TREATISE 
 
 LEGACY DUTY, 
 
 AS ATTACHING ON THE PROPERTY OP 
 PERSONS DYING ABROAD OR IN GREAT BRITAIN, CONSIDERED 
 WITH REFERENCE TO 
 
 THE LAW OE DOMICILE, 
 
 ANALYSIS OF THE STATUTES 
 
 AFFECTING THE LEGACY DUTY, AND A REVIEW OF 
 THE PRINCIPAL CASES ON THIS SUBJECT, 
 
 PATRICK LENAGHAN, Esq., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. 
 
 Honttmi: 
 
 V. & R. STEVENS AND G. S. NORTON, 
 Halo DoofeHIttsi mitt DuMissTjcnj, 
 
 26, BELL YARD, LINCOLN’S INN. 
 
 1S50. 
 
Palmer & Hoby, 
 
 17, Brownlow Street, High Holborn. 
 
PREFACE. 
 
 In laying before the public this Treatise upon the 
 Attachment of Legacy Duty on the personal estate 
 of a testator, whether bequeathed specifically or de¬ 
 volving on an executor or residuary legatee, (which 
 must be governed by the rules applicable to the law 
 of Domicile) it may be necessary to say a few words, 
 by way of prefatorial explanation. 
 
 In the year 1846, the writer’s attention was acci¬ 
 dentally directed to this subject, by being called upon 
 to advise on the case of an executor residing in this 
 country, whose testator was domiciled in the Island 
 of Antigua, in the West Indies, where he died, and 
 who was called upon to pay a considerable sum of 
 money, claimed by the Commissioners of Stamps, 
 as Legacy Duty on his testator’s estate. During the 
 writer’s investigation of the law on this subject, which 
 
he found very obscure and quite misapprehended by 
 the public, it occurred to him that the compilation of 
 a practical treatise on so important a branch of the 
 law might be acceptable and serviceable to the pro¬ 
 fession and the public. So great is the popular 
 ignorance on this subject, that it was not without 
 difficulty the author persuaded the agent of the resi¬ 
 duary legatee, in the case to which allusion has been 
 already made, to petition the Commissioners of 
 Stamps for repayment of the Legacy Duty. The sum 
 reclaimed, after the lapse of several months’ delay on 
 the part of the Commissioners, was ultimately repaid 
 by them. 
 
 Some explanation may be due to the public for 
 the publication of the present work, so soon after that 
 of one similar in its object, which appeared not long 
 since. The facts are simply as follows: The author 
 had, previously to the issuing of Mr. Alcock’s Treatise, 
 prepared the one how before the public, in a much 
 larger form than it at present assumes, and already 
 submitted it to the publishers: they however strongly 
 urged the author to issue it in a much more con¬ 
 densed form. This he essayed to dp at the expense of 
 considerable time and labour. 
 
In the meantime however, the gentleman above 
 referred to, had prepared and issued his work, and 
 thus this Treatise is subsequent in point of publica¬ 
 tion, though it will be seen that it was anterior in 
 compilation. 
 
 P. L. 
 
 Middle Temple, 
 
 20th July, 1850. 
 
ComgtirtJum. 
 
 Page 3, line 23, for “ executions,” read " executors.” 
 
SUMMARY 
 
 ANALYSIS OR STATUTES, 
 
 REFERENCE TO THE ATTACHMENT AND PAYMENT 
 OF LEGACY DUTY. 
 
 The first Statute, imposing a duty on Legacies, was the 20th 20 Geo- m-> 
 Geo. III., cap. 28, which directed that any receipt in discharge cap ' 
 of a legacy, whereof the value did not exceed £20, should he 
 liable to a stamp duty of 2s. M., and when the amount 
 thereof should he of £20 and under £100, then a stamp 
 duty of 5s. and so on according to the value of the legacy. 
 
 By the 23rd of Geo. III., cap. 58, several additional duties 23 Ge0 
 were imposed, while at the same time certain exemptions were cap ’ 58, 
 introduced in favour of the wife, child, or grandchild of 
 the testator. By the 29th of Geo. III., cap. 51, further 29Geo . II[ti 
 duties were imposed upon any receipts for legacies: up to cap ' 51 ‘ 
 this period it will be remarked that the duty was upon the 
 instrument, i.e. the receipt itself, and no proof of payment of 
 a legacy was admissible in a court of law, unless the receipt, 
 or document evidencing payment, was stamped according to 
 these acts ; and it was absolutely necessary to produce such 
 receipt. But this mode of procedure had its accompanying 
 evils; for the Legacy Acts did not make it compulsory for an 
 executor or administrator to require such a receipt, or for a 
 legatee, or next of kin, to give one, for the legacy or share of 
 the residue of any deceased person's estate. In this manner 
 the revenue suffered considerably, so that it became neces¬ 
 sary to adopt some other mode by which the duty would 
 
. most certainly attach: accordingly the 36th Geo. III., cap. 
 52, repealed these three statutes, i. e. the 20th Geo. III., cap. 
 28 (except sec. 3); 23rd Geo. III., cap. 58; 29th Geo. III., 
 cap. 51; and enacted, " that upon every legacy, specific 
 or pecuniary, or of any other description, of the amount or 
 value of £20 or more, given by any will or testamentary in¬ 
 strument of any person who shall die after the passing of this 
 Act, out of the personal estate of the person so dying, and 
 also upon the clear residue, and upon every part of the clear 
 residue of the personal estate of every person who shall so 
 die, whether testate or intestate, and leave personal estate 
 of the clear value of £100 or upwards, which shall remain 
 after deducting debts, funeral expenses, and other charges, §c.; 
 there shall be raised, levied, collected and paid unto and for the 
 use of His Majesty, his heirs and successors, the several 
 duties, fyc.” 
 
 This Act is set out in all its important sections in an 
 Appendix to this work; at this stage, therefore, we shall only 
 refer, for the sake of convenience, to the 7th section, which 
 explains what testamentary gifts shall be considered as 
 legacies.- “ That any gift by will or testamentary disposition 
 of any person dying, after the passing of this Act, which shall 
 by virtue of such will, or testamentary instrument, have effect, 
 or be satisfied out of the personal estate of such person so dying, 
 or out of any personal estate which such person shall have 
 power to dispose of as he or she shall think fit, shall be deemed 
 and taken to be a legacy, within the intent and meaning of 
 this Act, whether the same shall be given by way of annuity or 
 in any other Jorm, and whether the same shall be charged only 
 on such personal estate, or charged also on real estate of the 
 testator or testatrix who shall give the game, except so far as 
 the same shall be paid or satisfied out of such real estate in a 
 due execution of the will or testamentary instrument by which 
 the same shall be given; and every gift which shall have effect 
 
3 
 
 as a donatio mortis causa, shall also be deemed a legacy 
 within the intent and meaning of this Act.” 
 
 The 37th Geo. III., cap. 135, is an Act to explain and 37 Gea hi., 
 amend, in certain cases, so much of the 36th Geo. III., cap. 
 
 52, as relates to the payment of money into the Court of 
 Chancery, and paid into the Bank of England, and directs 
 that when so paid, the Acccountant-General’s certificate 
 thereof shall be filed in the Beport Office, and shall be a • 
 warrant to the Bank for the payment of any draft of the 
 Accountant-General to be drawn in respect of such money. 
 
 The 39th Geo. III., cap. 73, was passed for the purpose of 39 Geo. m., 
 exempting certain specific legacies given to corporate bodies, 
 and also for exempting certain articles given by the will of 
 the late Rev. Clayton Mordaunt Cracherod to the trustees 
 of the British Museum, 12th of July, 1799. This Act 
 appears to have been unnecessary, since, on reference to the 
 14th sec. of the 36th Geo. III., cap. 52, (see Appendix,) it 
 would appear that that section had already provided for 
 similar cases. 
 
 The 42nd Geo. III., cap. 99, gives the Commissioners 42 Geo. m., 
 of Stamps and Taxes power to compel the payment of the ° ap ' 
 duties imposed by the 36th Geo. III., cap. 52, by defaulting 
 executions within a reasonable time; and the Court of 
 Exchequer, on application, will grant a rule to show cause 
 why the executors should not deliver in an account upon 
 oath of the legacies paid or to be paid. 
 
 The 44th Geo. III., cap. 98, altered in some measure the 44 Geo. in. 
 effect of 36th Geo. III., cap. 52, which merely imposed the ° aP ’ 
 duties on legacies given by the will of persons dying after the 
 date of that Act, while the 44th Geo. III., cap. 98, fixed the 
 attachment of Legacy Duty on all legatees to whom payment 
 should be made, after its passing, without reference to the 
 period of the testators decease, allowing two years to expire 
 before it should attach on legatees taking under the will of 
 b 2 
 
persons dying previously to the 36th of April, 1796, being 
 the date of 36th Geo. III., cap. 53. 
 
 The 45th Geo. III., cap. 38, provided certain additional 
 duties, and likewise imposed the duty on legacies specific or 
 pecuniary, or of any other description charged upon or payable 
 out of real or personal estate, and on shares of monies arising 
 from the sale of real estate by any will or testamentary dis¬ 
 position. This was the first statute which imposed a duty 
 on legacies payable out of real estate. 
 
 ; By the 44th section of 48th Geo. III., cap. 149, an alter¬ 
 ation is made in the 38th and 39th sections of the 36th Geo. 
 III., cap. 53, by that section enacting that in all cases not 
 provided for, where any receipt or discharge given for any 
 legacy, or for the residue, or any share of the residue, of any 
 personal estate, which shall have been given by will or other 
 testamentary instrument, or have devolved to any person or 
 persons upon intestacy, shall he brought to the head office to 
 he stamped after the expiration of three calendar months 
 from the date thereof, it shall he lawful for the said Com¬ 
 missioners to cause the same to be duly stamped, for making, 
 the same available, on payment of the duty, which shall be 
 payable in respect thereof, together with the penalty in¬ 
 curred in consequence of the same not having been brought 
 to be stamped, before the expiration of such three calendar 
 months, and when any such receipt or discharge shall have been 
 signed out of Great Britain , if the same shall be brought to 
 be stamped within twenty-one days after its being received in 
 Great Britain, it shall be lawful for the Commissioners to 
 remit any penalty that may have been incurred thereon, and 
 to cause the same to be duly stamped, on payment of the 
 duty payable in respect thereof, any thing contained in any 
 former Act or Acts to the contrary notwithstanding. 
 
 The 55th Geo. III., cap. 184, repeals inter alia the pro¬ 
 visions contained in the 48th Geo. III., cap. 149, respecting 
 
5 
 
 legacies and successions to personal estate upon intestacy, 
 then payable in Great Britain, and grants new duties in lieu 
 thereof, which are found in the Schedule of this Act: it 
 relates principally to prohate and administration, but addi¬ 
 tional duties, and exemptions from duty, are included in the 
 Schedule to this Act, hy which it appears the duties are now 
 imposed; a distinction in the assessment is made between 
 wills and administrations of persons who died before the 5tli 
 of April, 1805, and those who have died subsequently. 
 
 The 57th Geo. III., cap. 105, s. 25, contains a provision, 
 and which is continued in subsequent statutes, exempting in 
 certain cases property in Savings’ Banks from Legacy Duty. 
 
 The 5th & 6th Vic., cap. 82, is an act to assimilate 
 the Stamp Duties in Great Britain and Ireland, and to 
 make regulations for collecting and managing the same, 
 until the Tenth Day of October, 1845. By the 9th sec¬ 
 tion, the Commissioners of Stamps and Taxes shall from time 
 to time provide dies for expressing and denoting the rate 
 per centum of the Legacy Duties upon the receipts and 
 discharges to be given for legacies and shares of personal 
 estate, &c. The 37th section provides that the Legacy Duty 
 shall he paid hy the executors or administrators on retaining 
 or paying legacies, and if the duty be not paid, although 
 deducted by the executor, the amount thereof shall be a 
 debt to Her Majesty from the executor or administrator; 
 but if not deducted by the executor, then the amount shall 
 be a debt to Her Majesty from both the executor and the 
 legatee. Trustees are to pay duties on legacies charged on 
 real estate, and if there be no trustee, then the party entitled 
 to such real estate is to pay, or the person empowered or 
 required to pay or satisfy any such legacy; and the said 
 duties are to be retained by the person paying or satisfy¬ 
 ing any such legacy, or share of money, and are to be 
 accounted for, satisfied, and paid at certain times, in a certain 
 
6 
 
 manner, and according to certain rules and regulations in the 
 Act specified in respect of the duties granted on legacies 
 payable out of personal estate; and in case the said duties 
 are not paid or satisfied according to the provisions herein 
 contained, then, and in every such case, such duty is to 
 be a debt to Her Majesty, her heirs and successors, of and 
 from the trustee of such real estate as aforesaid, or the 
 person entitled thereto, subject to such legacies, and also of and 
 from the person to whom the same shall have been paid without 
 the duty chargeable thereon having been first deducted. 
 
 The 38th section then explains what shall be deemed a 
 legacy under this Act. 
 
 Receipts The 39th section enacts that every receipt or discharge for 
 t“bestam“ any legacy, or residue, or part thereof, shall be brought 
 twenty-one within the space of twenty-one days after the date thereof 
 the date, to the head office of the Commissioners of Stamps and Taxes, 
 Penalty it ™ Dublin, ifc., and provides a penalty if not stamped within 
 notstamped t flren fy„ one (j a y S , It i s nevertheless lawful to carry such 
 twenty one rece jp£ or discharge to the said head office to be stamped in 
 like manner within three calendar months after the date 
 thereof, paying the duty for the same, and also a further sum 
 of jSIO per centum on such duty by way of penalty for not 
 having before paid such duty; on payment of which duty 
 the Commissioners are authorised and required to stamp 
 such receipt or discharge in the same manner as if the same 
 had been brought to the office within the space of twenty-one 
 days from the date thereof: and where any receipts or 
 discharges as aforesaid shall have been signed out of the 
 signed oat ^ n d- e d Kingdom, it shall be lawful for the said Commissioners 
 Kingdom* 61 * *° rem ^ an y penalty which may have been incurred thereon, 
 and to cause the same to be duly stamped, on payment of the 
 duty payable in respect thereof. 
 
 The 40th section enacts that penalties may be sued for as 
 penalties, under the Stamp Act passed in the 56th year of 
 
7 
 
 the Reign of George III., subject to any such appeal as 
 therein mentioned, &c. 
 
 The 8th and 9th Vic., cap. 2, is an Act simply for the 
 purpose of continuing for three years the Stamp Duties 
 imposed by the 5th and 6th Vic., cap. 82. 
 
 The 8th and 9th Vic., cap. 76, is, as its title expresses it to be, 
 an Act to increase the Stamp Duty on licenses to appraisers; 
 to reduce the Stamp Duties on registry searches in Ireland, 
 to amend the law relating to the duties on legacies, and also to 
 amend an Act passed in the previous session for regulating 
 the issue of bank notes. 
 
 The 'section referring to legacies is the 4th, and is to the 
 following effect:— . 
 
 1 4th sec. “ And whereas, under and by virtue of the said 
 “ several recited Acts, certain duties have been granted, and in _ 
 “ are now payable in Great Britain and Ireland, respectively, tob™dcem- 
 “ upon legacies, and doubts have been entertained whether edlegades ' 
 “ certain gifts by will or testamentary instrument, are 
 “ legacies, liable to the said duty, and it is expedient to 
 “ remove such doubt j be it therefore enacted that from and 
 “ after the passing of this Act, every gift by any will 
 “ or testamentary instrument of any person, which by 
 “ virtue of any such will or testamentary instrument is 
 “ or shall be payable, or shall have effect, or be satisfied 
 “ out of the personal or moveable estate or effects of such 
 “ person, or out of any personal or moveable estate or effects 
 ,r which such person hath had, or shall have had power to 
 “ dispose of, or which gift is or shall be payable, or shall 
 “ have effect, or be satisfied out of, or is or shah be charged 
 “ or rendered a burden upon the real or heritable estate 
 “ of such person or any real or heritable estate, or the 
 “ rents or profits thereof, which such person hath had 
 “ or shall have had any right or power to charge, burden, 
 
 “ or effect with the payment of money, or out of or upon 
 
“ monies to arise by the sale, burden, mortgage, or other 
 “ disposition of any such real or heritable estate, or any 
 " part thereof, whether such gift shall be by way of 
 “ annuity, or in any other form, and also every gift which 
 “ shall have effect as a donatio mortis causd, shall be 
 “ deemed a legacy within the true intent and meaning of 
 “ all the several Acts granting or relating to duties on 
 “ legacies in Great Britain and Ireland respectively, and 
 “ shall he subject and liable to the said duties accord- 
 “ ingly. Provided always, that no sum of money which by 
 “ any marriage settlement is or shall be subjected to any 
 “ limited power of appointment, to or for the benefit of any 
 " person or persons therein specially named or described as 
 “ the object or- objects of such power, or to or for the 
 “ benefit of the issue of any such person or persons, shall 
 " he liable to the said duties on legacies under the will in 
 “ which such sum is or shall be appointed or apportioned in 
 “ exercise of such limited power. 
 
 Having endeavoured to give our readers a brief sum¬ 
 mary of the principal Acts of Parliament having reference to 
 the duty on legacies, let us now. consider those cases which 
 may be considered as having settled the law on this subject. 
 
 The plan pursued in the arrangement of this work has 
 been adopted under the idea that in printing the three chief 
 authorities somewhat at length, and appending to them notes 
 in distinct columns, the labour of the reader would be 
 materially decreased, and his attention less liable to be 
 distracted than if the whole had been printed together. 
 
IN RE EWIN. 
 
 American, Austrian, Erench, and Russian Stock, the 
 property of a testator domiciled in this country, is liable 
 to Legacy Duty. 
 
 1 Cromp. & Jervis, 151. 1 Tyrwhits, 91, 246, 251, 254. 
 
 In this case, an order was obtained (in 1830), under the 
 42nd <ieo. III., cap. 99, sec. 2, calling upon an executor 
 to shew cause why he should not deliver an account of the 
 legacies and property of the testator, and pay the legacy 
 duties. In opposition to this rule, affidavits were filed, from 
 which it appeared, that the testator, who was domiciled in 
 England, died possessed of considerable property, in the 
 American, Austrian, Erench, and Russian funds, which funds 
 were transferable, and the dividendspayable in those respective 
 countries only. It appeared further, that the debts of the 
 testator had been paid out of personal property in this country, 
 and that the residuary legatee had required the executor 
 to transfer into his name the funds in those countries 
 respectively. It also appeared, that the stock had been 
 transferred into the name of the executor, and that he had 
 dealt with and transferred the dividends to the legatees by 
 means of a power of attorney ; but the court held that the 
 funds in question were personal property, and, as such, 
 followed the person, and were not to be regulated in any. 
 respect by the laws of the place where they were situated. 
 
 Alexander, L. C. B., says: “ I have not had, during the 
 course of this argument, any doubt, notwithstanding the 
 great ability evinced upon the part of those who contend that 
 this duty ought not to be paid. It seems to me, according to 
 
10 
 
 the true meaning and construction of this Act of Parliament,^ 
 that it must be paid. This is an Act which imposes a duty 
 upon legacies and shares of personal estate, and the duty 
 attaches the moment they are paid; and the transaction 
 pointed out as that upon which the duty is to be paid, is to be 
 evidenced by the receipt. The fact is, that it is a charge 
 upon the personal estate which belonged to an intestate or 
 testator, and which is to be handed over to the legatee. Then 
 the question is, whether the circumstances of this case 
 bring the legatee and the executor of the estate within those 
 descriptions that are comprised in this Act. In the first 
 place, it must be personal estate. I agree entirely that the 
 circumstances stated in these affidavits prove this, if there 
 were any doubt about it, to be personal estate, because, 
 as is stated, the executor has taken it, he has dealt with it 
 as executor, and he has, as executor, authorized the delivery 
 of it over to the legatee. Under all these circum¬ 
 stances, how can it be contended, with any plausibility, 
 that this is not personal estate ? Then, so far as the subject- 
 matter of the thing goes, it is clearly withia the Act of 
 Parliament. But then, can it be said that the persons 
 concerned in this transaction are not within the Act of 
 Parliament ? The Act says: That every personal or moveable 
 estate shall be charged with these duties upon all legacies 
 and successions; and then it goes on to charge upon these 
 legacies and successions, particular sums, according to the 
 amount or value. The words are general, ‘ every person/ 
 
 " It must be construed, I think, that this particular Act, 
 in speaking of legacies, is confined to Great Britain. 
 
 “ When persons die in India, whose estates, though the 
 estates of British subjects, are distributed in India, and are 
 delivered over to the several legatees, whether pecuniary or 
 
 (a) Refers to the 55th Qeo. III. cap. 184: Schedule part 3, and 36th Geo. 
 III., cap. 52, sec. 6.' 
 
11 
 
 residuary legatees in India, it has never been the practice, 
 nor was it intended by this Act of Parliament, that such 
 estates should be chargeable with the duty. Under these 
 circumstances, although I do not doubt but that the reasons 
 given by the Vice Chancellor, in the case decided by him, ( a ) 
 were satisfactory, and were justified under the particular 
 circumstances of that case, it requires the particular circum¬ 
 stances of that case to bring such legacy and payment within 
 the operation of this Act of Parliament. But it' can never be 
 doubted that the Act of Parliament was meant to include 
 the estate of a person who was domiciled in England, a 
 subject of this country, an Englishman, whose executors are 
 living in this country. It can never be doubted that this 
 'Act was meant to make his estate subject to the charge, and 
 that persons claiming under him, and receiving part of that 
 estate, were liable to contribute to the revenues of this 
 country by force of the Act of Parliament. 
 
 “ Upon what grounds was it contended that this estate is not 
 liable ? Because the duties on probates and administrations 
 would not have extended to this particular fund. This 
 argument does not appear to me to make any difference in 
 this case. By the Act of.Parliament, the duty upon the 
 probate is only imposed in respect of that fund, which the 
 executor is to obtain in a particular province of this country 
 by force of that probate. If there be a personal estate in the 
 province of York and Canterbury, and a probate be taken 
 in the province of York, the duty is paid upon the property 
 in that province only, and it is not paid upon the other pro. 
 perty until a probate be taken in the province of Canterbury. 
 
 “ This is made apparent by the very terms of the Act, for it 
 says: ‘Where the estate and the effects for, or in respect 
 of which such probate, letters of administration, or confirm¬ 
 ation respectively, shall he granted, or expeded,— J evidently 
 (re) logan v. Fairlie, 2 Sim. & Stuart, 284. 
 
12 
 
 confining the charge upon the probate to those particular estates 
 to he recovered by force of that administration. But when it 
 speaks of the legacy duty, it is charged upon the amount of 
 the estate itself, to be handed over upon the receipt, which 
 the executor, to save himself from the penalty, ought to take 
 before he pays the money. 
 
