benefit of any person or persons therein specially named or described as the object or objects of such power, or to or for the benefit of the issue of any such person or persons, shall be liable to the said duties on legacies under the will, in which such sum is or shall be appointed or apportioned in exercise of such limited power" (i). It may be questionable whether the proviso in this section is superseded by 16 & 17 Vict. c. 51, s. 4, so as to let in succession duty, or whether the exemption is preserved by the 18th section of that act (k). (i) See Attorney-General v. Marquis of Hertford, 3 Exch. 670. (k) Every gift which shall have effect as a donation mortis Donations causá is to be deemed a legacy within the meaning of the mortis causâ. Legacy Acts, 36 Geo. 3, c. 52, s. 7; 8 & 9 Vict. c. 76, s. 4. Gifts of this nature are not abolished by the 7 Will. 4 & 1 Vict. c. 26. & S. 517. A donatio mortis causâ is a gift by delivery of the property when the owner is in peril of death or in his last sickness, to take effect only in case he shall die. This mode of disposition is for the most part confined to such chattels as may be transferred by delivery, but a bond may be the subject of a donatio mortis causâ, and the executor becomes a trustee for the person to whom the gift is made. Gardner v. Parker, 3 Madd. 184. It was doubted whether, in case the debt was secured by a mortgage as well as a bond, the delivery of the bond, as a donatio mortis causâ, would pass the mortgage; but it has been decided by the House of Lords, overruling the decision of the court below, that a debt secured by a mortgage may be the subject of such a disposition. Thus where a father, in contemplation of speedily approaching death, wishing to make a larger provision for a daughter than he had done by his will, delivered or caused to be delivered to her a bond and a mortgage security for a certain sum of money, and a mortgage security for another sum of money; this was held a good donatio mortis causâ, and the heir or executor was bound to give effect to the intent of the donor. Duffield and another v. Hicks and others, 1 Dow and Clark, 1; 1 Bligh N. S. 497; 1 Sim. & Stu. 243. See Hambrooke v. Simmons, 4 Russ. 25; 1 Wms. on Executors, 655-660; 4th ed. W., whilst suffering under an illness from which he never recovered, and being a mortgagee of his son, gave to his son the mortgage deed, saying, take this, but do not wrong your children, and do not mortgage your property, the father not being aware that the son had already mortgaged the estate; it was held that this was a good donatio mortis causá to the son alone. Meridith v. Watson, 17 Jur. 1063; 23 Law J., Ch. 221. Such a gift is subject to the donor's debts in case of a deficiency of assets; Smith v. Casen, 1 P. Wms. 406; 2 Ves. sen. 434; Tate v. Leithead, 1 Kay, 658; but it does not vest in the executors, nor is it subject to the jurisdiction of the Ecclesiastical Court. Thompson v. Hodgson, 2 Str. 777. See 2 Ves. sen. 439; 2 Ves. jun. 120; 1 P. Wms. 441. A donatio mortis causá must be made in contemplation of speedy death, and to take effect only in case of death. Tate v. Hilbert, 2 Ves. jun. 111; Edwards v. Jones, 1 M. & Craig, 233. The plaintiff being possessed of shares in a public company, when in a state of extreme sickness transferred the shares into the name of the defendant; the plaintiff having recovered from his sickness, but having subsequently become lunatic, a bill was filed in his name by the committee to have the defendant declared a trustee of the shares; it was held, that as the plaintiff had survived the sickness during which the transfer was made, the gift could not operate as a donatio mortis causá, and it appearing that the gift had been received by the defendant upon the distinct understanding that it was to be absolute only in the event of the death of the plaintiff, it was held that the defendant must be considered as trustee of the shares for the plaintiff. Staniland v. Willott, 3 Mac. & G. 664. By the law of England, in order to transfer property by gift, there must either be a deed or an actual delivery of the thing to the donee. Irons v. Smallpiece, 2 B. & Ald. 551; Hooper v. Goodwin, 1 Swanst. 485; Bryson v. Brownrigg, 9 Ves. 1; Miller v. Miller, P. Wms. 356. A donatio mortis causâ requires an absolute and unconditional delivery of possession to the donee, or to a third person in trust for him; which possession must continue uninterrupted until the time of the donor's death. Bunn v. Markham, 2 Marsh. 582; 7 Taunt. 