William Boyd Robertson Williamson, Plaintiff in Error v. Her Majestys' Advocate General, Defendant in Error [1843] UKHL 2_Bell_89

UKHL
William Boyd Robertson Williamson, Plaintiff in Error v. Her Majestys' Advocate General, Defendant in Error
[1843] UKHL 2_Bell_89

[In error from the Court of Exchequer in Scotland.]

No. 8

William Boyd Robertson Williamson , Plaintiff in Error v. Her Majestys' Advocate General , Defendant in Error

[ 16th March , 1843 .]

Subject_ Legacy Duty — Real or personal —

Terms of a will held to import an express direction to sell lands, so as to subject their value in payment of legacy duty, as on personal estate.

Subject_ King — Costs —

If, in a suit for legacy duty, the Crown takes a verdict for more than it is entitled, upon an appeal on this and other grounds, the Crown will not be allowed costs.On the 29th November, 1799, Alexander Robertson conveyed to trustees his whole heritable and moveable estate, chattels and effects, goods and gear, debts and sums of money;
“as also all lands, messuages, tenements, and hereditaments presently pertaining to me, or that may pertain or belong to me at the time of my decease, and particularly, without prejudice to the afore-said generality, all and whole the lands of Forden, now called Lawers,”
which were specially described. Then followed a conveyance of several heritable bonds, and the lands over which they were security—“but always with and under the conditions, provisions, and reservations after specified and in trust always for the uses, ends, and purposes, after mentioned, viz. Declaring, as it is hereby expressly provided, that these presents are granted by me, the said Archibald Robertson, with full power to my said trustees before named, and to such other person or persons as I shall appoint by a writing under my hand, at any time in my life, and even on death-bed, or the survivors or acceptors of them, and their quorum foresaid, and such other person or persons, as my said trustees should think proper to assume in

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Upon the 1st of June, 1812, Archibald Robertson made another testamentary instrument, which recited, that he had executed the deed of 1799 in favour of the parties therein named, for certain purposes, and continued thus:—trust-estate and funds, in favour of the heirs of my body, but to return to my said trustees for the uses, ends, and purposes mentioned in the said trust-right, in case of the failure of heirs of my body, without otherwise disposing thereof after they shall have attained majority. But in the event of my decease without lawful issue of my body, of my present, or any subsequent marriage, or in case of the failure of heirs of my body, without otherwise disposing of my trust-estate and funds, then, and in either of these cases, I hereby direct my said trustees, or quorum of them, to pay the sums of money after mentioned to the persons after named, out of my means and effects disponed and conveyed to them in trust.”
“amongst others, my said trustees are required to turn my means and effects thereby conveyed in trust into money, and to content and pay, or assign and make over, to such person or persons as I shall name and appoint, by a writing under my hand, at any time of my life, and even on deathbed, such sum or sums of money, or proportion or proportions of the moneys arising from the subjects thereby conveyed and disponed in trust to my said trustees: Therefore, in terms of my trust-deed, and in the event of a child or children, whether male or female, being procreate of my body of my present, or any subsequent marriage, and existing at the time of my death, then and in that case, I hereby direct and appoint my said trustees, and the quorum of them, to bestow and employ the profits and produce of my said trust-funds, remaining after the payments of debts and expenses, for the use and behoof of the heirs of my body; declaring, that as soon as my heir shall be married, or attain majority, then my said trustees shall be obliged to denude of my whole