 “ I cannot doubt, therefore, in this particular case, that the 
 legacy duty is chargeable upon this property, because, in 
 point of fact, it is under the administration of the executor; 
 and though he is not bound, in order to get at it, to take out 
 a probate or administration, still it is by force of the interest 
 he takes under his testator’s will, that it is disposed of,—he 
 hands it over to the legatee, whether he is pecuniary legatee, 
 or residuary legatee: it is by force of his act, it is trans¬ 
 ferred to such legatee ; and it is the case that it was the 
 intention of this act to fix it with the duty. I am of opinion, 
 therefore, that there can be no doubt that this property is 
 liable to the legacy duty.” 
 
 Bayley, B.—“From the first moment I knew any thing of 
 the state of facts'in this case, it appeared to me to be a case 
 perfectly free from doubt. It is a case of a will made by 
 a British subject domiciled in England, and it is to be 
 executed by an English executor, and to operate upon 
 that which, throughout, in my opinion, is English personal 
 property. It was pressed by the counsel, that the property 
 was to be considered as being in the country in which it was 
 real property. There is nothing in any part of the affidavit to 
 shew that such was the character that properly belonged to 
 it, but some reliance was placed upon a supposed analogy 
 between the case of this property, and property in Eng¬ 
 lish funds, which, in the creation of those funds, might 
 originally be considered as being real property, and de¬ 
 scendible to the heir, but which, very soon afterwards, was 
 considered personal property, and not descendible to the 
 
13 
 
 heir, but to go as personal property would go. Does it 
 follow, because tbe English funds were originally considered 
 as real property, that tbe French, and American, and Russian 
 funds were also so considered ? It would be for the party 
 who insists that this is the character which belongs to the 
 property in question, and who ought to know the character 
 of the property of which he is the owner, to show that such 
 was the character of this property. But the circumstances 
 mentioned on behalf of the Crown, namely, that the name off- 
 the executor was suffered to be introduced in the books, that 
 the executor was suffered to deal with the funds, and that 
 his directions were followed as to the dividends, satisfy my 
 mind that this is to be considered as personal property in the 
 place where it is payable; and that, consequently, we are not 
 warranted in considering this as being real estate. If it be 
 not real estate, it is personal estate; and if it be personal 
 estate, it is not in any respect to be considered different 
 from personal property abiding in this country? There is 
 no doubt but that the amount, when you are receiving the 
 dividends, will be payable in the place in which, by the 
 constitution of these, funds, the dividends are payable, and 
 that will be America, Paris, or Peterslurgh. But you are 
 not to look at the place where the thing is payable, or 
 transferable; but when once you have ascertained that it is 
 personal estate, then you are to ascertain what are the 
 rules of law with regard to personal estate, being at the 
 time not locally in this kingdom, but being at the time 
 locally situated abroad. 
 
 “Now what is the rule with respect to it? It is clear, 
 from the authority of Bruce v. Bruce (“), and the case of 
 Somerville v. Somerville,® that the rule is, that personal 
 property follows the person, and it is not in any respect to 
 
 («) 2 Bos. & Pul. (229); G Bro. P. C. 5G6. 
 
14 
 
 be regulated by tbe situs; and if in any instances the situs 
 have been adopted, as the rule by which the property is to 
 be governed, and the lex loci rei sites resorted to, it has 
 been improperly done. Wherever the domicile of the pro¬ 
 prietor is, there the property is to be considered as situated; 
 and in the case of Somerville v. Somerville, which was a 
 case in which there was stock in the funds of this country, 
 which were at least as far local as any of the stocks men¬ 
 tioned in this case are local, there was a question whether 
 the succession to that property should be regulated by the 
 English or the Scotch rules of succession, the Master of the 
 Bolls was of opinion that the proper domicile of the party 
 was in Scotland. And having ascertained that the conclu¬ 
 sion which he drew was, that the property in the English 
 funds was to be regulated by the Scotch mode of succession, 
 and if the executor had, as he no doubt would have, the 
 power of reducing the property into his own possession, and 
 putting the amount into his own pocket, it would be dis¬ 
 tributed by the law of the country in which the party was 
 domiciled. Personal property is always liable to be trans¬ 
 ferred, wherever it may happen to be, by the act of the party 
 to whom that property belongs; and there are authorities 
 that ascertain this point, which bears by analogy on this 
 case, namely, that if a trader in England become bankrupt, 
 having that which is personal property, debts, or other per¬ 
 sonal property due to him abroad, the assignment under the 
 commission of bankruptcy operates upon the property, and 
 effectually transfers it, at least as against all those who owe 
 obedience to these bankrupt laws, the subjects of this coun¬ 
 try. In this case, therefore, it appears to be clear, that this 
 is to be considered as being English personal property. 
 Why, then, if it is English personal property reducible by an 
 English executor into possession, so that he may have it in 
 its full value in this country, is not the legacy duty to 
 
15 
 
 attach upon, it ? It was put in a strong way to illustrate the 
 argument by the Attorney-General, that if there had been a 
 deficiency of assets in this country to meet the debts of the 
 testator, it would have have been the duty of the executor 
 to have sold this property, and to have brought it bodily 
 into this country, as that which was to be resorted to; and 
 that it would have been a devastavit if he had not adopted 
 that plan if there were debts. 
 
 “ Then, if it has the character of English property, can there 
 be any doubt but that it falls within this rule that attaches 
 upon all legacies and all successions to personal or moveable 
 estate? The rule, as to probates, has been pressed upon 
 our consideration, and the difference between those things, 
 bona notabilia, and those things not bona notabilia. The 
 question as to bonum notabile is essential only to ascertain 
 the situs of the property, and to ascertain, with regard to the 
 probate, out of what limits the power that is to clothe the 
 executor with the means of acting upon it, shall issue, and 
 it is bonum notabile in one place or another according to 
 its situs. But Bruce v. Bruce decides that the situs de¬ 
 termines nothing in a case like the present, for the executor 
 has the power of removing the property from its situs, and 
 getting it into his own country. Now the probate duty is 
 only with reference to the situs of the property within the 
 limit of the probate. In the course of the argument, the 
 case, was put, of a York administration and a Canterbury 
 administration. The duty, with reference to those, will be 
 regulated by the amount of property in each of those dioceses ; 
 but if there is other property not in those dioceses but 
 property abroad, with reference to which there may be no 
 probate essential, or with respect to which the only probate 
 will be the probate belonging to that country, that will 
 not be taken into the amount of duty paid either upon 
 the Canterbury administration, or the York administration. 
 
16 
 
 The cases referred to, Logan v. Fairlie, and Hay v. 
 Fairlie, W do not seem to me to bear upon the present question, 
 because there the party was not domiciled within the limits 
 within which the duties referred to by this Act of Parliament 
 attach. In each of those cases the party was resident in India. 
 It is quite clear, when you come to loot at the Legacy 
 Acts that they are co-extensive with the limits of this 
 kingdom, and this kingdom only, and do not extend to the 
 territorial possessions of the Crown in India. Therefore, in 
 neither of those cases did the question arise whether the 
 legacy duty was payable upon the whole of the property the 
 testator left. 
 
 "It appears to me there, is a plain distinction between 
 those cases and the present case, because those were cases 
 where the property was domiciled in India, not being domi¬ 
 ciled in the limits within which this Act applies ; but the 
 present is a case of a man having an English domicile, 
 whose property of this description is considered English 
 personal property.” 
 
 Yarrow, B., and Vaughan, B., concurred. 
 
 Rule absolute.® 
 
 (а) 1 Russ. 117. Lord Gifford, M. R. 
 
 (б) As to the distinction between the grant of probate regulated by the situs 
 of the bona notabilia, and the distinction of the property which depends upon 
 the domicile of the deceased, see 1 Williams Saund. 275, note (a) by Patteson 
 & Williams. 
 
17 
 
 IN RE BRUCE. 
 
 Property in this country belonging to a foreigner who dies abroad, 
 and appoints an English executor, and bequeathed to English 
 legatees, is not liable to Legacy Duty. 
 
 A testator, an American by birth, some time in the year 17 64, 
 and whilst a minor, went to Scotland for the purpose of being edu¬ 
 cated in that country : as soon as he had attained his majority, in 
 1788, he sailed to India, describing himself in the ship’s book as an 
 ' American, and as such he remained in India thirty years; and at the 
 .7 expiration of this period, he returned to Europe, leaving the bulk of 
 his property in Bengal, and afterwards, having revisited America, 
 made a tour through England, Scotland, and the Continent, and 
 again returned to America, where he entered into agricultural 
 pursuits, and continued to draw his property to that country until 
 his death at New York, in 1826. Held that he was an American 
 citizen. 
 
 2 Crompton & Jervis, 436. 
 
 The common rule having been obtained by Amos , under 
 the statute of 42nd Geo. III., cap. 99, sec. 2, calling upon 
 the executors of C. K. Bruce, to account and pay the legacy 
 duty, cause was shewn upon an affidavit, which disclosed the 
 following facts 
 
 That the father of the testator Bruce was born in Scotland , 
 and went in his youth to North America, where he fixed his 
 permanent residence, and married an American woman. 
 The testator Bruce was the issue of that marriage, and was 
 horn in the state of Maryland, in or about the year 1764 ; 
 and the father and mother of the testator continued to reside 
 in Maryland to the time of their respective deaths. The 
 
18 
 
 testator was sent to Scotland for his education, when a boy, 
 and much under the age of twenty-one years, and was 
 educated there under the care of his paternal grandmother. 
 In or about the year 1788, the testator sailed to the East 
 Indies, and was stated in the ship’s books to be an American, 
 and continued in India until in or about the year 1818, 
 during which period he was engaged in mercantile pursuits 
 there on his own account, but had not, and did not hold, 
 during his residence in India, any place or appointment under 
 his Britannic Majesty, or the East India Company. About 
 the year 1818, the testator, having acquired a considerable 
 fortune, came to Europe, leaving the greater part of his 
 properly so acquired in Bengal, and, soon after his return to 
 Europe, proceeded to the United States of America, to see his 
 family, and make arrangements in respect to certain property 
 in that country left him by his father. He came from 
 America to this country with the intention of visiting several 
 places in Scotland and England, and on the Continent of 
 Europe, and for the purpose'of, directing the removal of part 
 of his property to America: and on his final return to 
 America, in or about the year 1824, he commenced drawing 
 his property to the United States, and continued doing so till 
 the time of his death, which took place on the 23rd 
 of December, 1826, at New York, where he resided, having 
 for some time previously embarked in agricultural pur¬ 
 suits. The testator, in his will, dated the 19th day 
 of December, 1826, describes himself as Charles Key 
 Bruce, late of Calcutta, now of Richmond, county and 
 state of New York; and always considered himself to be an 
 American, and not a British subject, and was domiciled in 
 America, at the date of his will and death. By his will he 
 bequeathed legacies to a considerable amount. Some of the 
 legatees resided, and now reside, in Great Britain; being the 
 legacies, in respect of which, the sum of £33,975 2s. 2 d. 
 
19 
 
 had been apportioned as above mentioned, and including 
 legacies to the executors, and also to persons who resided, 
 and now reside, in India and America-, and directed the 
 residue of his estate to be divided among the said legatees 
 in the same proportions as their original shares, and 
 appointed, as his executors, Bailderson, Mackillop, and 
 Shoolbred, persons resident in England. The testator, at 
 the time of his decease, had standing in his name, in the 
 British funds, £1,111. 4s. 2d., £3 per cent. Consols; 
 £500, £3. 10s. per cent. Reduced Annuities, and £52 Long 
 Annuities. The will was proved by the executors in the 
 Prerogative Court of Canterbury, and probate duty paid to 
 cover effects not exceeding £10,000 in that province. A 
 suit was instituted by certain of the legatees resident in 
 England and Scotland, for an account and administration 
 of the testator’s estate, and a decree was pronounced on the 
 hearing of the cause. Pursuant to the said decree, the 
 Master, by his report, bearing date the 31st of July, 1827, 
 certified that he had approved of certain persons to take out 
 administration with the will annexed, in India, in 1827; also 
 certified that he had approved of certain persons to take 
 administration with the will annexed to the testator’s effects 
 in North America; and also to prove the testator’s will, or to 
 obtain letters of administration of the effects of the testator 
 in North America. The only property of the testator in 
 Great Britain consisted of the said £1,111. 4s. 2d., £3 per 
 cent. Consols; £500, £3. 10s. per cent. Reduced Annuities, 
 and £52 Long Annuities, standing in his name in the books 
 of the Governor and Company of the Bank of England; and 
 of a sum of £6. 11s. 9 d., being the balance of an account 
 with Messrs. Sir William Curtis Co., and of several Bills of 
 Exchange remitted from India, amounting to £6,282.3s. The 
 attornies appointed by the executors in the East Indies, under 
 the probate of the testator’s will granted there, got in effects to 
 c 2 
 
20 
 
 the amount of £30,000, or thereabouts, which arose from the 
 sale of personal property in that country, and which was 
 remitted to the executors in England, and by them paid into 
 the Bank, with the privity of the Accountant-General of the 
 Court of Chancery, to the credit of the cause. The testator’s 
 property in America in lands, American stock, and debts 
 owing to him, amounted in the whole to about £23,000, no 
 part of which had been remitted by the attomies there. 
 The administrators in the East Indies and in America, paid 
 the several legacies bequeathed by the testator to persons 
 resident in those countries; and the funds possessed by the 
 testator in England, and the monies remitted from the East 
 Indies, having been transferred and paid to the Accountant- 
 General of the Court of Chancery, the same produced 
 the sum of £33,975. 2s. 2d., apportioned amongst the several 
 legatees in England and Scotland, as above mentioned. 
 
 Bayley, B.—" This case was argued before the Lord Chief 
 Baron, who is necessarily absent from the Court, but con¬ 
 curs in the judgment I am now about to deliver. 
 
 "The testator’s father was a Scotchman by birth; he went 
 when young to America, fixed his residence there, he mar¬ 
 ried there, and he and his wife lived there, till he and she 
 died. He was born in Maryland, in the year 1764, he was 
 sent, when he was a young man under twenty-one, to 
 Scotland, and in 1788 he sailed to the East Indies, and 
 continued there till 1818, a period of about thirty-years. 
 In 1788, when he went out, he was entered in the ship’s 
 hooks as an American. In 1818, he returned to Europe, 
 leaving the greater part of his property he had acquired 
 there behind him in Bengal; and then he went to America 
 to see his family, and to see some property there which his 
 father had left him. He afterwards left America, to visit 
 different parts of England, Scotland, and the Continent, and 
 to make arrangements to remove part of his property to 
 
21 
 
 America, and on his final return, he commenced drawing his 
 property to the United States, and continued to do so till the 
 day of his death, which was the 23rd of December, 1826; on 
 which day he died at his residence in New York. 
 
 “ He describes himself in his will as “ late of Calcutta, 
 and now of Richmond, in the county and state of New York.” 
 
 “ By his will, he gave legacies to persons then resident, 
 some in Great Britain, some in India, and some in America. 
 He left, personalty, in England, under £10,000; and ; he 
 left legacies to English residents to a considerable amount, 
 probably an amount exceeding £30,000, because there is 
 now appropriated in Chancery a fund for the payment of the 
 legatees to the amount of £33,975. The probate duty has 
 been paid, and a bill has been filed by some of the British 
 legatees for an account; £33,975 has been apportioned 
 between the British legatees; and the question is, whether 
 the legacy duty is payable upon that sum: and upon con¬ 
 sideration we are all of opinion that the legacy duty is not 
 payable. 
 
 “ Upon the facts stated, it seems to us to be clear that he 
 was, at the time of his death, a citizen of the United States, 
 and not a British subject, and his personalty, wherever 
 situated, was to be deemed not British, but American pro¬ 
 perty; and neither himself nor his property were liable, 
 generally, to be bound by British statutes, or to contribute 
 to,the support of the British Government. He was born, 
 indeed, in what, at the time of his birth, was within the 
 British dominions; but upon the treaty between this country 
 and the United States, he had the option of continuing a 
 British subject, if he should elect Great Britain as his country, 
 or of ceasing to be a British subject, and becoming to all 
 intents and purposes an American; and it seems to us that 
 he had made his election for the latter, in 1788, which was 
 after the period at which the treaty between this country and 
 
22 
 
 the United States took place,—he passed as an American —he 
 was so entered in the ship’s hook—he described himself as 
 American in his will, and he is resident in America when he 
 dies. He was not, therefore, liable, nor was his personal 
 property, as it seems to us, liable to the statute of this 
 realm. The Acts of Parliament were not binding upon him, 
 and he had a right to transmit the personal property which 
 he had here, to whom he would, free from every British burden. 
 Had he made foreign executors, and given no legacies except 
 to foreigners, there can be no doubt but that the executor 
 would have been entitled to have removed the whole of the 
 property from this kingdom, and to have paid the foreign 
 legatees in full, without deduction, subject to no burden 
 in this country, except the single burden of the probate duty, 
 which would be imposed upon that portion of his property 
 which he suffered to be in this kingdom. If his executors 
 had been foreigners, or if the legatees had been foreigners, 
 then they would not have been liable to the legacy duty: how 
 can it make any difference that the executor is a subject of this 
 realm? he is merely the medium by which the property 
 belonging to the testator is to be distributed. Can it make 
 any difference that the legatee is a subject of this kingdom ? 
 If the legatee had been a foreigner, he would have got his 
 £100 per cent.; and it is a great discouragement against a 
 testator leaving his property to a British subject that, instead 
 of leaving him £100 per cent., he can only leave him £90 
 per cent., because the residue of the property will be given 
 to persons who constitute the state of this kingdom. 
 
 “ Therefore, upon the principle that he is not a British sub¬ 
 ject, not bound by the laws of this kingdom, and that he is 
 entitled to consider his property, though locally here, as not 
 being British property, but American property, we are all of 
 opinion,'_that the legacy duty in this case is not payable; and 
 the circumstances I have mentioned plainly distinguish this 
 
23 
 
 case from the authorities of the Attorney-General v. Cockerell, 
 and the Attorney-General v. Beatson, and Logan v. Fairlie; 
 for, without expressing any opinion with reference to the 
 two cases lately decided whether the legacy duty would or 
 would not he payable where the testator was a British subject 
 not resident in Great Britain, when he made his will, and in 
 respect of property which he happened to have in this king¬ 
 dom at the time when he made his will, without, I say, ex¬ 
 pressing any opinion upon that question, we are of opinion 
 that the case of the Attorney-General v. Cockerell, and the 
 Attorney-General v. Beatson, and Logan v. Fairlie, are dis¬ 
 tinguishable in this respect: that there the property was the 
 property of British subjects, aud the testators in each of those 
 cases were residents in India, and originally British horn. 
 They were, therefore, liable to be bound by all the Acts of 
 Parliament sufficiently comprehensive to include them, made 
 by the British Parliament, and that, as it seems to us, is not 
 the case with the testator. The legacy duty is in substance a 
 burthen upon the testator’s property, whereas, if he were to 
 be bound by the laws of this country, every £100 which he 
 proposed to give, would pass into the hands of his legatee, 
 whilst a decision that his property was liable to the burdens 
 of this kingdom, would prevent any English legatee from 
 taking more than £90. That, as it appears to us, is not the 
 principle, and would be inconsistent with the principle upon 
 which we think these Acts of Parliament ought to he con¬ 
 strued, we are therefore of opinion, that the legacy duty in 
 this case is not payable, and that the rule must be 
 
 Discharged.” 
 
24 
 
 The above two cases printed in 
 extenso, have been selected as 
 leading authorities on the sub¬ 
 ject of the attachment of legacy 
 duty, since the principle which 
 they must be considered as having 
 established, has governed all 
 subsequent cases of the same 
 nature. Re Ewin, as we have 
 seen, decided that the personal 
 property of a testator dying do¬ 
 miciled in this country, was 
 liable to the payment of the 
 legacy duty, wherever that per¬ 
 sonal property might happen to 
 be, while in Re Bruce, the 
 converse of this proposition was 
 held, namely, that the personal 
 property of a testator, domiciled, 
 and dying abroad, in a foreign 
 country, would be exempt from ' 
 the before-mentioned duty; and 
 in so laying down as law these 
 principles, they impliedly over¬ 
 ruled the cases of The Attorney- 
 General v. Cockerell, decided 
 in 1814, and reported in 1 Price, 
 165. The Attorney-General 
 v. Beatson, decided in 1819, 
 and reported in 7 Price, 560, 
 and Logan v . Fairlie, decided 
 in 1825, and reported in 2 Sim. 
 & Stu. 284. 
 
 Before considering the nume¬ 
 rous cases, with all the various 
 circumstances which attached to 
 
 them, subsequent to Re Ewin 
 and Re Bruce, it has been 
 thought best briefly to review 
 those which have been men¬ 
 tioned as anterior to the two 
 leading decisions, whilst at the 
 same time it is submitted that 
 the judges who decided them, 
 in their anxiety to sustain the 
 fiscal revenue of the crown, 
 overlooked the true principles 
 which their successors have since 
 stated with such clearness, and 
 which now appear to be so 
 founded on simple common sense, 
 that it is somewhat difficult 
 to understand by what exercise 
 of learned subtlety, any other 
 principles could have been laid 
 down, or any other conclusions 
 drawn. 
 
 In the case of The Attorney- 
 General v. Cockerell, 1 Price, 
 165, an information had been 
 filed against the defendant in the 
 Court of Exchequer, at the in¬ 
 stance of the Commissioners of 
 Stamps, for the purpose of taking 
 the opinion of the Court on a 
 question arising on the construc¬ 
 tion of the Legacy Duty Acts. 
 The information stated that the 
 defendant was indebted to the 
 Crowninthesumof£5,466 4s. Sd, 
 he having been acting executor 
 of Alexander Robertson, and 
 
25 
 
 having retained the residue of 
 his testator’s estate for the bene¬ 
 fit of certain parties, strangers in 
 blood, which residue was charge¬ 
 able with certain duties. A case 
 was stated for the opinion of the 
 Court, by which the following 
 facts appeared:—That Alexander 
 Robertson was resident at Cawn- 
 pore, in the province of Ouie, in 
 the East Indies, and died there, 
 having made his will, by which 
 he gave all his real and personal 
 estate to trustees in trust (after 
 making a provision for the mother 
 of his illegitimate children) for 
 such children, and appointed the 
 defendant and others his execu¬ 
 tors ; all his personal property 
 was in India, the will was proved 
 in India, and the executor brought 
 over and had remitted to him the 
 proceeds arising from the sale 
 of such property; it was also 
 stated that in consequence of the 
 death in England of one executor 
 previous to the children attaining 
 the age of 21 years, the other 
 executor took out probate of the 
 will of Alexander Robertson in 
 England, in order to obtain the 
 money due to the estate of the 
 latter from the executors of the 
 deceased executor; and the ques¬ 
 tion was, whether such estate 
 was liable to the legacy duty. 
 
