The Right Hon. The Attorney-General for Ireland (on Behalf of HM), Informant; The Right Hon. T. K., Baron Rathdonnell, A. E. M'Clintock, and The Rev. T. C. Seymour, Defendants

• Jurisdiction: Ireland
• Judgment Date: 19 June 1893
• Date: 19 June 1893
• Court: Exchequer Division (Ireland)

Ex. Div.

THE RIGHT HON. THE ATTORNEY-GENERAL FOR IRELAND (ON BEHALF OF HER MAJESTY), INFORMANT;

THE RIGHT HON. T. K., BARON RATHDONNELL, A. E. M'CLINTOCK, AND THE REV. T. C. SEYMOUR, DEFENDANTS.

Mackie v. HerbersonELR 9 App. Cas. 303.

De Mestre v. WestELR [1891] A. C. 264.

Clarke v. WrightENR 6 H. & N. 849.

Hamerton v. Mitton 2 Wils. 356.

Re JenkinsonENR 24 Beav, 64.

The Attorney-General v. BakerENR 4 H. & N. 19.

Ramsay's SettlementENR 30 Beav. 79.

The Lord Advocate v. Sidgwick Scottish Law Reporter, 1877, p. 522; 4 Rettie's Sc. Sess. Cas. (4th Ber.) 815.

The Lord Advocate v. Sidgwick 4 Rettie's Sc. Sess. Cas. (4th series), 815; Scttish Law Reporter, 1877, p. 522.

Floyer v. BankesENRUNK 3 De G. J. & S. 306; 9 Jur. (N. S.) 1255; 12 W. R. 28.

Ramsay's TrustsENR 30 Beav. 75.

Succession duty — 16 & 17 Vict. c. 51, ss. 2, 17; 44 Vict. c. 12, s. 38; 52 Vict. c. 7, s. 11 — Predecessor — Contract for money or money's worth — Personal property — Trust in favour of volunteer.