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[Then followed a number of bequests of sums of money, one of them being a bequest of £4000 to the maker's widow, for the purchase of a jointure-house, and of the furniture in the house of Lawers, as far as she might choose, to complete the furnishing of her jointure-house.] The deed then continued thus:—as before mentioned, or so soon thereafter, in either case, as my funds conveyed in trust can be converted into money; and the annuities to commence and run from the said term, with the interest on the above legacies; but always with and under the provision and declaration as to the payment of interest on the legacies aforementioned, as is particularly contained in my said trust-deed, before my funds are turned into money: But declaring always, and it is hereby provided and declared, that in case my means and effects disposed in trust, shall not, when turned into money, be equal or sufficient for the payment of the sums hereby appointed to be paid, then, and in that case, each of the legacies to the persons above named, (the legacies to my wife, Mrs Robertson, excepted,) shall suffer a proportionable diminution or abatement, but not the annuities.”
“The residue of my means and effects, including the right of the fee to the sums vested and secured for the payment of the said annuities, so far as not otherwise disposed of by me, I hereby direct my said trustees to pay and make over to my two nieces, Archibald Boyd Robertson, and William Boyd Robertson, as my residuary legatees, share and share alike, or to the heirs or assignees of my said neices who may happen to survive me, and who may die before my said trustees may finally settle and wind up my said trust-affairs: Declaring also, that the share of such of my residuary legatees as may die before me shall fall to the survivor of them, if not otherwise disposed of by me; which legacies to the persons before named, I direct my trustees to pay; and the same shall bear interest from the first term of Whitsunday or Martinmas after my decease, or at the first term of Whitsunday or Martinmas after the failure of heirs of my body, without otherwise disposing of my trust-funds

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On the 12th of February, 1813, Archibald Robertson died, without having left any heir of his body, or revoked the before recited testamentary instruments, the trusts of which were accepted by the parties therein named, who procured themselves to be infeft in the lands. At the time of his death, Archibald Robertson possessed the sum of L.30,000 in money, and L.20,300 secured by heritable bond. He was also possessed of the estate of Lawers, the free yearly rental of which, at the time of his death, amounted to the sum of L.2166, 0s. 11d. and its value to L.52,446.The personal debts, funeral expenses, and expenses of trust, amounted to L. 12,500, and the legacies, payable under the testamentary instruments, to L.20,700. The life-annuities given by the testamentary instruments, together with the jointure of the widow who survived him, amounted to the yearly sum of L.2045, and the value of the annuities, calculated according to the statute, was L.21,175, exclusive of the L.4000 to be applied in purchasing a house for the widow.

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The trustees realized the money secured upon heritable bond, and with it and the personal estate, discharged the debts, funeral expenses, and legacies of the testator; and out of the income of the surplus, and the rents of the real estate, they paid the annuities bequeathed. In this way a sale of the real estate did not become necessary, and accordingly no sale was ever effected.Archibald Robertson was survived by his two nieces, Archibald Boyd Robertson and William Boyd Robertson. These parties, on the 22d of April, 1813, conveyed to the same persons as were trustees under the testamentary deeds of Archibald Robertson, their whole means and estate, real and personal, and “more particularly, whatsoever sum or sums of money, or means or effects, heritable or moveable, they or either of them might be found entitled to, and to which they or either of them might succeed, as the nieces and residuary legatees of the said deceased Lieutenant-General Archibald Robertson, in virtue of his trust-disposition and supplementary trust-deed, or deeds of distribution,” upon certain trusts.Archibald Boyd Robertson died, and left William Boyd Robertson surviving her.On the 25th of July, 1814, the trustees, under the deed of Archibald Boyd Robertson and William Boyd Robertson, of 22d April, 1813, in implement of one of the purposes of the trust to that effect, conveyed to William Boyd Robertson, as the survivor, the land of Lawers which had yet remained unsold under the trusts of Archibald Robertson's testamentary deeds, and, at the same time, they obtained from William Boyd Robertson an indemnity against the consequences of this conveyance, and an obligation to pay any of the debts, legacies, or annuities, of Archibald Robertson, then remaining payable. William Boyd Robertson then entered into the absolute enjoyment of the lands of Lawers.

In 1837, Her Majesty's Advocate-General filed an information

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The plaintiff then brought her writ of error returnable in Parliament, which now came on to be argued.Mr Simpkinson and Mr Gordon for the plaintiff in error .—The deeds do not contain any express direction that in any, and at all events, the lands should be sold; at most they suggest an apprehension in the mind of the maker, that a sale might be necessary in order to effectuate the purposes of the trust, and they contain simply a power given by him for that purpose, and that only; but the amount of the personal estate made it unnecessary for the trustees to effect a sale of the real estate, and therefore, as little from the purposes of the deeds, as from their expressions, can it be inferred that there was any direction to sell.The terms of the clause of return, in the event of there being an heir of the granter's body, are quite inapplicable to the case of the whole estate being converted into money, as the money, on being paid to the heir, would instantly be mixed with his other funds, so as to make it impossible to ascertain whether he had, in the words of the deed, otherwise disposed of the estate.” This shews that there was no absolute direction to sell.With regard to the other event contemplated, of there not being any heir of the granter's body, the event which happened, the circumstances made any sale unnecessary, and, as if the maker of the deeds had the possibility of this in his view, he does not simply direct the residue of his estate to be paid, as he had