 There was no question raised as to 
 whether or not the estate was to 
 be considered personal: that it 
 was so, was admitted on both 
 sides; and Chief Baron Thomp¬ 
 son, in delivering judgment, dis¬ 
 tinctly declared that the fact of 
 where the property was situated, 
 or where the will was proved was 
 immaterial, as also where the 
 parties lived or died, but decided 
 the question on the ground that 
 the duty clearly attached on the 
 payment of the legacies. The 
 Attorney-General u.Beatson, 
 7 Price, 560, was very similar in 
 its facts to the case just men¬ 
 tioned, with the exception that 
 the information was filed against 
 the executors of the residuary 
 legatee,—a fact of no import¬ 
 ance to the present inquiry. Ad¬ 
 ministration with the will annexed 
 of the original testator William 
 Hope, of Madras, in the East 
 Indies, a native of Scotland, was 
 granted to the residuary legatee 
 by the Prerogative Court of the 
 Archbishop of Canterbury ; and 
 the Court were of opinion that J. 
 Murray, the residuary legatee, 
 having taken out administra¬ 
 tion in England, it was an admin¬ 
 istration in fact and in law, and 
 therefore the testator’s personal 
 estate, having been applied in 
 
England, the whole was liable to 
 legacy duty. 
 
 These two decisions are evi¬ 
 dently founded on the circum¬ 
 stance of the wills having been 
 proved and administered in 
 England; and the money in the 
 hands of the executors or ad¬ 
 ministrators being assets for pay¬ 
 ment of debts and legacies in 
 this country, the Court apparently 
 considering that it was indis¬ 
 pensable for the legatee to give a 
 receipt, requiring a particular 
 stamp, which could not be ob¬ 
 tained except by paying the duty, 
 and the executor having proved 
 the will in Great Britain, where 
 the legatees resided, it was ap¬ 
 parently considered absolutely 
 incumbent on the executor to ' 
 take receipts for his discharge, 
 although in argument it was 
 strongly urged that the legacy 
 duty was not payable on the re¬ 
 ceipt, but on the legacy itself, 
 the simple question being, whe¬ 
 ther or not the particular legacies 
 were legacies within the scope 
 and meaning of the 36th Geo. 
 III., cap. 52(“); and in the last 
 of these cases, i. e. The Attor- 
 (a) Previous to this Act, the duty 
 attached on the instrument itself, but 
 by this Act, the legacy became the 
 guide, although a receipt was still 
 necessary. 
 
 ney-Genbral v. Beatson, the 
 question of domicile was first 
 raised in argument by Mr. 
 Campbell, (the present Lord 
 Chief Justice of England,) who 
 was then at the bar, coun¬ 
 sel for the defendant, although it 
 did not apparently form any part 
 of the case submitted to the Court. 
 
 In the case of Logan v. Fair- 
 lie, 2 Sim. & Stu., 284, though 
 the property was Indian, yet Sir 
 John Leach held the duty payable 
 because the agent in this country 
 of theexecutorin India had autho¬ 
 rity only to pay the legacy to the 
 legatee first entitled, but had no 
 authority, as he supposed, to pay 
 it to those who were to take in the 
 event of the first legatee being 
 dead; therefore the fund beingun- 
 appropriated in India, administra¬ 
 tion was necessary, and so it was 
 decided in favour of the Crown. 
 This doctrine of Sir John Leach 
 was, however, repudiated by Lord 
 Cottenham in 1835, on the peti¬ 
 tion of one of the legatees coming 
 of age, praying that he might be 
 exempt from legacy duty; and 
 the decision of 1825 was express¬ 
 ly overruled, and is reported in 
 1 Myl. & Craig, 59. 
 
 To the principles which govern 
 the law respecting domicile, some 
 portion of this Treatise has been 
 
27 
 
 devoted (see p. 29), so that here 
 it will be only necessary to notice 
 a strong argument against the 
 attachment of legacy duty on 
 legacies left by persons domi¬ 
 ciled abroad; indeed it is im¬ 
 possible to imagine that the 
 legislature in imposing this tax 
 could have meant to extend it 
 to other countries, where it 
 had no jurisdiction; for a tes¬ 
 tator living and dying in India 
 was as little subject to British 
 legislation as if he had lived 
 and died in France ; the Acts of 
 Parliament not extending to the 
 British colonies unless expressly 
 named. At this period, there 
 was such a cohfliction of opinions 
 on the construction of Legacy 
 Acts, that facts relating to the 
 domicile, the place of a testator’s 
 making his will, or the situation 
 of his personal property at the 
 time of his decease, were looked 
 upon as unimportant, it being 
 held that, in all instances, the 
 legatees’ receipt for payment was 
 the guide by which the duty at¬ 
 tached; indeed it seems clear 
 that so little was the question of 
 domicile considered in deter¬ 
 mining the construction to be put 
 upon the Legacy Acts, that it 
 was even doubted whether a 
 native of this country could be¬ 
 
 come domiciled in another; and 
 Mr. Baron Richards, in the case of 
 Attorney-General v. Cock¬ 
 erell, is reported to have solemn 
 ly inquired whether “ It is quite 
 clear that a British subject can 
 be domiciled in India ?” 
 
 The grounds therefore upon 
 which these cases were decided, 
 would seem to have been over¬ 
 ruled ever since the year 1830, 
 by Re Ewen, and 1832, by Re 
 Bruce, (p. 22), in the latter of 
 which cases Bailey, B., says, with¬ 
 out expressing any opinion with 
 reference to the above cases of 
 the Attorney-General v. Cock¬ 
 erell, and the Attorney-Gene¬ 
 ral v. Beatson, or Looan v. 
 Fairlie, “ If the executors had 
 been foreigners, or if the legatees 
 had been foreigners, they would 
 not have been liable to the le¬ 
 gacy duty, and how can it make 
 any difference that the executor 
 is a subject of the realm ? He is 
 merely the medium by which the 
 property belonging to the test¬ 
 ator is to be distributed: can it 
 make any difference that the lega¬ 
 tee is a subject of this kingdom ?” 
 
 It is difficult to conceive how 
 the learned judges could have 
 continued for so long a period to 
 attach so much importance to 
 either the acts of an executor 
 
proving the will, or administering 
 the property in this country, or 
 in taking a receipt from the 
 legatee for such legacy, so as to 
 render a testator’s personal estate 
 subject to the legacy duty ; that 
 is, subsequently to the repeal of 
 the 20th Geo. III., cap. 28; 
 23rd Geo. III., cap. 58; 29th 
 Geo. III., cap. 51. The Legacy 
 Act of 36th Geo. III., cap. 52, 
 by which the former ones were 
 repealed, expressly attaches the 
 legacy duty on the corpus of the 
 sum bequeathed, and not upon 
 the instrument, which a careful 
 perusal of all the Legacy Acts 
 will convince the reader to be 
 the case. It is true that the 27th 
 section of the 36th Geo. III., 
 provides that no legacy liable to 
 duty shall be paid without a re¬ 
 ceipt, &c., which must have meant 
 merely to serve as a criterion in 
 assessing the rate of duty upon 
 such legacy as was liable to be 
 charged on the bequest according 
 to the degree of consanguinity 
 whenever the bequests come 
 within the statute; otherwise, in 
 a case where it might become 
 necessary for either a husband 
 or wife to give a receipt for a 
 legacy, though they are ex¬ 
 pressly exempted by the statute, 
 yet, if a receipt was the true test 
 
 by which the legacy duty was to 
 attach, those parties would by 
 parity of reasoning come within 
 the statute. Before the 36th 
 Geo. III., cap. 52, the legacy 
 duty was certainly an ad valorem 
 duty attaching on the instrument 
 itself, so that if no receipt was 
 given, no duty was payable, and 
 the executor was not at that 
 time compelled to demand, or the 
 legatee to give one. The reason 
 for the 36th Geo. III., cap. 52 
 still requiring a receipt (though 
 the legacy duty, as before stated, 
 attaches on the legacy itself, and 
 not upon the receipt, being 
 merely the instrument by which 
 the payment of such legacy is 
 acknowledged) might have been 
 for the purpose of protecting the 
 revenue, by compelling the ex¬ 
 ecutor to demand, and the 
 legatee to give a receipt, as in 
 ordinary cases, for which receipts 
 are in general given, and this, 
 notwithstanding the legacy did 
 not come within the 36th Geo. 
 III., cap. 52, because, otherwise, 
 if, from circumstances, the duty 
 did not attach upon the legacy, 
 and no receipt was given to the 
 executor administering the per¬ 
 sonal property in this country, 
 then the intention of the legisla¬ 
 ture would, by that omission, be 
 
defeated, so far as losing the 
 duty on payments made in this 
 country to a legatee who was not 
 subject to legacy duty is con¬ 
 cerned ; and as the legislature im¬ 
 posed a stamp duty on a receipt in 
 almost all other transactions for 
 which one is given, the framers 
 of the Act might have intended 
 this when it fixed the legacy duty 
 on the fund itself, hut still re¬ 
 quired a receipt as in the former 
 Acts. Whatever differences of 
 opinion, and doubts might have 
 existed on the true construc¬ 
 tion of the Legacy Acts, par¬ 
 ticularly on the effect of an 
 executor proving or administer¬ 
 ing the property of a testator 
 domiciled abroad, or taking a 
 receipt from the legatee, down to 
 the decision of the Attorney. 
 General v. Beatson, it would seem 
 clear that the question was set at 
 rest in Re Ewin’s case, which, as 
 we have seen, decided in express 
 terms, first, that the Act was 
 confined to Great Britain, and 
 did not extend to the territorial 
 possessions of the Crown in In¬ 
 dia ; secondly, that personal pro¬ 
 perty follows the person, and is 
 not in any respect to be regulated 
 by the situs; and if in any in¬ 
 stance the situs has been adopted 
 as the rule by which the property 
 
 is to be governed, and the fee 
 loci rei site resorted to, it has 
 been improperly adopted. So 
 that it would follow, that, where 
 the domicile of the proprietor is, 
 there the property is to be con¬ 
 sidered as located. And in Rf. 
 Bruce, it was also clearly de¬ 
 cided, that the fact of either prov¬ 
 ing or administering the property 
 in this country did not subject it 
 to the payment of legacy duty, 
 when it would not be otherwise 
 liable. Previous, however, to 
 entering on the consideration of 
 any of the subsequent cases, 
 which were decided on the autho¬ 
 rity of Re Ewin and Re Bruce, 
 and which may be fairly held as 
 expository of the law as inter¬ 
 preted in those two cases, it is 
 desirable to give some clear and 
 definite notion of the law affecting 
 “ Domicile,” since all those cases 
 have been generally decided in 
 respect of property belonging to 
 persons dying beyond the juris¬ 
 diction of the ecclesiastical courts 
 of this kingdom. 
 
 The law upon this important 
 subject has been for so long un¬ 
 settled, and the authorities so 
 varied and numerous, that any 
 attempt to detail the course of a 
 lengthy although intermittent 
 judicial investigation would be 
 
almost endless and entirely fo- 
 reign to the object of this work. 
 It has therefore been the author’s 
 endeavour to confine himself 
 strictly to the different legal in¬ 
 terpretations which have been 
 given to the word Domicile in 
 the abstract; as in reference to 
 cases arising out of the Legacy 
 Duty Acts,, and he has sought by 
 reference to the latest authorities 
 on the subject, to lay before the 
 profession and the public the 
 true and correct meaning of this 
 word in its application to, and 
 connection with those Acts; and 
 in so doing, he does not scruple 
 to admit that he has derived the 
 greatest assistance from, and at 
 the same time made considerable 
 use of, Mr. Justice Williams’s 
 work on the “ Law of Executors 
 andAdministrators," andMr. Jus¬ 
 tice Story’s “ Conflict of Laws.” 
 
 In the popular sense, a man’s 
 domicile is the place where he 
 habitually resides, in other words, 
 his home [see below note (®)]. 
 
 (a) In Durand’s Dictionaire de Droit 
 Canonique, ml. 2 ,p. 381., is the follow¬ 
 ing explanation. 
 
 “ Domicile.esl le lieu ou l’on fait sa- 
 residence: les marques d’un veritable dom¬ 
 icile sont exprimees ainsi par les loix ,— 
 ubi quisquam uxorem, liberos, tabulas, 
 instrumentum rei domesticce habeat, ibi 
 domicilium constituisse existimandus sit. 
 Quamobrem qui figendi ejus animum non 
 
 But the law has attached to it a 
 more strict and confined sense, 
 declaring that there shall be not 
 only a residence, but an intention 
 to remain resident; and if from 
 circumstances such residence be . 
 left, yet if the party have the 
 intention to return, it shall still 
 for all legal purposes be deemed 
 the place of his domicile. Mr. 
 Justice Story, who,in his valuable 
 work on the “ Conflict of Laws,” 
 has collected all the learning of 
 ancient and modern writers on 
 this subject, says, (P) “ that the 
 mere act of inhabitancy in a 
 place does not make such place a 
 domicile, except it is coupled with 
 the animus manendi, and that 
 a temporary absence from home 
 would not be a change of domi¬ 
 cile if there is an animus rever- 
 tendi; there must, therefore, be a 
 substantive fact, and an intention 
 to create that fact, cum neque 
 animus sine facto, nec factum sine 
 animo ad id sufficiat, ( c ) the one 
 habent, sed usds, necessitatis, aut negotia- 
 tionis causa aliunde sint protiniis a negotiis 
 discessuri, domicilium nullo temporis spa- 
 tio constituent. Ciim neque animus sine 
 facto nec factum sine animo, ad id suffi¬ 
 ciat,”—and it continues “ ce n’est pas 
 asses de demeurer sur une paroisse d’une 
 maniere indeterminee, mais il faut y etre 
 avec intention d’y— demeurer ou toujours, 
 ou le temps marque par les lois, dupays.” 
 
 (b) Page il. 
 
 (c) Durand’s Die. ante, note (a) 
 
31 
 
 being the residence, the other, 
 the intent to remain resident. 
 
 . Now in all cases where the 
 application of a word having a 
 strict legal signification, depends 
 upon such evidence as that of 
 intention ,—there will always be a 
 great variety of cases in which 
 the definition followed may be 
 apparently at variance with that 
 laid down in the abstract; but it 
 is submitted that upon a careful 
 investigation, it will generally 
 be found that the supposed 
 variances exist not in the meaning 
 given to the word, but rather in 
 the application of the evidence 
 (varied as necessarily all proof of 
 intention must be) to meet the 
 definition which is on all hands 
 admitted to be correct; it be¬ 
 comes, therefore, a task of the 
 greatest difficulty, in deciding 
 cases upon facts, to adhere strictly 
 to any abstract definition, by 
 that it is meant that it is in every 
 case almost impossible to say 
 such and such facts make up 
 sufficient to support the meaning 
 given to what may be very 
 properly called a vocnbulum artis, 
 or word of art, when, perhaps, 
 there appear other facts which go 
 towards extending the strict and 
 confined meaning, and which to 
 some minds may have the effect 
 
 of entirely controlling or altering 
 it. These remarks are intro¬ 
 duced with a view to explain 
 many of the apparent inconsist¬ 
 encies which appear in the judg¬ 
 ments of the many learned per¬ 
 sonages on this subject. 
 
 It is now established beyond 
 all doubt, that the general (fl). or 
 special law of the country in 
 which the domicile of a party 
 dying testate (or intestate) may 
 happen to be, is to regulate 
 the succession to, or distribution 
 of the personal estate of such 
 party ;(5) and this rule may be 
 considered by analogy as founded 
 on the principle which has been 
 laid down with respect to con¬ 
 tracts, namely, that they are to be 
 expounded according to the lex 
 loci, or law of the place in which 
 they. are made ; in the former 
 
 (а) The words “ general or special” 
 are here made use of by way of 
 explanation, inasmuch as in some 
 countries the wills of foreigners, as well 
 as natives, are subject either to the 
 general law, or to some particular 
 regulations on the subject; such, for 
 instance, as that wills of foreigners 
 shall be attested, administered, or 
 interpreted according to the law of 
 their respective countries, &c. See also 
 Williams on Exors., p. 306,4th edit. 
 
 (б) On Price v. Dewhurst, 8. Sim. 
 279—s. c. 4 My. & Cr. c. 76-82; 
 Yates v. Thompson, 3 Cl. & Fin. 
 544. Anstruthuro. Chalmer,2. Sim, 1. 
 
32 
 
 case the jus domicilii is to go¬ 
 vern, in the latter, the lex loci 
 contractus. 
 
 That the word “Domicile” 
 must here he taken in its strict 
 legal sense, is quite clear, since 
 in the Duchess of Kingston’s case, 
 referred to in Curling v. Thorn¬ 
 ton, (o) it appears that the will 
 was admitted to proof in Eng¬ 
 land, although she resided in 
 Paris, under letters patent, regis¬ 
 tered in the Parliament of Paris, 
 on the ground that there was no 
 evidence of an abandonment of 
 her English domicile, or any of 
 sufficient weight to justify the 
 presumption that her residence 
 in Paris was of the nature of a 
 new domicile. 
 
 It will be found that there are 
 generally admitted to he three 
 methods of acquiring Domicile: 
 in the language of Mr. Justice 
 Story, in the work before re¬ 
 ferred to, there is a " domicile by 
 birth,” a “ domicile by choice,” 
 and a “ domicile by act and oper¬ 
 ation of law” the first is the 
 ordinary case of the place of 
 birth, and which, with some 
 limitation, which will be ob¬ 
 served on presently, is that which 
 is usually termed the domicilium 
 
 originis; the second, is that which 
 is voluntarily expired by a party 
 propiomarte; and the last is con¬ 
 sequential, as that of the wife’s, 
 arising from marriage. 
 
 Bearing then in mind the prin¬ 
 ciple that all personalty is in the 
 eye of the law, considered as part 
 and parcel of the person, having 
 no situs or separate local habita¬ 
 tion distinct from that of the 
 person, W and is not in any case 
 regulated by the lex loci rei sitie, 
 and that the distribution of all 
 personal estate is, as has been 
 before said, regulated by the law 
 of the country in which the party 
 is domiciled, and that it is quite 
 immaterial where he was born, 
 where his property is situated, 
 or where he died, so long as any 
 or either of theseM shall not be 
 
 (J) In Be Ewin, 1 Cr. & Jir., 156, 
 and Doe «. Vardille, 5. B. & C. 438 
 et seq. Mobilia sequunter personam 
 etejiis ossibns adheerunt. See Harvey 
 v. Richards 1. Mason R. 412. M. J. 
 Bayley in Be Ewin, 1 Cr. & J. 156. 
 In this case it was decided that legacies 
 left by a person having stock in foreign 
 funds, but domiciled in England, was 
 liable to legacy duty under 36 Geo. III. 
 cap. 52. And per Abbott C. J. in 
 Doe d. Birtwhirlle w. Vardille, 5. B. & 
 C. 438.451.452. 
 
 (c) This Rule is laid down by Lord 
 Thnrlow in Bruce v. Bruce, and Lord 
 Longboroughin Ommaney o.Bingham, 
 and recognised by Lord Alvanley in- 
 
 (a) 2 Addam’s Ecc. Rep. 17. 
 
33 
 
 identical with his domicile. It is 
 easy to understand the impor¬ 
 tance attaching to an accurate 
 knowledge of what that same law 
 considers the habitation, i. e. the 
 domicile of the person. Upon 
 a question, therefore, arising, 
 as to whether certain personal 
 property is liable or not to the 
 duties imposed by the Legacy 
 Duty Act, the first fact to be 
 ascertained is, the domicile of the 
 testator, and this can only be 
 ascertained by inquiring into the 
 nature and character of his re¬ 
 sidence, which, prima facid, is 
 his domicile until the contrary be 
 shewn/ 0 ) 
 
 The following remarks on this 
 subject are intended to aid this 
 inquiry, and may be taken as the 
 results of a careful examination 
 of reported cases. 
 
 By Birth. A party has a domi¬ 
 cile, and it matters not whether 
 his or her parents are foreigners, 
 so long as they are residents in 
 England, with an intention to 
 remain ; for such persons are 
 looked upon by the law as in- 
 
 Somerville v. Somerville, 5 Ves. P. 
 787. 
 
 (a) Bempde v. Johnson,3Ves. 201, 
 202, by Lord Loughborough; Bruce 
 v. Bruce, 2 Bos. & Pull, 228, note id., 
 230; Stanley v. Bernes, 3 Hagg. Ecc. 
 
 R. 374. 
 
 habitants, and their children 
 would be considered indigene, 
 subjects born, in other words, 
 citizens of the country in which 
 they are born /*) consequently, 
 their domicile becomes the domi¬ 
 cile of their children/ 0 ) until 
 such children attain the age of 21 
 years, i. e., become sui juris, 
 when being considered as capable 
 of exercising a will upon the sub¬ 
 ject, they are at liberty to change 
 and adopt any other domicile they 
 please.W In the case of found¬ 
 lings, when their parents and 
 place of birth are unknown, it is 
 presumed that their domicile 
 would be considered the place 
 where they were found. Birth- 
 domicile must, however, be taken 
 with some slight limitation; for 
 instance, the parents may have a 
 domicile distinct from the birth, 
 place of their child, as, if the 
 child be born while the parents 
 are, in itinere, or sojourning tem¬ 
 porarily with an intention to re¬ 
 turn to their original domicile, 
 then the child’s domicile is not 
 the place of its birth, but is iden- 
 
 (6) Coke Litt. by Thomas, p. 90, 
 and 2 Steph’s Black, p. 427. 
 
 (c) 2 Hagg. Ecc. Rep., 405. 
 
 (rf) Per Master of the Rolls in So¬ 
 merville v. Somerville, 5 Ves. 787, and 
 see also Pottinger v. Wightman, 3 
 Mer. 67. 
 
34 
 
 ■tical with that of its parents.(°) 
 Again, if the child be illegitimate, 
 the domicile of the mother pre¬ 
 vails, and the same rule prevails 
 in case of thefather dying, so long 
 as the mother remains a widow 
 and has charge of the infant ;( 6 ) 
 but this proceeds from the fact 
 that a widowretainsherhusband’s 
 domicile until she changes it by 
 her own will, or by marrying 
 again ; and it is very questionable 
 whether her children would not, 
 in the latter event, retain their 
 deceased father’s domicile; so 
 that in fact, it is only when the 
 domicile of the parents happens 
 to be also the birth-place of the 
 child, that this first division, 
 which Mr. Justice Story has 
 created, exists, and that the mere 
 place of birth of itself never does 
 constitute a domicile, or, in truth, 
 in any degree, affect it.(°) 
 
 By Choice. We have seenW 
 that a domicile, other than the 
 domicilium originis, may be ob¬ 
 tained by all persons of full age, 
 
 (а) Somerville v. Somerville, 5 Ves. 
 760; 787. 
 
 (б) See Johnstone v. Beattie, 10; Cl. 
 & Fin. 66,138, per Lyndhurst C. and 
 Lord Campbell; also Story’s Conflict 
 of Laws, see. 606., note I., & Pottin- 
 gcr v. Wightman, 3 Merivale, 67. 
 
