Lord Advocate v Macalister
| Jurisdiction | England & Wales |
| Judge | The Viscount Cave,Viscount Finlay,Lord Dunedin,Lord Shaw of Dunfermline,Lord Sumner,. |
| Judgment Date | 10 April 1924 |
| Judgment citation (vLex) | [1924] UKHL J0410-2 |
| Court | House of Lords |
| Docket Number | No. 12. |
| Date | 10 April 1924 |
[1924] UKHL J0410-2
House of Lords
Viscount Cave.
Viscount Finlay.
Lord Dunedin.
Lord Shaw.
Lord Sumner.
After hearing Counsel, as well on Thursday the 27th, as Friday the 28th days of March last, upon the Petition and Appeal of the Lord Advocate, for and on behalf of the Commissioners of Inland Revenue, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, two Interlocutors of the Lords of Session in Scotland, of the First Division, sitting as the Court of Exchequer, of the 22d of February and the 17th of May 1923, respectively, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutors might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Captain Norman Godfrey Macalister, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay or cause to be paid to the said Respondent the Costs incurred in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This Appeal raises a question as to the rate at which succession duty was payable on the succession of the Respondent Captain Norman Godfrey Macalister, under the will of the late Major Claude Wallnutt, to property consisting of a half-share of certain freehold lands in the County of Ayr.
The succession arose in this way. Major Wallnutt (whom I will call the testator) was beneficially entitled under the marriage contract of his parents to the property in question in fee subject to the liferent interest of his mother Mrs. Eliza Wallnutt. The testator by his will dated the 23rd July 1882, gave all his estate heritable and moveable to his mother in liferent and to his cousin, the Respondent, in fee, and died on the 6th January 1900. The gift by the testator of a liferent interest to his mother was admittedly ineffective as to this property, as she already held it for her life. The life-rentrix died on the 16th June 1910, and thereupon the Respondent became entitled to possession of the property and succession duty became payable upon it. The question is as to the rate at which such duty is to be calculated.
But for the Finance (1909– 10) Act, 1910, the duty would plainly have to be calculated at the rate of 5 per cent. on the value of the succession, that being the rate fixed by section 10 of the Succession Duty Act, 1853, in cases where the successor is a first cousin of the predecessor. By section 58 (1) of the Act of 1910 the 5 per cent. duty is increased to 10 per cent., but subsection (4) of the same section provides that "this section shall take effect … in the case of a succession arising under a disposition only if the first succession under the disposition arises on or after" the 30th April 1909. It is common ground that the succession in question arose under a disposition, namely the will of the testator, and was the first and only succession arising under that disposition; but on the question whether for the purposes of section 58 (4) the succession "arose" before or after the 30th April 1909, the parties are at issue, the Respondent contending that it arose on the death of the testator on the 6th January 1900, and...
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