The Estate and Effects of John Wilkinson, Deceased. Revenue
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1028
EXCH. OF PLEAS.
S. C. 4 Tyr. 513; 3 L. J. Ex. 236: affirmed in Exchequer Chamber, Nomine Attorney-General v. Nash, 1836, 1 M. & W. 237; 1 Tyr. & G. 584; 5 L. J. Ex. 289. Distinguished, Attorney-General v. Fitzgerald, 1843, 13 Sim. 83. See In re Griffiths, 1845, 14 M. & W. 510; In re Pearce, 1857, 24 Beav. 491; In re Parker, 1859, 4 H. & N. 666; Harris v. Earl Howe, 1861, 29 Beav. 261; Attorney-General (Ireland) v. Cullen, 1863, 14 Ir. C. L. R. 137: affirmed L. R. 1 H. L. 190; Attorney-General v. Delaney, 1876, Ir. R. 10 C. L. 104.
[142] in the matter of the estate and effects of john wilkenson, Deceased. Revenue. 1834.-Executors cannot be called upon to pay legacy duty upon the whole of a residue bequeathed to them in trust to divide the interest among poor pious persons, in ten or fifteen pounds, as they should see fit.-If any of the objects of the above bounty should have received to the amount of 201. or upwards, by having been selected to receive snch bounty on more than one occasion, legacy duty would attach on such amount, and the duty would he calculated according to the nearness of blood of such individual, and in that case the executors would he accountable for and bound to return the duty chargeable on such amount. [S. C.-4 Tyr. 513 ; 3 L. J. Ex. 236 : affirmed in Exchequer Chamber, nomine Attorney-Generul v. AWt, 1836, 1 M. & W. 237 ; 1 Tyr. & (1 584; 5 L. J. Ex. 289. Distinguished, Attorney-General v. FikyeraM, 1843, 13 Sim. 83. See In re Griffiths, 1845, 14 M. & W. 510; In re Pearce, 1857, 24 Beav. 491; In re Parker, 1859, 4 H. & N. 666 ; Harris v. Earl Howe, 1861, 29 Beav. 261 ; Attorney-General (Ireland) v. Cullen, 1863, 14 Ir. C. L. R. 137: affirmed L. R. 1 H. L. 190; Attorney-General v. Detaney, 1876, Ir. R. 10 C. L. 104.] The common rule, (under the 42 Geo. 3, c. 99, s. 2), calling upon executors to account for legacy duties, had been obtained in this case. It appeared upon the affidavits, that, by the last will of John Wilkinson, deceased, dated the 20th day of April, 1831, he bequeathed as follows :- " After all my just debts and funeral expenses are paid, my will and pleasure is as follows:-In case my beloved wife, Mary Wilkinson, should survive me, that my executors, hereafter named, do pay my beloved wife, 3001. per annum, by even and quarterly payments, during her natural life. Item, I give and bequeath to my son Jacobi Wilkinson, shopkeeper, at Southgate, Middlesex, all the stock in trade ; also my freehpld estate, No. 8, Watling-street, let at 3001. per annum, with the rents of my two Houses at Highbury Place, Islington, Nos. 13 and 20, during the term of the leases, also my silver cup; To my daughter Jane Smith, now residing in Castle-street, 1C. M, aE.ua IN RE WILKINSON 1029 St. Martin's Lane, 20001., and the house I now live in, 32 Ebury-street, Pimlico, formerly 5 ò also, my silver waiter. Item, to the treasurer for the time being of the Wesleyan Strangers' Friend Society for visiting the Sick and Poor at their own Houses, 1001. To the treasurer for the time being of the Dispensary in Sloan Square, 1001. To the treasurer for the time being of the Westminster Hospital, 1001. Item, to John Forrest, son of George Forrest (yeoman), the sum of 191. 19s. Item, to James Brothers, the son of James Brothers (yeoman), the sum of 191. 19s. As to my wearing apparel, linen, household furniture of every description, my son and daughter may divide or sell, as they please. Finally, after my just debta and legacies are paid, my will and [143J pleasure is, that all my money in bunkers' hands, bills of exchange, &e. &c., be collected into cash, and laid out in the funds in the Bank of England, where I now have considerable property ; and that tny executors hereafter named, and their heirs atid assigns, do receive the interest thereof at the Bank half-yearly, nd divide it among poor pious persona, male or female, old or infirm, in 101. or 151., as they sea fit, not omitting large and sick families, if of good character." By a codicil, dated the 27th July, 1833, the testator, after several bequests and legacies, directed that the legacy duty payable in regard to the several legacies and bequests iii his will and that codicil mentioned, should be a charge upon and paid out of his personal estate, and did thereby confirm his said will. The executors paid the legacy duties, except upon the fund bequeathed for distribution to poor and pious persons, and they disputed the right of the Crown to legacy duty upon that fund. In