 (c) See last cited case, p. 786, per 
 Master of tbe Bolls. 
 
 (d) Page 33, ante. 
 
 sui juris, and to this general and 
 now universally admitted pro¬ 
 position there are no limitations 
 of any importance, except the 
 two which are now going to be 
 mentioned: first, there must be a 
 total and complete abandonment 
 of the former domicile, and the 
 adopted one must be the result 
 of a voluntary act. Sir John 
 Nicholl, in the case of Curling 
 v. Thornton, ( e ) lays down the 
 former of these rules, and the 
 latter requires no distinct autho¬ 
 rity, since it must be recognised 
 in the principle, viz., that inten¬ 
 tion animus is one of the neces¬ 
 sary ingredients, as it were, of 
 domicile; and however much a 
 superior power may force the 
 body, yet it is impotent on the 
 mind. 
 
 ■ It is true that the same learned 
 judge above referred to, doubted 
 whether a British subject was 
 entitled so far, exuere patriam, as 
 to abandon his British domicile, 
 (/) but the case of Stanley v. 
 Bernes,®) virtually resolved these 
 
 (e) 2 Addams’Eec. Bep., 17. 
 
 if) It is very possible that Sir John 
 Nicholl had in his mind the law affect¬ 
 ing what may he termed the domicile' 
 of allegiance, under which it will be 
 found that a British subject is unable 
 by his own voluntary will and pleasure 
 to shake off his natural allegiance. 
 
 ( g) 3 Hagg. 374; 1 Hale, P. C. 68. 
 
35 
 
 doubts by deciding that the will 
 of a British subject, domiciled 
 in Portugal, but not executed in 
 conformity with the laws of that 
 country, was not entitled to pro¬ 
 bate in England, thus virtually 
 admitting that the principle of 
 domicile was, in its very nature, 
 dependant on the will of an indi¬ 
 vidual having capacity, (i. e. being 
 sui juris) and independent of any 
 duty or obligation which it might 
 be supposed an individual owed 
 to his country, and which the 
 laws of such country had recog¬ 
 nised or sanctioned. 
 
 Noth withstanding an abandon¬ 
 ment of the domicile of origin, 
 and the election of a new domi¬ 
 cile, i. e. one of choice, it is yet 
 possible to re-acquire the former 
 by abandonment, ammo et facto, 
 of the latter. (“) 
 
 By Operation of Law. —The mar¬ 
 riage of a woman is the best 
 illustration of how a domicile 
 may be acquired by act and 
 operation of law, since by mar¬ 
 riage a woman loses her domi- 
 cilium originis, or if she be a 
 widow, her late husband’s domi¬ 
 cile, or any other which she may 
 have adopted by choice since his 
 
 (a) Craigie v. Lew, 3 Cart., 435, re¬ 
 ferred to in Wins. on Executors, p. 
 1304, 4th edit. 
 
 death. So again, should the 
 husband become insane, or com¬ 
 mit any crime of the nature of 
 felony, for which he should be 
 transportedorotherwisepunished, 
 it is submitted with confidence 
 that the wife might select a new 
 domicile differing from that of her 
 husband, who would not how¬ 
 ever, lose his original domicile, 
 or acquire a new one in the place 
 where his punishment might 
 happen to locate him, since an 
 occupation bv constraint cannot 
 of itself, be considered sufficient 
 to confer a domicile. 
 
 In the case of divorces, a mensd 
 et tkoro et vinculo matrimonii, a 
 question might arise as to whe¬ 
 ther or not they operated so as 
 to relieve the wife from the domi¬ 
 cile of her husband, and allow 
 her to acquire another by choice, 
 looking at the different legal 
 effects of the two kinds of divorce, 
 and in the absence of any direct 
 legal authority upon the subject, 
 it might with confidence be 
 argued that the divorce, a mensd 
 et thoro, merely operating as a 
 separation, did not destroy tbe 
 marital relations of the parties 
 towards eachother otherwise than 
 by permitting them to live apart 
 from each other, and conse¬ 
 quently the legal inference would 
 2 
 
be, that, notwithstanding the dif¬ 
 ference of residence, the domicile 
 of the husband would still con¬ 
 tinue that of the wife; whereas, 
 a divorce, a vinculo matrimonii, 
 not only effected a separation, 
 but severing entirely the matri¬ 
 monial relation, leaves each party, 
 to all intents and purposes, sole 
 and free to follow the bent of 
 his or her inclinations, and under 
 such circumstances it is sub¬ 
 mitted that the maiden, or ori¬ 
 ginal domicile of the wife, would 
 revert to her/®) 
 
 Minors and illegitimate chil¬ 
 dren, are other instances under 
 this head, and they have already 
 been noticed. See " By Birth,” 
 ante, p. 33. 
 
 With respect to a party having 
 two domiciles. In the case of 
 Somerville v, Somerville,(*) 
 the Master of the Rolls expressly 
 observes, that the idea of a 
 man having two domiciles for 
 the purposes of succession^) is 
 monstrous, although he seems to 
 think that for some purposes a 
 man may have two domiciles. 
 If such a case were to present 
 
 (a) See the cases upon which this 
 view is taken; cited by the Court in 
 Whitcomb v. Whitcomb, 2 Cur. Re¬ 
 ports, 352. 
 
 (5) 5 Vez. 787. 
 
 (c) Kent’s Commen.Bk. 37, sec. 4 n. 
 
 itself, it is probable that the 
 Courts would be inclined to think 
 that it would arise rather from the 
 abuse of the meaning of the word 
 domicile, than from any true ap¬ 
 plication of the principles upon 
 which its real meaning is founded; 
 the idea of two contemporaneous 
 and concurrent domiciles is plainly 
 negatived by Bayley B., in re 
 Bruce, 2. C. & J., 445 ; he says: 
 " He might have two domiciles ; 
 " he might have a domicile ori- 
 " ginally, and another domicile 
 “ by reason of habitation in In- 
 " dia for a considerable time. 
 " But unless he had abandoned 
 “ the original domicile, his having 
 " acquired a second domicile in 
 “ India would not get rid of 
 " the first domicile ;”( d ) thereby 
 clearly showing that he uses the 
 word domicile more in its mean¬ 
 ing of residence or habitation, 
 without regard to its strict legal 
 definition; for if the habitation 
 in India had been animus ma¬ 
 nendi, then a new domicile, pro¬ 
 perly so speaking, would have 
 been created, and the former 
 one abandoned. 
 
 And this view is further 
 strengthened by what Sir John 
 Nicholls says in Curling u. Thorn- 
 
 (d) See also Doe d. Thomas et Uxor. 
 v. AckIam,2B.&C.779. 
 
37 
 
 ton, reported in Addams’ Ecc. 
 Reports, 17, speaking of an 
 abandonment of domicile, “ The 
 only abandonment of his forum 
 originis by a British subject, 
 which is adequate to this effect 
 must be a total and complete one; ” 
 and he then goes on to doubt, 
 whether or not there could be 
 such a total and complete aban¬ 
 donment; it is clear therefore from 
 this statement, that in his mind 
 he had no doubt whatever but 
 that a total and complete aban¬ 
 donment of one domicile was, as 
 it were, a condition precedent to 
 the acquirement of another, Du¬ 
 rant, in his Dictionary, to which 
 allusion has already been made, 
 savs that by “ La loi, 6 ff. ad muni- 
 dp, c’est decide qu'une personne 
 peut avoir deux domiciles. Cepen- 
 dant Brodean sur Louet Lett. c. 
 s. 17, dit que moribus nostris l’on 
 ne peut avoir qu’un domicile; 
 
 ET IL PARAIT EN EFFET que 
 
 quoique par la loi cited ud municip. 
 il soit permis d’ avoir deux domi¬ 
 ciles, la loi cives et moolis nous 
 fait entendre qu’il ne peut jamais 
 y en avoir qu’un seul principal, 
 vbi larem rerum ac fortunarum 
 suarum summam constituit. 
 
 It is often a question of very 
 great difficulty to determine the 
 precise domicile of a person; by 
 
 the very nature of his occupa¬ 
 tions he may be at one moment 
 in one place, and at another 
 moment in another, having no 
 fixed and determinate residence 
 or habitation, or he may have 
 two residences, in both of which 
 he may have the intention of 
 continuing ; for instance, he may 
 reside at one place, and carry on 
 his business at another, occa¬ 
 sionally sleeping and dwelling at 
 both, or he may have several 
 places of business; in all these 
 and similar cases it would be by 
 no means an easy task to say 
 what his intentions are ; indeed it 
 has been said that a man in 
 transitu can have no domicile ; 
 but it is submitted that such a 
 dictum is unsupported by any 
 adjudged case, besides being at 
 variance with the definition which 
 has been given of the word itself, 
 and decidedly a contradiction of 
 the rule, which is, that the domi- 
 cilium originis cannot be lost 
 until there has been a total and 
 complete abandonment of it,(°) for 
 it is now settled that it is im- 
 
 («) Munroe v. Douglas; S Had¬ 
 docks, Y. C. Rep., p. 379; it is dis¬ 
 tinctly said by the Vice-Chancellor that 
 an acquired domicile remains until a 
 subsequent domicile be acquired. See 
 also case of Guier v. O’Danicl, 1. Bin- 
 ncy’s Hep., 348. 
 
possible for a man to have no 
 domicile. Now as the only evi¬ 
 dence of this complete abandon¬ 
 ment would be the acquirement 
 of a new domicile, it follows that 
 until a new one has been actually 
 acquired, ammo et facto, the ori¬ 
 ginal domicile continues.! 0 ) If, 
 however, a man has his place of 
 business in one place, and his 
 family in another, then the latter 
 will be considered his domicile, 
 although he may have precisely 
 the same intentions of continuing 
 in both, and although he exercise 
 the duties of a citizen in both.! 6 ) 
 
 It is certain, also, that mere 
 time, without evidence, of inten¬ 
 tion, is insufficient to create a 
 
 (а) Bruce v. Bruce, 2 Bos. & Pull. 
 228. 
 
 (б) Sec case 5 Yes. 788,789,790. 
 
 domicile ; all that can be said on 
 this point is simply, that a pro¬ 
 tracted residence in a place, is 
 presumptive evidence of domicile, 
 and in the case of Stanley v. 
 Bernes,W it was held that the 
 residence of Mr. Stanley, for 
 fifty years in Portugal, out¬ 
 weighed his own declarations; 
 that he always intended to re¬ 
 turn to England: but this de¬ 
 cides after all nothing more hut 
 that the Court thought a resi¬ 
 dence of fifty years, under the 
 particular circumstances of the 
 case, was sufficient to presume an 
 acquired domicile, and did not 
 think the declarations of the 
 party himself sufficient to rebut 
 the presumption which such a 
 lengthened residence raised. 
 
 . (c) 4 I-Iagg. Ecc. Rept., 346. 
 
BY APPEAL FROM THE COURT OF EXCHEQUER 
 IN SCOTLAND TO THE HOUSE OF LORDS, 
 
 IN 1842-1845. 
 
 John Thomson, Attorney, for the Executors of John Grant, 
 late of Demerara, deceased, Plaintiff in Error; Her 
 Majesty’s Advocate-General, Defendant in. Error. 
 
 Personal property having no situs of its own, follows the domi¬ 
 cile of its owner. 
 
 The law of the domicile of a testator or intestate decides whether 
 his personal property is liable to legacy duty. 
 
 A British born subject, died, domiciled in a British Colony. • At 
 the time of his death he was possessed of personal property locally 
 situate in Scotland. Probate of his will was taken out in Scotland, 
 for the purpose of there administering this property : and out of the 
 fund thus obtained by the executor, legacies were paid to legatees 
 residing in Scotland. 
 
 Held, reversing a judgment of the Court of Exchequer in Scot¬ 
 land, that Legacy Duty was not payable in respect of these legacies. 
 
 12 Clark & Fimielly, 1. 
 
 John Grant, a British-born subject, and Native of Scotland, 
 made his will in 1829, and died in 1837. At the time of his 
 death he was domiciled in the British colony of Demerara, 
 where the law of Holland was in force. There is not any 
 local duty in the nature of legacy duty payable in that 
 colony. 
 
 At the time of the death of John Grant, he was entitled 
 to a large personal debt due to him in Scotland, which arose 
 from money acquired by him whilst domiciled in Demerara, 
 and transmitted by him to Scotland for safe custody. After 
 his death, John Thomson took out probate of his will, so 
 far as related to the debt in Scotland, and there, from money 
 arising from the said debt, paid in pursuance of the will, 
 
40 
 
 certain legacies, above the amount of twenty pounds, and 
 paid over the rest as part of tbe residue of tlie personal 
 estate of John Grant. 
 
 In July, 1840, an information in debt, setting forth these 
 facts, was filed in the Court of Exchequer in Scotland, by 
 her Majesty’s Advocate-General against John Thomson, 
 who appeared and put in a general demurrer, on the ground 
 of insufficiency. Joinder in demurrer. The demurrer came 
 on for argument upon the 29th January, 1841, before the 
 Court of Exchequer in Scotland, and the only question raised 
 was, whether the fact of the domicile of Grant in Demerara, 
 prevented the legacy duty (under the 55th Geo. Ill, cap. 
 184, Schedule, part 3M ) .from attaching on his personal 
 property in Scotland. The Court of Exchequer took time 
 to consider, and on the 10th February following, overruled 
 the demurrer, and gave judgment for the Crown.® 
 
 A writ of error was brought on this judgment. The 
 case was argued in 1842, by Mr. Pemberton and Mr. Ander¬ 
 son, for the plaintiff in error; and by the Solicitor-General 
 (Sir W. Follett) and Mr. Crompton, for the defendant in 
 error. It was then directed by their Lordships to be argued 
 before the Judges by one counsel on a side. This argument 
 did not take place till February, 1845, when the case was 
 argued by Mr. Kelly (with whom was Mr. Anderson ) for the 
 plaintiff in error: and by the Solicitor-General (Sir F. 
 Thesiger, with whom was Mr. Crompton) for the defendant 
 in error. 
 
 Mr. Pemberton and Mr. Anderson for the plaintiff in 
 error.—The question here is the same as if the party was 
 
 . (a) Which declares that duty shall be payable “ for every legacy, specific 
 or pecuniary, or of any other description, of the amount of 201. or upwards 
 given by any will or testamentary instrument of any person out of his or her 
 personal or moveable estate, or charged upon his or heritable estate,” &c. 
 
 (6) 3 Dunl., Bell, Mur. & Dona., 1309. 
 
41 
 
 an English subject, and the property had been transmitted 
 from Demerara to England. That question is whether the 
 legacy duty is payable in any case except where the party is 
 domiciled in one part of the United Kingdom. It is now 
 settled by this House that personal property has of itself no 
 situs, that it must follow the domicile of the owner. That 
 principle applies to this case, and defeats the claim of legacy- 
 duty. The Attorney-General v. Forbes /“> and Pipon v. 
 Pipon are in point. When Logan v. Fairlie (cl was first 
 decided, the great principle on which these cases depend was 
 not understood. It is not true, as there stated, that admi¬ 
 nistration must be taken out in England in order that the 
 personal property in England of a testator domiciled abroad, 
 should be administered here. [Lord Campbell. —In that 
 case the principle of domicile was not applied.] It was not. 
 That case was decided on the supposed authority of the 
 Attorney-General v. Cockerell,® and the Attorney-General v. 
 Beat son.^ Lagan v. Fairlie, was in substance reversed in 
 the case of Arnold v. Arnold,^ by Lord Chancellor Cotten- 
 ham. And the Attorney-General v. Cockerell was distinctly 
 reversed in the Attorney-General v. Forbes.® In re 
 Ewin® was exactly the converse of this case. That case 
 shews that if a party is domiciled in England, he pays legacy 
 duty on personal property situated abroad. The domicile 
 gives the law. The property there had not even been 
 transmitted to this country, and yet the duty was held 
 payable, because the party was domiciled here at the time 
 of his death. That case clearly establishes that personal 
 property for all purposes whatever follows the domicile of the 
 
 (ffl) Clk. & Fin. Vol. II., p. 48. (b) Ambler, 26. 
 
 (c) 2 Sim. & Stu., 284; 1 Myl. & Cr., 59. 
 
 (d) 1 Price, 165. (e) 7 Price, 560. (/) 2 Mylnc & Cr., 256. 
 
 (ff) Clk,& Fin.Yol II., p. 48 ; nom. Att.-Gen. o. Jackson, 8 Bli., tV. S., 15. 
 
 (/i) 1 Cr. & Jer., 151; 1 Tyr., 92. 
 
42 ' 
 
 owner. [The Lord Chancellor. —It was treated there precisely 
 as if it was money in the different countries abroad. But 
 the administrator had dealt with it in England.] Not quite 
 so ; the case is still stronger, for he had taken measures for 
 the very purpose of avoiding the payment of legacy duty, by 
 not dealing with it, but transferring it by means of foreign 
 powers of Attorney. In the case of In re Bruce,^ it was 
 held that the property of an American citizen, situated in Eng¬ 
 land, the testator dying abroad, was not liable to legacy duty. 
 The only distinction between that case and the present is, 
 that the party there was a foreigner: he having, upon the 
 peace which followed the American Revolution, elected to be 
 an American, and not a British subject. In all other 
 respects that case is identical with the present. That dif¬ 
 ference alone does not affect the principle on which this 
 case is to be decided. The next case is that of Logan v. 
 Fairlie ,W upon its second discussion. There it was argued 
 that Attorney-General v. Forbes had overruled the decision 
 previously given in that case by the Vice-Chancellor. On 
 the other hand it was answered that the Lord Chancellor, in 
 the House of Lords, had expressly declared that that case 
 did not overrule any of the previous cases. But the Lords 
 Commissioners, in deciding the case then before them, treated 
 the previous decision as in substance overruled, and the 
 domicile of the party was held to settle the law as to the 
 administration of personal property, and therefore as to the 
 duty which was payable on it. Arnold v. Arnold M is 
 exactly in point with the present case. There the party was 
 a British subject domiciled in India, and the property had 
 been remitted to England, and the legacy duty was held not 
 to be payable. [Lord Campbell. —It seems to be assumed 
 
 (a) 2 Cr. Sc Jer., 43G; 2 Ty.\ 475, (b) 1 Myl. & Cr,, 59. 
 
 (e) 2 Myl. & Cr., 256. 
 
43 
 
 there that an Englishman who holds in India a civil or military 
 appointment, acquires thereby an Indian domicile. But has 
 that been decided?] There has been no direct decision to 
 that effect. The latest case is that of The Attorney-General 
 v. Dunn,® and there legacy duty was held to be payable 
 because circumstances did not shew that the deceased had 
 obtained a foreign domicile; and his English domicile was 
 therefore held to remain. The doubts there hinted at do not 
 affect the decision. Then came In re Coates, ® and there 
 the legacy duty was held to be payable because the testator 
 was domiciled in England at the time of his death, and that 
 domicile affected his foreign property. 
 
 The question of domicile is that alone on which these cases 
 depend; and it must be so, for personal property having of itself 
 no situs, the moment you get the domicile of the party, you 
 get the situs of the property. This case was expressly decided 
 on the erroneous notion that the principle that personal pro¬ 
 perty has no situs of its own was not applicable. The duty 
 must be payable according to the law which regulates the 
 succession of the property. The law of succession of personal 
 property is that of the domicile of the party leaving it. Is 
 the property of the testator to pay legacy duty both in the 
 country where it is situated, and in that in which the testator 
 dies, or only in the country where the property is situated? 
 and, if the latter, how is the property to be calculated, and 
 how is the duty to be apportioned ? There would be im¬ 
 measurable difficulties attending the application of a rule 
 subject to so many variations. The only sensible rule is to 
 make the property subject to the duty, which the law of the 
 domicile of the testator indicates. 
 
 The Solicitor-General (Sir W. Follett,) and Mr. Cromp¬ 
 ton, for the defendant in error.—This is the first time in 
 
 (a) 6 Mee. & Weis. 511. 
 
 (6) 7 Mee. & Weis. 390. 
 
44 
 
 which mere domicile has been put forward as entirely de¬ 
 ciding the question of the liability to legacy duty. The 
 party here has the burden of the execution of the will cast 
 upon him, and in respect of that burden the legacies he pays 
 must be subject to legacy duty. The words of the 36th Geo. 
 III., cap. 52, shew this. [Lord Campbell .—You say that 
 the statute attaches on the executor. Then you must make 
 a partition. You cannot say that the statute attaches upon 
 him in respect of property over which it does not give him 
 control. You cannot say that the property abroad must pay 
 English duty.] The statute has not imposed the duty on 
 such property. It is the property which he deals with under 
 the English law that is liable to duty. Before the 36th Geo. 
 III., cap. 52, the legacy duty was only a receipt tax. That 
 speaks decisively as to the place where the duty was to be 
 paid; namely, where the legacy was paid by one party and 
 received by another. In some respects that is kept up by 
 the 27th sec. of the 36th Geo. III., where a receipt is still 
 required to be taken. The case of In re Bruce M is no autho¬ 
 rity the other way; for there the testator was a foreigner. 
 [Lord Campbell .—Then you rely on the circumstance that 
 the testator in this case was an English subject.] That is so. 
 The property of a British subject is, under the clear and 
 comprehensive expressions of the statute, liable to legacy. 
 But there is no reason why the property of a foreigner, 
 situated in this country, should not pay legacy duty. It is 
 administered here, and is, therefore subject to duty. In 
 Logan v. Fairlie , (4) the decision by the Lords Commis¬ 
 sioners proceeded on grounds that by no means affect the 
 present case. That case was much relied on in Arnold v. 
 Arnold, which, for the same reason, is not applicable here. 
 Both proceeded on the question of appropriation of the 
 
 («) 2 Cr. & Jer., 430. 
 
 (J) 1 Myl. & Cr., 59. 
 
45 
 
 money. Tlie introduction of the question of appropriation 
 shews on what the payment of the legacy duty must depend. 
 
 It depends entirely on the place where the will is adminis¬ 
 tered, and where the executor takes on himself the burden of 
 that administration. In the present instance that place was 
 Scotland, and the Scotch law, therefore, attached upon it. 
 
 The Lords, interrupting the argument, intimated that 
 as this was a case of considerable importance, affecting the 
 whole empire, it ought to be argued in the presence of the 
 Judges; but the argument must then be by only one counsel 
 on a side. 
 
 This further argument took place on the 17th February, 
 1845, when Lord Chief Justice Tindal, Justices Maule, Colt- 
 man, and Creswell, and Barons Parke, Rolfe, and Platt 
 attended the House. 
 
