Construction of 38th section 11. That in the case mentioned in the last paragraph, B. is as to deduction entitled, under section 38, to a deduction for the annuity which he loses on A.'s death, and for this purpose it makes no difference whether the re-settlement was before or after the Act (0). for loss of property. Construction 12. That if a father and son, tenants for life and in tail, with reference resettle the property, and by such re-settlement charge it with a of 15th section to re-settle and son. ment by father portion for a younger son of the father, duty is payable by such younger son at 3 per cent. as on a succession derived from his brother. The charge is not an alienation under the 15th section (p). Under first branch of 15th section descent is a derivative title. Duty where alienor dies before falling in of succession. On death of reversioner before Act, legacy duty payable. 13. That a title by descent is a derivative title within the meaning of the first branch of the 15th section. Thus, where a testator devised property to his wife for life with remainder to R.: R. died in 1844 intestate, and the wife died in 1859; it was held that the heir of R. must pay the same duty as R. would have been liable to, if living (q). It will be observed that the words "not conferring a new succession" are not inserted in the first branch, and it is apprehended that if R. in the above case had died after the Act came into operation, the devolution to his heir would have been a new succession, and duty at 1 per cent. only payable. 14. That where a succession is aliened and falls into possession after the death of the alienor, duty under section 15 is at same rate as if alienor had survived the falling into possession (r). 15. That where part of a child's share is advanced to him in the lifetime of his parents under the ordinary power of advancement in a marriage settlement, duty will be payable on the death of the parents under the last branch of section 15 (s). 16. That where the original reversioner under a settlement of personalty has died before the Act, having by will bequeathed the reversion, and such reversion falls into possession after the Attorney-General v. Baker, 4 H. & (0) Lord Braybrooke v. Attorney- (p) Attorney-General v. Cecil, L. R. 5 Exch. 263. (9) Attorney-General v. Rushton, 33 L. J. Ex. 184. But see AttorneyGeneral v. Littledale, L. R. 5 Ex. 275; S. C., ib. 5 H. L. 290. (r) Solicitor-General v. Law Reversionary Interest Society, L. R. 8 Ex. 234. (8) Ex parte Sitwell, W. N. 1888, p. 360. Act, legacy duty under the will of the reversioner is payable, but no succession duty (t). tion by tenant for life and in 17. That if A., tenant for life, and B., tenant in remainder, After alienajoin in conveying the fee simple to C. as purchaser, and C. dies before A., having devised to D. in fee, D. pays duty on his succession from C., but is not liable to further duty on the death and trustee or of A. (u). remainder, if purchaser dies devisee pays duty, no further duty falling in of succession. of sect. 18 18. That sect. 18 exempting persons who have paid legacy payable on duty from the payment of succession duty in respect of the same fa acquisition of the same property applies only where the same Construction person is called on to pay twice over; consequently, in a case exempting where personal property was given by a testator who died in 1816 to A. for life with remainder as she should appoint, and A. paid legacy duty on the absolute interest, and afterwards appointed to her nieces, it was held on the death of A. that the the same nieces must pay succession duty as on a succession derived from the same prothe testator, notwithstanding the payment of the legacy duty perty." by A. (x). persons who have paid legacy duty from paying succession duty on 66 acquisition of of 21st section petency to dispose. 19. That the competency to dispose by will referred to in the Construction 21st section relates to the quantity of interest, and not to the as to compersonal capacity of the individual, and consequently the circumstance that the person becoming entitled to the succession and dying before all the instalments of duty are payable, was insane or a feme covert, does not exempt the estate of such person from the remaining instalments (y). And a tenant in tail who disentails, and thus acquires the fee, and afterwards dies before all the instalments have become payable, is not within the exemption (z). of 22nd section 20. That the term "necessary outgoings" in section 22 does Construction not include the property-tax, nor the cost of collecting rent as to "necesduring the absence of the owner abroad, nor the expenses of sary outgoings." management incurred by trustees under a power of management conferred on them by the will (a). (t) Attorney-General v. Littledale, L. R. 5 H. L. 290; Re Chapman's Trusts, 2 H. & M. 447. (u) Re Cooper and Allen's Contract, 4 Ch. D. 802. (x) Attorney-General v. Mitchell, 6 Q. B. D. 548. (y) Attorney-General v. Hallett, 2 H. & N. 368. (z) Attorney-General v. Lord Lilford, 34 L. J. Ex. 44; L. R. 2 H. of L. 63. (a) In re Elwes, 3 H. & N. 719; S. C., 28 L. J. Ex. 46; Re Earl Cowley, L. R. 1 Ex. 288. Construction of 34th section for incum brances. 