Easter Term, cause was shewn by- Stephen, Serjt., Dixori, and trurney. The question depends mainly upon the language of the schedule of the 55 Geo. 3, c. 184, which is the lust act of Parliament imposing duties on legacies, [t is submitted, that, according to the plain meaning of that enactment, the present is not a, case in which the legislature intended that the legacy duty should attach. The part of the schedule to which it is necessary to call the attention of the Court is as follows: "For every legacy, specific or pecuniary, or of any other description, of the amount or value of 201. or upwards, given by any will or testamentary instrument of any person who shall have died after the 5th day of April, 1805, either out of his or her personal or moveable estate, or out of or charged upon his or her real or heritable estate, or out of any monies to arise by the sale, mortgage, or other disposition of his or her real or heritable estate, or any [144] part thereof, and which shall be paid, delivered, retained, satisfied, or discharged, after the -Hst day of August, 1815 ; also, for the clear residue (when devolving to one person), and for every share of the clear residue, (when devolving to two or more persons), of the personal or tnoveable estate of any person who shall have died after the 5th day of April, 1805, (after deducting debts, funeral expenses, legacies, and other charges first payable thereout), whether the title to such residue, or any share thereof, shall accrue by virtue of any testamentary disposition, or upon a partial or total intestacy, where such residue or share of residue shall be of the amount or value of 201. or upwards, -and where the same shall be paid, delivered, retained, satisfied, or discharged, after the 31st day of August, 1815." Then follow the provisions as to the amount of duty payable on the particular sums specified : Where the legacy or residue is for the benefit of a child, &c., or of the father or mother, 11. per cent.; of a brother or sister &c., 31. iper cent., &c. &c. &c.; of a stranger, &c., 101. per cent. ; arid where a legatee shall ta;ke two or more distinct legacies or benefits, which shall together be of the amounti or value of 201., such legacies are chargeable, though each separately is under that sum. There are three exceptions-for tho benefit of the husband or wife of the deceased, of legacies for the benefit of members of the royal family, and of certain specific legacies in certain cases given to certain public bodies. It is clew from all these provisions, that the legislature intended to impose the duty only in the case of legatees who take beneficially under a will. If that were not so, the exemptions and the variations in the scale of duties, according to the particular' relationship, would lie perfectly absurd and unmeaning. The duty then attaches upon beneficial interests only ; and it attaches upon persons taking individually, so that the scale of duties may be applied to their beneficial interests. It [145] is true, that the part of the schedule which has been referred to may at first sight seem to impose the duty generally upon the legacies; but the subsequent clauses limit the operation of the earlier part, and shew that there are no cases within either the words of the act, or the contemplation of the legislature, except cases of which it may be predicated that 1030 IN RE WILKINSON 1C.M. &R.M6. a legacy or residue is to be taken for the benefit of some particular individual, and that such particular individual stands in a particular degree of relationship, or is not related to the testator or intestate. Now, the present case is one of a legacy, given in such a manner as that no person taking beneficially and individually can take more than 151.; as, therefore, the provision of the act is, that the duty shall attach upon every legacy of the amount or value of 201. or upwards, the present cases, being legacies to the amount of 151. at the most, are wholly out of the operation of the schedule. It is material to remark that this limitation of the amount of 201. does not come by way of exemption; but the enacting part of the act which imposes the duty is limited by the description that the legacy shall amount to 201. or upwards. If it had been by way of exemption, it might have been argued, that the party claiming the benefit of the exemption is bound to bring himself within it; as it is, it must clearly lie upon those, who say that a legacy is chargeable with this duty, to shew that it is of the amount of 201. If then the...
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