Lord Braybrooke, - Appellant; Attorney General, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 1861 |
| Date | 19 March 1861 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 685
House of Lords
Mews' Dig. i. 337; x. 1426; xii. 247, 248, 267. S.C. 7 Jur. N.S. 741; 4 L.T. 218; 9 W.R. 601; 31 L.J.Ex. 177; and, below, 5 H. and N. 488. On point (i.) as to "predecessor," followed in Charlton v. A.-G. 1879, 4 A.C. 427, where earlier authorities on the question are collected; and see Wolverton (Baron) v. A.-G (1898), A.C. 535; and cf. A.-G. v. Floyer, 9 H.L.C. 477; A.-G. v. Smythe, 9 H.L.C. 497; (ii.) as to consent (9 H.L.C. 166), see A.-G. v. Dowling, 1880, 5 Ex.D. 152.
16 and 17 Vict. c. 51 - Succession Duty - "Predecessor" - "Successor" - "Deprived" - Tenant in Tail.
[150] LORD BRAYBROOKE,-Appellant; The ATTORNEY-GENERAL,- Respondent [July 16, 17, 1860; March 19, 1861]. [Mews' Dig. i. 337; x. 1426; xii. 247, 248, 267. S.C. 7 Jur. N.S. 741; 4 L.T. 218; 9 W.R. 601; 31 L.J.Ex. 177; and, below, 5 H. and N. 488. On point (i.) as to " predecessor," followed in Charlton v. A.-G. 1879, 4 A.C. 427, where earlier authorities on the question are collected; and see Wolverton (Baron) v. A.-G. * Monypenny v. Dering.-This case was proposed to be brought up by Appeal, but the Lord Chancellor having in 1859 refused leave to enrol the decree after the time allowed by the general orders of the Court of Chancery of 1852, a petition for leave to appeal was presented. After this petition had been presented, the case of Beavan v. Lady Mornington (ante, vol. 8, 525) was heard and decided. Mr. Clement Berkeley now (June 6, 1861) appeared at the bar, and announced that he could not hope to establish any distinction between the two cases. The Appeal was ordered to be .dismissed with costs. 685 IX H.L.C., 151 BRAYBROOKE V. A.-G. [1860-61] (1898), A.C. 535; and cf. A.-G. v. Floyer, 9 H.L.C. 477 ; A.-G. v. Smythe, 9 H.L.C. 497; (ii.) as to consent (9 H.L.C. 166), see A.-G. v. Dowlmg, 1880, 5 Ex.D. 152.] 16 and 17 Viet. c. 51-Succession Duty-" Predecessor "-" Successor "- " Deprived "-Tenant in Tail. A tenant in tail in remainder cannot vary the amount of Ms liability to succession duty by barring the entail, and resettling the estate in his own favour. The person from whom he derives the estate is his " predecessor." Devise in 1796 of certain freehold estates to A. for life, remainder to his eldest son B. for life, remainder to the first and other'sons of B. injbail male. In 1841, A. being then tenant for life in possession, A. and BTefxecuted a disentailing deed, to which two other persons were parties as trustees, and granted to the trustees, to hold, subject to the life estate of A., to such uses as A. and B. should appoint, and in default, if B. should survive, to such uses as he should appoint, and in default to B. for life, and to his first and other sous in tail male. In 1850, by another deed which recited the formerT^anoTTy' which A. brought new estates into settlement, and discharged all the estates from a charge of 10,000, and B. gave up advantages to which he was en titled, an annuity to B. during the life of A. was charged upon all the pre mises, and subject thereto, they were agjgointed to A. for life, remainder to B. for life, remainder to the use of his first ImoTother sons in tail male: Held, affirming the judgment of the Court below, that these deeds must be taken as having been executed on the same day, that they constituted (diss. Lord Wensleydale) within the 12th section of the 16 and 17 Viet. c. 51, a disposition made by B. in favour of himself, and made out of the estate to which he was entitled under the will of 1796, that consequently his " succession " must be treated as happening under that will, and he was liable thereupon to the amount of duty chargeable in respect of his succession to the testator, on a disposition made under it by himself. And (diss. Lord Wensleydale) the nature of the consideration upon which the disposition was made did not affect the question. The annuity, according to the terms of its creation, ceased on the death of A., at which time B. entered into possession of the estates: Held, varying the judgment of the Court below, that he was entitled under the 38th section of the Act to an allowance as on account of property of which he had been " deprived " within the meaning of that section. The Succession Duty Act is not to be construed according to the [151] technicalities of the Law of England or Scotland, but according to the popular use of the language employed. Per Lord Campbell (Lord Chancellor): The protector of a settlement giving his consent to .a disposition of property cannot be treated as a creator of sucb disposition. Two deeds, though executed at an interval of nine years from each other, may be treated as constituting one disposition. And what is done under a power of appointment is to be referred to the deed creating the power. This was an appeal against a decision of the Court of Exchequer as to the amount of succession duty payable by