cases where the gross personal estate does not exceed £300 in value.

288. Application of Legacy Acts.-The Acts apply only to persons who are British subjects with reference to their place of domicile. As explained in a previous part of this work, the distribution of personal estate is governed by the law of the owner's domicile, while the succession to heritable estate is governed by the law of the situation of the estate. It follows that the personal property of British subjects, wherever the property is situated, is liable to legacy-duty. The duty, however, does not affect legacies given out of heritable estate situated abroad, notwithstanding that the owner dies domiciled in this country; but legacies given out of heritable estate in this country are liable to the duty notwithstanding that the owner dies domiciled abroad.

289. What deemed a Legacy within meaning of Legacy Duty Acts. At common law a legacy, is a benefit under a will, the person benefited being styled the legatee. Legacies are of two kinds-specific and general. The former is a bequest of a particular thing, specifically described, as certain articles of plate, furniture, jewellery, &c.; while the latter is a mere bequest of quantity, as a legacy or annuity to be paid out of the general estate. Specific legacies have this advantage over general legacies, that, in case of deficiency of assets, they are to be satisfied in preference to the general legacies, but they suffer a proportionable abatement where the assets are insufficient to pay the debts.

By the 36 Geo. III. c. 52(1), a legacy was in substance defined as any gift by will which should be satisfied out of the personal estate of any person dying after the passing of the Act, or out of the personal estate which such person should have power to dispose of, whether given by way of annuity or in any other form, and whether charged on personal estate only, or charged also on real estate (except so far as the same should be satisfied out of the real estate). A donatio mortis causa(m) was also a legacy.

Under this section it has been held that a legacy was created by the forgiveness of a debt; by a gift to an executor for his

(1) § 7 of Act, afterwards repealed as above.

(m) This means a gift in contemplation or anticipation of death, there

being an implied trust that if the donor recovers, the property shall revert to him.

personal trouble; by a direction to pay another person's debts; by a direction to pay interest on debts; by a gift of maintenance, but not by a direction to pay the testator's own debts, nor by a mere authority in a will to make professional charges.(n)

By 45 Geo. III. c. 28(o), a legacy was substantially defined as a gift, by any will or testamentary instrument, of any person dying after the passing of the Act, which should have effect, or be satisfied, out of the personal estate of any such person, or out of the personal estate which any such person should have power to dispose of as he or she should think fit, or which should be charged upon, or made payable out of any real estate, or out of any moneys to arise from the sale of real estate, whether the same should be given by way of annuity, or in any other form. Provided always, that nothing therein contained should be construed to extend to the charging with the duties by this Act granted, any specific sum or sums of money, or any share or proportion thereof, charged by any marriage settlement, or deed upon real estate, in any case in which such specific sum or share, or proportion thereof, should be appointed or apportioned, by any will or testamentary instrument, under any power given for that purpose by such marriage settlement or deed.

It will be observed that this section rendered ineffectual the above-bracketed passage in 36 Geo. III. c. 52.

The operation of the above proviso in regard to marriage settlements may be illustrated thus: The proprietor of an heritable estate, charges it under his marriage settlement with the sum of £1000 in trust for his wife in liferent and his children in fee, but giving the wife power to apportion the fee among the children as she thinks fit. The £1000 is not liable to legacy duty under the wife's will, as it falls to the children under the marriage settlement, the wife having only power to apportion; had she power to bequeath to whom she might choose, duty would be exigible.

Under this last section it has been held that a legacy was created by the gift of an annuity or clear yearly rent charge out of a real estate; by a perpetual legal rent charge out of real estate to the first taker, subsequent takers paying succession duty; and by a gift of the next presentation to a church living.

The above terms of definition of a legacy were extended by 8 &

(n) Hanson, pp. 61-66.

(0) § 4 of Act, afterwards repealed as above.

9 Vict. c. 76(p), which provides in substance that, after the passing of the Act, every gift by any will or testamentary instrument of any person which 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 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 shall 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 affect with the payment of money, or out of or upon any moneys 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 donation mortis causa, shall be deemed a legacy. Provided always that no sum of money which, by any marriage settlement, is 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 be liable to the duties on legacies under the will in which such sum is appointed or apportioned in exercise of such limited power.

The sum of these definitions is that all gifts by will, whether out of heritable or personal estate, and whether gifts of annuities, or of specified sums of money, which are made by way of appointment in exercise of any general power for that purpose, however created, are legacies, under the will of the person by whom the power is exercised. And the exercise of a limited power created by will, confers also a legacy under that will, whatever may be the nature of the deed by which the appointment is made. It is the deed by which the power is created, and not the deed by which it is exercised, that governs the exercise of such limited power.(q)

290. Description of Property Liable to Legacy Duty.Previous to the year 1805, legacy duty affected only property of a purely personal character.(r) But in that year(s) the area of taxation was extended to the proceeds of heritable estate directed under a (q) Hanson, p. 19.

