made the order. Here the difficulty, which existed there, does not arise for if the fund is to be parted with, it is clear that the petitioners are the persons entitled to have pos-[117]-session of it. Upon the authorities which have been cited, the order may be made for the transfer of the stock to the society, and for the payment of the dividends, if there are any now in Court, to the treasurer.

The petition had not been served on the Attorney-General, or any other party in the cause.

(1) The case of Minet v. Vulliamy, as it appears in the Registrar's Book, was as follows.

The testator, Joshua Ame Droz, bequeathed, upon a contingency which happened, "the yearly income of £190 sterling (part of a sum of £245 long annuities) to the chamber of the charity of Chaux de Fonds, the place of his, the testator's birth, in the community of the Valengin in Switzerland, for the maintenance and relief of the poor of the said community." By a decree, made in the cause on the 5th of July 1816, it was, among other things, referred to the master, to inquire and state "what was the nature of the charity in the testator's will called The Chamber of the Charity of Chaux de Fonds,' in the community of Valengin in Switzerland, and who were the persons entitled to receive the monies bequeathed to such charity," with liberty to state special circumstances.

By his report, dated the 4th of June 1818, the Master found, "That a state of facts had been laid before him on behalf of the Plaintiffs, stating that the nature of the said chamber of the charity of the Chaux de Fonds was that of a body corporate, regularly instituted for the purpose of collecting, receiving, and administering charitable contributions and donations, and distributing the same amongst poor and distressed persons at the said Chaux de Fonds, to relieve their necessities, and for their permanent or temporary support, as the case might require; that the chamber of the Chaux de Fonds was represented by one president, one vice-president, one cashier or treasurer, who were chosen annually, and by one secretary, whose office was during his pleasure, or while he conducted himself consistently with the duties of his office, and two assistants, who were chosen for life; that the said president, vice-president, treasurer, secretary, and two assistants, were considered, known, and recognized in the principality and canton of Neufchatel, as a community or body lawfully constituted, and that they were the proper persons to receive the legacy." The state of facts, as set forth in the report, next went on to designate the persons who filled at the time those different offices in the chamber of the charity. The Master then found, "that the nature of the charity in the said testator's will called The Chamber of the Charity of Chaux de Fonds,' in the community of De Valengin in Switzerland, was as mentioned in the said state of facts, and that the president, vice-president, cashier or treasurer, secretary, and two assistants of the said charity for the time being, were the persons entitled to receive the yearly income of the sum of £190 a year, long annuities, bequeathed to the said charity; but he submitted to the Court, that the stock itself, producing the said sum of £190 per annum, should remain under the direction of this Court, inasmuch as it appears, from the testator's will, that a perpetual fund should be established for the benefit of the said charity, the annual interest and dividends only of which fund were from time to time to be paid and applied for the relief of the poor of the said community."

A petition was presented by the officers of the charity, and by Minet and Stride, to whom they had executed a power of attorney, praying that the long annuities, and a sum of £1045 cash, produced by the accumulation of past dividends, might be paid to Minet and Stride for the use of the charity.

The order made by the Master of the Rolls, on the 25th of January 1819, was: "Whereupon, and upon hearing the petition, &c.-the report dated the 4th of June 1818, &c.-and an affidavit duly attested and sworn at the Chaux de Fonds in Switzerland, by George Francis Jaquenot, whereby it appears that Daniel Bourguin is the president of the chamber of the charity of Chaux de Fonds, that Abraham Courvoisier Prince is the vice-president, that Frederic Olivier Sandoz is the treasurer, and that they will remain in their respective offices until the 24th of June 1819; that Henry du Commin is the general secretary; that the two assistants for life are Henry Louis Jacot and Louis Courvoisier; and that they are the proper persons to receive the legacy given by the testator, Joshua Ame Droz, to the chamber of the

*

เ

charity of Chaux de Fonds-a power of attorney from the said several persons to Isaac Minet and John Stride-and an affidavit of Daniel Simon Merceron, read, &c. His Honor doth order, that £190 bank long annuities, standing in the name of the accountant-general, in trust in this cause, The Chamber of the Charity of Chaux de Fonds,' be transferred to the petitioners, Isaac Minet and John Stride," &c. The subsequent part of the order directed the cash in court, standing to the credit of the charity, to be paid to the same persons.

Reg. Lib. 1818, B. 410, 411.

* These were not the individuals who filled the offices of president, vice-president, and secretary, at the time when the Master made his report.

