Attorney General v Biggs

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 11 February 1907
• Court: King's Bench Division (Ireland)
• Date: 11 February 1907

The Attorney-General

and

Biggs (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

Revenue — Succession duty — Predecessor — Settlor — Marriage portion — Succession Duty Act, 1853 (16 & 17 Vict. c. 51), ss. 2, 10.

Held, that, before and at the time of the settlement, the £5000 put in settlement belonged to the step-father and not to the step-daughter, and that he was the predecessor.

Held, also (per Gibson and Kenny, JJ.), that, notwithstanding the use of

the word “portion” in the settlement, the step-father, and not the step- daughter, was to be deemed the settlor.

Ward v. Dyas (LI. & G. temp. Sugden, 177) observed upon and distinguished.

Information at the suit of the Attorney-General submitting that succession duty at the rate of £10 per cent. became payable by the defendant in respect of a certain sum of £5000 under the provisions of sects. 2 and 10 of the Succession Duty Act, 1853, the predecessor of the defendant being a stranger in blood. The question arose upon the marriage settlement of Samuel Dickson Biggs and Elizabeth Geraldine Goodwin, which was dated 1st June, 1870. Prior to the marriage, Elizabeth G. Goodwin, and her brother, Joseph A. Goodwin, had been living with their mother and their mother's second husband, William Johnston, a gentleman of considerable property, both real and personal. William Johnston had no near relatives of his own, and was devotedly attached to the two children of his wife. In the years 1867 and 1868, he made a gift to Miss Goodwin of forty-five National Bank shares, the value of which at the date of Miss Goodwin's marriage was £2600, and on 22nd March, 1870, he made a will in which he bequeathed “To my step-daughter, Elizabeth G. Goodwin (in addition to the forty-five shares in the National Bank, which I have made her a present of some time since), I give, devise, and bequeath the sum of £5000.” About the middle or end of April, 1870, when Elizabeth J. Goodwin, who was then aged twenty-two years, or thereabouts, became engaged to Samuel Dickson Biggs, she transferred the forty-five National Bank shares, at the request of William Johnston, to her brother, Joseph A. Goodwin. Two days before the marriage William Johnston said to her, “I am taking the National Bank shares from you but you will feel no disappointment hereafter, as I have left you in lieu of them much more than their value, but my motive in doing so is for fear your husband might suffer if the bank failed.”

By the settlement executed upon the marriage, reciting that Samuel Dickson Biggs was seized of an estate in fee-farm of certain lands in the counties of Limerick and Tipperary, and of an estate in fee-simple in certain lands in the county of Tipperary, all which lands were subject to certain incumbrances mentioned in the schedule thereto (consisting of a mortgage for £5000 and charges of £1000 and £84 12s. 3d.), and also reciting an agreement that the said lands should be limited as thereinafter mentioned, and that the marriage portion of Elizabeth Geraldine Goodwin should be applied in payment and satisfaction of said charges, it was witnessed that in consideration of the marriage, and of £5000, the marriage portion of Elizabeth Geraldine Goodwin, in hand, paid by William Johnston to Charles Eiver Young and Joseph Alfred Goodwin, the said lands were limited to George Washington Biggs and Garrett Curtin, their heirs and assigns, to the use of the said Samuel Dickson Biggs until the said marriage, and after the solemnization thereof to the use of the said Samuel Dickson Biggs and his assigns during his life, and after his decease to the use that, if the said Elizabeth Geraldine Goodwin should survive the said Samuel Dickson Biggs, she might thenceforth receive during her life the yearly rent-charge of £300, to be increased in the events therein mentioned, and subject thereto to the use of the said Charles Elver Young and Joseph Alfred Goodwin, their heirs, executors, administrators and assigns, for the term of 1000 years, upon trust, to secure the payment of the said rent-charge, and to raise the sum of £4000 for younger children as therein mentioned, and from and after the expiration or sooner determination of the said term, to the use of such son of the said marriage, and the heirs of the body of such son, as the said Samuel Dickson Biggs should by deed or will appoint, with remainder in default of appointment to the use of the first and other sons of the said marriage successively in tail male, with remainder in default of such issue to the use of the daughters of the said marriage as therein mentioned, with ultimate remainder to the use of the said Samuel Dickson Biggs, his heirs and assigns. And it was thereby agreed that the sum of £5000, so paid to the said Charles Elver Young and Joseph Alfred Goodwin, or the trustees or trustee for the time being, should be applied by them in payment of the said sums of £5000, £1000, and £84 12s. 3d., mentioned in the schedule thereto, and that until such payment the said trustees or trustee should invest the said sum of £5000 in, any of the public stocks or funds of Great Britain; or upon Government or real securities in England, Wales, or Ireland, and should vary such investment as they should think fit, and should apply the annual income thereof in or towards the payment of the interest of said charges, and subject to the payment of the principal and interest of said charges should hold the said sum of £5000 upon the trusts thereinbefore declared respecting the said lands, or as near thereto as the circumstances would permit.