21. That mortgages made by a tenant for life and remainder as to allowance man under a joint power of appointment reserved to them are incumbrances created by the remainderman within the meaning of the 34th section, and consequently that the latter is not entitled to any deduction in respect of them (b). Construction of term On sale of settled land, duty is shifted to purchase money. Certificate of Inland 22. That the term "annual value" in the 26th section means present actual annual value, and that such value, and not possible or prospective annual value, is the basis on which succession duty is to be calculated. Consequently, where at the time when the succession accrued land was stated to be incapable of being sold or let profitably as building land, or of being used productively for agricultural or other purposes, and the Crown admitted such statement to be true, it was held by the House of Lords that no duty was payable, although the land was a few years afterwards sold at a high price as building land. It was intimated, however, by some of the law lords in giving judgment, that, but for the admission by the Crown the property would probably have been held to have a present annual value at the time when the succession accrued; for that, if it was saleable at all, the annual value might have been treated at 3 per cent. on the purchase-money, or such an annuity as might have been purchased with the amount for which the land would sell (c). 23. That if land is sold under a power of sale in a settlement (d), or under the provisions of the Settled Estates Act, 1877 (e), the purchaser takes it free from succession duty, which is shifted by the operation of sect. 42 to the purchase-money or its investments. 24. That a certificate from the Inland Revenue Office that Revenue Office the duty has been paid, discharges the land, and the purchaser can require no further evidence on the subject (ƒ). conclusive. (b) Re Peyton, 7 H. & N. 265; Attorney-General v. Lorton, 11 Ir. Com. Law Rep. 429. (c) Attorney-General v. Earl of Sefton, 34 L. J. Ex. 98. (d) Dugdale v. Meadows, 6 Ch. 501. (e) In re Warner's Settled Estates, 17 C. D. 711. (f) Earl Howe v. Earl of Lichfield, L. R. 2 Ch. 155. No. I. WILL giving everything to WIFE or HUSBAND (a). THIS IS THE LAST WILL of me, A. B., of, &c. I give all (Signature of testator.) Signed by the above named A. B., as his [or her] last will in the presence of us, both being present at the same time, who in his [or her] presence and in the presence of each other have hereunto subscribed our names as witnesses. (Names and addresses of witnesses.) OF ALL TO (a) A married woman can by will dispose of all property, whether real Form of will or personal, belonging to her for her separate use at the time of her death, of a married whether her separate ownership arises under the Married Women's Pro- woman. perty Act or otherwise; and a will made by her in general terms will operate as an exercise of all general powers of appointment by will, whether created at the date of the will or afterwards. The will of a married woman will in future be in the same form as the will of a man, and any of the following precedents may be used for a married woman mutatis mutandis. It will be borne in mind, however, that according to a recent decision, a will made by a married woman since 1882 will not pass property acquired by her after the determination of the coverture. Re Price, 28 C. D. 709. OF REAL AND ESTATE UPON No. II. WILL of REAL (a) and PERSONAL ESTATE; BEQUEST of PLATE, FURNITURE, &c., and a LEGACY to WIFE. BEQUESTS of other LEGACIES; DEVISE and BEQUEST of residue to TRUSTEES upon trust for SALE and CONVERSION; TRUSTS of moneys to pay FUNERAL and TESTAMENTARY expenses and DEBTS, and to INVEST residue and to vary securities. TRUSTS of RESIDUE to pay the income to WIFE for life, and after her death for TESTATOR'S CHILDREN; PROVISO that ISSUE of deceased children shall take their PARENT'S SHARE; POWER to postpone sale and conversion. I, A. B., of, &c., HEREBY REVOKE all former wills and testamentary dispositions made by me, and declare this to be my last will and testament. I appoint C. D., of, &c., E. F., of, &c., and G. H., of, &c. (hereinafter called "my trustees"), to be the Appointment executors and trustees of this my will (b): AND I APPOINT my dear wife during her life, and after her death my trustees, to be the Gift of plate, guardian and guardians of my infant children (c). I GIVE all my of executors, trustees, and guardians. &c., to wife, and a legacy. Convenience of making the same persons executors and trustees. Statutory powers to father and mother to appoint guardians. (a) Even if the testator has no real estate at the time of making his will, it is desirable to extend the devise to real estate, because it is possible that he may acquire some before his death. (b) It is generally desirable to appoint the same persons to be executors and trustees. If different persons are appointed, it is the duty of the executors to get in the personal estate and apply it in due course of administration, and when all the debts and legacies are paid to hand over the residue to the trustees, whose functions then commence. If the personalty is insufficient for payment of debts and legacies, the trustees, and not the executors, would have to raise the deficiency out of the real estate. This separation of functions is manifestly inconvenient. (c) A father is empowered to appoint a guardian for his infant children by deed or will by the stat. 12 Car. 2, c. 24, s. 8. By the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), it is provided that on the death of the father of an infant, the mother, if surviving, shall be the guardian, either alone or jointly with any guardian appointed by the father, and the mother may by deed or will appoint a guardian or guardians after the death of herself and the father; and where guardians are appointed by both parents, they are to act jointly. A mother may also provisionally appoint a person to act as guardian jointly with the father, and in that case the Court, if it considers the father unfit to act alone, may confirm the appointment. |