(1) The acts which regulate or have regulated the duties on legacies and legacy receipts, are, 20 G. 3, c. 28; 23 G. 3, c. 58; 29 G. 3, c. 51; 36 G. 3, c. 52; 42 G. 3, c. 99, ss. 2, 3, & 4; 44 G. 3, c. 98; 48 G. 3, c. 149; 55 G. 3, c. 184.

(2) This section enacts that the duty shall be paid by the executor or administrator, as well" upon retainer of a legacy for his own benefit or the benefit of any other person," as " upon delivery, payment, or other satisfaction or discharge of a legacy"; so that, with respect to the liability to the duty, it can make no difference, whether the executor actually pays the legacy to the legatee, or retains it as a trustee for his benefit. The same section provides, that, " in case any person or persons, 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 persons, any legacy, &c., upon which any duty shall be chargeable, &c., not having first paid such duty, or shall deliver, pay, or otherwise howsoever satisfy or discharge any legacy, &c., to which any person or persons shall be entitled, and upon which any duty shall be chargeable, having received or deducted the duty so chargeable, then the duty, which shall be due and payable upon every such legacy, &c., and which shall not have been duly paid and satisfied to his majesty, his heirs, and successors, shall be a debt of such person or persons having or taking the burthen of such execution or administration as aforesaid, to his majesty, &c.; and in case any such person or persons, so having or taking the burthen of such execution or administration as aforesaid, shall deliver, pay, or otherwise howsoever satisfy or discharge any such legacy or residue, or any part of any such legacy or residue, to or for the benefit of any person or persons entitled thereto, without having received or deducted the duty chargeable thereon (such duty not having been first duly paid to his majesty, &c.), then, &c., such duty shall be a debt due to his majesty, &c., both of the person or persons who shall make such delivery, payment, satisfaction, or discharge, and of the person or persons to whom the same shall be made.” The 27th section enacts, "that no person having or taking the burthen of the execution of any will or testamentary instrument, or the administration of the personal estate of any person deceased, nor any trustee or other person hereby directed and required to account for any duty, shall pay, deliver, or otherwise dispose of, or in any manner satisfy, discharge, or compound for any legacy whatsoever, or any part thereof, or the residue of any personal estate, or any part thereof, in respect whereof any duty is hereby imposed, without taking a receipt or discharge in writing for the same, expressing the date of such receipt or discharge, and the names of the testator, &c., and of the person to whom such receipt or discharge shall be given, and of the person to whom such legacy, &c., shall have been given, and the amount or value of the legacy, or part of the legacy, &c., for which such receipt or discharge shall be given, and also the amount and the rate of duty payable and allowed thereon; and that no written receipt or discharge for any legacy, or part of any legacy, or for the residue of any personal estate, or any part of such residue, in respect whereof any duty is hereby imposed, shall be received in evidence, or be available in any manner whatsoever, unless the same shall be stamped, as required by this act."

The 28th section enacts, that where any person who is required to account for the duty satisfies or compounds for any legacy, without taking a stamped receipt in the form prescribed by the preceding section, both he who pays and he who receives the legacy shall forfeit £10 per cent. on the amount.

The 42 G. 3, c. 99, s. 2, enacts, "that in every case, in which any executor or executors, or administrator or administrators, shall not have paid the duties granted and payable upon or in respect of any legacies, or any personal estate, or any share or shares of any personal estate, of any persons dying intestate, within proper and reasonable time, it shall be lawful for his majesty's Court of Exchequer, upon application to be made, &c., on such affidavit or affidavits as to the said Court may appear to be sufficient, to grant a rule requiring such executor or executors, administrator or administrators, to show cause, why he, she, or they should not deliver to the said commissioners an account, upon oath, of all the legacies, or of the personal property, respectively paid, or to be paid or administered by him, her, or them, as the case may be, and why the duties on any such legacies, or any shares or residue of any such personal estate, have not been paid, or should not be forthwith paid according to law, and to make any such rule of court absolute in every case in which the same may

appear to the said Court to be proper and necessary for the better enforcing the payment of any of the said duties."

(3) In Hill v. Atkinson, Lord Eldon, commenting upon The Attorney-General v. Lady Louisa Manners, makes the following observation: "If executors, being also trustees, shift the property from their hands as executors, into their hands as trustees, and if there is evidence that they have done so, and that they have paid the interest on the fund, so shifted from hand to hand, for twenty years together, that is undoubtedly an appropriation. If the Court of Exchequer are of opinion that that is not an appropriation, all I can say is, that that is an opinion to which I cannot accede." 3 Price, 405; see also 2 Merivale, 53.

REYNOLDS v. TORIN. Rolls. Feb. 15, [1826].

