These events may not happen till long after the certain legatees will or may incur liability for a death of the testator. At the testator's death, proportion of the immediate estate duty on the and also at the time of the general winding-up testator's death, if no special clause is inserted of his estate, it may be impossible to say how to the contrary, will be considered by many as many of these events may in fact operate so as sufficiently establishing that it will not always to attract duty, or how future legislation may do to be silent in the will on the subject. For affect the rates of duty, or indeed how such instance, when there is a gift to one beneficiary legislation may otherwise increase the death of a house and its furniture, it is difficult to duty liabilities. Of this last there is an obvious believe that the testator truly intended that the instance in the case of any will by a testator | legatee should be relieved by the general estate who died before 1914, where the settled fund from liability for estate duty on the furniture, goes over on the death of a liferenter after but should be left to bear the estate duty upon 15th August 1914. That is the position which the house. occurred in Dunn's case, though there the precaution was taken of obtaining a decision of the Court in advance of the event, and during the lifetime of the liferenter, so as to protect the trustees by letting them know what they required to provide for before distributing the residue, at least so far as it is possible to do that. By the Finance Act of 1914 settlement estate duty was abolished, and an additional estate duty liability was created on the "passing passing" of the fund on the deaths of liferenters or other limited beneficiaries, and it is this legislative change which is the special fons et origo of the problem. Apartment of trustees, followed by a legacy of, say, from the other unknown quantities above mentioned, there is the inherent difficulty involved in the principle of aggregation, which augments the rate of duty on future deaths by what may, for the present purpose, be called the wholly irrelevant, and certainly the unassessable, factor of the amount of the liferenter's own estate heritable and moveable, and all his or her other liferented estate, or estate from which he or she may have been drawing annuities.

Before considering what, if any, clause on the subject should be introduced into a will, it is helpful to see what is the result in the absence of any such clause. Excluding residuary gifts (referred to later), the results are-(1) Estate duty payable on the testator's death. This is payable out of residue, to the exoneration of all the other beneficiaries, except legatees of specific heritage and legatees of foreign moveable assets; in both of those excepted cases the legatees must themselves bear the immediate estate duty; and possibly the same holds in regard to general legacies which have to be satisfied out of heritable property. 2) Estate duty payable on subsequent devolutions. This is in all cases payable by the settled fund or property, and so it falls on the special beneficiaries thereof to the exoneration of the residuary legatee. (3) Legacy and succession duties. These are in every case payable by the special beneficiaries, to the exoneration of the residuary legatee.

The mere fact that, as is mentioned above,

On the construction of more or less general relief clauses, there is not needed the authority of Lord Sterndale in In re Wedgwood and of the Lord Justice-Clerk in Dunn for the proposition that it is difficult to lay down rules to govern all cases. In Wedgwood's case the Master of the Rolls proceeded: "In my opinion the natural time to ascertain the meaning of the words free of all death duties' is when the legacies are paid in the sense of having been transferred out and out from the testator's estate." This dictum contemplated the very ordinary course in an English will of the appoint

£10,000 to those trustees upon certain trusts. When the money is handed over, by probably the same persons as executors, to themselves as trustees, that satisfies his Lordship's condition that the legacy is paid in the sense of having been transferred out and out from the testator's estate. In Dunn's case the trustees had in point of fact appropriated in their own hands a special investment to meet the particular settled fund. This was done without any special direction or authority in the will, and it might or might not have been effectual so as to entitle the fiars to any appreciation and to throw upon them the risk of any depreciation. But however that might be, the appropriation was not allowed by the Court to affect the question of the incidence of the estate duty which would become payable on the death of the liferenter.

