1888, an option is given to him either to pay the duty by eight half-yearly instalments as provided by the Act of 1853, or by two equal moieties, whereof the first moiety is payable by four equal yearly instalments, and the second moiety is payable on the day for payment of the last instalment of the first moiety, or if not so paid, then by four equal yearly instalments with interest at 4 per cent. per annum from such last-mentioned day, and a successor availing himself of the option may tender the duty in advance, and receive interest thereon. In the event of a successor availing himself of this option, and dying before all the duty is paid, the unpaid duty will continue to be payable subject to a reduction of so much as would have ceased to be payable if the duty had been payable by eight half-yearly instalments under the Act of 1853 (r). The above option is also given to a successor becoming entitled to his succession upon the death of a person dying before the 1st July, 1888, if no instalment of duty has become due from him, or if only one instalment has become due and has been paid before that day (v). directed to be charged as The interest of a successor in moneys to arise from the sale of Real property real property under any trust for the sale thereof, is chargeable sold to be with duty as personal property, unless such moneys are subject personalty. to any trusts for the re-investment thereof in the purchase of other real property, to which the successor would not be absolutely entitled. perty to be invested in land, how to be charged. The interest of any successor in money subject to any trust Personal profor the investment thereof in the purchase of real property to which the successor would be absolutely entitled, is chargeable with duty as personal property; and money subject to any trust for the investment thereof in the purchase of real property to which the successor would not be absolutely entitled, is chargeable with duty as real property (x). to donee of Where the donee of a general power of appointment becomes Allowance chargeable with duty in respect of the property appointed by general power of appointhim, he will be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest taken by him in the property. ment. In estimating the value of a succession, no allowance will be What allow (v) Act of 1888, s. 22. (r) Act of 1853, ss. 29, 30. ance to be made for incumbrances. Allowance to be made in respect of relinquished property. As to compounding and payment in advance of duty. Duty to be a first charge on property. made in respect of any incumbrance created or incurred by the successor, not made in execution of a prior special power of appointment; but an allowance will be made in respect of all other incumbrances, and for moneys laid out by the successor previously to his possession, in substantial repairs or permanent improvements; and the Act of 1853 contains further provisions as to allowances. Where any successor, upon taking a succession, is bound to relinquish or be deprived of any other property, the commissioners' allowance will be made to him as may be just in respect of the value of such property (y). The commissioners are empowered to compound duties, and to receive any duty in advance, and to allow discount thereon. The duty is a first charge on the interest of the successor, and of all persons claiming in his right, in all the real property in respect whereof such duty is assessed: and the duty is also a first charge on the interest of the successor in the personal property in respect whereof the same is assessed while the same remains in the ownership or control of the successor, or of any trustee for him, or of his guardian or committee, or tutor or curator, or of the husband of any wife who shall be the successor; and the duty is a debt due to the Crown from the successor having, in the case of real property comprised in any succession, priority over all charges and interests created by him, but it does not affect any other real property of the successor than the property comprised in such succession. And where any settled real property comprised in a succession is subject to any power of sale, exchange, or partition, exerciseable with the consent of the successor, or by the successor with the consent of another person, he is not disqualified by the charge of duty on his succession from effectually authorizing by his consent the exercise of the power or exercising the power with proper consent, as the case may be, and in such case the duty is charged substitutively upon the successor's interest in all real property acquired in substitution for the real property before comprised in the succession, and in the meantime upon his interest also in all moneys arising from the exercise of any such power, and in all investments of such moneys. (y) See Re Micklethwait, 11 Exch. Rep. 452; Attorney-General v. Sibthorpe, ubi suprà. accountable Trustees and other persons in whom any property, or the What persons management of any property, subject to the duty, is vested, and for duty. every person in whom the same is vested by alienation or other derivative title at the time of the succession falling into possession, are personally accountable for the duty, but to the extent only of the property or funds actually received or disposed of by them (). certificates of The commissioners are bound to deliver stamped receipts for Receipts and the duty, and also a certificate of payment to any person payment to be interested in the property affected by the duty, on applying for the same (a). The following points have been decided on the construction of the Succession Duty Act : : given. settlor. 1. That where a testator dies domiciled abroad, succession Succession duty attaches to his real estate situate in this country, but not to duty attaches irrespective of his personal estate on the original bequest thereof; but if per- domicile of sonal estate is given by the will of a person domiciled abroad to trustees for the benefit of persons in succession, and the fund is invested by the trustees in this country, succession duty will be payable on all future devolutions under the trusts, though the party on whom it devolves may (like the testator) be domiciled abroad (b). And foreign moveable property, e. g., foreign government funds, comprised in a British settlement and vested in trustees subject to British jurisdiction, and recoverable by the beneficiaries in a British court, is subject to succession duty although the beneficiaries may be domiciled abroad (c). 