the Appellant, under the following circumstances : - Lord Howard de Walden was, in 1788, created Baron Braybrooke, with remainder in the barony, in default of male issue, to his cousin, Richard Aldworth Neville, and the heirs male of his body. In an information filed by the Attorney-General against the present Appellant, it was stated that, in 1796, Lord Howard de Walden devised certain estates, known as the Audley End mansion estates, to the said R. Neville, for life, remainder to the use of his eldest son, Richard Neville, for life, with remainder to the first and other sons of the body of the said Richard Neville successively, according to seniority, in tail male. The testator died 25 May 1797, and Richard Aldworth Neville, who afterwards took the surname of Griffin, succeeded him in the barony, and became the second Lord Braybrooke. He died in 1825, and his eldest son, Richard (the second tenant for life mentioned in the 686 BEAYBROOKE V. A.-G. [1860-61] l& H.L.C., 182 will), succeeded him, and became third Lord Braybrooke. His eldest son, Kichard Cornwallis Griffin (the present Appellant) was born in March 1820. In 1841 Richard, the third LorcTTJFaybrooke, and Bichard Cornwallis, the Appellant, were respectively tenant_for life inpossession, and tenant in tail in remainder of the Audley End man-i52]-sion estates, under the will of the testator, and they joined in executing a disentailing deed, dated 21 July 1841. The deed was expressed~T;o be'"betweenTlicEaror Griffin, the third Lord Braybrooke, of the first part; the Appellant of the second part, Lord Lyttelton and the Hon. E. N. Lawley, of the third part; and it was witnessed that, for the considerations therein mentioned, the Appellant, with the consent of Lord Braybrooke, as protector of the settlement, granted unto Lord Lyttelton and Mr. Lawley, their heirs, etc., all and singular the manors and other hereditaments therein mentioned (including the Audley End mansion estates), which then stood limited at law or in equity to the Appellant, to hold the same, subject to the estate for life of Lord Braybrooke, and to any term of years precedent to the estate tail of the Appellant, to such uses as Lord Braybrooke and the Appellant should, by any deed, etc., with or"without powers of rev'ooa|wn~oT^ew''(^poinhnent, from time to time, direct and appoint; and, in default of such appointment, to such uses as the Appellant, in case he should survive Lord Braybrooke, should, by deed or will appoint, and in default, etc. to the Appellant for life, with remainder to his first and other sons in tail male. This deed was duly eErolTedT OnTThe 1st January 1850 Lord BrayBrobke "and the Appellant executed a deed of appointment, the parties to which were Lord Braybrooke, of the first part; the Appellant, of the second part; Lord Lyttelton and Mr. Ralph Neville, of the third part; and Lord Lyttelton and the Hon. Bobert Neville Lawley, of the fourth part. This deed, after reciting that Lord Braybrooke and the Appellant had agreed to settle, as well the hereditaments comprised in the first and third schedules thereto, comprising the Audley End mansion estates, and also the ancient estates of the family of [153] Neville, as those of which he was seised in fee-simple or otherwise, and which were set forth in the second and fourth] schedules thereto, witnessed (amongst other things) that, in pursuance, etc., they, Lord Braybrooke and the Appellant, in exercise and execution of the power or authority limited in the deed of July 1841, limited and appointed all and singular the manors and hereditaments comprised in the first schedule, and all the lands and hereditaments whatsoever in the counties of Essex, Cambridge, and Suffolk, comprised in or then subject to the uses and trusts of the deed of July 1841 (except as therein mentioned), freed and discharged from a charge of 10,134 5s. 8d. (stated to be the absolute property of Lord Braybrooke), to such uses, upon such trusts, etc., as were thereinafter expressed concerning the same. And, in consideration of the premises, Lord Braybrooke and the Appellant granted and released (according to their several estates and interests) unto Lord Lyttelton and Mr. Neville, their heirs, etc. the said manors, etc. therein before appointed, to hold the same to the uses, etc. thereinafter limited and declared. And all leases and agreements for leases made by Lord Braybrooke, were confirmed; and the manors, etc. were subjected to such trusts as Lord Braybrooke and the Appellant should jointly appoint; and, in default of such appointment, that the Appellant, during the joint lives of Lord Braybrooke and himself, was to receive a rentcharge of 700 a year; and if the Appellant should marry, a rentcharge of 1200 a year, charged upon all the premises thereinbefore appointed, and, subject as aforesaid, the premises, etc. were to be to the use of Lord Braybrooke for life; remainder to the use of the Appellant for life; remainder to the use of his first and other sons...
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