Attorney-General v Darell

• Jurisdiction: Ireland
• Judgment Date: 21 January 1871
• Date: 21 January 1871
• Court: Revenue Exchequer (Ireland)

Rev. Ex.

ATTORNEY-GENERAL

and

DARELL.

Hood v. PhilipsENR 3 Beav. 513.

Gunter v. GunterENR 23 Beav. 571.

Purcell v. Purcell 5 Ir. Ch. R. 502.

Grice v. ShawENR 10 Hare, 76.

Byam v. SuttonENR 19 Beav. 556.

Earl of Clarendon v. BarhamENR 1 Y. & C. C. C. 688.

Forbes v. Moffatt 18 Vesey, 384.

Swabey v. Swabey 15 Simon, 502.

Donisthorpe v. PorterENR 2 Eden, 162.

Johnson v. WebsterENR 4 De G. M. & G. 474.

Astley v. MillesENR 1 Sim. 298.

Tyler v. LakeENR 4 Sim. 351.

Probate duty Personal property Merger Extinguishment of charges.

VoL. VI.] COMMON LAW SERIES. 491 ATTORNEY-GENERAL v. DARELL. Probate duty-Personal property-Merger-Extinguishment of charges. A testator, seised in fee of estates subject to incumbrances, devised them subject to the incumbrances, which were six in number, each having a distinct priority. Of these charges, the fourth and fifth were, at the time of the testaÂÂtor's death, vested in the devisee ; and shortly afterwards a portion of the third charge was declared to be held in trust for the devisee. Subsequently, the second charge was paid off with money belonging to the trustee of the devisee's marriage settlement, and deeds executed intended by the parties thereto to have the effect of an assignment of the charge, but which, in the opinion of the Court, effected an extinguishment of it and the creation of a new one for a similar amount. Alter the death of the owner of the first charge (in whom was vested at the time of his death the portion of the third charge not belongÂÂing to the devisee) a settlement of account was come to between his personal representative and the devisee, when it was agreed betweep.them that the charges vested in the owner of the first charge should, except a portion thereof amounting to 10,000, be released ; and of this sum 8000 was afterwards paid by the devisee, who, in his will, stated his intention to have been to exÂÂtinguish the charge for 8000. The sixth charge was assigned to a trustee for the devisee; and was in his will stated to be a substituting charge: Held, 1. That the creation of the new charge by the devisee, on the paying off of the second charge, had the effect of extinguishing all subsequent charges then vested in him, and that, therefore, the portion of the third charge, of which a trust in his favour had been declared, and the fourth and fifth charges were merged. in the inheritance. 2. That the will of the devisee expressed his intention sufficiently regarding the charges of 8000 and the sixth charge, and that the sixth charge alone was liable to probate duty (1). INFORMATION by the Attorney-General on behalf of the Crown against Sir W. L. Darell, Bart., executor of Sir E. Tierney, claimÂÂing Probate duty in respect of several sums amounting in the aggregate to 87,905, charged upon the real estate of Sir E. TierÂÂney at the time of his death, and which, as subsisting charges, were alleged to form portion of his personal property. The Information set forth the facts which will be found minutely detailed in the judgment of the Court. (1) The publication of this case has been unavoidably delayed. 492 THE IRISH REPORTS. [1. R. Rev. Ex. The Defendant by his answer contended that, upon the facts 1871. stated, a merger had taken place, and that the charges in respect Arry.-GENL. of which Probate duty was sought had become extinguished, and v. The Attorney-General, The Solicitor-General, Armstrong, Serjt., Macdonagh, Q. C., 0' Hagan, Q. C., and febb, for the Crown. The question is, whether or not there was, at the time of Sir Edward Tierney's death, a merger of the charges on which Probate duty is claimed ? The general rule is, that where the charge and the estate charged are vested in the same person, the charge beÂÂcomes merged and ceases ; but this is conditional on intention, express or implied, being shown by the owner to preserve the separate existence of the charge so as to prevent a merger. As to the 47,000, portion of the third charge, it presumably merged, if at all, at tile death of the Earl of Egmont ; but the subsequent dealings with it show that it could never have been the intention of Sir E. Tierney to put an end to its separate existence ; for the deed poll by which Sir M. J. Tierney declares the trusts upon which he held it, recites that it is made with the privity and assent of Sir Edward Tierney ; and then declares that it is held upon trust by him, " his heirs, executors, administrators, and assigns, for such uses as Sir E. Tierney should appoint." From which may fairly be inferred an intention to preserve it, so as to enable Sir E. Tierney to deal with it at a future time. Hood v. Philips (1), which may be relied upon at the other side, is distinguishable from this case, for there no subsequent dealing with the charge took place from which an intention to merge it could be inferred: Gunter T. Gunter (2). Merger will not be presumed if it be for the interest of the owner that it should not take place. If this charge merged, the residue of the 57,000, which belonged to Sir M. J. Tierney would gain a priority it had not previously possessed ; and this would not be for the interests of Sir E. Tierney : Purcell v. Purcell (3). A merger would also have given a priority to Battan VoL. COMMON LAW SERIES. - 493 chon's judgment which it would not otherwise have, and this also Rev. Ex. supplies a reason for presmning that no merger of the fourth and 1871. fifth charges took place : Grice v. Shaw (1) ; Byam v. Sutton (2) j ATTY.-GENL. Earl of Clarendon v. Barham (3). If no merger can be presumed DARELL...