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ing a daily school in Newtown, for the instruction of twenty boys, the dividends to be paid to one Benbow, who was appointed schoolmaster; and as to other part of the said stock to pay the dividends to the schoolmaster for the purpose of supplying the scholars with pinafores, shoes, and books; and the Crown claimed duty on these bequests. Parke, B., after adverting to the former cases on this point, said that he was satisfied the argument for the Crown was right, and concurred. in the opinion of the Vice-Chancellor in The AttorneyGeneral v. Fitzgerald, that the legacies are liable to duty in the same manner as if they had been bequeathed to the trustees of an existing school for the purposes therein contained. It was consequently held that the duty must be paid.

Sir J. Romilly, M.R., also in Re Pearce (24 Beav. 491), declined to follow Re Wilkinson, and decided that legacy duty was payable upon bequest to trustees of £2000 Consols, to divide the income yearly between twelve poor persons, no person being eligible two years in succession. The Court of Exchequer, too, in Re Parker (4 Hurlst. & Norm. 666), considered the law as laid down in Re Griffiths (14 M. & W. 510), as the true law on the subject; holding that a bequest of money for the purpose of building a church and parsonage house, and of endowing and repairing the church, is subject to a legacy duty of £10 per cent. The judges were all of opinion that the bequest was liable to legacy duty, and that, even if it had not been, it was liable to succession duty.

In Harris v. Earl Howe (29 Beav. 261), it was held that the duty was payable in respect of a bequest in trust for the relief of poor patients of an infirmary, no one of whom was to receive more than £5.

The case of Thomas v. Howell (L. R. 18 Eq. 198), is also in point.

It would appear that unless the testator fixes the precise amount which each object or person is to have, and merely leaves the selection of such object or person to his executors, or one of them, any gift of a sum of £20 or upwards for charitable purposes is chargeable with duty as a charitable legacy.

The will alone determines what shall be a "legacy," and any secret trust outside the will does not change the "legatee." In the case of Cullen v. AttorneyGeneral for Ireland (L. R. 1 Eng. & Ir. H. L. App. 190), the testatrix gave the residue of her property to two persons for their own benefit; but it was admitted that they had undertaken by a binding agreement in her lifetime to hold the property so given upon certain charitable trusts which would be exempt from duty in Ireland. It was decided that the bequest was not for charitable purposes, as the undertaking formed no part of the will, and the duty was payable by the legatees named by the testatrix.

A bequest upon the trusts of a settlement, even if in satisfaction of a covenant, is chargeable with duty, the trusts being in effect incorporated in the will.

In Re Palmer (3 Hurlst. & Norm. 26), a father on the marriage of his daughter A., covenanted to pay £2000 to the trustees of the settlement then made. The trusts were to pay the income to A. for life, then to her husband for life, and after the death of the survivor to the children, and if no child then to such person as she should appoint, and in default of appointment to her next of kin. On the marriage of another daughter B., the father covenanted to pay to the trustees of the settlement then made £2000 within one month

of the marriage. The trusts of this sum were to pay the income to B.'s husband for life, then to B. for life, and after the death of the survivor to the children, and if no child then to such person as she should appoint, and in default of appointment to her next of kin. In the father's will was the following clause: "In addition to the property settled by my daughter A.'s marriage settlement, I give the further sum of £8000 to the trustees of such settlement to be held and disposed of by them upon the same trusts in all respects for the benefit of my said daughter A., and her children and grandchildren as thereby declared as to the property thereby settled." There was a similar gift of a similar sum in exactly the same words to the trustees of B.'s settlement for the benefit of B. and her family. It was held that the words "to be held and disposed of by them upon the same trusts in all respects for the benefit of my daughter and her children and grandchildren, as thereby declared as to the property thereby settled," were to be construed as words of reference, incorporating the trusts of the settlements in the will: that the trusts for the husbands were not excluded, and, therefore, that legacy duty was payable upon that principle.

A legacy cannot be so disclaimed by the executors of a legatee after he has accepted and bequeathed it, as to avoid the charge for duty.

In The Attorney-General v. Munby (3 Hurlst. & Nor. 826), a testator died in 1816, having by his will bequeathed the residue of his property upon trust to pay the income thereof to his daughter for life, and after her death to pay the capital, subject to certain legacies, to her husband. On the death of the testator the legacy duty of £1 per cent. was paid upon the daughter's life interest under the latter part of this section. The

daughter's husband died in 1836, having by his will bequeathed his personal estate to his wife, who died in 1850. The defendants, who were the executors of the husband, then disclaimed the bequest to the husband in the original will, and contended that by the operation of such disclaimer the residue of the original testator's estate passed as undisposed of to the executor of the daughter, who was her father's sole next of kin, and was accordingly chargeable with only £1 per cent. duty. The Crown, however, contended that such a disclaimer was inoperative with reference to legacy duty, and claimed duty at £10 per cent., which was the rate payable by the husband, the legatee named in the will; and the Court of Exchequer held that it was not competent for the defendants to disclaim the bequest after their testator had accepted and bequeathed it, and decided in favour of the claim of the Crown.

A person entitled to a legacy as appointee cannot disclaim his legacy under the will of the appointor, and take in default of appointment under the instrument creating the power so as to affect the charge for duty. See Attorney-General v. Brackenbury (1 Hurlst. & Colt. 782). The original testator bequeathed the residue of his personal estate to his daughter for life, and after her death, in the event, which happened, of her not marrying, upon such trusts as she should by will appoint, and in default of appointment, in trust for his brother and sister. The daughter by her will, which operated as an execution of the power, bequeathed the residue of her estate to her uncle and aunt. It was held that the uncle and aunt were liable to pay duty thereon at the rate of £5 per cent. as legatces under the daughter's will, and could not elect

to take as legatees under the will of their brother, the original testator.

The fact that money left to pay legacy duty is not chargeable with duty as a legacy (see 36 Geo. III. c. 52, s. 21), is not to be overlooked. For the expressions which have been held to exempt legatees from payment of duty, see Jarman on Wills, 3rd edit., pp. 173, 174. In such cases the duty is of course payable on the legacy, although it is not to be deducted from it.

The cases in which benefits derived from appointments under powers of personal estate, and of money the produce of real estate, have been held to be legacies, are now to be noticed. But it may be convenient before adverting to them, to observe that there are two classes of powers of appointment referred to: limited and general powers.

A gift by will or deed in exercise of a limited power of appointment, created by a will, of property chargeable with legacy duty, is a legacy under the will which creates the power.

A gift by will in exercise of a general power of appointment, created by a will or deed, of property chargeable with legacy duty, is a legacy under the will by which the power is exercised.

The exercise, whether by deed or will, of a general power of appointment, created by will, by a person having a limited interest in the property appointed, confers a legacy on the person exercising the power of appointment, which legacy is to be regarded as if it had been an absolute legacy to the appointor in the first instance. See Platt v. Routh (3 Beav. 257).

There is but one case relating to benefits derived from powers of appointment of personal estate only, Re Cholmondeley (1 Cr. & Mees. 149), and it depended solely on the construction of the several Acts of Par

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