 Mr. Kelly (with whom was Mr. Anderson, for the plaintiff 
 in error.)—The domicile of the testator or intestate decides 
 the question whether the legacy duty is or is not payable. 
 In this case the domicile was at Demerara, where, by the law 
 of the colony, no legacy duty is payable. None therefore ' 
 can be demanded. It will be contended for the Crown that 
 the duty is payable because the testator was a British subject, 
 and that the very general and extensive words employed in 
 the statute embrace such a case as the present. It will 
 further be argued, that as the property was in part at least 
 locally situated in this country, the duty attaches upon it; 
 but it is submitted that the situs of the property does not in 
 the least degree affect the question. 
 
 As to the first point, the words of the statute are con¬ 
 fined to the wills of persons domiciled in Great Britain, and 
 do not apply to the wills of persons domiciled either in 
 Ireland or the colonies, and cannot certainly apply to the 
 wills of persons domiciled in foreign countries. The words 
 of the statute, however extensive, are not of universal appli- 
 
46 
 
 cation. To make all these classes of persons subject to the 
 duties imposed by the statute, they should have been ex¬ 
 pressly named in its provisions. That has not been done, 
 and they cannot by mere implication he rendered liable 
 to burdens of this sort. The decision now impeached 
 would, if maintained, operate as a premium on fraud. The 
 legacy duty is claimed because it is said that the debts in 
 Scotland due to the deceased constituted personal estate, to 
 obtain which it was necessary to put the law in motion. 
 Had the Scotch debtors acted honestly, they would have 
 remitted the money to Demerara without the intervention of 
 the law, and according to that argument, no legacy duty 
 would then have been payable. 
 
 It cannot he said that the duty payable under this statute 
 is payable upon legacies under wills made in Ireland, for if 
 so, such legacies would have to pay duty twice over, since 
 there is a separate Act of Parliament imposing a duty on 
 legacies in Ireland. Nor can it be contended that because 
 the testator was a British subject, his property in Demerara 
 ' was liable to this duty, for that would be to levy a tax in the 
 colonies under the authority of an English Act of Parliament, 
 a right to do which has been distinctly and formally dis¬ 
 claimed by the Crown. If the duty attaches at all in this 
 case, it does so only upon the property in this country. But 
 even that ground of liability cannot be insisted on. In the 
 first place, the Act makes no distinction as to parts of the 
 property. It does not declare that one part here shall pay, 
 and another part, situated elsewhere, shall not pay. It 
 makes the whole of the personal property liable together, and 
 in respect of one and the same title. Suppose a man to die 
 in Demerara, and to leave 40,000/. of personal property ■ that 
 of that sum 20,000/. were in Demerara, and 20,000/. were in 
 this country; and, suppose the executor to come to this 
 country to realize the money here, how is the government to 
 
47 
 
 apportion the duty, when the legacies are paid as much out 
 of the Demerara as out of the English funds. The statute 
 has not provided for any such case. The liability to prohate 
 duty is altogether a different matter, for no doubt wherever 
 the party takes out a probate, he must pay the duty upon it. 
 The cases of Thorns v. Watkins,W and Pipon v. Pipon , (4) 
 explain the confusion, which, upon this point, has arisen in 
 the argument on the other side. So that on the terms of 
 the statute itself it is contended' that this duty is not payable. 
 
 Then as to the authorities: The Attorney-General v. 
 Cockerell , w and the Attorney-General v. Beatson ,<*> can no 
 longer be considered as law. The case of In re Ewin 
 clearly settles that the local situation of the property does 
 not affect the question. [The Lord Chancellor. —In the case 
 of Jackson v. Forbes,(f) the property at the time of the death 
 of the testator was in this country ; in Eivin’s case it was in 
 the funds of four different foreign countries, so that, putting 
 the two cases together, the circumstances are exactly what 
 they are here.] That is so, and taking the cases together, 
 they form a complete answer to the claim set up here. The 
 words of the Act cannot apply to all persons whatever. They 
 must be limited in some way: then how are they to be 
 limited ? The authorities shew that they are to be limited 
 by the domicile of the party at the time of his death. In re 
 Eivin is a clear authority for that proposition. And so is In 
 re Bruce, (?) where property belonging to a foreigner who 
 died abroad, though such property was situated in England 
 and was administered by an English executor, was held not 
 liable to legacy duty. The doctrine thus laid down was 
 
 («) 2 Ves. 35. ( b) Amblor, 26. 
 
 (c) 1 Price, 165. ( d ) 7 Price, 560. 
 
 (e) 1 Cr. & Jcrv., 151; 1 Tyr., 92. 
 
 (/) 2 Cr. & Jcrv., 382; see also the Attorney-General v. Forbes, Clk. & 
 Fin., Vol. II. p. 48; nom. Attorney-General v. Jackson, 8 Bli. N. S., 15. 
 
 (g) 2 Cr. & Jcrv., 436 ; 2 Tyr., 475. . 
 
48 
 
 acted on in Arnold v. Arnold,{a) where Lord Cottenham said, 
 “ When the Act speaks of the will of ‘ any person whatever/ 
 and makes this duty payable out of the personal estate, it 
 must, I think, he considered as speaking of persons and wills 
 and personal estates in this country.” Acting upon that con¬ 
 struction, his Lordship held that a testator domiciled in India 
 was not a person who fell within the provisions of the Act. 
 To the same effect is the final decision in Jackson v. Forbes, 
 which was first decided in the 00014 of Exchequer/ 6 ) then 
 went into Chancery, where the decision was affirmed as of 
 course, and finally came here.OO It is true, that in moving 
 the judgment on that case in this House, Lord Brougham 
 said,(<tt that he did not overrule any of the former cases ; but 
 still it is clear that the judgment of this House proceeded on 
 the law of the domicile, as that which decided the liability to 
 legacy duty, a circumstance which was quite inconsistent 
 with two of the cases there referred to in argument. The 
 case of In re Coalesce) which occurred some time afterwards 
 in the Court of Exchequer, shewed that the law as laid down 
 in the Attorney-General v. Forbes, was considered as settled. 
 The question came again to be considered in the Commis¬ 
 sioners of Charitable Donations v. Devereux, (/) where, though 
 the will was that of a British subject, and the executors were 
 likewise British subjects, and the property was situated in 
 this country, the Vice-Chancellor held, that the domicile of 
 the testator determined the question, and as that domicile 
 was in a foreign country, the duty was not payable. 
 
 On the authorities, therefore, as well as on the construc¬ 
 tion of the Act itself, the judgment of the Court below ought 
 to be reversed. 
 
 The Solicitor-General (Sir F. Thesiger,) with whom was 
 
 (a) 2 Myl. & Cr. 270. (6) 2 Cr. & Jerv., 382. 
 
 (c) Clk. & Fin., Vol. II., p. 48; 8 Bli. Jf. S., 15. 
 
 ill) Clk. & Fin., Vol. II., p. 83. (e) 7 Mee. and Weis., 390. 
 
 (/) 6 Jurist, 616. 
 
49 
 
 Mr. Crompton , for tlie Crown.—The question whieh arises 
 in the present case has never yet been settled. Its im¬ 
 portance and difficulty appear to have been felt by this House. 
 The whole argument upon the other side is made to rest 
 upon the domicile of the party. It is most remarkable that 
 in no other cases but those of Emin and of Bruce were the 
 decisions rested on the principle of domicile. That is not 
 the true principle by which the law, applicable to such a case 
 as the present, is to be determined. The duty attaches here, 
 wherever there is a person acting in this country in execu¬ 
 tion of the will. That is the principle which must govern 
 the decision, and which will alone reconcile all the cases. 
 
 By all the statutes passed before the 36th Geo. III., the 
 legacy duty was payable on the receipt of the money. If 
 a native paid a legacy to a foreigner, that legacy would, 
 on the payment being made, have been liable to the receipt 
 stamp duty. That shews that there was no statutory dis¬ 
 tinction as to liability. In passing that statute it was not 
 the intention of the legislature to change the liability, and 
 merely to impose a higher rate of duty. The liability re¬ 
 mained as before. That liability depends on the act of 
 administering the fund. The question, therefore, is whether 
 the act of administering the fund in Scotland was the act of 
 paying legacies, whether it was an act done in Great Britain, 
 so as to enable the provisions of the statute to attach upon 
 it; for it must be admitted that in terms this is a statute 
 limited to Great Britain. No one can doubt that here has 
 been an act of paying legacies within Great Britain; and the 
 provisions of the statute do therefore attach upon it. What 
 are the words of the statute 55th Geo. III. cap. 184? They 
 are (adopting those used in the 36th Geo. III., cap. 52, sec. 
 2) that “ for every legacy, specific or pecuniary, given by any 
 “ will of any person out of his personal or moveable estate, 
 “ or out of or charged upon his real or heritable estate,” the 
 
50 
 
 duties imposed by that Act shall be payable. It is impos¬ 
 sible to employ words more general and comprehensive, and 
 the burthen of shewing that these legacies are not liable to 
 the duty, lies upon those who claim the exemption, and must 
 be made out by something more direct than the supposed 
 application of a principle of law, which, however well esta¬ 
 blished, must be deemed inapplicable to the fiscal regula¬ 
 tions of a country. Here there is a British subject “ taking 
 on himself the execution of the will,” that being the very 
 expression used in the earliest Acts of Parliament, and paying 
 legacies out of. the personal estate. Where the case is so 
 clearly within the words of the statute, the principle of domi¬ 
 cile cannot apply to make those words inoperative. The 
 property, the executor, and the legatees, were in this coun¬ 
 try, and the executor was obliged to take out probate here 
 in order to administer that very property. The honesty or 
 dishonesty of the debtor does not affect the matter. The 
 question is whether a probate was necessary or not—was the 
 unappropriated property in this country, which the party got 
 possession of in his representative character,—a character 
 with which the English law clothed him, and did he distri¬ 
 bute it to legatees in this country? These questions must 
 be answered in the affirmative. It may be admitted that, 
 if after probate taken out, the money had been voluntarily 
 paid by the bankers: the mere act of taking out probate would 
 not of itself decide the question, whether the legacy duties 
 were payable or not. The real question is whether the party 
 obtained the money in his representative character under the 
 probate, or only as the mere attorney or agent of the testator. 
 The argument on the other side would go to relieve a party 
 from the payment of the legacy duty, though some of the lega¬ 
 cies were specifically payable abroad ; and some specifically 
 payable here. How, not one of the authorities goes further 
 than to say that where the appropriation of the fund has 
 
51 
 
 been made abroad, and the fund is transmitted here, and a 
 mere act of payment by an agent under the authority of that 
 foreign appropriation is made here, the legacy duty is not 
 payable. No such specific appropriation was made here. 
 So that even if the law was as thus stated, it would not 
 exempt the party in this instance from the payment of the 
 duty. 
 
 The domicile may fix the law of the succession; but it 
 does not affect the payment of the legacy duty. The 
 earlier authorities are all supposed to have been over¬ 
 ruled by the case of the Attorney-General v. Forbes,{«) 
 but though the authority of the Attorney-General v. 
 Cockerell,' M and the Attorney-General v. Beatson,(c ) may, 
 perhaps, not be sustainable to the full extent of what 
 was once supposed to be the rule they laid down, they 
 are consistent with the principle now submitted as that 
 on which the House will decide, namely, that the liability 
 to duty attaches on administration of the fund in this 
 country; and to that extent at least they are valid autho¬ 
 rities. In the latter of these two cases especially, Mr. 
 Murray, who was the residuary legatee, and, as such, 
 entitled to the whole of the money, might have received it 
 from the agents to whom it was transmitted; hut he, un¬ 
 necessarily, took out administration with the will annexed, 
 and the Court therefore held that the legacy duty attached 
 upon the property afterwards received by him. The case of 
 Logan v. Fairlie,(d) does not impeach this principle. On the 
 contrary, the principle now contended for was laid down 
 in the first decision there by the Vice-Chancellor, and was 
 subsequently applied by Lord Cottenham,( e ) who, however, 
 excepted that case from its operation, because he held that 
 
 (a) Clk. u. Fin., Vol. II., p. 48. 
 (c) 7 Price, 560. 
 
 (c) I Myi. & Cr. 59, 68. 
 
 (&) 1 Price, 165. 
 
 (d) 2 Sim. & Stu. 284. 
 
52 
 
 there the money had been directly appropriated in the East 
 Indies, and devoted to a particular and distinct purpose here; 
 so that all that was done here was the mere act of paying by 
 the hands of an agent. [The Lord Chancellor. —The last 
 case of Logan v. Fairlie, is nothing more than this: The 
 Court did not decide any other question than whether there 
 had been or not an appropriation in India.] But Lord 
 Coitenham must be taken to have admitted the rule as to the 
 liability to duty laid down by the Vice-Chancellor. [The 
 Lord Chancellor. —Nothing was decided but the question of 
 appropriation.] The case of Jackson v. Forbes (a) is no 
 authority for the plaintiff in error; for that turned on the 
 question whether the fund had or had not been appropriated 
 in India. The same observation may be made on that case, 
 when under the name of the Attorney-General v. Forbes,{p) 
 it came before this House. Lord Brougham, thcre(<0 referred 
 to the two cases of Attorney-General v. Cockerell, and At¬ 
 torney-General v. Beatson, and said that the House did not 
 overrule any of the preceding cases, but that each rested on 
 its peculiar circumstances. The next case is that of Arnold 
 v, Arnold,(d) and though it must be admitted that that case 
 cannot be reconciled with the cases of the Attorney-General 
 v. Cockerell, and the Attorney-General v. Beatson, yet in 
 delivering judgment there, Lord Cottenham took great care 
 to shew that it did not fall within the authority of Logan v. 
 Fairlie. [The Lord Chancellor. —I consider that in all these 
 cases domicile was the basis of the whole judgment; the only 
 question was what was the effect of the other circum¬ 
 stances upon the rule of domicile.] It seems difficult to 
 come to that conclusion, since the rule as to domicile 
 would have rendered quite unnecessary any discussion as 
 
 (o) 2 Cr. Jerv. 282. (6) Clk. v. Fin., Vol., p 48. 
 
 (c) Id. 82. (d) 2 Myl. & Cr. 256. 
 
53 
 
 to the appropriation of the fund. Domicile, in some of 
 these cases, never was argued upon, and was not made 
 the ground of the decision. This is especially to be 
 observed in the case of Arnold v. Arnold. [The Lord Chan¬ 
 cellor .—In that case all the funds were sent here from India, 
 to be administered here according to the will.] No; they 
 were sent for the mere purpose of being paid to the legatees. 
 Strictly speaking, there was no administration here—that is 
 a term of a technical nature. If the fund is sent over to be 
 divided, it is sent over for the purpose of administration; but 
 if it is sent merely to be paid, the person paying it would 
 exercise no discretion, and then there would be no adminis¬ 
 tration. 
 
 If this statute does not apply to property coming from 
 abroad to be distributed in this country, how can the pro¬ 
 bate duty be payable ? There can be no distinction in prin¬ 
 ciple between probate and legacy duty. Both are the 
 subjects of the fiscal regulations of this country. [The Lord 
 Chancellor .—If a will is made by a foreigner resident abroad, 
 and it is necessary to administer his estate in England, 
 probate must be taken out for that purpose, and probate 
 duty becomes payable upon the mere taldng out of the 
 probate; but the question here is, whether under such cir¬ 
 cumstances, legacy duty will be payable.] 
 
 In the case of In re Bruce,(fl) the Court asked whether 
 Bruce was a foreigner. That question would not have been 
 put, if domicile could have given the rule. According to 
 Doe v. Acklam, ( b ) there could be no doubt that Bruce 
 having elected the United States as his country, was a 
 citizen of those States, and the case proceeded on that fact, 
 and he was held entitled to transmit property to this country 
 free from any British burden. That, however, is bad law. 
 
 («) 2 Cr. & Jer. 430. 
 
 (fc) 2 Barn. & Cres. 779. 
 
54 
 
 Property in this country is liable to British burdens, although 
 it may be a foreigner’s property. In re Coales.(.“ ) The 
 income tax is a proof of this. 
 
 The Attorney-General v. Dunn (f>) is the first case in'which 
 the question of domicile was distinctly submitted to the 
 Court; but, as the Court held that in fact the testator had 
 an English domicile, that question was not decided. The 
 last case on the subject is that of The Commissioners of 
 Charitable Bequests v. Bevereux,{°) and it is impossible that 
 the Vice-Chancellor could have said what is there imputed to 
 him, for he is made to refer to Re Bruce, and to say, 
 “ Whether the testator there was a British subject does not 
 appear;” when it does most clearly appear from several parts 
 of that case that Bruce was a foreigner. [ The Lord Chan¬ 
 cellor. —The decision as reported in the Jurist is right, but 
 the judgment is wrong in terms. It does not matter, for the 
 purpose of this argument, what are the expressions used, but 
 what was the point decided ? According to my view of the 
 subject, the decision there was correct, for the domicile was 
 in France.] 
 
 There is one case decided in Scotland, by Lord Chief Baron 
 Shepherd, which, if considered an authority, must govern the 
 present. It is the case of the Advocate-General v. Col. F. 
 W. Grant. There the party was domiciled abroad; he made 
 a will, the executor resided in Scotland. The testator had 
 real and personal property in Scotland, and he left legacies 
 (which were charged on the realty,) to persons who were 
 resident there. The will was administered in Scotland, and 
 the Court held that the legacy duty attached. This case is 
 stated from the copy of the notes of the Chief Clerk of the 
 Remembrancer’s office in Scotland, and is directly in point 
 with the present. The Court there said that the executor 
 
 (a) 7 Mee. & Weis. 390. (l>) 6 Mee. k Weis. 511. 
 
 (c) 6 Jurist, 616; since reported 13 Sim. 14. 
 
being resident in Scotland, tbe question as to the testator 
 residing, and the will being made abroad, did not arise, and 
 that the real principle was that the law affected British pro¬ 
 perty, that is to say, property to which the party derived title 
 from British law and British courts. 
 
 This case differs from the Indian cases in one very im¬ 
 portant respect. In them the property, at the time of the 
 death of the testator, was in India; here it was in Scotland. 
 In them, therefore, the question arose whether the property 
 was appropriated before it reached this country. That ques¬ 
 tion cannot arise here. Those cases are therefore inappli¬ 
 cable to the present, so far at least as they are put forward 
 as authorities which must decide it. The fund in this case 
 was here, the executor was here, the administration of the 
 fund was here, and that fund, therefore, became liable to 
 the payment of British legacy duty. The judgment of the 
 Court below must be affirmed. 
 
 The Lord Chancellor .—The Solicitor General has, in my 
 view of the case, stated every thing that the subject admits 
 of. The argument has been an able one; but, notwithstand¬ 
 ing what has fallen from him, we do not think it necessary 
 to hear Mr. Kelly in reply. I propose to put the following 
 question to the Judges:—“ A., a British born subject, born 
 in England, resided in a British colony. He made his 
 will, and died domiciled there. At the time of his death 
 he had debts owing to him in England. His executors 
 in England, collected these debts, and out of the money so 
 collected paid legacies to certain legatees in England. The 
 question is, are such legacies liable to the payment of legacy 
 duty ?” 
 
 Lord Chief Justice Tindal in the name of his brethren, 
 requested time to consider the question. 
 
 The request was acceded to, and the House was adjourned 
 during pleasure. In about an hour the House was resumed. 
 
56 
 
 Lord Chief Justice Tlndal then delivered the unanimous 
 opinion of the Judges. Having read the question put to the 
 Judges he said: In answer to this question I have the honour 
 to inform your Lordships that it is the opinion of all the 
 Judges who have heard the case argued, that such legacies 
 are not liable'to the payment of legacy duty. 
 
 It is admitted in all the decided cases, that the very 
 general words of the statute, “ every legacy given by any will 
 or testamentary instrument of any person,” must of neces¬ 
 sity receive some limitation in their application, for they 
 cannot in reason extend to every person, everywhere, whether 
 subjects of this kingdom or foreigners, and whether at the 
 time of their death domiciled within the realm or abroad. 
 And as your Lordships’ question applies only to legacies out 
 of personal estate, strictly and properly so called, we think 
 such necessary limitation is, that the statute does not extend 
 to the will of any person who at the time of his death 
 was domiciled out of Great Britain whether the assets are 
 locally situate within England or not. Eor we cannot con¬ 
 sider that any distinction can be properly made between 
 debts due to the testator from persons resident in the coun¬ 
 try in which the testator is domiciled at the time of his 
 death, and debts due to him from debtors resident in another 
 and different country; but that all such debts do equally 
 form part of the personal property of the testator or intestate, 
 and must all follow the same rule, namely, the law of the 
 domicile of the testator or intestate. 
 
 And such principle we think may be extracted from all 
 the later decided cases, though sometimes attempts have been 
 made, perhaps ineffectually, to reconcile with them the 
 earlier decisions. There is no distinction whatever between 
 the case proposed to us and that decided in the House of 
 Lords, the Attorney-General v. Forbes ,'(«) except the circum- 
 (n) Clk. v. Fin., Vol. II. p. 48. 
 
57 
 
 stance that in the present question the personal property is 
 assumed to be, for the purpose of the probate, locally situated 
 in England, at the time of the testator’s death. But that 
 circumstance was held to he immaterial in the case In re 
 Etvin ,( a ) where it was decided that a British subject dying 
 domiciled in England, legacy duty was payable on his pro¬ 
 perty in the funds of Russia, France, Austria, and America. 
 
 And again in the case of Arnold v. Arnold,^) where the 
 testator, a natural born Englishman, but domiciled in India, 
 died there, it was held by Lord Chancellor Cottenham, that 
 the legacy duty was not payable upon the legacies under his 
 will, his Lordship adding: “ It is fortunate that this question 
 which has been so long afloat is now finally settled by an 
 authoritative decision of the House of Lords.” 
 
 And as to the arguments at your Lordships’ bar on the 
 part of the Crown, that the proper distinction was, whether 
 the estate was administered by a person in a representative 
 character in this country, and that in case of such adminis¬ 
 tering, the legacy duty was payable, we think it is a sufficient 
 answer thereto that the liability to legacy duty does not 
 depend on the act of the executor in proving the will in this 
 country, or upon his administering here ; the question as it 
 appears to us, not being whether there be administration in 
 England or not, but whether the will and legacy are a will 
 and legacy within the meaning of the statute imposing the 
 duty. 
 
 For these reasons we think the legacies described in your 
 Lordships’ question are not liable to the payment of legacy 
 duty. 
 
 The Lord Chancellor. — My Lords, in consequence of 
 something that was thrown out at your Lordships’ bar, I 
 think it proper to state that it was not from any serious 
 
 («) 1 Cr. & Jerv. 151. 
 
 (6) 2 Myl. & Cr. 25G. 
 