CHARLOTTE HAY, by her next Friend, Plaintiff; WILLIAM FAIRLIE, ROBERT DAVIDSON, and JAMES HAY, Defendants. Rolls. Feb. 14, [1826]. [S. C. 4 L. J. Ch. 112.]

A testator, resident in India, bequeaths to an infant a sum of money, to be invested in the Company's securities, of which the interest is to be applied to her maintenance, and the principal to be settled upon herself for life, with remainder to her children; he is lost on his voyage to England, leaving all his property in India; executors, resident in that country, prove his will at Calcutta, invest the legacy in the Company's securities, and for several years remit the interest to their correspondents in London, for the benefit of the legatee, who had come to England; a part of that interest is brought into court, in a suit instituted by her for the appointment of a guardian, and for the allowance of maintenance, and an order is made for the payment to her guardian, out of the fund so created, of £200 a year as maintenance: Held, that there was a specific appropriation in India of the legacy; and, That the payment of £200 a year was not liable to the legacy duty.

John Hay, of the province of Bahar, in the East Indies, by his last will, bearing date on the 28th of November 1808, bequeathed to his natural sons John and James Hay, by Doordannah Begum, the sum of 30,000 sicca rupees of lawful money of Bengal, each, to be invested in the public security of the East India Company, for the use and benefit of his said natural sons, till they should attain the age of twenty-one years, when these sums were to be severally paid to them and he directed that the interest accruing upon the sums aforesaid should be, by his executors thereinafter named (who were requested to accept of the guardianship of [118] his children), appropriated to the education and maintenance of John and James Hay, and for any other expences which might from time to time be judged necessary and proper, and that the overplus, if any, should also be paid them, when they should respectively attain the age of twenty-one years. He then, in like manner, bequeathed to his natural daughters, Helen, Ånn, and Charlotte, also by Doordannah Begum, the sum of 30,000 sicca rupees each, to be invested in the security of the East India Company, for the use and benefit of his three natural daughters; and he ordered that the interest should be applied to their education and maintenance, and that the principal should be settled upon themselves during their respective lives, and at their death on their lawful children. He further willed, that the sum of 10,000 sicca rupees should be invested in the East India Company's paper; directing, that the interest of it should be paid monthly by his executors to Doordannah Begum, the mother of his said natural children, during her life, and that at her decease, the principal so invested, should be equally divided among his five above-named natural children. (Note: The statement of the will is taken from the Master's report.) He concluded, by appointing William Fairlie and William Kinloch, of Calcutta, Andrew Ramsay, of Jungypore, Robert Davidson, of Bhangul pore, and his brother James Hay, of Huckridge, Devonshire, England, executors of his will.

In 1809, John Hay, with part of his family, embarked on board the June, Duchess of Gordon, and, in the course of the voyage to Europe, perished at sea: his daughter Charlotte, being on board another vessel, arrived in England, where she had ever since remained. Three of the executors, who were in India, proved

the will; and in-[119]-vested 30,000 sicca rupees, part of the testator's personal estate, in the purchase of a loan certificate of the East India Company, to answer the legacy bequeathed to Charlotte and her children. This certificate, which had remained all along in the hands of Messrs. Ferguson and Co. in Calcutta, the agents of the executors in India, was, in 1822, called in by the Company, and exchanged for a promissory note, bearing interest at six per cent., which was made out in the joint names of the two surviving executors, on account of Charlotte Hay. Messrs. Ferguson and Co. had the custody of the note, and, by the direction of the executors, from time to time remitted the interest to Messrs. Fairlie, Bonham, and Co., their correspondents in London, for the purpose of defraying the expence of her education.

The bill was filed by Charlotte Hay, in order to have a guardian appointed and maintenance allowed: the Defendants were Fairlie and Davidson, two of the executors, and James Hay, the surviving residuary legatee. In the course of the suit, a guardian was appointed; and, a fund having been brought into Court, composed of the remittances which had been made from India, on account of the interest on the legacy, an annual allowance of £200 was ordered to be paid to him. But in consequence of a claim set up by the legacy office to the duty of £10 per cent. on the amount of the maintenance thus allowed, the Accountant-General declined to make the half-yearly payment without the production of a receipt for the duty.

Charlotte, therefore, presented a petition, which, after setting forth these facts, stated, that John Hay lived, was domiciled, and died in India; that all his property was in India; that she and all his children, and all the executors named in his will, were in India at his death; [120] that all his assets were administered there; that the legacies for her benefit were appropriated and invested there, in pursuance of the will, upon Indian security; that the will had never been proved in England, nor had there been any administration of assets in this country; and that the money remitted to England, and brought into court, out of which her maintenance was to be paid, was the income, not of the testator's general estate remitted to his executors in England, but of her own specific property remitted to England by the persons, who, under the will, were trustees thereof for her benefit. Under these circumstances, she insisted that she was entitled to have her maintenance of £200 a year paid without the production of a legacy duty receipt.