A testator bequeathed to his wife during her life four sevenths of the income of his general residuary estate, in which he intended to include a Scotch heritable bond; but the infant heir, having elected, under the order of the Court, to claim against the will, took that bond by his legal title, subject to the widow's right of terce Held, that the widow must elect, and that, although disappointed of the four sevenths of the interest of the bond debt, which the testator meant her to enjoy, she must, if she claimed what he had effectually bequeathed to her, bring in her terce to increase the general residuary estate.

General Reynolds, by his will, dated the 17th of June 1819, after bequeathing to his wife a house, and a sum of money, together with a few specific articles, and giving legacies to several other persons, directed his executors to divide the produce of his estate, as per schedule annexed," into two funds,-the one consisting of four sevenths of the whole of his property,-the other, of the remaining three sevenths,and to pay the interest of the four sevenths, commencing from one twelvemonth after his decease, to his wife during her life, for the maintenance of herself and her children, without account or control. The other three sevenths were given to his children, as also the reversionary interest in the four sevenths, expectant on the wife's death, in certain shares, and subject to certain provisos. The testator died shortly afterwards, leaving his wife and four children him surviving. Annexed to the will was a schedule of the testator's property in his [130] own hand-writing, in which he stated the amount of the whole at £59,450. The first item in this schedule was, “In the hand of George Simson, Esq. of Selwood Park, £26,000.” This was a debt due from Mr. Simson, secured by an heritable bond in the Scotch form, and charging lands in Scotland, and, therefore, according to the Scotch law. did not pass by the will.(1) A declaration to that effect was made by the decree on further directions; and as the heir at law was an infant, it was referred to the Master to inquire, whether it would be for his benefit to take under the will, or to renounce the benefits given him by the will, and to claim, as heir at law, the heritable bond. The Master reported, that it would be for the benefit of the infant to take as heir.

The widow, by the law of Scotland, was entitled to her terce (2) in the bond; that is, to a life-interest in the [131] third part of the sum secured by it; and the question was, whether she could claim both her terce and the benefits given her by the will, or whether she was bound to elect between them, and, if she took under the will, to bring in her terce to increase the residue for the benefit of the younger children.

Mr. Pepys for the younger children. The testator by a will, giving various benefits to his widow and to his heir, has attempted to dispose of this heritable bond; but as a will does not pass a debt so secured, the widow and the heir take it by their respective legal rights of terce and of descent, the former being entitled to a life-interest in a third part of the sum due on the bond, and the latter to the remainder of the debt. The heir has been put to his election; and on the same principle, the widow, too, must elect; for it is not the heir alone who withdraws the bond from the operation of the will, but the heir and the widow together. She cannot enjoy her terce in this bond without to that extent disappointing the purpose of the testator, whose intention was, that the whole of the sum due on the bond should fall into the general residue of his estate, and be disposed of in the manner

which he has pointed out. (Brodie v. Barry, 2 Ves. & B. 127. Ker v. Wauchope, 1 Bligh, 19.)

[132] Mr. Heald and Mr. Tennant for the widow. This right of terce must stand on the same footing as the right of dower; and the rule is, that, to put the wife to an election between her dower and benefits bequeathed to her by her husband's will, he must have manifested a clear intention, express or implied, to exclude her from that which the law gives her. Birmingham v. Kirwan (2 Sch. & Lef. 452), Miall v. Brain (4 Mad. 125), Butcher v. Kemp (5 Mad. 63). Now, suppose it to be admitted that the testator, by including this bond in the general mass of his property, and giving her four sevenths of the income of the whole fund, has manifested an intention that she should not take both four sevenths and also one third of the interest of the £26,000; the only principle, on which, even upon that supposition, a case of election can be raised against the widow, is, that he could not have meant her to take one third of a part of that fund of the whole of which he expressly gives her four sevenths. But, unfortunately, the gift of four sevenths of the whole fails as to that particular part, to one third of which she has an independent right; how then can it be said that she is to be excluded from her one third, because he intended to give, but has not effectually given, to her four sevenths of the same thing. The purpose of the testator was, that his widow should have four sevenths of the income arising from the bond, and also four sevenths of the interest arising from the rest of his fortune: the election of the heir has deprived her of the four sevenths of the interest arising from the bond: she happens to have an independent right by which she can claim, even as against the heir, one third of that interest; why is she not to make that right available for her own benefit, in order to indemnify herself in some degree against the loss which the election of the heir has thrown upon her?

[133] It would have been reasonable enough to have put her to elect between her legal rights and all the benefits intended for her by the testator; but the election, which she is now called upon to make, is between her legal rights, and only one half of the benefits which the will purports to bestow on her. The younger children say, in effect, “You, the widow, could not have claimed both your terce out of the bond and four sevenths of the income of a fund of which the bond was a part: the heir has withdrawn the bond from the fund; your income is thus diminished nearly one half, and you no longer take under the will any interest in that bond; nevertheless, you shall be put to elect between your terce in the bond and the four sevenths of the income arising from a fund of which the bond makes no part,precisely as you would have been, if the bond still formed part of the fund of which the four sevenths are bequeathed to you, and if you had still been in a situation to enjoy all that your deceased husband meant to give to you."