(p) § 4 of Act. §§ 2 and 3 of this Act repealed by 33 & 34 Vict. c. 99 (1870), and § 1 from "from" to "thereof," and § 6, repealed by 38 & 39 Vict. c. 96 (1875).

(r) 36 Geo. III. c. 52, § 2, now repealed as above.

(s) 45 Geo. III. c. 28, § 1, now repealed as above.

will to be sold, and to gifts by will made chargeable upon or taking effect out of heritable estate, as distinguished from gifts of the heritable estate itself. At this time, every legacy of the value of £20 or upwards, whether payable out of heritable or personal estate, was liable to duty without regard to the total value of the deceased's estate; but in order to render personal estate, or the proceeds of sale of heritable estate directed to be sold, liable to duty as residue, the whole residue required to amount to not less than £100, and if it amounted to or exceeded that sum, duty was payable in respect of the amount, without regard to the individual shares in which it was distributed.(t)

Thereafter, by 48 Geo. III. c. 149, legacies and shares of legacies were put upon the same footing as respects the liability to duty, such being chargeable for every legacy of the amount or value of £20 or upwards, and for every residue, or share of residue, amounting to £20 or upwards.

Again, whilst by the 55 Geo. III. c. 184 the rates of duty imposed by the last-mentioned Act were increased, no alteration was made in the description of the property taxable, beyond this, that each of two or more distinct legacies to the same person, if collectively of the value of £20, are chargeable with duty, though separately under that amount.

In a schedule annexed to the last-mentioned Act, the property belonging to a person dying after 5th April, 1805, liable to legacy duty, is described as follows:

For every legacy, specific or pecuniary, or of any other description, of the amount or value of £20 or upwards, given by any will or testamentary instrument of any person who shall have died after the 5th day of April, 1805, either out of his or her personal or moveable estate, or out of or charged upon his or her real or heritable estate, or out of any moneys to arise by the sale, mortgage, or other disposition of his or her real or heritable estate, or any part thereof, and which shall be paid, delivered, retained, satisfied, or discharged after the 31st day of August, 1815:

Also for the clear residue (when devolving to one person), and for every share of the clear residue (when devolving to two or more persons), of the personal or moveable estate of any person who shall have died after the 5th day of April, 1805 (after deducting debts, funeral expenses, legacies, and other charges first payable thereout), whether the title to such residue or any share thereof, shall accrue by virtue of any testamentary disposition, or upon a partial or total

(t) Hanson, p. 12.

intestacy; where such residue or share of residue shall be of the amount or value of £20 or upwards, and where the same shall be paid, delivered, retained, satisfied, or discharged after the 31st day of August, 1815:

And also for the clear residue (when given to one person), and for every share of the clear residue (when given to two or more persons), of the moneys to arise from the sale, mortgage, or other disposition of any real or heritable estate directed to be sold, mortgaged, or otherwise disposed of by any will or testamentary instrument of any person who shall have died after the 5th day of April, 1805, (after deducting debts, funeral expenses, legacies, and other charges first made payable thereout, if any), where such residue or share of residue shall amount to £20 or upwards, and where the same shall be paid, retained, or discharged after the 31st day of August, 1815.

By the Customs and Inland Revenue Act, 1880, (u) personal estates of persons dying after 24th March, 1880, whose gross value does not exceed £100, are exempted from legacy duty; and by the Customs Act, 1881, (v) estates of persons dying after 1st June, 1881, not exceeding £300 in gross value, are relieved from legacy or succession duty on payment of a stamp duty of 30s., on the inventory of the personal estate; but it imposes duty on legacies under £20.

291. Mode of Calculating Duty.-The 48 Geo. III. c. 149, and the 55 Geo. III. c. 184, (w) repealed the existing duties merely, leaving the other provisions of the previous Acts in force; consequently the mode of calculating the legacy duty is regulated by the previous Acts.

The leading Act in this respect is the 36 Geo. III. c. 52, and it provides for the calculation of the duty in the following cases :— 1. Gifts of Capital. The duty is calculated on the amount or value of the legacy or succession, and is payable at once.(ww) 2. Gifts by way of an Annuity.

(1.) Annuity for Life or Years.-The value of any legacy given by way of annuity, whether for any life or lives, or for any term of years, shall be calculated according to the tables. provided for that purpose by the Succession Duty Act,(x) and the duty thereon paid by four equal payments out of the annuity, the first of which shall be made on completing the first year's annuity, and in like manner with the three succeeding years respectively; and the value of such (ww) §§ 6, 17 of Act.

(u) 43 Vict. c. 14, § 13.

(v) 44 Vict. c. 12, §§ 36, 42. (w) § 8 of each Act.

(x) 16 & 17 Vict. c. 51, § 31.