of his body; … And I hereby specially ordain that my wife the said Mrs Theodora Lovett Darby or Mackenzie Fraser is to have the absolute control and management of the estates of Castle Fraser and Inverallochy so long as she shall survive me, and without any interference from the heir who is appointed to succeed after her death; and I further give and leave to my said wife full power to raise such sums as may be required to pay all death and succession duties which may fall upon her after my decease, as well as all my debts and funeral expenses: And I hereby constitute and appoint the said Mrs Theodora Lovett Darby or Mackenzie Fraser to be my sole executrix and sole residuary legatee.”

At the death of Colonel Fraser his estate consisted of heritage valued at £27,289, 4s. 6d., and of moveables valued at £7418, 9s. 4d. The personal debts and funeral expenses amounted to £1194, 0s. 10d. On the basis of the above figures the amount of estate-duty due in terms of the Finance Act 1894, in respect of the free heritable and moveable estate (£33,513, 13s.) was £1507, 10s. At the date of Colonel Fraser's death there was a plate chest containing silver plate in the office of the Union Bank of Scotland, Limited, at Aberdeen, which chest had been deposited there by him for safe custody prior to 8th July 1895 (the date of his will), and was there at that date. Towards the end of August or beginning of September 1895 the chest was uplifted from the bank and taken to the mansion-house at Castle Fraser. Various articles were then taken from the chest. Some of the articles uplifted were used by Colonel Fraser in a house at North Berwick, and thereafter in a house at Ascot. The remaining

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articles uplifted were used by him at his mansion-house on his estate of Castle Fraser. The chest was taken from the said mansion-house of Castle Fraser and redeposited with the bank for safe custody in the month of November 1895. The chest and contents were not removed from the bank between the last-mentioned date and the date of Colonel Fraser's death. The articles taken out of the chest and used in the mansion-house at Castle Fraser were never returned to the bank, and were in the mansion-house at the date of Colonel Fraser's death. The articles taken out of the chest and used at North Berwick and Ascot were sent down to Castle Fraser mansion-house, and were there at the date of the Colonel's death. The remaining articles in the chest were never in use at the mansion-house of Castle Fraser or any other house between the date of the last will and testament and the date of the said Frederick Mackenzie Fraser's death. They consisted of silver and plated articles for household use valued at £159, 10s.

In these circumstances various questions arose as to the construction of clauses in Colonel Fraser's will, and for the decision of these questions a special case was presented to the Court by (1) Colonel Fraser's widow, and (2) the heir, Thomas Fraser Croft, a pupil, and Thomas Denman Croft, his father, as his tutor and administrator-in-law.

The questions at law were, inter alia— “(2) Is the first party entitled in fee to the said plate chest and its contents at the date of the said-Frederick Mackenzie Fraser's death? (3) Has the first party power to grant ordinary agricultural leases of the heritable estate for periods not exceeding nineteen years? (5) Is the first party entitled to charge the said heritable estate with the debts and funeral expenses of the said Frederick Mackenzie Fraser? (6) Is the first party entitled to charge the heritable estate of the deceased Frederick Mackenzie Fraser (a) with the whole estate duty, or ( b) only with the proper rateable part thereof effeiring to the heritable estate?” The other questions are not referred to, being considered by the Court unworthy of argument.

Argued for first party— On Question 2— As residuary legatee under Colonel Fraser's will she was entitled to the fee of the plate chest and its contents. The chest could not be said to be constructively in any mansion—house at the date of Colonel Fraser's death. On Question 3—In terms of the special clause in the will she had power to grant ordinary agricultural leases for a term not exceeding nineteen years. On Questions 5 and 6— In terms of the special clause in the deed she was entitled to burden the heritable estate of the deceased, with all death and succession duties which might fall upon her in any way and in any capacity in respect of the heritable or moveable estate, and with all the deceased's debts and his funeral expenses, and was entitled to the moveable estate falling to her as residuary legatee without any deduction of death or succession duties payable in respect thereof, or of the debts or funeral expenses of the deceased. The testator had given her power to raise money, and that meant power to raise money on some other estate than her own.

Argued for second parties— On Question 2—The first party was only entitled to the liferent use of the chest and its contents. Although actually out of the mansion-house the chest was constructively in it. Colonel Fraser was very often away from home, and the box must be held to have been removed to the bank for safe custody, for its preservation from accidental fire or the like. The proper domicile of the chest and plate was the mansion-house and not the bank, and it therefore was included in the furniture “in the mansion-house”— Land v. Devaynes (1794), 4 Brown Ch. Cases, 536; Rawlinson v. Rawlinson (1876), L.R., 3 Ch. D. 302; Cockerell v. Earl of Essex (1884), L.R., 26 Ch. D. 538; Williams on Executors, 9th ed., ii. 1190. On Question 3—The first party's rights were merely those of a liferentrix at common law, and she had no power to grant leases to endure longer than her lifetime. On Questions 4 and 5— The first party was not entitled to charge the heritable estate with the testator's debts and funeral expenses, and was only entitled to charge the heritable estate with the proper rateable part of the estate-duty effeiring thereto. The general rule which rendered heritable debts a burden on the heir and moveable debts a burden on the executor would not be defeated by an attempt to construe loose and general expressions of the testator as imparting an intention contrary to that rule— Forbes v. Forbes, November 14, 1766, Hailes 138; Douglas's Trustees v. Douglas, January 17, 1868, 6 Macph. 223; opinion of L.P. Inglis in Macleod's Trustees, June 28, 1871, 9 Macph. 906.