is merely this, that when a person possessed of shares in public Companies in Scotland dies, if his will is proved in England, it is not necessary for the executors to prove the will again in Scotland. In Scotland wills must be confirmed. Before the passing of 4 Geo. IV. c. 97, this took place in Commissary Courts which were relics of the old Ecclesiastical Courts which existed before the Reformation. Since the passing of that Act confirmation takes place in the sheriffs' Courts. In England probate is an exemplification of an act of Court. William the Third brought from Holland the device of raising a revenue by stamps, and probate duty was levied in England by affixing a stamp on the exemplification. In Scotland the will was simply confirmed without probate, and therefore there were no means of affixing a stamp. Probate duty was introduced into Scotland in 1804, by the 44 Geo. III. c. 98. This Act was amended in 1808, and in order to adopt the practice of affixing a stamp, the statute required that a stamp should be affixed to the inventory. By the 48 Geo. III. c. 149, s. 38, it is enacted, "that every person who, as executor, &c., shall intromit with or enter upon the possession or management of any personal or moveable estate or effects in Scotland of any person dying after the 10th day of October, 1808, shall, on or before disposing of or distributing any part of such estate or effects, or uplifting any debt due to the deceased, and at all events within six calendar months next after having assumed such possession or management, in whole or in part, and before any person shall be confirmed executor testamentary or dative, exhibit upon oath or solemn affirmation in the proper Commissary Court in Scotland, a full and true inventory duly stamped, &c., of all the personal estate, &c., distinguishing what shall be situated in Scotland, and what elsewhere, together with any testament, &c., which inventory, together with such testament or other writing, if any such there be, shall be recorded &c., and in case any person hereby required to exhibit any such inventory &c. shall neglect or refuse so to do &c., he shall be charged, &c., to the payment of double the amount of the stamp duty which would have been payable upon such inventory" (1). The 20th section of the 8 & 9 Vict. c. 17, does not relieve the executor from the duty of exhibiting the inventory in Scotland, for though he may use the probate *to establish his title, as soon as he intromits with the shares he is bound to exhibit an inventory. For general purposes personal property has no locality, but it has a locality for the purposes (1) The amount is now regulated by 55 Geo. III. c. 184. of probate. If there is a provincial probate, that operates only on property within the jurisdiction of the Court which granted it. These railway shares were personal property in Scotland. They were not within the jurisdiction of the Court which granted probate in England. The Legislature has relieved executors from the obligation of proving the will again in Scotland, but the executor in Scotland has another duty, he is bound to exhibit an inventory, which is a collateral act which the Legislature has directed to be done for fiscal purposes. It may be argued that the probate duty paid in the province of York covers the value of these shares, but property locally situated in Scotland is not assessable to probate duty in England. The probate duty in England is payable only on property within the jurisdiction of the Courts granting such probate. If the executors have paid probate duty on property not in England, they will get it back; it must therefore be taken that the duty which was here paid was paid on property in England. The mode of obtaining confirmation by an executor appointed by will, is to produce before the sheriffs' Court the testament which contains the nomination, with a full inventory seen and confirmed, and the sheriff's authority is granted by decree of confirmation. Confirmation is necessary as an active title, i.e., to enable the executor to receive and distribute the moveable estate: Bell's Principles of the Law of Scotland, ss. 1,892, 1,893. The 20th section of the 8 & 9 Vict. c. 17, makes it unnecessary for an executor to obtain confirmation in Scotland for the purpose of getting shares transferred into his own name. It saves an executor, who has proved a will here, from the expense of taking down the original will in the custody of an officer before the sheriff's Court, and enables *him to get a transfer of the shares without that expense, but it has no further effect. Manisty for the defendant: It is admitted that before the passing of 8 & 9 Vict. c. 17, s. 20, confirmation would have been necessary. The object of the clause was to render less complicated the steps which the executors of testators, who died in England possessed of shares in Scottish Companies, were obliged to take in order to entitle them to such shares. For that purpose it enables executors to acquire a title to the shares by acts done in this country. They may therefore pay probate duty here. The duty has in fact been paid in the province of York. Probate was taken in York for an amount under 100,000l.; it is found that the value of the testator's other property in the province of York was 93,231l., and that the value of these shares was under 6,000l. A.-G. v. HIGGINS. [ *347 ] (POLLOCK, C. B.: If your view is right where should the duty be paid, in England, in Canterbury or York? The Attorney-General: It is well settled that legacy duty is paid according to the domicile of the testator, and probate duty according to the situs of the property: The AttorneyGeneral v. Dimond (1), The Attorney-General v. Bouwens (2), In re Ewin (3). POLLOCK, C. B.: The 8 & 9 Vict. c. 17, s. 20, enables the executor of a person entitled to shares in Scotland to prove that he is the person entitled to them in an English Court. Suppose a person possessed of such shares died leaving a small property in England, and his executor obtained probate here, he would be entitled, on production of that probate, to have his name put on the register of shareholders; but there is nothing to compel him to reveal that he had property in Railway Companies in Scotland, or to subject him to penalties if he did not pay probate duty here upon it.) The 20th section of 8 & 9 Vict. c. 17, makes the shares to which it applies