All that can be said is that the tendency of the most recent English decisions, exemplified in In re Wedgwood and in In re Beecham, is to restrict the import of general words. In the former of these cases Lord Sterndale, speaking of the date down to which the obligation of exoneration of death duties was to be carried, said: "If it be intended to postpone this date to that of payment or transference to the ultimate beneficiary, words should be used clearly expressing that intention. It can of course be done, but I think it should be done by clear words." It is helpful to see exactly what happened in the latest English case, which is In re Beecham. The will followed a scheme

given free of duty; (3) that the duty-free clause applied to the gift of the capital of the £12,000 was further made clear by the provision as to vesting, which manifestly applied to the reversionary gift of the capital of the £12,000; and (4) the testator thus clearly shewed his intention that the immunity from duty should apply, not merely to the occasion of his death, but to all the devolutions prescribed by his will.

with which we are not familiar in Scotland. interests in the fund until the final exhaustion There were first managing trustees, who, of the special trusts. according to the view taken by Sir Ernest In Dunn's case the decision of the Second Pollock M.R., were to clear up the estate,' Division was unanimous, and, if one may say after which they were to hand it over to a so, there does not appear to have been any real custodian trustee. There were various settled doubt of what the result must be, namely, that legacies which were to be administered by the the second estate duty must fall, not upon the custodian trustee over what might be long special fund, but upon the general residue. tracts of time. The first purpose of the The second purpose of the will provided for residuary clause was "to pay all death duties" payment to the legatees hereinafter named of of every kind on every part of my estate, and the following legacies namely. . . . To A in so that this direction shall operate to exonerate liferent, and after his death to his four children any part of my estate which otherwise might B, C, D and E, £12,000," and later on there be charged with or liable for any death duties." occurred the following: "I hereby declare that The question was whether this was merely a the whole of the foregoing legacies are given direction to pay out of residue all death duties free of legacy or other duty and shall vest at payable at the death of the testator, or whether my death.' Thus we have the following facts it extended also to future death duties which | (1) the testator himself describes the gift to A's would arise later on the deaths of annuitants named children of the capital of the £12,000 as or tenants-for-life of the settled legacies. Mr a legacy; (2) he declares that all legacies are Justice Eve felt himself compelled to hold that the language was so wide that all persons beneficially interested in the estate were entitled to immunity from death duties present and future. This was reversed, and the narrower view was taken, in the Court of Appeal, consisting of the present Master of the Rolls and Lords Justices Warrington and Sargant. It is thought to be correct to say that this, along with In re Wedgwood, is an It remains to glance at residuary gifts as indication of a check on the earlier inclination affected by such relief clauses. It has been to a very wide interpretation. But, after all, assumed above that all interests in residue the decision of every such case must depend would be excluded from the benefit of these upon the words used, and it does not appear clauses, but it appears that even in that respect that English forms can in this respect be very there may be what one might be disposed to readily transported into Scotland. In In re call a miscarriage. This occurred in In re Beecham the Master of the Rolls said that it Kennedy ([1917] I Ch. 9, C.A.). In an English was important to notice that the clause spoke will consisting of numbered clauses, clause 6 of duties on every part of my estate and provided that all the legacies, annuities, and not on every interest in my estate." If the bequests bequeathed by this my will shall be latter expression had been used there can be given and paid free of all death duties." little doubt that the wider interpretation would in a subsequent clause the residuary estate have been declared, no matter what incon-was given in liferent and fee through the medium venience that might have caused. Two of the earliest cases are In re Hatch ([1916] 115 L.T. 472) and In re Stoddart ([1916] 2 Ch. 444). In the former case the immunity clause applied to all legacy, annuity, succession, or other duties payable in respect of all and every the benefits given by this my will," and in the latter case the testator directed" all the legacies, whether settled or otherwise, and the annuities herein before bequeathed, to be paid and enjoyed free of all death duties." Benefits" in the one case and enjoyed in the other were very strong, for neither word is really applicable to the interest taken by a mere trustee-legatee of a settled legacy. Accordingly in both of those cases the wider view was taken, and the exemption was held to be applicable to all successive duty claims in respect of all

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of trustees. The estate duty was paid out of residue, and no question was raised regarding that. It happened that the life-tenant and remainder-men under the residuary clause were liable in different rates of legacy duty, and the life-tenant claimed that her life interest in the residue was a bequest in the sense of the relief clause, and that therefore the legacy duty on it, calculated as "an annuity," should be paid out of capital and not out of her income. Mr Justice Astbury decided against that view, but his judgment was reversed in the Court of Appeal. Lord Cozens-Hardy M.R. had no difficulty in giving effect to the claim. His Lordship said:

