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General v. The Marquis of Hertford (3 Exch. 670), in which the construction of the later Act was considered. Francis Marquis of Hertford, by deed in 1802, conveyed certain lands to trustees to the use of himself for life, remainder to his son for life, remainder to the defendant his grandson for life, remainder over. The deed provided that it should be lawful for the survivor of the father and son to declare new uses of the land in lieu of the old uses. Francis Marquis of Hertford

(the father) died in June 1822, and thereupon the son and the grandson (the defendant), by indenture of appointment, dated October 1822, declared that it should be lawful for the son, by deed or will, to charge the lands with any sum not exceeding £47,000. The son, by his will in 1823, charged the lands with the payment to his executors of £47,000, to be applied in payment of debts, legacies, &c., the residue to be in trust for the defendant, and died in 1842. In 1847 his executors raised £11,260, part of the £47,000, and paid it to the defendant, the debts, &c., having been previously paid; and the question was, whether duty was or not payable in respect of the £11,260. Parke, B., observed: "If this case had occurred prior to the 8 & 9 Vict. c. 76, this sum would have been exempt from legacy duty. The question here turns entirely upon the 4th section of that statute; and looking at the statute there can be no question that every disposition by will, whether it operated originally by virtue of a power created by deed or not, is, under this Act of Parliament, rendered liable to duty. It provides that every disposition by virtue of a will or testamentary instrument, which is or shall be payable out of any real estate or any charge thereupon, which any person hath had or shall have any right or power to charge, that is,

whether by will or deed, shall be liable to legacy duty. Now this is a case in which a party has a power to charge by will a sum of money which is charged upon the estate by deed, and therefore is within the express words of the enacting clause. The proviso in the 45 Geo. III. c. 28, is repealed by the enacting part of the clause in the present Act, and such legacies as would otherwise fall within the latter Act are exempt from its operation if made by marriage settlement, subject to any limited power of appointment, for the benefit of any person or persons therein specifically named. The words of this clause apply to all cases of appointment by will or deed." The rest of the Court concurred in holding both that the duty was payable, and that the Act was retrospective; so that notwithstanding the testator died before, yet inasmuch as the money was raised and paid after, the Act came into operation, the annuity was chargeable with duty.

The proviso of the former Act was, it will be seen, thus curtailed, and the only exception remaining was sums of money subjected by marriage settlements to any limited power of appointment in favour of persons therein specially named as the objects of such power and their issue. This exception has, however, been practically repealed by the Succession Duty Act.

The question of the liability to legacy duty of legacies charged upon or made payable out of any real estate or out of any moneys to arise out of the sale of any real estate, seems now to suggest itself.

A rent charge was held to be liable to the legacy duty in the case of The Attorney-General v. Jackson (2 Cr. & Jer. 101). There a testator gave a life estate in his freehold property to Charlotte Troughton, and after

her death and in the event of her husband Joseph Troughton surviving her, he gave him "an annuity or clear yearly rent charge of £500," payable quarterly, "with such power and remedy of distress and entry, and perception of rents, in case the annuity should be in arrear, as are reserved to lessors for the recovery of rents on leases for years," and subject to that annuity he gave his real estates in moieties to the defendants R. Jackson in fee, and W. Jackson for life: it was held, that legacy duty was payable on this devise to Joseph Troughton by both the defendants. Lord Lyndhurst, C.B., remarked that, with regard to the argument for the defendants that this was in fact real property and never meant to be taxed by the Legislature, it was material to consider the language of the Act of 45 Geo. III. c. 28; and that it appeared to the Court that such an annuity as in the present case came precisely within the terms made use of by the Legislature. As to holding both the tenant in fee and tenant for life jointly bound to pay this annuity, his lordship observed that this was no hardship on the tenant for life, for the person paying the annuity is never required to be in advance, but is allowed to retain the payment of the duty due to the Crown out of the payment made to the annuitant.

This decision was attempted to be reviewed in Stow v. Davenport (5 B. & Ad. 359); but Lord Denman, C.J., considered the authority of it not to be questioned, and followed it.

But the charge, to be liable to duty, must be in general a charge in favour of one person on the estate of another. In Shirley v. Earl Ferrers (1 Phil. 167), a testator devised certain estates to the use of trustees for a term of 500 years, and subject thereto to the use

of other trustees to preserve contingent remainders, remainder to the first and other sons of Caroline Shirley (then an infant), remainder over; and directed the trustees of the term, after paying certain annuities, to apply in aid of another fund, thereby provided, so much of the rents and profits of the estates (not exceeding in any one year a certain amount) as they should think fit in the maintenance and education of Caroline Shirley, and to invest and accumulate the interest of the surplus rents until she should attain twenty-one or marry; and that on the happening of either of these events, the surplus rents were to be paid to her for her separate use. On her attaining twenty-one, the Crown claimed legacy duty on the amount of the rents and profits which had been applied to her maintenance and education as a "partial benefit or interest out of" the land given to her; and the Commissioners of Stamps and Taxes had, by notice to the Accountant-General, put a stop upon the dividends of a sum in Court constituting part of the testator's residuary estate, to the income of which Miss Shirley was entitled, and she now petitioned that the stop might be removed. But Lord Lyndhurst, C., considered that no duty was payable: "The direction to the trustees merely does what this Court would have done without it. The petitioner would have been entitled at all events to maintenance out of the rents and profits of the real estates. It is true the trustees have a discretion to allow a portion of the rents not exceeding a certain amount for that purpose; but still the estate out of which the allowance is to come is her estate. Nothing but what is a charge upon the estate of another person will come within the statute. It is very important that as far as possible we should avoid refinements in the construction of this

Act. I am of opinion that no duty is payable, and that the stop must be taken off."

Money belonging to a testator, which remains charged on his own real estate, is liable to legacy duty. In Swabey v. Swabey (15 Sim. 502), Catherine Goleborn upon her father's death became seised of real estates as his heiress, and entitled under his marriage settlement to a sum of money which the trustees of the settlement had lent him on mortgage of the estates. The trustees had conveyed the estates to her, subject expressly to the equity of redemption, and did not release her father's covenant for repayment of the purchase-money. She afterwards granted an annuity to one Evans, and, as a security for it, conveyed the estate and assigned the money to a trustee for him. By her will she devised the estate, but did not dispose of her personal estate; and it was held by Sir L. Shadwell, V.-C.E., that the money was subject to legacy and probate duty.

The gift of the next presentation to a living is a "legacy" out of real estate and liable to legacy duty, but the gift of an advowson is not "a legacy."

A general direction to sell land renders it liable to legacy duty, unless coupled with a direction to invest the produce in other real estate. Where the trustees have no discretion or option, and a sale is effected, the duty is of course payable, as in The Advocate-General v. Ramsay's Trustees (2 Cr. M. & Ros. 224), in the Court of Exchequer in Scotland. There the question was whether the money arising from the sale of real property, sold under certain testamentary trust dispositions and settlements of one Andrew Ramsay, was liable to legacy duty. Sir S. Shepherd, C B., in delivering the judgment of the Court, said: "When one considers the intention of the Acts, it is that everything which

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