58 
 
 doubt or difficulty which we considered to be inherent in this 
 question in the former argument, that we thought it right to 
 ask the opinion of the Judges, but it was on account of its 
 extensive nature ; and, because though the question applied 
 only to Scotland in the form in which it was presented to 
 your Lordships’ House, it did in reality and in substance 
 apply to the whole empire—not only to Great Britain, but 
 in substance to Ireland, and to all the British possessions. 
 We thought it right, therefore, in consequence of the exten¬ 
 sive nature and operation of the question, that the case 
 should be argued a second time; and we also thought, from 
 the nature of the question, that it was proper to require the 
 attendance of Her Majesty’s Judges upon the occasion, 
 because we thought that the judgment of your Lordships’ 
 House being in concurrence with the opinion of the learned 
 Judges, would possess that weight with your Lordships, and 
 with the countiy, which upon all occasions it is desirable it 
 should receive. 
 
 My Lords, it appeared to me in the course of the argu¬ 
 ment that the question turned, as it must necessarily ton, 
 upon the meaning of the statute. In the very first section 
 of the statute the operation of it is limited to Great Britain. 
 It does not extend to Ireland. It does not extend to the 
 colonies. And, therefore, notwithstanding the general terms 
 contained in the Schedule, those terms must be read in con¬ 
 nection with the first section of the act, and it is clear, 
 therefore, that they must receive that limited construction 
 and interpretation, which is alone consistent with the first 
 section of the act. Accordingly, my Lords, it has been 
 determined in the case that was cited at the bar, In re 
 Bruce ,(«) that it does not apply, notwithstanding the exten¬ 
 sive terms in which it is framed, to the case of a foreigner 
 
 («) 2 Crom, & Jcr. 43G. 
 
59 
 
 residing abroad, and a will made abroad, although the pro¬ 
 perty may be in England, although the executors may be in 
 England, although the legatees may be in England, and 
 although the property may be administered in England. 
 That was decided expressly in the case In re Bruce, which 
 decision, so far as I am aware, has never been disputed, but 
 in which the Crown seems to have acquiesced. 
 
 Also, my Lords, it has been decided in the case of British 
 subjects domiciled in India, and having large possessions of 
 personal property, which come to be disposed of in England, 
 that the legacy duty imposed by the Act of Parliament does 
 not apply to cases of that description, although the property 
 may have been transmitted to this country by executors in 
 India to executors in this country, for the purpose of being 
 paid to legatees here. Those are the limitations which have 
 been put upon the Act by judicial decisions. 
 
 But then this distinction has been attempted to be drawn, 
 and it is upon this distinction that the whole question here 
 turns. It is said that in this case a part of the property was 
 in England at the time of the death of the testator, a circum¬ 
 stance that did not exist in the case of the Attorney-General 
 v. Forbes, and which did not exist in the ease of Arnold v. 
 Arnold; and it is supposed that some distinction is to be 
 drawn with respect to the construction of the Act of Parlia¬ 
 ment arising out of that circumstance. I apprehend that 
 that is an entire mistake, that personal property in England 
 follows the law of the domicile, and that it is precisely the 
 same as if the personal property had been hi India at the time 
 of testator’s death. That is a rule of law that has always been 
 considered as applicable to this subject ; and accordingly the 
 case which has been referred to by the learned Chief Justice, 
 the case of In re Ewin,(“) was a case of this description. An 
 
 («) 1 Ooin. & Jcr. 151. 
 
60 
 
 Englishman made his will in England: he had foreign stock 
 in Russia, in America, in France, and in Austria. The ques¬ 
 tion was whether the legacy dnty attached to that foreign 
 stock, which was given as part of the residue, the estate 
 being administered in England; and it was contended, I 
 believe, in the course of the argument hy my noble and 
 learned friend who argued the case, in the first place, that it 
 was real property, but, finding that that distinction could not 
 be maintained, the next question was whether it came within 
 the operation of the Act, and although the property was all 
 abroad, it was decided to be within the operation of the Act 
 as personal property, on this ground, and this ground only, 
 that as it was personal property, it must, in point of law, be 
 considered as following the domicile of the testator, which 
 domicile was England. 
 
 Now, my Lords, if you apply that principle, which has 
 never been quarrelled with, which is a known principle of 
 our law, to the present case, it decides the whole point in 
 controversy. The property, personal property, being in this 
 country at the time of the death, you must take the prin¬ 
 ciple laid down in the case of In re Emnjfl) and it must be 
 considered as property within the domicile of the testator, 
 which domicile was Demerara. It is admitted that if it was 
 property within the domicile of the testator in Demerara, it 
 cannot be subject to legacy duty. Now, my Lords, that is 
 the principle upon which this case is to be decided. The only 
 distinction is that to which I have referred, and which dis¬ 
 tinction is decided by the case In re Ewin to be immaterial. 
 
 Now, my Lords, such being the case and the principle 
 upon which, I think, this question should be decided, I was 
 desirous of knowing what were the grounds of the judgment 
 of the Court below. I find that the judgment was delivered 
 
 («) 1 Cr.&Jerv. 151. 
 
Cl 
 
 by two, or, ratlicr, that the case was heard by two very 
 learned judges, Lord Gillies and Lord Fullerton. The judg¬ 
 ment was delivered by the late Lord Gillies. I was anxious, 
 therefore, from the respect which I entertain for those very 
 learned persons, to know what were the grounds upon which 
 their judgment was rested. 
 
 The first case to which they referred, for it was prin¬ 
 cipally decided upon authority, was a case decided before Sir 
 Samuel Shepherd, Chief Baron of Scotland. That case-in 
 the judgment was very shortly stated, and I am very happy 
 that the Solicitor-General gave us the particulars of that 
 case, for it appears that the legacy was charged upon real 
 estate, and, therefore, it would not come within the principle 
 which I have stated; and there might, therefore, have been 
 a sufficient ground for the decision in that case. It is suffi¬ 
 cient to say, that it does not apply to the case which is now 
 before yoru Lordships' House. 
 
 Then the next case which was referred to was the case of 
 the Attorney-General v. Dunn ;(«) but, my Lords, that could 
 hardly be cited as an authority. It is true the point was 
 argued; but it was not necessary for the decision of the case ; 
 and no decision, in fact, was given upon the point. The 
 Lord Chief Baron pointedly reserved his opinion, and said, 
 that he should not express what his opinion was ; also the 
 learned Judge near me, Mr. Baron Parke, expressed the same 
 thing. It is true, that one of the learned Judges said that, 
 at that moment, according to the impression upon his mind, 
 he rather thought the duty would be chargeable; he ex¬ 
 pressed himself in those terms according to his immediate 
 impression; but no decision was given upon the point, it was 
 a mere obiter dictum —and surely such a dictum as that 
 ought not to be cited as the foundation of a judgment of this 
 
 (re) 6 Mee, & Weis. 511. 
 
62 
 
 description. Looking at the authorities, therefore, they 
 appear to me not properly to support the judgment of the 
 Court below. 
 
 The third authority was that of Lord Cottenham. Now, 
 Lord Cottenham, in the case of Arnold v. Arnold, («) expressly 
 states in terms, that the two cases, The Attorney-General v. 
 Cockerell, ( J ) and The Attorney General v. Beatson,{c) he con¬ 
 sidered to have been overruled. He states that in precise 
 terms. A particular passage is selected from the judgment 
 of Lord Cottenham to support the opinion of the learned 
 Judges in the Court below, but I am quite sure when that 
 passage is read in connection with the whole judgment of 
 that very learned person, every person reading it with atten¬ 
 tion must be satisfied that the inference drawn from that 
 particular passage that was cited is not consistent with the 
 whole tenor of the judgment. It appears to me, therefore, 
 that none of the authorities cited by the Court below sus¬ 
 tained the judgment; and I»am of opinion, therefore, inde¬ 
 pendently of the great respect which I entertain for the 
 judgment of the learned Judges who have assisted us upon 
 this occasion, that upon the true construction of the Act of 
 Parliament, and applying the known principles of the law to 
 that construction, the legacy duty is not in a case of this 
 description chargeable. I shall, therefore, move that the 
 judgment in this case be reversed. 
 
 Lord Brougham. —My Lords, I entirely agree with my 
 noble and learned friend in the view which he takes of the 
 construction of this statute, and of the authorities, and of the 
 argument, so far as it is there endeavoured to distinguish this 
 case from that of The Attorney-General v. Forbes,W which 
 must be taken with In re Ewin, a case that also arose in the 
 Exchequer, and when the two cases are thus considered, no 
 
 (a) 2 Myl. & Cr. 2S6. (b) 1 Price, 165. 
 
 (c) 7 Price, 560. (V) Clk. v. Fin., Vol. II., p. 48. 
 
63 
 
 doubt can be felt upon tbe matter. I so entirely agree upon 
 all those three heads with my noble and learned friend, that 
 I do not think it necessary for me to do more than generally 
 to express my concurrence. I wish, however, also to add 
 that my recollection coincides perfectly with his as to the 
 reasons for troubling the learned Judges to attend in this 
 case. It was not only that it was a case from the Scotch 
 Exchequer, but it was a case which must impose a construc¬ 
 tion upon the General Legacy Act, applicable to England 
 and to all the British colonies, and to foreign countries ; and, 
 therefore, we considered that it was highly expedient to have 
 a general consideration of the case, and the assistance of the 
 learned Judges. But we also felt this, which I am sure the 
 recollection of my noble and learned friend will bear me out 
 in adding, and which the recollection of my noble and 
 learned friend near me, who was also present at the former 
 argument (Lord Campbell), has entirely confirmed, namely, 
 that we considered this to be a case in which there was a 
 conflict of decisions, a conflict of authorities, which made it 
 highly expedient that it should be settled after the fullest 
 and most mature deliberation, with the valuable assistance 
 of the learned Judges; for there was the authority of 
 Jackson v. Forbes, («) in the Exchequer, and afterwards 
 before me in Chancery, and ultimately before your Lord- 
 ships in this House, by appeal on a Writ of Error;® there 
 was that authority on the one hand, -with the decision of 
 the Exchequer not appealed against, in the matter of 
 Ewirtfi) on the other, and the authority of those deci¬ 
 sions appeared to be marked by some discrepancy at least, 
 more apparent perhaps than real, with the two former 
 
 (a) 2 Crom. & Jerv., 382. 
 
 (b) Novi, the Attorney-General v. Forbes, Clk. i\ Fin., Vol. II., p. 48; 
 and nom. The Attorney-General v. Jackson, 8 Bli. 15. 
 
 (c) 1 Crom. & Jerv. 151. 
 
64 
 
 cases of The Attorney-General v. Cockerell («) and The Attor¬ 
 ney-General v. Beatson. (*>) It became, therefore, highly 
 expedient that we should maturely weigh the whole matter, 
 before we held that that decision of the House of Lords in The 
 Attorney-General v. Forbes had completely overruled those 
 other cases, the rather because certainly words were used in 
 disposing of the Attorney-General v. Forbes, which seemed to 
 intimate the possibility of those former cases standing toge¬ 
 ther with the latter case. Upon full consideration, however, 
 I am clearly of opinion with Lord Cottenham, who expressed 
 that opinion very strongly in the case of Arnold v. Arnold, 
 that those two cases of The Attorney-General v. Cockerell, 
 and The Attorney-General v. Beatson, cannot stand with the 
 case of the Atiorney-Ge'neral v. Forbes. Then, my Lords, 
 that last case must be considered not merely by itself, as 
 regards its bearing upon the facts of the present case, but 
 it must be taken into consideration coupled with the case of 
 In re Ewin, because otherwise ground might be supposed to 
 exist for distinguishing the two cases, inasmuch as it might 
 be, and has been contended, and ably contended at the bar, 
 that the one case does not apply to the other, because part 
 of the funds were in the present case locally situated in this 
 country. But then take the case of Ewin, and your Lord- 
 ships must perceive at once, as my noble and learned Mend 
 has done, and as the learned Judges have done, that those 
 two cases together in fact exhaust the present case, because 
 what was wanting in The Attorney-General v. Forbes, is sup¬ 
 plied by the decision in the matter of Ewin; I will not say, 
 supplied in terms; but in what comes to the same thing, in 
 the argument upon the construction of the Statute, and in the 
 legal application of the principle, the converse was decided. 
 Here it is a case of money or property brought over here and 
 
 (a) 1 Price, 165. 
 
 (5) 7 Price, 560. 
 
65 
 
 administered here, the domicile of the testator or intes¬ 
 tate being abroad out of the jurisdiction. There in the 
 matter of Emin, it was the converse, administration being 
 by a person domiciled here, and a testator or intestate 
 domiciled here, and the funds locally situate abroad; it is 
 perfectly clear that no difference can be made in consequence 
 of that, because the principle, mobilia sequntur personam, as 
 regards their distribution and their coming or not within the 
 scope of this Revenue Act, must be taken to apply to two 
 cases precisely similar; and the rule of law, indeed, is quite 
 general that in such cases the domicile governs the personal 
 property, not the real; but the personal property is in con¬ 
 templation of the law, whatever may be the fact, supposed to 
 be within the domicile of the testator or intestate. 
 
 I entirely agree with my noble and learned friend in the 
 view which he has taken of the grounds of the decision of the 
 Court below; whether that decision was before or subsequent 
 to the decision in the case of The Attorney-General v. Forbes, 
 and the matter of Emin, I am not informed. 
 
 The Lord Chancellor. —It was subsequent. 
 
 Lord Brougham. —Then their Lordships ought clearly to 
 have taken it into account, and more especially if they had 
 the additional light which is thrown upon the subject by the 
 case of Arnold v. Arnold. 
 
 The Lord Chancellor. —They cite Arnold v. Arnold. 
 
 Lord Brougham. —That makes it still more clear that the 
 foundation of then’ decision was unsound. It is to be taken 
 into account that Lord Cottenham does not give his opinion 
 in Arnold v. Arnold merely upon the authority of The Attor- 
 ney-General v. Forbes, because he expressly says, and very 
 candidly and fairly says, doing justice to the grounds of the 
 decision of your Lordships in this House, that, independently 
 of authorities, he is of the same opinion, and should have 
 come to the same opinion as we did in that case, notwithstand- 
 
irig the conflict that appears to exist between other cases. 
 We have, therefore, the clearest reasons for saying that if my 
 noble and learned friend had not been unfortunately absent 
 to-day, he would have concurred entirely in this view of the 
 case. 
 
 Upon the whole, therefore, I entirely concur in the opi¬ 
 nion of my noble and learned friend, and acknowledge fully, 
 and with thanks, the assistance which we have derived 
 from the learned Judges (giving the reasons which I have 
 given for our wishing to have their attendance rather than 
 from any great doubt or difficulty which we felt the case to 
 be encumbered by); and, therefore, my Lords, I second my 
 noble and learned friend’s motion, that judgment be given 
 for the plaintiff in error. 
 
 Lord Campbell .—My Lords, I confess that in this case I 
 did once entertain very considerable doubts; and I was 
 exceedingly anxious that your Lordships should have the 
 assistance of the Queen’s Judges in a case that admitted, as 
 it seemed to me, of great doubt, and where the decisions 
 were directly at variance with each other. Haring heard the 
 opinion of the learned Judges, it gives me extreme satisfac¬ 
 tion to say that I entirely concur in it, and that the doubts 
 which I before entertained arc now entirely removed. 
 Haring heard the opinion of the learned Judges, I defer to it 
 with the greatest possible respect, as I certainly should have 
 done under any circumstances, though, if it had not satisfied 
 my mind, of course I should have found it my duty to act 
 upon the result of my own judgment; but with the assistance 
 of the learned (Judges, under the present circumstances, 
 I am relieved from anything of that sort, because I agree 
 with them in the result to which they have arrived, and in 
 the reasons which they have assigned for the opiliion which 
 they have given to y6iir Lordships. 
 
 At the same time, my Lords, I believe that if the Chan- 
 
67 
 
 eellor of the Exchequer, who introduced this bill into Parlia¬ 
 ment, had been asked his opinion, he woiild have been a good 
 deal surprised to hear that he was not to have his legacy duty 
 on such a fund as this, where the testator was a British born 
 subject, and had been domiciled in Great Britain, and had 
 merely acquired a foreign domicile, and had left property 
 that actually was in England or in Scotland at the time of 
 his decease. The truth is, my Lords, that the doctrine of 
 domicile has sprung up in this country very recently, and 
 that neither the Legislature nor the Judges, until within a 
 few years thought much of it; but it is a very convenient 
 doctrine, it is now well understood, and I think that it solves 
 the difficulty with which this case was surrounded. The 
 doctrine of domicile was certainly not at all regarded in the 
 case of The Attorney-General v. Cockerell, nor in that of The 
 Attorney-General v. Beatson. If it had been the criterion 
 at that time, there would have been no difficulty at all in 
 determining this question; but now, my Lords, when we do 
 understand this doctrine better than it was understood 
 formerly, I think that it gives a clue which will help us to a 
 right solution of this question. 
 
 It is impossible that the words of the statute can be received 
 without any limitation; foreigners must be excluded. Then 
 the question is what limitation is to be put. upon them ? and 
 I think, the just limitation is, the property of persons who 
 die domiciled in Great Britain. On such property alone, I 
 think, can it he supposed that the Legislature intended to 
 impose this tax. If a testator has died out of Great Britain 
 with a domicile abroad, although he may have personal pro¬ 
 perty that is in Great Britain at the time of his death, in 
 contemplation of law that property is supposed to be situate 
 where he was domiciled, and, therefore, does not come 
 within the Act: this seems to he the most reasonable con¬ 
 struction to be put upon the Act of Parliament; it is the 
 f 2 
 
68 
 
 most convenient, any other construction would lead to very 
 great difficulties, and, I think, the rule which is laid down 
 by the learned Judges may now be safely acted upon, and 
 will prevent difficulties and doubts arising hereafter. But I 
 think that this caution should be introduced, that this applies 
 only to legacy duty, not to probate duty. With respect to 
 the probate duty, if it is necessary to take out probate, the 
 property being in Great Britain, for the purpose of adminis¬ 
 tering that property, the property would still be considered 
 as situate in Great Britain, and the probate duty would 
 attach. All the cases respecting probate duty are con¬ 
 sidered untouched; but, with respect to the legacy duty, 
 those two cases. The Attorney-General v. Cockerell, and The 
 Attorney-General v. Beatson, must be considered as com¬ 
 pletely overturned, and domicile with respect to legacy duty 
 is hereafter to be the rule. 
 
 The Lord Chancellor. —There is no question in the case 
 as regards the probate duty, it cannot be supposed for a 
 moment that this affects the probate duty. Your Lordships 
 will allow me, in your name, to tender our best thanks to 
 the learned Judges for their attendance to this case. 
 
 Judgment of the Court below reversed. 
 
Various propositions were laid 
 down in the case of Attorney 
 General v. Thompson, which may 
 fairly be considered as having 
 established and settled the law on 
 this subject. Yet in the case 
 mentioned in the preface, which 
 was subsequent in point of date 
 to the last mentioned decision, 
 the Commissioners demanded, 
 and actually received, a con¬ 
 siderable sum on account of 
 legacy duty, although the facts 
 of that case were identical with, 
 and should have been governed 
 by, the same rule of law which 
 decided the case of Attorney 
 General v. Thomson. The 1st 
 of these propositions may be thus 
 stated:—“ That personal pro- 
 party follows the person of the 
 testator.” The 2nd, “ That the 
 domicile of the party is the only 
 sound principle upon which a de¬ 
 cision may be safely founded.” 
 The 3rd is of a negative character 
 and decides, " That the statute 
 does not extend to the will of 
 persons at the time of their death 
 domiciled out of Great Britain, 
 whether the assets be locally sit¬ 
 uate in England or not. The 4th, 
 “ That the liability to legucy duty 
 does not depend on the act of the 
 executor in proving the will in this 
 country or upon his administering 
 
 here.” That 5th and last, “ That 
 the statute is limited in its operation 
 to Great Britain, not extending to 
 Ireland or to the colonies, and 
 therefore notwithstanding the gen¬ 
 eral terms contained in the sche 
 dule, these terms must be read 
 in connexion with the first sec¬ 
 tion of the Act.” 
 
 1 st. That personal property fol¬ 
 lows the person of the testator. 
 (See the learned observations and 
 the decision In Re Ewins case, 
 and all subsequent decisions cited 
 in this work, in respect to the 
 liability of personal property, 
 wherever it may be situated, at 
 the time of its owner either dy¬ 
 ing domiciled in Great Britain, 
 or abroad. 
 
 2nd. That the domicile of the 
 party is the only sound principle 
 upon which a decision can be 
 safely founded, is a rule which 
 appears to be at once the most 
 natural and most consistent with 
 common sense; since it may be 
 fairly presumed that where the 
 domicile is, there in most instan¬ 
 ces will be the representatives 
 of the testator, as well as his pro¬ 
 perty : at any rate, it is more than 
 likely that the first steps taken to 
 realize the property, wherever it 
 may be, will be taken there, and 
 it would indeed be a hard case, if 
 
70 
 
 the duty were to follow the pro¬ 
 perty as well as the domicile; 
 for, in that event, if a tax existed 
 in the place or country where 
 the testator died, or where his 
 will was proved, preparatory to 
 its being carried out by his re¬ 
 presentatives, the property would 
 be charged with a double lia¬ 
 bility, one to the country where 
 he died, the other where the 
 property might happen to be 
 at the time of his death. 
 
 There are many authorities for 
 this second position: see the 
 cases of Attorney-General v. 
 Dunn and An r " 6 M. & W. 511, 
 1840; In Re Phillip Coates, 
 7M.&W. 390,1841; the Com¬ 
 missioners of Charitable Dona¬ 
 tions and Bequests in Ireland v. 
 Devereux, 13 Sim. 14,1842. The 
 first mentioned was the case of a 
 British subject, having property 
 realand personal,both in England 
 and Italy, having purchased in 
 the latter country an estate and 
 title; the evidence was not con¬ 
 clusive as to what his intention 
 might have been with regard to 
 his residence; from 1828 to 1831 
 he resided in Italy, superintending 
 alterations and improvements in 
 the property he had bought; from 
 1831 to 1832 he was in England 
 when he made his will; in this 
 
 latter year he left for Italy, and 
 there resided until his death, in 
 1834. Upon these facts it was 
 held, that the testator could not 
 be said to have acquired a foreign 
 domicile, and that consequently 
 Legacy Duty was payable on the 
 bequests contained in his will. 
 In the second case, the usual 
 order had been obtained, under 
 the 42 Geo. III., cap. 99, sec. 
 2, calling upon the executors of 
 Mrs. Dyneley, deceased, who was 
 the surviving executrix of Philip 
 Coates, to shew cause why they 
 should not deliver an account of 
 the legacies and property of the 
 said Philip Coates, and pay the 
 Legacy Duties. It appeared that 
 the testator died domiciled in 
 England, and by his will he dis¬ 
 posed of certain government 
 notes of the East India Company, 
 issued at Calcutta, the amount of 
 which was receivable only under 
 an Indian probate, and appointed 
 an English executor. The exe¬ 
 cutor executed a power of attor¬ 
 ney to some person in India, who 
 obtained letters of administration 
 with the will annexed in India, 
 under which he received the 
 amount of the notes, which he 
 remitted to the executor in Eng¬ 
 land, who paid it over to the 
 legatees:— 
 
71 
 
 Held, that inasmuch as the 
 domicile was English, and the 
 property personal, the fact of an 
 Indian probate being necessary 
 was immaterial, and therefore 
 the Legacy Duty attached. 
 
