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to this, that certain cases may occur in which it would be extremely difficult to exercise that discretion; but I think we are not to judge by that very nice disquisition. of cases which may possibly occur. The trustees certainly have a discretion which they may exercise, and exercise within the intention of the testator in

many cases. It appears to me that that discretion distinguishes this from the case decided, where there was no such discretion. Cases may equally be put where it would be highly probable that they would exercise a discretion not to sell. Having that discretion, I think we cannot consider that before they had exercised a discretion to sell, and so to convert the estate into personalty, the legacy duty attached. I think, therefore, the judgment must be against the Crown." Parke, B.: "The Crown is clearly entitled on the part of the estate which is sold; the remaining question is whether, taking all the will together, this is a direction to the trustees to convert the estate into money; or whether it is realty left in their discretion not to convert it into money, but to leave it as land? According to the authority of The Advocate-General v. Ramsay's Trustees, the words of discretion may be so controlled as to show they are directory. If they are directory, the legacy duty would attach under the Act. Are they directory or not? It seems to be that a discretion is clearly given to the trustees no to sell in certain cases; the will provides that they may have full power of making such sale, and to resort to a public or private sale; it gives them a power of reselling or deferring any sale, and of causing any part of the testator's real or personal estate to be valued not before sold, but instead of being sold. I admit there may be some difficulty in what follows, that it shall be

treated as personal estate, and subject to all the trusts of the will; that may make it difficult in some cases for the trustees to comply with the directions given in this part of the will: at the same time I cannot think that that affects their discretion in certain cases to sell or not te sell, as they think fit; and if they think fit not to sell, inasmuch as they have a discretion to sell or not, the legacy duty does not attach." Alderson, B.: "It is clear that, according to the The AdvocateGeneral v. Ramsay's Trustees, that if there be words of discretion they may be controlled by the other words of the will, so as to show that they are only in semblance words of discretion, but in reality words of direction. But it does not appear that the words of this will are of the latter description. In the simple and plain sense they are words of discretion; and though it would be difficult to carry that discretion into effect in certain ingenious cases put at the bar, to which I agree, yet it is possible to conceive that those ingenious cases may never occur at all. Unless you can show that at all events the discretion is taken away, it does not come within the authority of The Advocate-General v. Ramsay's Trustees. It seems to me that many cases might be put, in which it would be obviously the duty of the trustees in the exercise of a sound discretion to allot this as land. If that be so, the words of the will are to have their natural import and effect, that is to say, the words of discretion shall mean that the trustees have a discretionary power. Then it is quite clear the legacy duty is not to attach."

Where there is a devise to allot real estate with a power instead of doing so to sell and distribute the proceeds, legacy duty is payable on moneys arising from sales effected.

This principle is laid down in The Attorney-General v. Simcox (1 Ex. 749). There real estate was devised to trustees in trust to convey the same unto and among certain persons in equal proportions in severalty; and for the purpose of such division and partition the trustees were empowered from time to time to sell all or an ypart of the devised estates, and were to stand possessed of the money to arise from such sales, for the same persons. The trustees accordingly, for the purposes of the trust, sold the whole of the devised estates, and it was held that legacy duty was payable on the proceeds of the sale. Pollock, C.B., in giving the judgment of the Court, said (after referring to, and stating the cases of Re Evans (2 Cr. M. & R. 206) and The Attorney-General v. Mangles: "If Re Evans is to be taken as an authority that duty does not in any case attach where a testator does not imperatively direct a sale at all events, but only authorises his trustees in case they shall deem it expedient so to do, it is impossible to reconcile that case with the subsequent decision in The Attorney-General v. Mangles. If on the whole context the intention appears to be that the trustees to have a discretion to sell or not, as they think fit, then if the law be as it was laid down, down in Re Evans,


or is supposed to be laid the duty would not attach. But it is clear from the subsequent case of The Attorney-General v. Mangles, that the existence of such a discretion does not prevent the duty from attaching." His lordship proceeded to analyse the principle of the decisions, and concluded that the case was governed by The AttorneyGeneral v. Mangles, " which is in principle the same as that before us, the only distinction being, that there the devise was in trust to sell, with a power to abstain

from doing so, and to allot the estate itself, instead of selling and distributing the proceeds; whereas here the devise is upon trust to allot, with a power, instead of doing so, to sell and distribute the proceeds. In both cases the trustees had a discretion to sell or not to sell, as they should think best for the cestui que trust; and the exercise of that discretion by a sale was held in The Attorney-General v. Mangles to cause duty to attach, and the same principle precisely attaches here. The only difficulty we have felt has arisen from Re Evans. It is sufficient to say, that if that case is to be taken as an authority for the general proposition that duty does not attach in any case where the sale is made under a discretion given to the trustees to sell and distribute the proceeds, but without any positive direction imposing upon them the obligation of selling, the case is clearly overruled by The Attorney General v. Mangles, and is, as we conceive, contrary to any fair and reasonable construction of the statute."

In the case of The Advocate-General v. Blackburn's Trustees (Sco. Sess. Ca. 2d Ser. Vol. x. 166), in the Court of Exchequer in Scotland, it was held, that to warrant the imposition of legacy duty, an express direction to sell is not indispensable, and that a power becomes as imperative as an express direction, when conversion is the fair meaning and intention. See also Weir v. Lord-Advocate (3 Sco. Sess. Ca. 3d Ser. 1006).

When there is a direction to the trustees to consider as to a sale of real estate and to do what they think best, if the trustees resolve to adopt a sale, the proceeds of sale are chargeable with legacy duty.

This is the principle upon which the decision in the case of The Advocate-General v. Hamilton (18 Sco.

Sess. Ca. 2d Ser. 636), in the Scotch Exchequer, proceeded. In this case a testator conveyed his whole estate, heritable and movable, to trustees, the free residue after payment of debts and legacies to be divided among his children in equal shares. The trustees had power either to sell or retain the property as they should consider advantageous, and power to borrow money on the security of the heritage; and, if they resolved to dispose of it, power to invest the proceeds. The trustees sold the property at different times, and as funds were realised, they paid in money some of the children's shares, and the remainder was held by the trustees on trust and partly lent on heritable securities. It was held that the trustees having an ample and absolute discretion conferred upon them by the testator, the character of his succession was made dependent on their resolution; and they having in exercise of the powers conferred by the deed converted the estate, it became liable to legacy duty. Lord Neaves, in the course of his judgment, said: "The law on this subject has been repeatedly under consideration of the Court, and several points relating to it are clearly fixed. First, there can be no doubt that if a testator's will or settlement expressly directs his heritable estate to be sold, mortgaged, or otherwise disposed of, the duty is due under the very words of the Act. Secondly, it is fixed that the duty may be due, although there be no express direction to sell in terms of the statute, provided there be, on the one hand, a power to sell, and on the other hand, a sufficient indication of the testator's intention, as gathered from the whole of his deed, that his heritable property should be sold for the purposes of his will. But, thirdly, there is another principle, which appears to me to be involved

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