property "for and in respect of which the probate is taken out" within the meaning of those words in the 55 Geo. III. c. 184, schedule. (POLLOCK, C. B.: Where do you say that the property is locally situate ?) By section 7 the shares were made personal property, but it is not said where. Probably they are personal estate where the certificates are, that is to say, in the province of York. It is much the same as if a man died in England having a bond given by a person in Scotland. In such case the bond would draw to it the debt which would be bonum notabile in England. (MARTIN, B.: Is there any authority for that position? POLLOCK, C. B.: The doctrine as to the locality of a bond only applies where the debtor resides in this country. Debts due from foreigners are not the subject of probate in this country. The Attorney-General referred to The Attorney-General v. Hope (4) and The Attorney-General v. Bouwens ·5`) The Attorney-General would scarcely give up the claim of the Crown to all debts due to persons here from people residing abroad. per (1) 33 R. R. 732 (1 Cr. & J. 356), 1390 R. R. 919 (1 Cr. & J. 151. ¡ 437 R. R. 1 Cr. M. &*R. 390°, 551 R. R. 517 4 M. & W. 171. Per Lord ABINGER, 15, 192. (FOLLOCK, C. B.: That may be so if dividends on such debts are payable here.) The Attorney-General, in reply: The chief offices of these railways are in Scotland, and therefore the shares in question are personal property in Scotland: Smith v. Stafford (1). That being so, the duty is payable in Scotland. The 20th section of the 8 & 9 Vict. c. 17, does not repeal the 48 Geo. III. c. 149, s. 38. It merely puts the English probate in the place of the Scotch confirmation. But the duty is a matter independent of the confirmation. As soon as the executor intromits with the property, he must exhibit the inventory and pay the duty. Unless the 48 Geo. III. c. 149, s. 38, is repealed by the 8 & 9 Vict. c. 17, s. 20, the duty remains payable. *The object of that section is, that the will may be proved in England, leaving the duty to be paid in Scotland as before. It is impossible for an executor to pay in England the probate duty on this property which is in law situate in Scotland. The two enactments are wholly parallel, and do not interfere with each other. POLLOCK, C. B.: I am of opinion that the Crown is entitled to our judgment. The question turns upon what is the effect of the 20th section of the 8 & 9 Vict. c. 17. The Act is "An Act for consolidating certain provisions usually inserted in Acts of Parliament with respect to Companies incorporated for carrying on undertakings of a public nature in Scotland;" and certainly it would be strange if in an Act of that description there was found a clause which changed the mode of administration of a certain class of property in Scotland. Mr. Manisty says that the effect of the 20th section is to make all property upon which this Act was intended to operate, effects in England, and that it becomes for the purpose of probate either property in England or property in Scotland, without any provision whatever to secure the rights of the Crown in respect of the public revenue. It is suggested that we are to perform a sort of ancillary part, as if we were members of the Legislature, and are to supply all that may be necessary to give effect to this construction of the Act. But we cannot do so. We must treat this Act of Parliament as providing for that which is found in it and nothing more. It is intended to relieve persons who take out probate in England from the necessity of also proving the will in Scotland, if there is no other personal property in Scotland, except shares in such undertakings as the Act relates to. The proof may be either in (1) 2 Wils. Ch. Ca. 166. A.-G. HIGGINS. [ *350 ] [351] Scotland or in England; and the ques.ion is, whether the party is not still bound, under the 38th section of the 48 Geo. III. c. 149, to *exhibit an inventory and give to the Crown the benefit of the stamp which is to be impressed upon it. I think that he is. In this case, if we put together the duty on the York probate and the duty on the Canterbury probate, there is enough to cover the whole of the Scotch property. But that might not have been the case. The probate duty is not made precisely a duty for every pound; but it proceeds by stages, like many other matters of revenue, as for instance the stamps upon bonds, bills of exchange, conveyances, and other instruments. Here it is said that the duty has been paid, because, if the parties were allowed to include it in the English probate, the York probate would cover it, since, adding the value of the shares to the York property, the whole would not have been more than 100,000l. If probate were taken out in the province of Canterbury for under 100,000l., there being but 90,000l. and a few odd pounds in Canterbury, the executor would not be entitled to take out probate in York without paying the duty on personal property in the province of York, if it happened that the York property would be covered by the duty on the Canterbury probate. The same rule applies here. The property in Scotland must pay its duty there, the property in York must pay its duty in York, and the property in Canterbury must pay its duty in Canterbury. The duty, therefore, has not been paid here. The 8 & 9 Vict. c. 17, s. 20, was really intended to give facility to transfer the shares. at the office where the shares are to be transferred, and it was not intended to have the slightest effect upon either the payment of the duty, or the exhibiting the inventory, or to touch the revenue in any way. MARTIN, B.: At first I had considerable doubt about this case, but the argument of the Attorney-General has perfectly satisfied me. Two points were made by Mr. Manisty; the first was that the shares. were bona notabilia *here. I apprehend that he has entirely failed in that, and that they are not. It is clear that by the 19th section of the 8 & 9 Viet. e. 17, the evidence of title to these shares is the register of shareholders, and that being in Scotland this property is located in Scotland; and considering that this Act of Parliament was passed in the year 1845, which is eleven years after the decision of The Attorney-General v. Hope (1), I have no doubt it was framed upon the basis that the law as there laid down was the acknowledged law. The probate (1) 37 R. R. 29 (1 Cr. M. & R. 330). |