thereto, were subsisting and capable of taking effect immediately before the sealing and delivery of the said disentailing deed. 5. The said disentailing deed was afterwards within six months after the execution thereof duly inrolled in the Court of Chancery in pursuance of the provisions of the said statute in that behalf. 6. Afterwards on the 23rd day of March, 1848, Colonel Sibthorp and Major Sibthorp together made and duly sealed and delivered in the presence of two credible witnesses, who duly attested the same, a certain indenture or deed of appointment of that date, which was expressed to be between Colonel Sibthorp of the first part, Major Sibthorp of the second part, and the Reverend Humphrey Waldo Sibthorp, clerk, and Richard Ellison, Esquire, of the third part; and thereby after reciting amongst other things the said before stated disentailing deed of the 22nd day of March, 1848, and a certain other disentailing deed or indenture of the same date similar thereto, whereby certain other real property was settled and conveyed to the same uses; and that an arrangement had been entered into between Colonel Sibthorp and Major Sibthorp for making a provision for Major Sibthorp during the Colonel's lifetime out of all the real property mentioned in both the said disentailing deeds or indentures respectively: it is witnessed that Colonel Sibthorp and Major Sibthorp did thereby for the considerations therein mentioned, and in exercise and execution of the several powers or authorities in or by the said two several disentailing deeds or indentures respectively reserved or limited to them for that purpose, and of every other power or authority enabling them in that behalf, jointly direct, limit and appoint that all the said real property should thenceforth remain and be, and that the said two several disentailing deeds or indentures of the 22nd 1858. ATTORNEY v. SIBTHORP. day of March, 1848, should at all times thereafter operate and enure to the uses upon the trusts, and with, under and subject to the powers, provisoes, agreements, and declarations thereinafter expressed and contained concerning the same; and Colonel Sibthorp and Major Sibthorp did also, by the now stated indenture or deed of appointment, in further pursuance of the said arrangement and agreement, and for the nominal consideration therein mentioned, grant, alien and confirm unto the said Humphrey Waldo Sibthorp and Richard Ellison, and their heirs, all the said real property, to have and to hold the same unto the said Humphrey Waldo Sibthorp and Richard Ellison, their heirs and assigns, to the uses, intents and purposes therein declared concerning the same, that is to say, to the use, intent and purpose that Major Sibthorp and his assigns should, during the joint lives of himself and Colonel Sibthorp, out of the said real property have, receive and take one clear yearly rent or annual sum of 1000% of lawful money of Great Britain, free from taxes except income tax, and without any other deduction whatsoever, to be paid and payable to Major Sibthorp and his assigns, during the joint lives of himself and Colonel Sibthorp, by quarterly payments on the days therein after mentioned, that is to say, the 1st day of April, the 1st day of July, the 1st day of October, and the 1st day of January, in equal portions, and subject to and chargeable with the said annuity to the use of Colonel Sibthorp and his assigns for his natural life without impeachment of waste; and after his decease to the use of Major Sibthorp and his assigns for his natural life without impeachment of waste; and after the decease of Major Sibthorp to the use of Coningsby Charles Waldo Sibthorp, the first son of the body of Major Sibthorp, and his assigns, for his natural life without impeachment of waste; and after his death to the use of the first, second, third, fourth, and all and every other TRINITY TERM, 21 VICT. 1858. ATTORNEY v. son and sons of the body of the said Coningsby Charles Waldo Sibthorp lawfully begotten, successively and in remainder one after another as they should be in seniority of age and priority of birth, and of the several and respective SIBTHORP. heirs male of the body and bodies of all and every such sons and son lawfully issuing with divers remainders over, and with an ultimate remainder to the use of Major Sibthorp, his heirs and assigns for ever, as by the said indenture or deed of appointment now in the defendant's possession or a copy thereof when produced will appear. 7. Afterwards and during the continuance of the disposition made of the said real property as before stated, and during the lifetime of the above named defendant Major Sibthorp, and after the 19th day of May, 1853, being the time appointed for the commencement of the Succession Duty Act, 1853, that is to say on the 14th day of December, 1855, Colonel Sibthorp died, and thereupon Major Sibthorp succeeded to the said real property as tenant for life thereof under the before stated disposition thereof, and became entitled to the beneficial enjoyment thereof and entered into possession of the same accordingly. 