Mr. Pemberton for the Plaintiff. If the stamp office are right in their present claim, the legacy duty must be payable in every case, in which any person residing in England derives a benefit under the will of a testator, or from the assets of an intestate, whatever be the country in which that testator resided and died, and in whatever quarter of the world his estate may have existed and been administered. The circumstance of actually paying a legacy abroad does not give exemption from the burthen; for there is a clause (48 G. 3, c. 149, s. 44) which provides, that, where a receipt has been signed out of Great Britain, the commissioners may remit the penalties incurred thereon, if it is brought to be stamped within a certain time. If, then, the mere fact of payment in England causes the duty to attach, whatever the circumstances of the case may be, while, on the other hand, payment abroad does not prevent it from attaching, what bequest can be imagined, which will be safe from this [121] demand? If a Frenchman, dying in Paris, and having all his property there, were to leave a legacy of French stock to a French infant, and if the child were sent to this country for the purpose of education, and a part of the half-yearly dividends were remitted hither to defray his expences; our government, according to the principle now contended for, would be entitled to the duty on the income so remitted. Surely such a doctrine is too extravagant to be received as the true construction of the acts which regulate this subject.(1)

The whole tenor of the 36 G. 3, c. 52, shows, that the burthen was meant to be imposed, only where there was an administration of the assets in England under authority derived from our ecclesiastical courts. The 6th section directs the duty to be paid by the person or persons 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."(2) In almost every clause, the language [122] and provisions of the act have a clear reference to the administration of the assets here; and it is to that circumstance that our Courts have invariably looked, whenever [123] they have been called on to apply this law. In the Attorney-General v. Cockerell

(1 Price, 165), General Duff proved the will of the testator, Robertson, in India. and afterwards died in England, having in his hands a considerable portion of the assets: Sir Charles Cockerell, who was a co-executor with Duff, then proved the will in the prerogative court of the Archbishop of Canterbury; and having by that means clothed himself with the character of personal representative of the testator he received from Duff's executors the unappropriated assets belonging to the estate of Robertson. In the Attorney-General v. Beatson (7 Price, 560), he, against whom the duty was claimed, [124] had possessed himself of assets of his testator under letters of administration, with the will annexed, which were taken out here. In both of these cases, therefore, the estate was administered under the authority of our ecclesiastical Courts. In Logan v. Fairlie (2 Sim. & Stu. 291), the ViceChancellor conceived that there was an administration in England of the fund, as a portion of the general assets of the testator; and that, though, in fact, no representation had been taken out to him here, the suit had in that respect proceeded irregularly. In that decision His Honor had gone a great length in support of the claim of the stamp office; but even there he had proceeded upon a principle which excluded the present demand. "The sum in question," says he was remitted by the executor in India to the Defendants, for the purpose of being paid to Helen Logan, the residuary legatee; and if Helen Logan had been the residuary legatee, and the payment had been made to her accordingly, the legacy duty would not have been payable." That is the present case; for the money in court has been remitted by the executors in India for the purpose of being paid to Charlotte Hay. The Vice-Chancellor lays down his principle in these words: "If a testator die in India, and his personal estate be wholly in India, and his executor be resident there, and his will be proved there, and the executor remit to a legatee in England, 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 remittance, inasmuch as the whole estate is administered in India, and the remittance is in respect of a demand which is to be considered as established there.' Now here we find all the circumstances which His Honor considered to be material, and even more. [125] The testator died in India or on his return thence; his executors were resident there; his will was proved there, and has not been proved here; the assets have been wholly administered there; the bequest to the Plaintiff was of a specific sum of Indian money, which was to be invested in Indian securities; that investment has been made; the fund has been taken out of the hands of the executors qua executors, and remains with them only as trustees for Charlotte Hay. The mere circumstance that the income must now pass through this Court, which has taken upon itself the guardianship of the infant, cannot give the stamp office a right which otherwise would not exist.

If this legatee, when she comes of age, executes a power of attorney to her agent in India to receive the dividends for her, it must be admitted that those dividends will not be liable to legacy duty. On what principle, then, can the dividends be liable now?

Mr. Collinson for Davidson the executor.