2. That a person is liable to succession duty in respect of property to which he succeeds after the commencement of the Act of 1853, although he may have become entitled thereto in expectancy before the Act (d). 3. That section 2 applies to every case where a person becomes entitled to property by any means upon the death of (z) Act of 1853, s. 44. (a) Sect. 51. (b) Wallace v. Attorney-General, L. R. 1 C. A. 1; Attorney-General v. Campbell, ib. 5 H. L. 524; Re Capdevielle, 33 L. J. Ex. 306; Re Smith's Trusts, 12 W. R. 933; Re Badart's Trusts, L. R. 10 Eq. 288; Re Lovelace, 4 De G. & J. 340; Re a Wallop's Trusts, 1 De G. J. & S. (d) Wilcox v. Smith, 4 Drew. 40; Duty attaches cession falls into possession wherever suc after Act. Sect. 2 applies succession not to all cases of within other sections. Instances of the rule. Rule that descent is to person dying after the commencement of the Act, unless such case comes within the operation of some other section. Thus where under a marriage settlement property was settled in trust for the husband and wife successively for life with remainder (in an event which happened) as the wife should by deed or will appoint, the husband died before the Act, and the wife died in 1856, having by her will appointed the property. It was held that as the power came into operation before the commencement of the Act, the case was not within the 4th section; that it was consequently within the general provision of the 2nd section, and that for the purpose of the duty the appointee was the successor and the original settlor the predecessor (e). So also, where by a marriage settlement property belonging to the wife's father was limited to the husband and wife successively for life with remainder (in the event which happened) as the wife should by deed or will appoint. The wife by deed appointed the property to her father, the original settlor, who died in 1831, having devised it to a stranger in blood. The wife survived her husband, and died after the commencement of the Act. It was held that as no duty would have been payable by the father if he had survived his daughter, he being himself the predecessor as well as successor, the case was not within the 15th section; that it therefore came within the general provision of the 2nd section, and that a duty of 10 per cent. was payable by the devisee of the father (f). 4. That if A. dies intestate, leaving two sons, B. and C., and be traced from afterwards B. dies intestate, leaving his brother C. his heir, he, B., and not A., is the predecessor, and 3 per cent. is payable notwithstanding the Act 3 & 4 Will. 4, c. 106, sect. 2 (g). last pur chaser does not apply to succession duty. Under 4th section, 5. That the words in the 4th section, "taking effect on the death of a person dying after the commencement of the Act," refer to the power of appointment, and not to the disposition by ment of Act" which the power is created, or to the disposition made under the "death after commence refers to power. 4th section power (h). 6. That the 4th section applies to the case of one person (e) Re Lovelace, 4 De G. & J. 340. See also In re Barker, 7 H. & N. 109; S. C., 30 L. J. Ex. 404; Attorney-General v. Mitchell, 6 Q. B. D. 548. (f) Attorney-General v. Gardener, 32 L. J. Ex. 84. (g) Lord Saltoun v. AdvocateGeneral, 3 Macq. 659. (h) In re Lovelace, ubi suprà. WILLS. to joint having a general power, but not to a power given in a family does not apply settlement to a father and son jointly, where one is intended to be a check upon the other. Under an appointment made in exercise of a joint power, the donor, not the donee, is the predecessor (i). decessor. 7. That under the 4th section the donee of a general power After appointment by taking effect on a death happening since the commencement of one under the Act, becomes, by exercising the power, the successor as to the donee is preestate appointed, as if such estate had been limited to him by the original instrument, and if such donee so exercises the power as to create a succession, the appointee pays duty upon a succession derived from the donee, and not from the original settlor (k). valuable con 8. That if A., entitled to property in remainder expectant on Where a charge in a life estate, for a valuable consideration in money or money's reversion is worth, charges his remainder with a sum of money in favour of created for a B., and B. settles the sum so charged, duty will be payable on that sum on the death of the tenant for life, and for this purpose B. (and not A.) will be considered the predecessor (1). 9. That marriage is not a valuable consideration in money or money's worth within the meaning of the 17th section (m). sideration in money or money's worth, and settled, purchaser is predecessor. Marriage is not a valuable consideration. On re-settletenants for ment by life and in tail, what duty 10. That if A. is tenant for life with remainder to his eldest son B. in tail, and on B. coming of age, A. and B. disentail the property and make a re-settlement under which B. takes a rentcharge during the joint lives of A. and B., and subject to such rent-charge the property is limited to A. for life with remainder payable. to B. for life, with remainder to B.'s first and other sons in tail, &c., B.'s life estate is a succession under a disposition made by himself alone within the meaning of the 12th section, and not a succession derived from joint predecessors under the 13th section, and consequently B. on the death of A. will be liable to duty, and for this purpose the original settlor remains the predecessor (n). (i) Charlton v. Attorney-General, 4 App. Cas. 427. (E)Attorney-General v. Upton, L. R. 1 Ex. 224. (1) Re Jenkinson, 24 Beav. 64; Attorney-General v. Yelverton, 7 H. & N. 306; 30 L. J. Ex. 333. See also In re Ramsay's Settlement, VOL. II. 30 Beav. 75. (m) Floyer v. Banks, 33 L. J. M M |