.574 LAW REPORTS (IRELAND). [L. R. THE RIGHT HON. THE ATTORNEY-GENERAL FOR IRELAND (ON BEHALF OF TTER MAJESTY), INFORÂMANT ; THE RIGHT HON. T. K., BARON RATHÂDONNELL, A. E. M'CLINTOCK, AND THE REV. T. C. SEYMOUR, DEFENDANTS. Succession duty-16 Zj 17 Vict. c. 51, ss. 2, 17 ; 44 Vict. c. 12, s. 38 ; 52 Vict. c. 7, s.11-Predecessor-Contract for money or money's worth-Personal property-Trust in favour of volunteer. By settlement, made on the marriage of A and B, a sum of £5000, the forÂtune of A (the wife) was assigned to trustees, upon trust to pay the interest thereof to her during the joint lives of herself and B, and upon trust, after the decease of the survivor, and in the events which happened, to apply same in payment and discharge (so far as same would extend) of incumbrances affecting lands brought into settlement by B and his father C, and over which a jointuring power was reserved to them in favour of A, which they exercised to its full extent .; and by the said settlement A was given a life interest, after B's death, in a sum of £4000, brought into settlement by C. In the event (which happened) of there being no issue of the marriage, D, who was a grandson of C, but a stranger in blood to A, became tenant in tail of the settled lands ; and barred the entail and resettled them. A survived B, and on her death the £5000 was applied towards discharging incumbrances upon the settled lands : Held, that A was predecessor of D within the meaning of the Succession Duty Act, 1853, and that duty at 10 per cent. was payable by D in respect of his succession to this sum. A settlement in consideration of marriage and money or money's worth is not within the exemption in sect. 17 of the Act. The Lord Advocate v. Sidgwick (4 Rettie's Se. Sess. Cas. (4th series) 815 ; 14 Scottish Law Rep. 522) discussed, and the observations of the Lord PresiÂdent as to partial failure of consideration held inapplicable to English law. Held, also, that, assuming the lands to be of greater value than the incumbrances, the trust of the £5000 was a trust of personal property in favour (so far as applied in discharge of incumbrances) of D as a volunteer within the Acts 44 Vict. c. 12, s. 38, and 52 Vict. c. 7, s. 11. INFORMATION by the Crown to recover succession duty in respect of a sum of £5000 claimed as payable on the death of the late Baroness Rathdonnell, which took place on the 22nd December, 1889. VOL. XXXII.] Q. B. & EX. DIVISIONS. 575 The information was as follows :- Ex. Div. 1. The object of this information is to obtain a declaration h93. . 'that the defendants are bound to deliver a stamp duty account, ATTY.- GEN under the statute 44 Viet. c. 12, sect. 38, as amended by the RATH- statute 52 Vict. c. 7, sect. 11, and pay the proper duty thereon : DONNELL. and to deliver a succession account under the statute 16 & 17 Vict. c. 71, and pay duty thereon at the rate of £10 per cent., in respect of a sum of £5000 settled and brought into settleÂment by Anne, Lady Rathdonnell, deceased, by the indenture in the next paragraph hereof mentioned and set forth, under -which on her death the said sum of £5000 passed to the defendant, Lord Rathdonnell, being a voluntary settlement, and disposition for the purposes of account stamp duty within the said statute, and of which indenture the other defendants are the surviving trustees, and are hereinafter for brevity referred to as the trustee defendants. 2. By an indenture of marriage settlement, dated the 6th .day of August, 1829, executed in contemplation of the marriage which was then intended, and soon after solemnized, between J. 11I`Clintock the younger, afterwards the first Baron Rathdonnell, with Miss Anne Lefroy, afterwards Anne, Lady Rathdonnell, his wife (hereinafter called for brevity the said deceased), certain lands were settled to secure a jointure of £369 6s. 7d. to the said deceased, and a sum of £4000, whereof £367 13s. 10d. was secured by a certain bond, and the residue by two certain charges theretofore and then affecting the said lands, each of £2000 late Irish currency (equivalent to £1846 3s. 8d. sterling) was settled and brought into settlement by the said J. M'Clintock the younger, and by him assigned to the trustees, upon the trusts therein mentioned, which so far as concerns this case were as follows :-To pay the interest thereon to the intended husband for his life, and after his death to the intended wife (if surviving) for her life, and after her death, in the event, which has happened, of default of issue of the marriage, for the intended husband, his •executors, administrators, and assigns abolutely. 3. By the same deed the said deceased, in consideration of the •said intended marriage, and of 5s., with the privity and approbaÂtion of her said intended husband, settled and brought into Ex. Div. settlement her fortune of £5000, consisting of certain reversionary 1893. interests in money in remainder expectant upon, and in fact not in the said indenture respectively mentioned and set forth, which she thereby assigned to the trustees therein named, their executors, administrators, and assigns, upon the trusts therein mentioned as to the investment thereof, and to pay the interest thereof unto the said deceased for her sole and separate use, without power of anticipation during the joint lives of husband and wife, and after the death of either to pay the said interest to. the survivor for life, and after the death of such survivor upon trust in the event which has happened, namely, of default of issue of the said marriage, but without prejudice to the trusts in the said indenture now in statement mentioned in favour of Sophia Lefroy (the mother of the said deceased) during her life, to apply the-said fortune of £5000 in payment and discharge of all and every the gross charges and incumbrances then affecting the lands comprised in a certain indenture of disentailer and resettlement,. dated the 30th May, 1829, therein mentioned, so far as the same would extend, and in discharging and extinguishing the same. 4. There was no issue of the said marriage. 5. All the trustees named in the said indenture of marriage settlement. of the 6th of August, 1829, having died, the trustee defendants, together with the Rev. A. C. Lefroy, and W. HardÂman, both of whom are now dead, were, by deed dated the 5th of August, 1874, duly appointed trustees of the indenture of marriage settlement of the 6th of August, 1829. 6. The said John (first) Lord Rathdonnell died on the 17th of May, 1879, having previously duly made and executed his will and four codicils thereto, and probate of the said will and codicils was on the 31st day of July, 1879, granted forth of the Probate and Matrimonial Division of the High Court of Justice in Ireland unto the said deceased and the other executors thereof. 7. Upon the death of the said John, Lord Rathdonnell, the defendant, T. K., Baron Rathdonnell, who was his nephew, became entitled to, and entered into possession of, the lands and hereditaments comprised in the said indenture of the 30th of 'VOL. XXXII.] Q. B. & EX. DIVISIONS. 577 May, 1829, under the limitations therein contained, as tenant in Ex. Dir. tail ; and also, under the fourth codicil to the will of the said John, 1893. ATTY.-GEN. Lord Rathdonnell, became as residuary legatee beneficially v. entitled to the said sum of £4000 so settled by the said indenture RATHÂof the 6th August, 1829, by the said John, Lord Rathdonnell, DONNELL. by his then name of John M'Clintook the younger, but subject to the said trust for payment of the interest thereof to the said deceased for her life. 8. The said deceased died on the 22nd December, 1889, having, since her marriage and up to her death, received the interest upon the said £5000, so settled by her by the said indenÂture of the 6th August, 1829, as aforesaid, and which at her death was invested in and represented by a sum of £5404 Consols, standing in the books of the Governor and Company of the Bank of Ireland in the names of the trustee defendants as the said trustees of the said indenture of the 6th August, 1829. 9. After the death of the said deceased, the said defendant T. K., Lord Rathdonnell, called upon the then trustees of the said indenture of marriage settlement of the 6th August, 1829, to apply the said sum of £5404 Consols, in discharge of incumÂbrances affecting the said lands at the date of the said marriage settlement ; and they accordingly realized the said sum of £5404 Consols, which produced the sum of £5374 17s. lid. net cash, and applied the same in paying off the said two charges of £2000 late Irish currency, equivalent to the sum of £1846 3s. ld. sterÂling, each making together the sum of £3692 6s. 2d., and the balance of £1682 lls. 9d. was applied by the said trustees in part payment of another charge of £2769 4s. 7d., which had been purÂchased by the said John, Lord Rathdonnell, and was vested under his will in the said...