It is no doubt true that in general a gift of residue or of a share of residue free from duty is ineffective, for the duty must be paid out of

Then there is the question whether such a relief clause can possibly operate in favour of a legatee of residuary capital. It may be thought that the remarks of Lord Cozens-Hardy in In re Kennedy negatived the possibility of such THE Lord Advocate has appointed Mr R. S. an application, but it is not clear that that was Henderson, solicitor, Dornoch, to be Procuratorintended by his Lordship, and in any case the Fiscal for the county of Sutherland. Mr question did not arise. On principle it is Henderson is at present Depute-Fiscal of the difficult to see why, if a relief clause which does county, and previously acted in a similar not mention residue can be held to apply to capacity at Ayr. He is thirty-two years of residue at all, its application should necessarily age, and a native of Airdrie. He served his be excluded from residuary capital. Dismissing apprenticeship with Messrs Borland, King, Shaw the idea of liferent and fee altogether, take the & Co., Glasgow, and thereafter was in the office simple case of a residuary gift equally between of Messrs Mitchells, Johnstone & Co., solicitors, two legatees A and B, where A is by law exempt | Glasgow.

HIGH COURT OF JUSTICIARY, DUMFRIES.-
(Special Sitting.) Dumfries-Tuesday, 13th
May 1924, at half-past ten o'clock. Pleading
Diet Saturday, 3rd May. Service-Saturday,

LAW LIBRARY.

BOOK NOTICES.

26th April. The Hon. Lord Cullen. J. M. A History of English Law. By W. S. HoldsHunter, Esq., Advocate-Depute; Alexander Rae, Esq., Clerk.

worth, K.C., D.C.L. Vols. IV. and V. 1924. London: Methuen & Co. Ltd. Professor Holdsworth's great work grows in JOHN C. WATSON, advocate, Edinburgh, was bulk and in importance; and every additional introduced at the Sheriff Court, Paisley, last volume confirms the opinion, which we expressed week by the Sheriff-Principal on his appoint-in noticing the earlier volumes, that this book ment as an Honorary Sheriff - Substitute. Sheriff Hamilton presided. Sheriff Hamilton remarked that Mr Watson came to the Bar in 1909, but that he was on active service for six years with His Majesty's Army during the war. Mr D. A. Morrison, Dean of Faculty, extended a welcome on behalf of the members of the Bar.

was destined to mark an epoch in the literature of English law. For learning and thoroughness it is probably unique among historical treatises on that law. Volume IV. contains an important contribution to the constitutional history of England in the sixteenth century; and-perhaps more important-it treats of that critical period in the history of European law when the revival of the Roman law was laying the foundations of modern systems. The peculiar attitude assumed at that important period by the English lawyers to the Roman system is fully and clearly discussed. That attitude constitutes an epoch in the history of English law; for from it has largely flowed the fundamental cleavage between the English common law and practically all the other legal systems of Western Europe. The causes and results of that attitude, therefore, well deserve the full treatment which this learned writer has given to them; and we know of no better treatment of the subject. The fifth volume deals fully with the development of the English law during the sixteenth and early seventeenth centuries. The elements contributed by the various courts of Star Chamber, Admiralty, Chancery, and so forth, are discussed in turn; the little-known subject of the earliest published and some interesting information is given on law reports and their influence on the growth of Edward Coke and his unique position as a of the law. The volume ends with a full account formative element in the systematising of the common law.

The Law of Bills of Exchange, Cheques, Promissory Notes, etc., By Bertram Jacobs, LL.B., Barrister-at-Law. Second Edition. 1924. London: Sweet & Maxwell, Ltd. Price 10s. 6d. net.

This little volume, containing a concise and careful statement of the law relating to negotiable instruments, has established itself in the favour of the profession in England and has now attained to the dignity of a second edition. Its explanations are lucid; and the work may be recommended to all who do not possess, or care to consult, the bulkier and more exhaustive treatises.

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