Attorney General v Gardner
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1863 |
| Date | 12 January 1863 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 1040
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 32 L J Ex 84; 9 Jur. (N. S) 281; 1 W R 378, 7 L. T. 682. Distinguished, Attorney-General v Rushton, 1864, 2 H & C. 812. Referred to, Attorney-General v. Gell, 1865, 3 H. & C. 615.
[639] exchequer reports. hilary term, 26 viot. the attorney general v. gardner. Jan. 12, 1863. - A testator who died tefore the 19th May, 1853 (the day on which the Succession Duty Act came mto operation), devised a reversion, in respect of which he would not have been liable to succession duty, if it had vested in possession in his lifetime after that date. Held, that he thereby cieated a new succession which was not exempt from duty under the 15th section of the Act.-Therefore where A (who died before the I9th of May, 1853), devised to C , a stranger in blood, a reversionary property to which he had become entitled by the exercise of a power of appointment contained in a settlement made by himself: Held, that when, on the death of the tenant for life (which happened after the 19th of May, 1853) the property (e} In the following Easter Term J. Brown renewed the application on the ground that, on the 26th February, 1863, the husband had become bankrupt and obtained his order of discharge. Holl shewed cause (May 8), when the Court refused to interfere on motion, but allowed the defendant to issue a writ of audita querela 1H.&C.6M. THE ATTORNEY GENERAL V. GARDNER 1041 vested in possession, C. took a succession under the devise upon which duty was payable at the rate of 101 per cent. [S. C. 32 L J Ex 84 ; 9 Jur. (X. S ) 281; 11 W K 378 , 7 L. T. 682. Distinguished, Attorney-Geneial v Ru^hton, 1864, 2 H & C. 812. Referred to, Attmneij-Geneial v. Gell, 1865, 3 H. te C. 615.] Information in equity by the Attorney General, as follows.- 1. The object of this information is to obtain from the defendant payment of the duty owing to her Majesty in respect of his succession in ceitain real property, called Sobam Mere, to which he became beneficially entitled in possession upon the death of the Marchioness Townshend as hereinafter stated. The question foi the decision of the Court is as to the rate of duty payable in respect of such succession. 2. Ey an indenture of settlement, made on the 11th May, 1807, previously to the marriage which was shortly afterwards solemnized between the late Marquis Townshend and the late Marchioness Townshend (then Sarah Gardner Dunn Gaidner), it was declared that the trustees therein named should stand possessed of a sum of 25,0001. Navy 51. per cent. Bank Annuities, then lately transferred into their names by William Dunn Gardner (the lady's father), upon certain trusts, which were in effect for the benefit of the [640] husband and wife successively for life, and after the death of the survivor for the benefit of the issue of the marriage as therein mentioned, and in case (which happened) there should be no child of the said marriage, then in trust for such persons as the wife should by deed or will appoint, and in default of appointment for herself absolutely. 3. The said Bank Annuities were afterwards sold, and the produce was, puisuant ta a power for that purpose contained in the said indenture of settlement, invested m the purchase of certain real property called Soham Mere, which was thereupon conveyed so as to become subject to the trusts of the before stated indenture of settlement. 4. After the said marriage had been solemnized, that is to say, on the 26th December, 1808, the said Marchioness Townshend, by an indenture or deed of that date, pursuant to the power given or reserved to her by the said indenture of settle ment, duly appointed the said property called Soham Mere, from and after the death of the survivor of her husband and herself without issue as aforesaid, to such uses as her father, the said William Dunn Gaidner, should by deed or will appoint, and in default of appointment to the use of the said William Dunn Gardner, his heirs and assigns, for ever. 5. Under the circumstances hereinbefore stated, the said William Dunn Gardner had become and was, at the time of making the will as hereinafter stated, the absolute owner of the said real property called Sobam Mere, in reversion expectant on the death of the survivor of the said Marquis and Marchioness Townshend without issue of their marriage. 6. The said William Dunn Gardner died on the 10th November, 1831, having by his will, dated the 16th August, 1831, given and devised all his estate and interest m the saad real property called Soham Mere to the above named defendant John Dumi Gardner dunng his life, with remainder to his first and other sons in tail male. [641J 7. The said Marchioness Townshend survived her husband, who died on the 31st December, 1855, and she herself died on the llth September, 1858, after the time appointed for the commencement of the Succession Duty Act, 1853, without having ever had any child by her said husband , and the Attorney General submits and insists that upon her death the defendant became entitled in possession to the real property called Soham Mere, as a succession derived by him from the said testator William Dunn Gardner, by reason of the disposition thereof made by his wrll, as hereinbefore stated. 8. The defendant is a stranger in blood to the said testator, and application has been made to him for payment of duty at the rate of 101. per cent, in respect of the aforesaid succession, which is, as the Attorney General submits and insists, the proper rate of duty. But the defendant declines to pay the same The bill prayed (inter alia) a declaration that duty at the rate of 101. per cent, was payable by the defendant, in respect of his succession in the Soham Mere estate. 1042 THE ATTORNEY GENERAL V. GARDNER 1 H & C. 642. The defendant, by his answer, admitted the material statements in the bill; but he also stated the additional fact, that the 25,0001. Brink Annuities were, prior to the execution of...
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