Mr. Boteler for the legacy office. The ground on which the legacy office found their claim is, that, if an executor sends money to his agents in London, directing them to pay it to certain legatees by name, he pro tanto administers the assets here, and must to that extent pay the duty. It is not denied, that, if the money is sent hither without specific appropriation, the legacy duty attaches; to that extent the decision of the Vice-Chancellor in Logan v. Fairlie clearly goes. How, then, can it make any difference, whether the executor does or does not accompany his remittance with particular directions concerning payment? The [126] rights of the parties and of the revenue cannot be varied by so uncertain a circumstance, which depends altogether on the caprice or discretion of the executor. In Logan v. Fairlie there was, as the events had turned out, no appropriation to particular persons by name; and, therefore, it was unnecessary in that case for the Court to consider, what the consequences would have been, if there had been such an appropriation.

But, even if specific appropriation were to exempt the fund from payment of legacy duty, we deny that such an appropriation has been made here. In the Attorney-General v. Lady Louisa Manners (1 Price, 41), the personal representatives

of a testator, in the year 1794, invested a legacy, at the request of the legatees, in the funds in their own names, and, from that time up to 1812, paid the dividends to the tenant for life: yet that was held not to be such an appropriation as would prevent the Court from regarding the stock as a portion of the testator's general assets, remaining, after 1794, unadministered in the hands of his personal representatives.(3) Now what more has been done here, than was done there? The sum bequeathed by the testator has been laid out by the executor in their own names, and they have paid the interest to the use of the Plaintiff. In Hill v. Atkinson (3 Price, 399; 2 Merivale, 45), the money had been actually removed out [127] of the hands of the executors; that circumstance does not occur here; and the present case is, with regard to alleged appropriation, exactly similar to that of the AttorneyGeneral v. Manners.

The Master of the Rolls [Lord Gifford]. I confess I do not understand the argument on which the commissioners of stamps found their demand in this case. They claim the duty, not on the principal of the legacy, but on the interest. If the interest were liable, would not the principal be liable too?

This is the case of a testator dying in India; leaving his property in India; appointing executors in India; and directing them to invest in Indian securities. the legacies which he bequeathed to his natural children, and to apply the interest to the education of these children, till they attain twenty-one. The question is, whether the Master has clearly reported that there was a specific appropriation in India of these legacies. Now the Master has reported in the following words : "The said William Kinloch Ramsay and Robert Davidson proved the will in the supreme court of judicature at Fort William in Bengal; and they, on or about the 21st of January 1811, set apart and invested the sum of 30,000 sicca rupees, part of the personal estate of the testator, in the purchase of a loan certificate of the East India Company for 29,400 sicca rupees, such certificate then bearing a premium of 2 per cent. and upwards, to answer the legacy by the said will bequeathed to the Plaintiff for her life, and at her death to her lawful children; and such certificate remained in the hands of the house of business then carried on under the firm of Messrs. Ferguson & Co. of Calcutta in the East Indies, the agents of the said executors in India, [128] on behalf of the said executors, until the year 1822, when the same was called in by the said East India Company, and exchanged for a promissory note of the said Company for the like amount, and which promissory note, bearing interest at 6 per cent. per annum, was made out in the joint names of the said Andrew Ramsay and Robert Davidson, as the surviving acting executors of the testator, on account of the Plaintiff, and was in the possession of Ferguson and Co. as aforesaid." A more specific appropriation cannot be imagined.

The mere circumstance of the remittance of the fund to England cannot entitle the stamp office to claim. The remittances do not come to this country as a portion of the estate to be administered here under the will of the testator, but as the interest of a sum specifically appropriated in Bengal, to be paid to the use of the person for whom the appropriation has been made.

Suppose that the trustees for the children had been different persons from the executors, and that the investment had been made in the names of these distinct trustees in the same manner as it has been in fact made in the names of those who are both executors and trustees; could it have been contended, that there was not a clear and specific appropriation? Then what difference can it make, that the same persons happen to hold the double character of executors under the will, and of trustees for the children?

Suppose a law had been passed imposing a duty on legacies bequeathed and payable in India, this legacy would have been liable to the duty so imposed. Could it have been said, that a second duty was to be paid here on the remittance of the interest!

[129] This case, therefore, is perfectly distinguishable from all the authorities which have been cited. The testator having died in India, his property being in India, and having been administered there, the executors having proved the will in India only, and having there appropriated a sum for the satisfaction of this legacy, it is impossible that the income of a legacy so appropriated, being remitted here to the legatee during her minority, can be chargeable with duty.