8. Under and by virtue of the Succession Duty Act, 1853, there was and is payable to her Majesty in respect of the succession of the above named defendant, Major Sibthorp, to the real property devised by the will of the said testator as before stated, under the before stated disposition thereof, according to the value thereof, to be ascertained in the manner directed by the said Act, a duty at the rate of 31. per cent. upon such value, payable by eight equal halfyearly instalments, the first whereof ought to have been paid at the expiration of twelve months next after the said defendant became entitled to the enjoyment of the said real property. 9. Application has been made to the defendant Major 1858. ATTORNEY Sibthorp to pay the said duty, but he declines so to do; and sometimes he says that he is not liable to pay any duty whatever in respect of his said succession, inasmuch as he SIBTHORP. takes the whole thereof under a disposition made by himself; and at other times he says that at all events he takes one moiety of his said succession under a disposition made by himself and is not liable to pay any duty thereon, and as to the other moiety he takes the same under a disposition made by his father the said Colonel Sibthorp, and any duty which he may be liable to pay thereon must be calculated at no higher rate than 17 per cent.; and in any case he claims in computing the assessable value of his said succession to have an allowance made to him in respect of his annuity of 10007., which he says he has relinquished or been deprived of, upon taking his said succession, within the meaning of the 38th section of the Succession Duty Act, 1853. Prayer. That it may be declared that the defendant Major Sibthorp is chargeable with duty at the rate of 31. per cent., or at some other rate, in respect of his succession to the real property devised by the will of the said testator as hereinbefore stated; and that the particulars of such succession, and the amount of duty payable by him in respect thereof, may be ascertained (if necessary) under the direction of the Court, and that the defendant may be decreed to pay such duty to the Receiver General of Inland Revenue on behalf of her Majesty, and that for the purposes aforesaid all proper accounts and inquiries may be taken and made. The defendant filed an answer to the information, the following paragraphs of which were referred to by his counsel in the course of the argument :— 4. Colonel Sibthorp and the defendant did make and execute a disentailing deed of the date, and between the parties in the fourth paragraph of the said information mentioned, and which is hereinafter referred to as the first disentailing deed; and thereby, after reciting the said will of the said Coningsby Waldo Sibthorp and otherwise to the effect in the said information mentioned, and after also reciting (as the fact was) that the personal estate of the said testator by his said will not specifically bequeathed, thereby directed to be applied in or towards payment of his debts, was in part applied for that purpose, and that other part was received by the said Colonel Sibthorp and applied for his own purposes, but that no account of such personal estate and of the application thereof had ever been rendered or made out. And after also reciting that the devised estates were by virtue of the mortgages referred to in the said will and of the said will, and of a charge by the said Colonel Sibthorp in part exercise of the said power in the said will contained for charging the said estates with the sum of 10,000l., then liable to divers mortgages, charges or incumbrances, and that the said defendant notwithstanding the direction in the said will contained for applying the personal estate not specifically bequeathed in or towards the payment of the debts or charges therein mentioned, and the non-application of any part or parts of the said personal estate according to the said direction, was willing that the said devised estates should, as between him and the said Colonel Sibthorp, and also as between the person or persons for the time being entitled to the said estates, and the personal representatives of the said Coningsby W. Sibthorp, after such representatives should have been released or exonerated by the said Colonel Sibthorp and the said defendant, thereupon be considered as charged with and liable to the mortgages, charges and incumbrances then existing and thereafter to be created thereon, free from any claim or demand of or by the said defendant on account of any misapplication of the personal estate or the non-application thereof or of any part thereof for the purpose aforesaid, the said defendant having consented to forego all claims and demands under or in respect of the direction aforesaid, and every such misapplication or non-application as last aforesaid. It was witnessed that the said Colonel Sibthorp, so far as related to the uses or estate for his own life, or of or to which he was seised or entitled in the said real property, did grant, alien and convey, and the said defendant, with the consent of the said Colonel Sibthorp as such protector, did grant, dispose of, and confirm unto the said Joseph Tatham and his heirs, all the said real estates devised by the said will. To hold the same unto the said Joseph Tatham and his heirs, subject to such charges and incumbrances as were subsisting on the said premises, or any of them, before and at the time of 1858. ATTORNEY v. SIBTHORP. |