The Master of the Rolls [Lord Gifford]. To exclude the widow from her legal right, either there must be an express declaration to that effect, or it must appear clearly from the whole frame of the will, that it was the testator's intention to give her some interest wholly inconsistent with her enjoyment of that legal right. Here the testator has given her the interest of four sevenths of the produce of his whole property, meaning to include in his bequest the interest of four sevenths of this £26,000. He could not intend to give her both four sevenths and one third of the yearly interest of the bond; his purpose must have been to exclude her legal right. The widow, therefore, must be put to her election; and if she elects to take under the will, the amount of her terce must be applied to the benefit of the younger children.

[134] His Lordship doth declare, that the Defendant, Mary Reynolds, the widow of the said testator, is bound to elect between her terce in the £28,836, 11s. 3d. Bank 3 per cent. annuities, standing in the name of the Accountant-general of this court, in trust in this cause, the heritable bond account," purchased with the £26,000 in the pleadings mentioned, and the benefits given to her by the said will of the said Charles Reynolds; and the said Defendant, by her counsel, then electing to take under the said will in lieu of her terce, His Lordship doth order, that it be referred to the Master, &c., to inquire and state to the Court what is the value of such terce, and how much of the £29,912, 17s. 11d. Bank 3 per cent. annuities, standing in the name of the Accountant-general of this court, in trust in this cause "the heritable bond account," will, on the day of the date of his report, to be made in

pursuance of this order, according to the medium price of such Bank annuities, be of the value of such terce of the said £28,836, 11s. 3d. and it is ordered, that the Master do divide the said Bank annuities, which he shall find to be of the value of such terce, into two parts or shares, the one to consist of four seventh parts thereof. and the other to consist of the remaining three seventh parts thereof and it is ordered, that so much of the £29,912, 17s. 11d. Bank 3 per cent. annuities, standing in the name of the Accountant-general of this court, in trust in this cause, "the heritable bond account," as the said Master shall certify to be the amount of four seventh parts of the said terce, be carried over by the said Accountant-general in trust, in this cause, to the four sevenths of residue account"; and the said Accountant-general is to declare the trust thereof accordingly, subject to the further order of this Court and it is ordered, that so much of the said £29,912, 17s. 11d. Bank 3 per cent. annuities, as the said Master shall cer-[135]-tify to be the amount of the remaining three seventh parts of the said terce, be carried over by the said Accountant-general, in trust in this cause, to the "three sevenths of residue and accumulation account"; and the said Accountant-general is to declare the trust thereof accordingly, subject to the further order of this Court and it is ordered, that the said Master do take an account of what has arisen since the death of the said testator, in respect of the said terce; and he is also to take an account of what has accrued and been received in respect of the interest or dividends thereon, or upon the funds in which the same has been invested," &c. The decree then goes on to direct a similar apportionment of the arrears of the terce and the interest thereon, between the "four sevenths of residue account" and the "three sevenths of residue and accumulation account."

(1) In the present form of an heritable bond," says Mr. Bell, "the debtor not only binds himself personally to repay the money, as in a common bond, and, in further security, infefts the creditor in an annual rent, payable out of the lands, but gives infeftment in the lands themselves, for security of the principal sum, redeemable at any time, upon payment of that sum and interest. By this right, the creditor has a real security for the sum of debt actually due at the date of infeftment, and for the interest as it arises; and he has a power of entering into possession, or recovering the rents. If he do enter into possession, he is obliged to account for the sums which he receives; and his security is extinguished in proportion to the amount of his intromissions or payments, subsisting only for the balance." Commentaries on the Law of Scotland, p. 206, 2d edition.

(2) " The widow is entitled," says Mr. Bell, "to claim the life-rent of a third of the heritable estate vested by infeftment in her husband at the time of his death, and not burdened by real securities, excepting superiorities, rights of reversion, patronage, and burgage subjects. Her right rests upon her husband's infeftment, which is both its measure and security. And it is that point alone which is to be regarded in ranking the widow for her terce. Whatever excludes or burdens his feudal right, lessens the terce. Her right of terce is declared by the verdict of a jury on a service. Where it is necessary, the particular subjects are ascertained by the process and operation called 'kenning' to the terce, in which, on her application, the sheriff sets off for her a third share of the subjects. Should the wife have died before being served to her terce, her right falls, and cannot be taken up by her representatives; if she has been served, her claim vests retrospectively back to her husband's death, so as to give her heirs a claim to the arrears. The service is the vesting act, upon which its transmission to heirs depends." Commentaries on the Law of Scotland, p. 418, 2d edition.