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No doubt the testator has, in the second deed, recited, that he had “required” his trustees to turn his estate into money, but that recital will not affect the meaning of the terms used in the deed recited; but moreover, this recital is immediately followed by the provision for the event of there being an heir of the body, expressed in terms inapplicable to the case of the estate having been converted into money, shewing thereby that the requisition to turn into money was applicable only to the case of such an operation being necessary for the payment of debts and legacies.In Attorney v. Halford , 1 Price, 426, though no sale had been effected, there was indubitably an express direction to sell. The Court, therefore, proceeded on the principle, that what was directed to be done should be considered as having been done. And in Advocate v. Ramsay's Trustees , 2 Cro. Mee. and Roscoe, 224, not only was there an express direction to sell, but the direction had been complied with, and a sale effected. But in the subsequent case of Attorney v. Evans , 2 Cro. Mee. and Roscoe 215, although sales of the real estate had actually been made, yet, inasmuch as they were not expressly directed, and had only been made as beneficial to the parties interested, it was held that legacy duty was not exigible.Lord Brougham .—My Lords, in this case I entertain no doubt whatever, and therefore I should suggest to your Lordships that the proper course to take will be at once to give judgment for the defendant in error, that is, for the Crown. The question in this case arises upon the event which has happened, of General Robertson leaving no heirs of his body. Their Lordships below, as I understand from those of your Lordships who

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My Lords,the only pretence for saying that, is the use of the word “done.” I can see no one shadow of reason for so perverting and torturing the sense as to make the word “which” apply to the words which follow, rather than to the words which precede, except the use of the word “done.” It may certainly be said critically, that the word “done” applies more to the act of payment than to the act of sale. You do not say to “ do a sale,” so readily as you say, “to make a sale,” or that the sale should take place. Nevertheless, it would still be a very great violence to its meaning to put any such construction.Then, my Lords, I cannot leave out of view the way in which it is dealt with as residue; he says, “let the whole of my means and effects,” including the produce from the sale of the land which he has appointed to take place, “be divided between my two neices, Miss Archibald Boyd Robertson, and Miss William Boyd Robertson, share and share alike, as residuary legatees.” I go a good deal upon that. I think it leaves very little doubt of what he assumed to be the case, and what he intended should be the case; and I go upon it, not merely on account of the use of the words “residuary legatees,” although clearly the expression “residuary legatees” applies much more to persons to whom a pecuniary residence is bequeathed, than to persons to whom an estate of inheritance is devised. Yet I agree that “legatee” is sometimes used for “devisee,” as the expression “devise” is sometimes used for “legacy.” But it is the dealing with the property that I look to. In this

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Well, then, my Lords, last of all, I come to consider the way in which he deals with what he has done before, in the recital to his subsequent deed. Observe, that recital in the subsequent deed, expressly uses the word “required,”—“Whereas, amongst others, my said trustees are required to turn my means and effects thereby conveyed in trust, into money.” It is a very good mode of construing an instrument, to take a man's own words when the meaning hangs doubtful upon the instrument, if it does hang doubtful, which I am disposed here to deny; but it is also a good mode of getting at the meaning, to see what he himself thought he had done. It is clear, that he thought he had not given a power, but an order, for it is a stronger word than “direction;” the word “required” is the strongest word he could use.My Lords,these being the points upon which, running shortly over them, it appears to me that their Lordships in the Court below have come to a right conclusion, I hold, that it is for your Lordships, without hearing the respondent, to affirm it, and to give judgment for the defendant in error, the Crown. I will only advert in one word to the cases which have been cited. Evans v. Evans is a totally different case from the present; for in that case this expression was used, “sell such part of the estate as may be wanted for the purpose of paying the debts,” and deal so and so with the residue. That is not this case. This is “sell the whole,” whether it may be wanted or not, and deal with the residue in a totally different manner; give it not to the heir-at-law, but give it to the next of kin. It was not an estate of personalty at all; it was a charge upon the realty.

