Attorney General v John Brunning
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1859 |
| Date | 31 January 1859 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 771
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 28 L. J. Ex. 125; 7 W. R 308: reversed 1860, 8 H L. Cas. 243; 11 E. R. 421 (with note)
the attorney general o john brcnning Jan. 31, 1859-A testator having by a valid contract agreed to sell a freehold estate for 115,0001, and received a deposit of 15,0001 in his lifetime, the contract was specifically perfoimed and the remainder of the purchase money paid to his executor after his death. Held, that probate duty was not payable in respect of any portion of the 115,0001. as part of the personal estate of the testator. [S. C. 28 L. J. Ex. 125; 7 W. R 308 : reversed 1860, 8 H L. Cas. 243; 11 E. R. 421 (with note)] Information to obtain payment of the probate duty payable in respect of the estate and effects of W. W. Hope, deceased, the testator hereinafter mentioned, and the question for the decision of the Court is whether the purchase money of part of the (a) 10 Bing. 260, 3 Moo. & S. 705. The report in Moore & Scott describes the Company as a corporation, but it appears by the repoit in Bingham that they were not The 9th section of their Act, 53 Geo 3, c. ccvi., provides " That nothing in this Act contained shall extend, or be deemed, construed, or taken to extend, to incorporate the said society or partnership." 772 THE ATTORNEY GENERAL V. BRUNNING 4 H. & N. 95. testator's real estate which was, at the time of his death, subject to a valid binding contract for sale, made and entered into by him in his lifetime, but not carried out and completed till after his death, is liable to probate duty. 2. The testator W. W. Hope, on the 15th of May, 1851, made his will, and thereby devised and bequeathed all his real and personal estate to V. H Crosby, his heirs, executors, administrators and assigns absolutely, and appointed the defendant Brunning the sole executor thereof. 3. The testator died in January, 1855, and probate of the said will and codicil was, in June, 1855, duly granted out of the Prerogative Court of the Archbishop of Canterbury to the defendant Brunning, who thereupon became [95] the sole legal personal representative of the testator, and took upon himself the execution of his wfll. 4 On the 4tkof September, 1854, the testator had entered into a written agreement with Mrs. Honoria Hungerford, as the guardian of Miss C. Thornhill, for the sale of a certain part of his real estate for the sum of 115,0001. This agreement was confirmed by order of the Court of Chancery, and was at the time of the testator's death a valid subsisting agreement for the sale of the real estate therein comprised, which he was liable specifically to perform. A deposit of 15,0001. had, prior to the 28th of December, 1854, been actually paid into the hands of a stakeholder on account of the purchase money, and since the testator's death the said agreement has been specifically per formed and carried into execution by the persons entitled to his estate, and the whole of the purchase money of 115,0001. has been received by the defendant as the executor of the testator's will. The testator had, at the time of his death, a good marketable title to the real estate comprised in the said agreement, and the same was, after his death, approved of by the Court and accepted on behalf of the purchaser 5 The estate of the testator in respect of which probate was to be granted was sworn by the defendant to be under 10,0001, and he paid the probate duty in respect of that sum amounting to 1801. , but no part of the purchase money or sum of 115,0001. was included in the said sum of 10,0001. If it had been so included, as it ought to have been, the probate duty payable on the testator's estate would have amounted arid did in fact amount to the sum of 18001., so that after giving the defendant credit for the sum of 1801. actually paid by him, as before stated, the sum of 16201. still remains due from him en account of such duty, &c. The information prayed that the defendant might answer [96] the premises and matters aforesaid; that it might be declared that the sura of 115,0001 formed part of the personal estate of the testator and was liable to probate duty, and that the amount payable in respect of such duty might be ascertained (if necessary) under the direction of the Court, and that the defendant as the executor of the testator's will might be decreed to pay such duty to the Receiver General of Inland Revenue on behalf of her Majesty, and that for the purposes aforesaid all proper accounts, &c. might be taken and made, the Attorney G-eneral on behalf of her Majesty waiving all pains, penalties, fcc., and for further relief, &c. The answer of the defendant admitted the facts charged in the information, but alleged that the testator's title to the real estate comprised in the agreement was after, but nqt before his death, approved by the Court and accepted on behalf of the infant purchaser The Solicitor General and A. Hanson argued for the Crown.(a) A person who has contracted to sell an estate has the legal ownership of the land, but only as a security for the payment of the purchase money. The beneficial interest m the land passes to the purchaser, and he becomes a trustee of the purchase money for the seller. In Sugden's Vend. & Purch., p. 146 (13th edition), it is said, "Equity looks upon things agreed to be done as actually performed , consequently, when a contract is made for sale of an estate, equity considers the vendor as a trustee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase money for the vendor." And at page 148, "If the vendor die before payment of the purchase money, it wfll go to his executors and form part of his assets." The question is, whether such purchase money due to the [97] testator is part of his estate in respect of which probate is granted. It is a credit of the testator. The testator having sold the estate, two forms of proceeding to recover the purchase money are open to his (a) Jan. 20. Before Pollock, C. B., Martin, B., Watson, B., and Channell, B. 4H&N. 98 THE ATTORNEY GENERAL V. BRUNNING 773 representatives, viz., an action at law or a suit for the specific performance of the contract. In either case probate would be essential to constitute a title to sue, and therefore it would be necessary to shew that the probate duty paid was sufficient to cover the value of the property. If the contract is not valid, or the title to the property turns out to be defective, so that the contract cannot be enforced, the liability to duty dbes not arise. Here, however, the purchaser would have had no defence to a suit by the vendor for the purchase money [Martin, B Suppose the vendee had refused to complete the purchase, and the vendor had sued for damages 1] Probate duty would have been payable upon anything which the executor might have lecovered in that action. The right of action is part of the property of the testator, and it...
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