COLLINS v. DOYLE. Rolls. Feb. 15, 20, [1826].

A testatrix, who was entitled to a distributive share of the assets of an intestate, to whom, at her death, no administration had been taken out, bequeaths "all such sums of money as should be owing to her at the time of her decease from G. B.” : these words will not pass her beneficial interest in a sum of money which was then due from G. B. to the estate of the intestate.

James Bryan, by his will, after devising his lands in Ireland to trustees, to the use of his nephew George Bryan for life, with remainders over, bequeathed to his brother

Aylmer Bryan the sum of £1000; and by a codicil he directed that his legacies should be charged on his real estates, and paid out of the rents and profits thereof, and not out of his personal estate. He died in 1804. George Bryan, who was also the executor, and one of the residuary legatees under his will, entered into possession of the devised estates; and it was admitted at the bar, that the rents and profits which he had received were more than sufficient to pay the legacies given by his uncle's will. In 1806, Aylmer Bryan, who [136] had never received any part of the legacy of £1000, or any interest upon it, died intestate, and without issue; when, under the statute of distributions, his only surviving brother Pierce Bryan became entitled to a moiety of his personal estate, and his nephew George Bryan, and his niece Jane Clementina Bryan, to the other moiety in equal shares. Pierce Bryan died in 1810, having bequeathed to Jane Clementina Bryan all his estate and effects, and appointed her his executrix. She thus became entitled to three fourths of the residuary estate of Aylmer Bryan, including what was due for the legacy of £1000-to one fourth, in her own right, and to two fourths, under the will of Pierce Bryan.

Jane Clementina Bryan, by her will dated the 10th of August 1819, bequeathed "all such sums of money as should be owing to her at the time of her decease from her brother George Bryan" to John Collins, Anthony Blake, and George Tennant, upon certain trusts for the benefit of some of her relations. She died in the following September.

Pierce Bryan had, at the time of his death, large demands against George Bryan on account of an annuity given him by the will of James Bryan; and, Jane Clementina Bryan having become entitled under Pierce Bryan's will to these arrears, George Bryan executed to her a bond to secure the payment of £4900, which was due in respect of them. Upon this bond there remained due to her at her deat h upwards of £1000, with a small arrear of interest.

There was no personal representative of Aylmer Bryan till May 1825, when John Collins, the executor of Jane Clementina Bryan, and one of the trustees named in her will, took out administration to him.

[137] On a reference to the Master to inquire what sums were owing from George Bryanto Jane Clementina Bryan at her decease, the Master found, among other things, that the legacy of £1000 to Aylmer Bryan was still unpaid, and that Jane Clementina Bryan was at the time of her decease entitled, in her own right, and in right of Pierce Bryan, to three fourths of that legacy, or to so much of it as might remain after the payment of Aylmer Bryan's debts, and funeral expences. He added, “I am of opinion that the said legacy of £1000 constituted part of the assets of Aylmer Bryan, and was liable to the payment of his debts and funeral expences; and, inasmuch as it appears to me that the said Jane Clementina Bryan did not take out letters of administration of the personal estate and effects of the said Aylmer Bryan, I do not find that any sum of money was due to her, at the time of her decease, from the said George Bryan, on account of the said legacy of £1000.

The trustees insisted, by an exception to the report, that the sum of £750, being three fourths of the legacy of £1000, and the sum of £695, 12s. 6d., being three fourths of the arrears of interest due upon it, ought to be considered as sums owing from George Bryan to the testatrix at her death, and, as such, passed by the bequest.

Mr. Horne and Mr. Tennant, for the exception. This legacy was a debt due from George Bryan to the estate of Aylmer Bryan; and three fourths of the estate of Aylmer Bryan belonged in equity to Jane Clementina Bryan. This, therefore, was a debt due from George Bryan, of which three fourths belonged to our testatrix, and came literally within the words of bequest, which she has used; for it is impossible. to contend, that those words are to be confined to strictly legal debts. If, as [138] she might have done, she had taken out administration to Aylmer Bryan, she would have been at law the creditor of George Bryan for the whole amount of the legacy; yet, in that case, the clause in question, would have passed, not the whole of the legacy, but only the three fourths of it to which she was entitled beneficially. As the circumstance of being clothed with the legal character of personal representative would not have made the bequest co-extensive with her legal demand, so neither can the absence of that legal character abridge its operation; the only thing to be looked at is, the equitable interest in the sum which is admitted to have been owing by George Bryan. As to the liability of the legacy to the debts and funeral expences of Aylmer Bryan, will the Court presume that the debts and funeral expences of a man, who died in