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Then as to the other case which has been cited, of Durie v. Cooles , the words there are,—to which I called the learned counsel's attention during his argument,—“if he shall think fit;” words empowering and giving a discretion. The author of the deed would never in that case have said, “Whereas I have required my trustees to sell;” he would have said, Whereas I have empowered my trustees to sell.” It was a mere power to sell.Then the case of Cathcart is a totally different case; the remarkable difference is, that the person to whom the estate was made over was the heir-at-law.My Lords,I am therefore clearly of opinion, if it should so appear to your Lordships, that in this case we have nothing to do but to give judgment for the defendant in error, with the variation by consent.Lord Cottenham .—My Lords, I am entirely of the same opinion. It was alleged by the learned counsel for the appellant, that this case turned upon that which is a common question in the courts in this country,—whether this amounted to a conversion of the property, out and out, into personalty? or whether it was to be considered as a direction only to sell, for the purpose of paying off certain charges, debts, and so on? That is the criterion by which questions of this sort are determined. The decision turns upon the opinion formed, (varying, of course, in the different cases, with the different expressions used,) upon the question, whether it falls under one denomination or another. Now, my Lords, looking at these instruments, it does not appear to me that they raise a doubt upon this matter. It is not necessary that the words of the power should contain an absolute direction to the trustees to sell. The intention of the testator must be gathered from all the provisions of the deed, and I cannot find any provision in that deed which raises any question as to the intention of the author of the instrument, that the

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And then, my Lords, comes the second deed. Taking all these expressions together, upon the construction of the first deed, I apprehend no real doubt can be raised; but in the second deed, he puts his construction upon what he has done; he says that he had required the trustees to turn the estate into money. Now, if this had been a case in an English Court of Equity, and the question was, whether it was a power out and out, there is no case within my recollection which would throw a doubt upon that subject; and cases have occurred in Scotland which shew that the rule of decision there has been founded upon the same principle as in this country, and therefore, that the law is the same in the two countries. It appears to me, my Lords, quite clear, that the two instruments, taken together, give a direction to sell, and convert the estate from land into money; and therefore the gift, which is the subject of the present appeal, is for the purpose of the legacy duty to be considered as a gift of money, and not a gift of land.Lord Cambpell .—My Lords, it is quite sufficient for me to say, that looking at these deeds, I am thoroughly convinced, that by them General Robertson intended, that if he died without leaving a son, the estate of Lawers should be sold. He died without leaving a son, leaving no discretion to the trustees. Under these deeds they were bound to sell, therefore this is to be considered as liable to the duty.

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It is entirely distinguishable from those cases which have been cited, where there was merely a discretionary power which the trustees might exercise or not, that merely amounting to an equitable charge upon the real estate, and not converting the real estate into personalty.My Lords,I have had the advantage of reading the very able and luminous judgments of Lord Jeffrey and Lord Cunningham, who gave judgment in the Court below. They seem to me to have reasoned it with great ability, and I entirely concur in the views that they took of this case.Mr Twiss .—The judgment will be with costs. The crown, under the statute, is entitled to costs.Lord Brougham .—No. There can be no costs. The judgment below is erroneous in giving the whole duty.Mr Twiss .—The verdict was merely arranged, and the error crept in by mistake.Lord Brougham .—The sum is expressly stated in the judgment. You might have saved the expense of the hearing by consenting beforehand to its rectification.Ordered and Adjudged, that the judgment given in the Court of Exchequer, in Scotland, be affirmed, but with this variation, that her said Majesty may have execution against the said William, or Wilhelmina Boyd Robertson Williamson, for the sum of one thousand two hundred and forty-nine pounds, two shillings, and one half-penny, being the amount of duty payable by the said William, or Wilhelmina Boyd Robertson Williamson, by consent of parties, instead of for the sum of two thousand five hundred pounds in the said judgment mentioned; and that the record be remitted to the end such proceeding may be had thereupon, as to law and justice shall appertain.Solicitors: Richardson and Connell.—Solicitor for Stamps and Taxes, Agents.