 The third case was that of a 
 British subject, who, having set¬ 
 tled in France, became naturalized 
 and the owner of an estate there. 
 In 1791 he left France, and came 
 to England in consequence of the 
 French Revolution, and shortly 
 afterwards his property was con¬ 
 fiscated by the revolutionary 
 government. In January 1802 
 he made a will in London, by 
 which he left his property partly 
 to a charity in Ireland, and partly 
 to individuals resident in England, 
 and appointed one of those indi¬ 
 viduals his executor. In April 
 1802 emigrants were permitted 
 to return to France, and soon 
 afterwards he returned to that 
 country. In 1 1804 he made a 
 will in Paris, in which he stated 
 that he was born in Waterford, 
 and had come to France to obtain 
 restitution of his estate, and after 
 referring to his former will, which 
 he had mislaid in London, he 
 recapitulated very nearly its con¬ 
 tents, and concluded by expressly 
 confirming it. He died in Paris, 
 in 1806, and the two testamen¬ 
 
 tary papers were proved in 
 France, and in England. Under 
 the treaty of peace between 
 England and France, in 1815, a 
 large sum of French stock was 
 set apart by the then French 
 government, for the purpose of 
 compensating British subjects, 
 whose property had been con¬ 
 fiscated by the' revolutionary 
 government, and part of that sum 
 was awarded, by the Commis¬ 
 sioners appointed by the British 
 government, to the testator’s 
 executors, for the loss of the 
 testator’s property in France. 
 The Commissioners, under the 
 powers of an Act of Parliament, 
 sold the stock so awarded, and 
 paid the proceeds into the Court 
 of Chancery. 
 
 Held that the testator was 
 domiciled in France, at his death, 
 and that the fund in Court was 
 not subject to Legacy Duty. 
 
 All these cases areconfirmatory 
 of those which have been men¬ 
 tioned as laying down the prin¬ 
 ciple, that the domicile of the 
 testator is the only rule which 
 ought to guide the Courts in their 
 decisions on this subject, and in 
 each of them, the authority of 
 Re Ewin and Re Bruce was dis¬ 
 tinctly recognised. 
 
 3rd. That, the statute does not 
 
n 
 
 extend to the will of persons at the 
 time of their death domiciled out 
 of Great Britain, whether the 
 assets he locally situate in Eng¬ 
 land or not. This was decided 
 in the case of Arnold v. Arnold, 
 2 Myl. & C. 256—s. c. 2 Myl. 
 & Keen. 365. Upon a careful 
 consideration of all the principal 
 cases, we have therefore given 
 this case more in detail than we 
 thought it requisite or necessary 
 to do in other cases to which 
 allusion has been made. The facts 
 are shortly these:—George Ar¬ 
 nold, a lieutenant in the East 
 India Company’s service, being 
 possessed of a large personal 
 estate, situate partly in England, 
 but principally in the East 
 Indies, where he and his family 
 resided, having made his will in 
 the East Indies, and died there, 
 bequeathed several legacies to a 
 considerable amount. Among 
 others, he gave to his wife £1000 
 sterling, and all his wines and 
 property in England; to his 
 daughter, Sophia Mary Arnold, 
 £15,000 sterling; to any child 
 with which his wife might he 
 pregnant at his death, £15,000 
 sterling; to Louisa Harriet 
 Adams 100,000 Sicca rupees, to 
 he invested in good securities as 
 soon after his decease as con¬ 
 
 venient; to Setterah Khammar 
 Adams, a native woman, the mo¬ 
 ther of Louisa Harriet Adams, 
 the interest of 10,000 Sicca 
 rupees during her life, to he 
 vested in the Company’s funds 
 when a favourable opportunity 
 might occur, and after her death 
 the principal to revert to his 
 residuary legatee. The testator 
 appointed James Robinson Ar¬ 
 nold, Pownal Phipps, Leonard 
 Strute Coxe, William Patrick 
 Shedden, and George St. Patrick 
 Lawrence, his executors. 
 
 At the testator’s death he left 
 his widow and one child, Sophia 
 Mary Arnold, an infant surviving 
 him. Within a month after his 
 death, bis widow was delivered 
 of a son, named George Arnold; 
 shortly afterwards, Mrs. Ar¬ 
 nold with her infant children 
 left India, and came to England, 
 where they arrived in May, 1829. 
 
 On the 30th of April, in the 
 same year, George St. Patrick 
 Lawrence, who resided at Cal¬ 
 cutta, proved the will in the 
 proper Ecclesiastical Court there, 
 and collected and got in all the 
 testator’s property in the East 
 Indies, and thereout paid his In¬ 
 dian debts and his funeral ex- 
 pences. 
 
 In the month of December 
 
73 
 
 1829, three of the other execu¬ 
 tors proved the will in the Pre¬ 
 rogative Court of Canterbury, in 
 respect of the testator’s personal 
 estate in England, and paid debts 
 of the testator in England to a 
 trifling amount: a suit was insti¬ 
 tuted in the Court of Chancery, in 
 the name of the infant children, 
 against the executors, for the 
 purpose of having the property 
 administered according to the 
 directions of the will. 
 
 The Master, by his report, in 
 pursuance of the decree made in 
 that suit, found that the testator’s 
 personal estate in England, at the 
 time of his death, consisted of 
 several sums of money and stock, 
 and of certain debts due to him, 
 and also of some wine and wear¬ 
 ing apparel; and he further found 
 that the testator was possessed of 
 a large personal estate in India 
 which was remitted to England 
 between the month of November, 
 1831, and January, 1S34, by 
 George St. Patrick Lawrence, the 
 executor in India, to the executors 
 in England, and invested by the 
 latter in the purchase of Three 
 per cent. Consolidated Bank An¬ 
 nuities, which were subsequently 
 transferred into the name of the 
 Accountant-General, in trust in 
 this cause. 
 
 In consequence of the judg¬ 
 ment of the Master of the Rolls, 
 by whom it was decided that, 
 under the terms of the will, the 
 testator was entitled to the whole 
 of his property situate in Eng¬ 
 land at the time of his death, 
 (Arnold v. Arnold, 2 Myl. & K., 
 365), all the remaining legacies 
 were to he provided for exclu¬ 
 sively out of the proceeds of that 
 personal estate which had been 
 collected in India, and had been 
 remitted by Mr. Lawrence from 
 that country to the executors at 
 home. This fund, however, 
 amounting to £56,659. 8s. 9d., 
 proved insufficient to pay those 
 legacies in full; and in pursuance 
 of an order of the Court, it was 
 subsequently apportioned by the 
 Master among the legatees in 
 proportion to their respective le¬ 
 gacies. 
 
 A claim having been made by 
 the Commissioners of Stamps and 
 Taxes for the payment of the 
 Legacy Duty in respect of the 
 legacies payable out of this fund; 
 a petition was now presented by 
 the executors, praying a declara¬ 
 tion that the fund in question was 
 not subject to Legacy Duty. 
 
 As this is perhaps one of the 
 most important cases which have 
 been decided, and as the principles 
 
74 
 
 involved in it were mqst clearly 
 and ably brought before the Court 
 by the learned counsel, who ap¬ 
 peared on behalf of the petitioners, 
 it will not be considered out of 
 place, to insert somewhat at 
 length their arguments in support 
 of the petition, particularly as this 
 case was determined entirely on 
 the authority of the adjudicated 
 cases, subsequently to the At¬ 
 torney-General o. Cockerell, 
 and the Attorney-General v. 
 Beatson, when it was distinctly 
 held, that the above two cases 
 were unquestionably overruled 
 by the Court of Exchequer in 
 the case of Jackson v. Forbes, 
 which was afterwards affirmed 
 by the House of Lords, not but 
 that the principle regulating the 
 attachment of Legacy Duty under 
 the Act of 36 Geo. III., cap. 52, 
 had been settled ever since Ewin’s 
 case, which, as it has been seen, 
 was decided solely on the Law 
 of Domicile: however, this prin¬ 
 ciple seems to have been for a 
 time disregarded, not only from 
 the above period, but, strange to 
 say, that it remained virtually 
 unnoticed even after the decision 
 of Thomson v. Her Majesty’s 
 Advocate-General, in the 
 House of Lords, the Stamp 
 Commissioners having actually 
 
 received Legacy Duty, in more 
 cases than one, on the personal 
 assets of parties dying domiciled 
 abroad. 
 
 The arguments urged in support 
 of the petition against the claim, 
 by Mr. Wigram, now Vice-Chan¬ 
 cellor, and Mr. Bethel, were 
 that, wherever a testator, having 
 an English domicile, died in Eng¬ 
 land, (whether his assets hap¬ 
 pened to be either at home 
 or abroad,) the Legacy Duty 
 attached upon all the personal 
 assets out of which his legacies 
 were payable; and that the 
 converse of the proposition must 
 equally hold, viz,, that when 
 a testator died domiciled in a 
 foreign country, the whole of such 
 assets were exempt from Legacy 
 Duty. That the two proposi¬ 
 tions were correlative, being both 
 founded on the principle, that as 
 in law moveable property fol¬ 
 lows the person of the owner, its 
 incidents must be regulated (ex¬ 
 cept where otherwise expressly 
 provided) by the laws which de¬ 
 termine the rights and liabilities 
 of that owner. In the case of 
 probate duty, in which the situs 
 of the property determines the 
 liability, a different rule prevails, 
 (Attorney General v. Dimond, 1 
 Crom. & Jerv., 356; Attorney 
 
75 
 
 General v. Hope, 8 Bligh, 44, n. s, 
 & s. c, Crorn., Mee. & R., 530) 
 and for a very obvious reason, 
 for the tax being imposed as a 
 charge upon the authority which 
 is given by the Ecclesiastical 
 Couvt to the personal representa¬ 
 tive, with a view to perfect his 
 title to administer the estate, it is 
 of necessity confined to such pro¬ 
 perty as he is enabled to recover 
 by virtue of that authority; in 
 other words, to property which is 
 to he got in cr received within 
 the limits of that court’s jurisdic¬ 
 tion. The title to such property as 
 is situated in foreign countries, 
 if acknowledged at all, is ac¬ 
 knowledged ex-comitate only, and 
 is of course liable to he con¬ 
 trolled and modified as each state 
 may think proper with reference 
 to its own institutions and policy, 
 and the rights of its own subjects. 
 Therefore it is that, although in 
 point of fact the right of the fo¬ 
 reign executor is usually admit¬ 
 ted, he is required to take out a 
 new probate in the country where 
 he seeks to recover the assets, 
 such probate, however, being 
 merely auxiliary to the original 
 probate, so far as regards the 
 collection and distribution of the 
 effects. Story’s Comm, on the 
 Conflict of Laws, 421, 423. 
 
 The liability to Legacy Duty de¬ 
 pends upon considerations wholly 
 different, and is determined not 
 by the situs of the property, the 
 place where the legatees reside, 
 or the country or court in which 
 the property is administered, but 
 simply and solely by the domicile 
 of the party from whom it comes. 
 The property which is now the 
 subject of the claim was posses¬ 
 sed and remitted to this country 
 under the authority of the India 
 probate, and any subsequent pro¬ 
 bate taken out here, with refer- 
 rence to that property, must be 
 considered to be merely subordi¬ 
 nate and ancillary to the Indian 
 probate; it may be a form re¬ 
 quired by the practice of the 
 Court of Chancery, but it is not 
 essential to the due administra¬ 
 tions of the estate. Whether 
 any such probate, however, has 
 or has not been obtained in this 
 case is quite unimportant, the 
 duty being imposed not on the 
 estate collected by virtue of the 
 probate, but on the legacies pay¬ 
 able out of the assets of persons 
 who come within the meaning of 
 the Act. If that be so, could the 
 circumstance of the assets being 
 in this country to be administered 
 here through the medium of the 
 Court of Chancery constitute any 
 
76 
 
 veal distinction, while it is sub¬ 
 mitted that no such distinction is 
 warranted by the language of the 
 statute; the plain import and ef¬ 
 fect of which is, that when the 
 person upon whose property the 
 duty was meant to attach, has 
 been once got at, the legatee, 
 whether English or foreign, 
 and whether receiving his legacy 
 in this country or abroad, shall 
 equally be chargeable with the 
 duty: if then this testator was 
 not at the time of his death such 
 a person as came within the 
 meaning and contemplation of 
 the Act, it would he absurd to 
 suppose that any subsequent pro¬ 
 ceeding on the part of his per¬ 
 sonal representatives could ever 
 bring him within its operation. 
 It is evident that when a testator 
 dies in India, whether his legatees 
 he in that country or not, it is 
 not a matter of necessity that his 
 property should be made liable 
 to Legacy Duty, and that if such 
 liability is to be incurred at ail, 
 it could only be through the 
 spontaneous act or the caprice of 
 his executors. The question, 
 who is or is not a person con¬ 
 templated by the statute, cannot 
 he left to he determined by acci¬ 
 dental circumstances over which 
 the party himself has no control. 
 
 The right of the Crown must be 
 fixed and ascertained : at the 
 moment the testator dies, it at¬ 
 taches according to a general and 
 uniform principle, and cannot be 
 affected by subsequent accidents, 
 or by the contingent and capri¬ 
 cious act of other parties. Lord 
 Cottenham (after stating the prin¬ 
 cipal facts of the case,) said:— 
 “The question is, whether un¬ 
 der the circumstances stated (for 
 the particular provisions of the 
 will do not appear to me at all to 
 affect the question), the Legacy 
 Duty is, or is not, to be charged in 
 respect of the above mentioned 
 legacies; This question, indepen¬ 
 dently of the cases which have 
 been decided, will turn upon the 
 terms of the 36th Geo. III., cap. 
 52; for the subsequent Act of 
 Parliament, the 48th Geo. III., 
 cap. 149, does not appear to be 
 material. The second section of 
 the 36th Geo. III., cap. 52, 
 imposes a Legacy Duty ‘on every 
 legacy given by any will of any 
 person.’ It is impossible that 
 words more general than these 
 could be used. The seventh 
 section declares, ‘ that any gift 
 by any will of any person, which 
 shall by virtue of such will have 
 effect, or be satisfied out of the 
 personal estate of such person. 
 
shall be deemed a legacy within 
 the meaning’ of that Act. This, 
 also, is in terms as general as 
 possible. When the Act speaks 
 of ‘ any will of any person,’ and 
 of the legacies being payable out 
 of the personal estate, it must, I 
 think, be considered as speaking 
 of persons and wills, and per¬ 
 sonal estates in this country, that 
 being the limit of the sphere of 
 the enactment. It is clearly not 
 applicable to the East Indies. It 
 is applicable to this country. If 
 there had been no property in this 
 country, it would not have been 
 necessary to prove the will here, 
 quoad the property in India. 
 There was no testator, will, or 
 property in this country ; and it 
 was clear that of such property 
 the Ecclesiastical Court would 
 not have cognisance, its author¬ 
 ity being confined to property 
 within the limits of its own ju¬ 
 risdiction.” Upon that ground, 
 it was held in the Attorney- 
 General v. Dimond, 1 Crom. 
 & Jerv., 356, (see also Attor¬ 
 ney-General v. Hope, 8 Bligh 
 44., N. S.) that probate duty 
 would not be payable upon pro¬ 
 perty so situated. 
 
 4th. That the liability to Legacy 
 Duty does not depend on the act of 
 the executor in proving the will in 
 
 this country , or upon his adminis¬ 
 tering here. 
 
 Having shewn that, by virtue 
 of the Act, the duty attaches on 
 the corpus fund, the subject mat¬ 
 ter of the legacy duty, so long as 
 that legacy is within the act, and 
 not on any receipt or document 
 evidencing payment by the exe¬ 
 cutor, and having shewn that, 
 to bring the legacy within the 
 Act, certain extrinsic facts must 
 be proved, one of the most im¬ 
 portant of which is, that of the 
 testator being domiciled at the 
 time of his death in Great Bri¬ 
 tain, it would appear almost im¬ 
 possible that any act of an exe¬ 
 cutor could cause the duty to at¬ 
 tach in a case where, irrespective 
 of such Act, no duty could be 
 claimed; and yet in the two cases 
 of the Attorney-General v. 
 Cockerell, and the Attorney- 
 General v. Beatson, such was 
 the principle acted on, a princi¬ 
 ple however, which was repudia¬ 
 ted before the case in the text 
 was decided by Lord Coltenham, 
 in Arnold v. Arnold, who, when 
 comparing the facts of the case in 
 which he was giving judgment 
 with those in the Attorney- 
 General v. Jackson, said, that 
 the only difference in the facts of 
 the two cases was, that in the 
 
78 
 
 latter, there was no representa¬ 
 tion in this country; the exe¬ 
 cutors, when they came to Eng¬ 
 land, not having taken out pro¬ 
 bates here, although throughout 
 the proceedings, the contrary was 
 assumed to be the fact; but, it is 
 quite impossible, >he continues, 
 while shewing that such a differ¬ 
 ence was immaterial, to suppose 
 that the (liability of legacies to the 
 duty can depend upon the act of 
 the executor in proving or .not 
 proving the will lin this country:: 
 the question being not whether 
 there he probate or letters of 
 administration in England, but 
 whether, within the meaning of 
 the Act =df -Parliament, the pro¬ 
 perty out of which the legacies 
 are payable, be the property of a 
 person which passes by :the will 
 of thatperson withinf he meaning 
 of ithe Act. .And .-again, in re¬ 
 ference ito Logan®. Faklie, we 
 findithat Sir. John Leach attached 
 much importance :to the fact of 
 specific appropriation tothe use of 
 the .legatee for in !his judgment 
 he says; “ If the'testator die in 
 India, and his personal t estate is 
 wholly in India, and his executors 
 he; resident there, and the will be 
 proved there, and the executor 
 remit to a,legatee iniEngland, or 
 to some other person in England 
 
 for the specific use of the legatee, 
 the amount of his legacy, I am of 
 opinion that the legacy duty is 
 not payable upon such a remit¬ 
 tance, inasmuch, as the whole 
 estate is administered in India, 
 and the remittance is in respect 
 of a demand, which is to be con¬ 
 sidered as established there ; but 
 if a part of the assets be proved 
 in England in the hands of an 
 agent of the executor without 
 specificappropriation, and a'lega¬ 
 tee in England institute a suit 
 for the payment of his legacy out 
 of such unappropriated assets, 
 such assets are to be considered 
 administered here, and liable to 
 legacy duty.” It was, however, 
 .held that, if 'the payment 'bad 
 been miade to the legatee direct, 
 the legacy duty would not have 
 been payable,—in fact, 'this case 
 was decided on the non-appro¬ 
 priation of the funds'remitted to 
 this country; and LordCotten- 
 ham, when commenting on this 
 case, in Arnold v. Arnold, said, 
 “ Sir John Leach held the duty 
 payable, because the agent of the 
 executor in India was empow¬ 
 ered to pay the legacy to'the 
 legatee, who was first entitled, 
 but had no authority, as he sup¬ 
 posed, to 1 pay it to those who were 
 to take in the event of the first 
 
79 
 
 legatee being dead. When that 
 case came before Mr. Justice 
 Bosanquet and myself, 8 Bligli 
 15., N. S., the Attorney-Gen¬ 
 eral v. Jackson had been deci¬ 
 ded in the House of Lords,” but, 
 independently of that case, said 
 Lord Cottenham, " we were of 
 opinion that Sir John Leach’s 
 decision could not be supported 
 upon his own principle, because 
 we thought there had been an 
 appropriation in India, and a 
 remittance for the purpose of 
 paying the legacy in a certain 
 event to the children of the first 
 legatee.” That decision, there¬ 
 fore, proceeding as it did on the 
 misapplication of a fact, namely, 
 the extent of the authority with 
 which the agent in this country 
 was invested, and not upon the 
 construction of the Act of Parlia¬ 
 ment, it is evident that his lord- 
 ship considered the case of At¬ 
 torney-General v. Jackson to 
 have overruled Loo an v. Fairlie, 
 long before it came under his 
 adjudication ; for when, as Com¬ 
 missioner Pepys, he delivered the 
 judgment of the Court, in the lat¬ 
 ter case, when brought before the 
 Court a second time under the 
 same name, in the year 1835, 
 he said, “ The question is whether 
 the Attorney-General v- Jackson 
 
 has not covered this case. We 
 think it has covered a great deal 
 more, and that therefore this case 
 is necessarily within it.” Besides 
 which, the notion of the mere Act 
 of Administration having, under 
 any circumstances, any thing to 
 do in attaching the Legacy Duty 
 on personal estate, which other¬ 
 wise would not have been liable 
 to such duty, was also settled, it 
 being expressly laid down in Re 
 Bruce, by Mr. Baron Bailey, 
 that probate or administration m 
 this country does not render the 
 personal assets of a testator dom¬ 
 iciled and dying abroad, subject 
 to the payment of legacy duty. 
 In this case there was probate 
 and administration in this coun¬ 
 try, and upwards of £30,000 
 bequeathed to legatees in Eng¬ 
 land, all of whom resided in 
 England; but the Judges held 
 the legatees were exempt from 
 Legacy Duty, the executor being 
 simply the medium by which the 
 property belonging to the tes¬ 
 tator was to be distributed. 
 