The defendant was the eldest son of this marriage.

Upon the 31st August, 1870, William Johnston died, without having altered or revoked his will of the 22nd March, 1870, and the question at once arose as to whether the legacy of £5000 given to Elizabeth G. Goodwin was not adeemed by the marriage portion of £5000 put in settlement for her by her step-father, or whether the presumption against double portions was not rebutted by the circumstances of the case. The question was argued before Sir Edward Sullivan, M.R., in Curtin v. Evans (1), and after voluminous affidavits had been put in evidence, it was decided that the legacy had not been adeemed. These affidavits are fully set forth in the report (1), and the facts stated in them were treated as admitted in the present proceedings. Samuel Dickson Biggs died on the 2nd November, 1904, and by the exercise of the power of appointment contained in the settlement, and by virtue of a certain disentailing deed, and a deed of re-settlement, the defendant was now, as tenant for life, entitled to the lands and property contained in the original settlement. The sum of £5000 paid by William Johnston to the trustees of the settlement was fully applied in discharging the mortgages on the lands comprised in the settlement. The Attorney-General contended that full succession duty was payable after the death of Samuel Dickson Biggs, as the £5000 was paid out of the proper moneys of William Johnston, a stranger in blood to the defendant. The defendant contended that the predecessor from whom the sum was derived was not, William Johnston but Elizabeth G. Goodwin, his mother.

The Attorney-General (The Right Hon. R. R. Cherry), The Solicitor-General (Redmond J. Barry, K.C.) (with them Coll), in support of the information:—

The predecessor was William Johnston and not Elizabeth Geraldine Goodwin. It was William Johnston who provided the moneys. If it is contended that the £5000 was the absolute property of Elizabeth G. Goodwin, marriage or no marriage, and to pass to her personal representative if she died, at what point of time did it become her property? Physically speaking, it was never in her hand. In order to support his case, the defendant must show that the £5000 became the property of Miss Goodwin by the operation of something dehors the settlement; yet there is nothing in the history of the case to transfer the money except the settlement itself. The defendant cannot make the case that the £5000 brought into settlement was taken by Elizabeth G. Goodwin in exchange for the National Bank shares, because the view taken by Sir Edward Sullivan, M.R., in Curtin v. Evans (1) was that she gave up the National Bank shares upon the undertaking that he would provide for her in his will. [They referred to Ramsay'sCase (2); Attorney-General v. Rathdonnell (3); and Attorney- General v. Riall (4).]

C. A. O'Connor, K.C., and Corvan, for the defendant:—

The step-daughter was the settlor: see the dictum of Lord St. Leonards: “The father provides the portion and the child settles it”: Ward v. Dyas (5). There was a complete gift by the step-father to the step-daughter cut down by the limitations of the settlement: see Norton on Deeds, p. 377. The step-daughter was the owner of £2600 worth of National Bank shares: and the substance of the transaction was...