 On reference to the case of 
 Jackson v. Forbes, 2 C. & Jer. 
 382, on appeal, under the title of 
 
 Attorney-General u. Jackson, 
 and reported as above in 8'Bligh 
 15., N. S., the facts of which 
 will be found to differ little from 
 
80 
 
 those in Arnold v. Arnold, except 
 that in the former there was no 
 representation in England at all, 
 probate not having been taken out 
 by the executors here, although it 
 was assumed throughout the ar¬ 
 gument, that such had been the 
 case; yet, notwithstanding such 
 assumption, it was distinctly held 
 that the mere act of the executor 
 could have no influence on the 
 attachment of the Legacy Duty, 
 if the legatees were not liable to 
 its payment upon other and 
 more cogent grounds. The dic¬ 
 tum of the then present Master of 
 the Rolls, in Logan v. Fairlie, was 
 relied on, “ That if part of a testa¬ 
 tor’s assets be found in England 
 in the hands of the agent of th? 
 executor, without any specific 
 appropriation, and a legatee in 
 England should institute a suit 
 here for the payment of his legacy 
 out of such unappropriated assets, 
 then such assets are to be con¬ 
 sidered as administered in Eng¬ 
 land, and the Legacy Duty is pay¬ 
 able in respect of them. But it 
 was contended that if the argu¬ 
 ment for the Crown was to pre¬ 
 vail, property in every foreign 
 colony might be made liable to 
 Legacy Duty, if the legatee or 
 executor either came to England 
 or shifted it hither ; and Lord 
 
 Lyndhurst, C.B., put the case of 
 a French or German testator 
 leaving an executor who came to 
 England or invested the property 
 in England, whether it would not, 
 according to this argument, be 
 liable ? inasmuch as the result 
 quoad legacy duty would be the 
 same as if the property had been 
 originally situated within the 
 province of Canterbury, and the 
 testator had lived and died in 
 England. It would be easy to 
 multiply cases to show how un¬ 
 certain and unjust it would be to 
 make the attachment of the duty 
 depend upon the mere act of the 
 executor; but it is submitted 
 that a mere reference to those in¬ 
 stances cited in Attorney- General 
 v. Forbes, will be all-sufficient to 
 prove that it does not so depend, 
 as was observed in that case:— 
 suppose the executor had never 
 come within the jurisdiction of 
 the English Courts, or having 
 collected the assets in India under 
 the Indian administration, bad 
 sent over the legacies to the lega¬ 
 tees here; how could they be 
 made amenable ?—for the re¬ 
 medy would be only personal 
 against them; or if the testator 
 being resident abroad, were to 
 make use of an expression in his 
 will difficult of interpretation, 
 
81 
 
 so as to render it desirable or ne¬ 
 cessary to apply to an English 
 court to interpret it, this fiscal 
 enactment would then apply, 
 whereas, if the will be so clear 
 as to be capable of being acted 
 on at once, it would not. Again, 
 upon the question of appro¬ 
 priation, suppose that the ex¬ 
 ecutor chose to pay through a 
 banker here, it would be no ap¬ 
 propriation, but if he came here, 
 and paid in person, it would be. 
 So that if a British subject should 
 make a will in Paris, where he was 
 domiciled, bequeathing stock in 
 the French funds to two legatees 
 in moieties, and should appoint an 
 Englishman his executor, who, 
 after taking out the French ad¬ 
 ministration, might return to 
 England, where the legatees 
 might follow, and compel him in 
 an English "court to transfer the 
 French funds to them, it would 
 follow that, by the accidental 
 presence of the executor within 
 the jurisdiction of the court, the 
 legacy duty would be payable by 
 the objects of the testator’s 
 bounty, and that the property 
 would he considered as property in 
 England, within sec. 6 of the 
 Legacy Duty Act. So that if such 
 were the rule, it would necessarily 
 follow that the payment of the 
 
 legacy duty would depend on the 
 accidental circumstance of the 
 money being paid, or appropriated 
 here, on the caprice of the per¬ 
 sonal representative ; for in the 
 event of the executor remaining 
 where he proved and administered 
 the will, beyond the jurisdiction 
 of the Ecclesiastical Court here, 
 the duty would not attach. 
 
 5th. That the statute is limited 
 in its operation to Great Britain, 
 not extending to Ireland, or to the 
 Colonies, and therefore, notwith¬ 
 standing the general terms con¬ 
 tained in the schedule, these terms 
 must be read in connexion with the 
 first section of the Act. That this 
 Act could not he intended to ex¬ 
 tend to the wills of persons do¬ 
 miciled out of Great Britain is 
 clear, from the general principle, 
 which limits the operation of the 
 statutes, namely, that they do not 
 extend to the colonies or other 
 dependencies of the Crown unless 
 specific mention be made of such 
 an intention on the part of the 
 legislature. See 1 Black. Com., 
 107. In the 36th Geo. III., cap. 
 36, there is no express provision 
 to this effect, and therefore its 
 operation ought to be, and is, 
 confined to parties domiciled 
 within Great Britain. But there 
 is another reason which might 
 
82 
 
 be fairly urged in support of this 
 limitation, namely, that the sta¬ 
 tute confers no benefit, but, on the 
 contrary, is purely fiscal in its 
 nature, and, as such, is to be 
 strictly confined in its application, 
 and in no case to be extended by 
 implication only. One conse¬ 
 quence of the effect of deciding 
 that this Act extended to India 
 or to Ireland, and other places 
 not expressly mentioned, is clearly 
 stated in the argument of Mr. 
 Wigram, in the case of Arnold 
 v. Arnold, who put a suppo¬ 
 sititious case of a testator dying 
 domiciled in Ireland, (where the 
 scale of duties was different,) 
 and who left personal estates, 
 both there and in this country.. 
 If the executor of such a testator 
 were to take out an auxiliary 
 probate in England, with a view 
 to the complete administration of 
 the estate, would the legatees be 
 subject to the English rate of 
 duty because the estate is partly 
 administered here? or to the 
 Irish rate, because the testator 
 was domiciled in Ireland ? or to 
 both ? The Revenue Law made 
 for Ireland must, in the absence 
 of a special provision to the con¬ 
 trary, regulate the liabilities of 
 the Irish people in their persons 
 and in their property. And Mr. 
 
 Baron Bayley, in the case of re 
 Ewin, 1 Crom. & Jerv., 151, 
 expressly laid it down, that the 
 Legacy Acts are co-extensivewith 
 this kingdom, and do not extend 
 to the territorial possessions of 
 the crown in India. 
 
 In conclusion, it is submitted 
 that bequests of personal property 
 which are subjected to the pay¬ 
 ment of Legacy Duty, as contem¬ 
 plated by the Act of Parliament, 
 must be of property situate in this 
 country, either defacto or dejure, 
 by means of the owner being 
 domiciled in Great Britain at the 
 time of his decease, for the domi¬ 
 cile of the person regulates the 
 situs of his personal property. 
 
 With respect to the measures 
 which should be taken to obtain 
 repayment of duty made under a 
 misapprehension of the facts or of 
 the law, we subjoin a short ex¬ 
 tract from Mr. Gwynne’s able 
 little book, on the ratio payable 
 on Probate and Legacy Duty, 
 from which our readers will gain 
 the necessary information. 
 
 “ In any case in which Legacy 
 Duty has been improperly paid, 
 the Commissioners of Stamps are 
 at liberty to return it, and no 
 time is limited for the application. 
 But the Commissioners require 
 that the grounds on which the 
 
83 
 
 return is claimed be fully stated 
 on affidavit, and that the party 
 claiming the return, or some per¬ 
 son on his behalf, shall attend 
 at the Legacy Duty Office in 
 London, to establish the case by 
 such evidence as the comptroller 
 of the legacy duties may deem it 
 proper to call for, and to receive 
 the duty if the claim be allowed. 
 And it is also necessary that the 
 stamped receipt for the duty paid 
 in error should he given up to 
 the office, either to be cancelled, 
 
 or to be specially indorsed' with 
 a record of the repayment, ac¬ 
 cording to the particular circum¬ 
 stances of the case. As every 
 case of a claim to a return of 
 Legacy Duty is founded on its 
 peculiar circumstances, it is ob¬ 
 vious that no printed forms of 
 affidavit are prepared for such 
 cases, but the particular circum¬ 
 stances of each must be set forth 
 by the applicant himself, or his 
 solicitor.” 
 
APPENDIX, 
 
 36 Geo. III., cap. 52. 
 
 An Act for repealing certain Duties on Legacies and Shares 
 of Personal Estates, and for granting other Duties thereon, 
 in certain cases. 
 
 Whereas it is expedient that the duties imposed by divers 
 Acts of the twentieth, twenty-third, and twenty-ninth years 
 of your Majesty’s reign, on every skin or piece of vellum or 
 parchment, or sheet or piece of paper, upon which any receipt 
 or other discharge for any legacy left by any will, or other 
 testamentary instrument, or for any share or part of a per¬ 
 sonal estate, divided by force of the statute of distributions, 
 or the custom of any province or place, should be engrossed, 
 printed, or written, should be repealed as to such receipts or 
 discharges, for which new duties shall be granted by this Act; 
 and that new duties should be granted in lieu of the duties 
 so repealed; and that the provisions made by the said several 
 Acts, for collecting the duties thereby imposed, should be 
 further enforced, as to the duties which shall not be repealed 
 by this Act: We, your Majesty’s most dutiful and loyal sub¬ 
 jects, the Commons of Great Britain, in Parliament assem¬ 
 bled, as well for the purposes aforesaid, as towards raising the 
 necessary supplies to defray your Majesty’s public expenses, 
 and making such permanent addition to the public revenue 
 as shall be adequate to the increased charge occasioned by 
 any loan made by virtue of any Act or Acts for that purpose. 
 
86 
 
 passed or to be passed in this session of Parliament, have 
 freely and voluntarily resolved to grant unto your Majesty 
 the duties hereinafter mentioned ; and do most humbly 
 beseech your Majesty, that it may be enacted, and be it 
 enacted by the King’s most excellent Majesty, by and with 
 the advice and consent of the Lords spiritual and temporal, 
 and Commons in this present Parliament assembled, and by 
 D o“sedb the authority of the same, That the several duties by the 
 ttoned Acts s!1 ^ several Acts imposed on all receipts and discharges for 
 “or legacies legacies given by any -will or other testamentary instrument, 
 of personal and for shares or parts of residue of personal estate upon 
 which ’ new which any duty shall be imposed by this Act, shall, from and 
 to r ceMe laid ’ a * ter P as shig of this Act, cease, determine, and be no 
 longer paid or payable; and so much of the said several acts 
 as relate to such duties so repealed, and the payment thereof, 
 shall be, and the same are hereby also repealed. 
 
 New duties. Sec. 2. And be it further enacted, that upon every legacy 
 specific or pecuniary, or of any other description, of the amount 
 or value of twenty pounds or more, given by any will or tes¬ 
 tamentary instrument of any person who shall die after the 
 passing of this Act, out of the personal estate of the person 
 so dying, and also upon the clear residue, and upon every 
 part of the clear residue of the personal estate of every person 
 who shall so die, whether testate or intestate, and leave per¬ 
 sonal estate of the clear value of one hundred pounds or 
 upwards, which shall remain after deducting debts, funeral 
 expenses and other charges, and specific and pecuniary 
 legacies (if any), whether the title to such residue, or to 
 any part thereof, shall accrue by virtue of any testamentary 
 disposition, or upon intestacy, there shall be raised, levied, 
 collected, and paid unto, and for the use of his Majesty, his 
 heirs and successors, the several duties after the rates and in 
 manner following, (that is to say)—where any such legacy, or 
 
87 
 
 any residue, or part of residue of any sucli personal estate 
 stall be given, or stall pass to or for tte benefit of a brother 
 or sister of the deceased, or any descendant of a brother or 
 sister of the deceased, there shall be charged a duty of £2 for 
 every £100 of the value of any such legacy or residue, or 
 part of residue, and so after the same rate for any greater 
 or less sum; where any such legacy, or any residue or part of 
 residue of any such personal estate shall be given', or shall pass 
 to or for the benefit of a brother or sister of a father or mother 
 of the deceased, or any descendant of a brother or sister 
 of a father or mother of the deceased, there shall be charged 
 £3 for every £100 of the value of sucli legacy, or residue, or 
 part of residue, and so after the same rate for any greater 
 or less sum; and where any sucli legacy, or any residue, or 
 part of residue of any such personal estate, shall be given 
 or shall pass to or for the benefit of a brother or sister 
 of a grandfather or grandmother of the deceased, or any 
 descendant of a brother or sister of a grandfather or grand¬ 
 mother of the deceased, there shall be charged a duty of £4 
 for every £100 of the value of such legacy, or residue, or 
 part of residue, and so after the same rate for any greater or 
 less sum; and where any such legacy, or residue, or part of 
 residue of any such personal estate, shall he given, or shall 
 pass to or for the benefit of any person in any other degree 
 of collateral consanguinity to the deceased than is herein¬ 
 before described, or any stranger in blood to the deceased, 
 there shall be charged a duty of £6 for every £100 of the 
 value of such legacy, or residue, or part of residue, and so 
 after the same rate for any greater or less sum: Provided 
 always, that nothing herein contained shall extend to charge 
 with any duty any legacy, or any residue, or part of residue, 
 of any personal estate, which shall be given, or shall pass to 
 or for the benefit of the husband or wife of the deceased, or 
 to or for the benefit of any of the royal family. 
 
Duties Sec. 3. And be it farther enacted, that the said duties 
 
 ttemsumge- shall be under the care, management, and direction of the 
 aioncrs'for 5 ' commissioners for the time being appointed to manage the 
 Btamps. ^ties on stamped vellum, parchment, and paper, who, or the 
 major part of them, are hereby empowered and required to 
 employ the necessary officers under them for that purpose, 
 and to cause four new stamps to be provided to denote the 
 several rates of duties hereby imposed; that is to say, one 
 stamp to denote the rate of £2 per centum, one other stamp 
 to denote the rate of £3 per centum, and one other stamp to 
 denote the rate of £4 per centum, and one other stamp to 
 denote the rate of £6 per centum, and the same to alter or 
 renew whenever it shall be requisite, and to do all things 
 necessary for carrying this Act into execution, according to 
 the rules, methods, and directions herein contained, in as full 
 and ample a manner as they, or the major part of them, are 
 authorised and empowered to put in execution any law con¬ 
 cerning stamped vellum, parchment, or paper. 
 
 Sec. 4. Provides that commissioners should appoint re¬ 
 ceivers of the duties, and keep , accounts, shewing the per¬ 
 sonal estates in respect of which the duties have been paid. 
 
 Sec. 5. Provides that commissioners should furnish 
 printed receipts, which may be used, or others of the like 
 forms. 
 
 Duties to he Sec. 6. Enacts that the duties hereby imposed shall, in 
 
 paid by exe- .... . 
 
 nSSstrators a ^ cases * n vv ^ c ^ ^ n0 ^ hereby otherwise provided, be 
 
 orpayinghs accounted for, answered, and paid by the person or persons 
 gaclea- having or taking the burthen of the execution of the will or 
 other testamentary instrument, or the administration of the 
 personal estate of any person deceased, upon retainer, for his, 
 her, or their own benefit, or for the benefit of any other person. 
 
or persons, of any legacy, or any part of any legacy, or of the 
 residue of any personal estate, or any part of such residue, 
 which he, she, or they shall he entitled so to retain either in his, 
 her, or their own right, or in the right or for the benefit of any 
 other person or persons; and also upon delivery, payment, or 
 other satisfaction or discharge whatsoever, of any legacy, or 
 any part of any legacy, or of the residue of any personal 
 estate, or any part of such residue, to which any other person, 
 or persons shall be entitled; and in case any person or per¬ 
 sons having or taking the burthen of such execution or 
 administration as aforesaid, shall retain for his, her, or their 
 own benefit, or for the benefit of any other person or per¬ 
 sons, any legacy, or any part of any legacy, or the residue of 
 any personal estate, or any part of such residue which such 
 person or persons shall be entitled so to retain, either in his, 
 her, or then’ own right, or in the right or for the benefit of 
 any other person or persons, and upon which any duty shall 
 be chargeable by virtue of this Act, not having first paid such 
 duty, or shall deliver, pay, or otherwise howsoever satisfy or 
 discharge any legacy, or any part of any legacy, or the residue 
 of any personal estate, or any part thereof, to which any 
 other person or persons shall be entitled, and upon which 
 any duty shall be chargeable by virtue of this Act, having 
 received or deducted the duty so chargeable, then, and in 
 every of such cases, the duty which shall be due and payable 
 upon every such legacy and part of legacy, and residue and 
 part of residue respectively, and which shall not have been 
 duly paid and satisfied to his Majesty, his heirs and successors 
 according to the provisions of this Act, shall be a debt of such 
 person or persons having or taking the burthen of such exe¬ 
 cution or administration as aforesaid to his Majesty, his heirs 
 and successors ; and in case any such person or persons so 
 having or taking the burthen of such execution or adminis¬ 
 tration as aforesaid, shall deliver, pay, or otherwise howsoever 
 
90 
 
 satisfy or discharge any such legacy or residue, or any part 
 of such legacy or residue, to or for the benefit of any person 
 or persons entitled thereto, without having received or de¬ 
 ducted the duty chargeable thereon, (such duty not having 
 been first duly paid to his Majesty, his heirs or successors, 
 according to the provisions herein contained,) then, and in 
 every such case, such duty shall be a debt to his Majesty, 
 his heirs and successors, both of the person or persons who 
 shall make such delivery, payment, satisfaction, or discharge, 
 and of the person or persons to whom the said shall be made. 
 
 te hat deemld Sec, 7. Enacts that any gift by any will or testamentary 
 the instrument of any person dying after the passing of this Act, 
 tusS ° f which shall, by virtue of such will or testamentary instrument, 
 have effect, or be satisfied out of the personal estate of such 
 person so dying, or out of any personal estate which such 
 person shall have power to dispose of as he or she shall 
 think fit, shall be deemed and taken to be a legacy, within 
 the intent and meaning' of this Act, whether the same shall 
 be given by way of annuity, or in any other form, and 
 whether the same shall be charged only on such personal 
 estate, or charged also on real estate of the testator or 
 testatrix, who shall give the same ; except so far as the same 
 shall be paid or satisfied out of such real estate, in a due 
 execution of the will or testamentary instrument, by which 
 the same shall be given, and every gift which shall have effect 
 as a donation mortis causa, shall also be deemed a legacy, 
 within the intent and meaning of this Act. 
 
 Sec. 8. Provides that the value of annuities, and the 
 duty, be calculated according to the tables annexed to this 
 Act, and that the duty be paid by instalments, &c. 
 
 Sec. 9. Provides that the value of annuities payable out 
 of legacies, and the duty, be calculated according to the 
 
91 
 
 tables to this Act annexed, and the duty he charged on 'the 
 value of such legacies, after deducting such annuities, &c. 
 
 Sec. 10. Provides that duty on legacies given to pur¬ 
 chase annuities he calculated on the sums necessary to pur¬ 
 chase them. 
 
 Sec. 11. Provides that the duty on legacies, whose value 
 can only be ascertained by application of the allotted fund, 
 he charged on the money as applied. 
 
 Sec. 12. Provides how the duty on legacies enjoyed by 
 persons in succession or having partial interests therein, shall 
 he charged. 
 
 Sec. 13. And by whom payable. 
 
 Sec. 14. Provides that plate, &c,, while enjoyed in kind, 
 shall not be liable to duty till in possession of persons having 
 power to dispose thereof. 
 
 Sec. 15. Provides that the duty on legacies enjoyed in 
 succession be charged as such, whether taken under wills or 
 by intestacy. 
 
 Sec. 16. Provides that the duty on legacies in joint te n- 
 ancy be paid in proportion to the interest of the parties. 
 
 Sec. 17. Provides that the duty on legacies, subject to 
 contingencies, be charged as for absolute bequests, &c. 
 
 Sec. 18. Provides how the duty on legacies, subjected 
 to power of appointment, shall be charged. 
 
 Sec. 19. Provides how the duty is to be charged on per¬ 
 sonal estates, directed to be applied in purchase of real estates. 
 
 Sec. 20. Provides that estates pur autre vie , applicable 
 as personal estates, are to be charged as such. 
 
Sec. 21. Provides that money left to pay the duty shall 
 not he chargeable as a legacy. 
 
 Sec. 22. Provides for the means of ascertaining the duty 
 on property not reduced into money. 
 
 Sec. 23. Provides that the duty on legacies not satisfied 
 in money, &c., shall be paid according to the value of the 
 
 Sec. 24. Provides that if legatees refuse to accept 
 legacies, duty deducted, the Court, in case of suit, may order 
 them to pay costs; and in suits where the party sued may 
 wish to stop proceedings, on payment of bequests, deducting 
 duty, the Court may make order therein. 
 
 Sec. 25. Provides that if a suit be instituted concerning 
 administration, the Court shall provide for the payment of 
 the duty. 
 
 Sec. 26. Provides that executors may discharge legacies 
 on payment of the duty accrued. 
 
 Sec. 27. Provides that no legacy liable to duty shall be 
 paid without a receipt containing certain particulars, and that 
 no receipt shall be available unless duly stampt, &c. Copy of 
 entry at Stamp Office of payment of duty, evidence. Stampt 
 receipts for annuities not required, but on completing pay¬ 
 ments for each of the first four years. 
 
 Sec. 28. Provides a penalty of £10 per cent, for paying 
 or receiving legacies without stampt receipts. 
 
 Sec. 29. Provides that receipts are to be stampt within 
 twenty-one days after date, on which an acknowledgment 
 of payment of the duties shall be written, &c.: receipts may 
 be stampt within three months after date on payment of duty, 
 
and £10 per cent, penalty; but none are to be stampt unless 
 the duty be paid, and they are brought to be stampt within 
 the limited time. 
 
 Sec. 30. Provides that mistakes in paying duty may be 
 rectified, if no suit be instituted, on payment of the 
 difference within three months, and £10 per cent. 
 
 Sec. 31. Provides that persons paying or receiving money 
 for legacies contrary to this Act shall be indemnified on disco¬ 
 vering the other offender. 
 
 Sec. 32. Provides that, if by infancy or absence, legacies 
 cannot be paid, the money may be paid into the Bank of 
 England, and laid out in the Three per Cents. 
 
 Sec. 33. Provides that if it shall appear to the Com¬ 
 missioners for Stamps, at the end of two years after the death 
 of any person, that it will require time to collect the effects, 
 or be difficult to ascertain the residue of the personal estate, 
 the duty may be compounded for; and duty shall be paid 
 on any part of personal estates not included in the com¬ 
 putation. 
 
 Sec. 34. Provides that if any legacy be refunded the 
 duty shall be repaid. 
 
 Sec. 35. Provides that executors are, previously to retain¬ 
 ing their own legacies, to transmit the particulars with the 
 duty offered, to the Commissioners of Stamps, who shall 
 charge the same agreeably to this Act. Penalties for neglect 
 of payment of duty for fourteen days, 
 
 Sec. 36. Provides that receipts for legacies, except those 
 by will, respecting which the duties imposed by Acts men¬ 
 tioned in the Preamble, are repealed, are to be deemed re¬ 
 ceipts within the meaning of those Acts, and such receipts 
 
94 
 
 are to be given for legacies due at the passing of this Act, and 
 for legacies becoming due afterwards, on which no duty is 
 hereby imposed. 
 
 Sec. 37.' Provides that if administration be made void, 
 and any duty be improperly paid, it shall be repaid, but if it 
 ought to have been paid, it shall be allowed in account with 
 the rightful executor. 
 
 Sec. 38. Provides that persons answering falsely shall 
 be guilty of perjury. 
 
 Sec. 39. Provides that there shall be a penalty of £500 
 for altering any word, letter, figure, or number, of any 
 assignment or receipt. 
 
 Sec. 40. Provides that persons forging stamps shall suffer 
 death. (Since altered.) 
 
 Sec. 41. Provides that any receipt duly stampt shall be 
 exempted from all other duties imposed on receipts generally. 
 
 Sec. 42. Provides that the powers of former Acts relating 
 to stamps shall extend to this Act. 
 
 The remaining clauses of 36 Geo. III., cap. 52, are not 
 important to the objects of this work. 
 
 Palmer & Hoby, Printers, 17, Brown