224. The obligee of a bond, five days before her death, signed a memorandum, not under seal, which was indorsed upon the bond, and which purported to be an assignment of the bond to a person to whom the bond was at the same time delivered. The court decided, that the circumstances did not constitute a donatio mortis causá; and the gift being incomplete, and in favour of a volunteer, the court refused its aid in carrying the gift into effect. Edwards v. Jones, 7 Sim. 325; 1 Mylne & C. 226. The delivery of bank notes, Miller v. Miller, 3 P. Wms. 357; Hill v. Chapman, 2 Br. C. C. 612, promissory notes payable to bearer, exchequer notes, exchequer bills indorsed in blank, Wookey v. Pole, 4 B. & Ald. 1, or any security, see Gorgier v. Mieville, 3 B. & C. 45, the possession of which will entitle the donee to the money specified, may be a good donatio mortis causá. A cheque on a banker, though payable to bearer, cannot be delivered as such a gift, for it is revoked by the death of the donor, and the money vests in the personal representative. Tate v. Hilbert, 4 Br. C. C. 286. See Lawson v. Lawson, 1 P. Wms. 441, cited 2 Ves. jun. 111. A cheque, however, may be so drawn as to entitle the donee to it after the drawer's death in the nature of a donatio mortis causâ. Lawson v. Lawson, 1 P. Wms. 441; see 2 Ves. jun. 121. Testator, four days before his death, gave to his wife a cheque of £1000, which the wife immediately afterwards, by direction of the testator, exchanged for one of B.'s cheques for the same amount, which was post dated and therefore void. The testator's cheque having been paid to B. about two hours before the testator's death, B. shortly after that event gave to the widow of the testator a cheque for £1000 in exchange for that which he had previously given to her, and this second cheque was shortly afterwards paid to the widow; it was held that this transaction was in effect a good donatio mortis causá from the testator to his wife. Boutts v. Ellis, 17 Jur. 585; 17 Beav. 121; 4 De G. M. & G. 249. A. lent to B. £500 in October, 1843, on which occasion B. wrote and signed the following document: "Received of A. £500, to bear interest at £4 per cent." and gave it to A. In June, 1845, A. being dangerously ill gave the document to her servant, with an expression to the effect that she wished the debt to be cancelled. Ten days after this delivery A. died; it was held that this was a donatio mortis causâ in favour of B. Moore v. Darton, 20 L. J. Chanc. 626; 4 De G. & S. 517. Money in the public funds will not pass by parol expressions of gift in contemplation of death, accompanied with delivery of the receipts for the price of the stock, unless there be an actual transfer into the donee's name. Ward v. Turner, 2 Ves. sen. 431. A man in his last illness, a few days before his death, made a codicil to his will, giving certain benefits to his son-in-law A., and appointed B. his executor. On the same day the testator drew a cheque on a plain sheet of paper for £900, payable to B., to whom he owed £200, and wrote on the same sheet, A. £200, B. £200, executorship fund £500. The cheque was presented and paid before the testator's death; it was held that this was not a donatio mortis causá, but a complete trust of £200 in A.'s favour, and that it was not necessary that he should have any notice of it previously to the testator's death. Tate v. Leithead, 1 Kay, 658; 23 L. J., Ch. 736. CHAPTER III. OF THE CONSTRUCTION OF THE LEGACY DUTY ACTS. ing taxes to strictly. SECT. I.-What is a Testamentary Instrument. SECT. II.-Upon what Subjects Legacy Duty is charged. SECT. IV. By whom Legacy Duties are Payable. SECTION I.-What is a Testamentary Instrument. Acts impos- ALL acts of parliament imposing a burden on the be construed subject must be construed strictly, and if there be on the face of them any doubt, the subject should have the benefit of that doubt (a). It is always in the power of the legislature to explain its own meaning, and to express more clearly what is obscure (b). It is a general rule with regard to penal acts, and acts which impose duties upon the subject, that courts cannot proceed upon conjecture, for statutes of that class must be construed strictly (c). It is a settled principle, that the subject ought not to be charged with legacy duty, except by words (a) 1 Moore & Sc. 237; Tomkins v. Ashby, 6 B. & C. 542; Doe v. Amos, 2 Mann. & R. 181; Stockton and Darlington Railway Company v. Barrett, 11 Cl. & Fin. 590. (b) Hubbard v. Johnston, 3 Taunt. 220. (c) Williams v. Sangar, 10 East, 66; Denn d. Manifold v. Diamond, 4 B. & C. 243; Stourbridge Canal Company v. Wheeley, 2 B. & Ad. 797. clearly imposing it (d). The legacy duty acts are to be construed strictly and in favour of the subject (e). Every subject has a right so to shape the disposition of his property, as to avoid the legacy duty if possible, and there is no fraud in so doing (ƒ). It appears by the preceding part of this work, that legacies of every description given by will or other testamentary instrument of or above the value of 201. each (g), payable out of personal estate, including donations mortis causá (h), and whether given by way of annuity or otherwise (i), and also legacies given subject to contingencies, are liable to the duties imposed by the stat. 55 Geo. 3, c. 184. testamentary It has been said, that by the term testamentary What is a instrument is meant a writing, whatever the form, instrument. or however by law it may be required to be executed, which remains dormant during the life of the person executing it, if it be revocable until his death, and if it only comes into active power at his death. Such writing stands in place of a testament, and is to be viewed as a testamentary instrument (k). There are many instances in which instruments executed as deeds have been allowed (d) Attorney-General v. Marquis of Hertford, 14 Mees. & W. 294; Wroughton v. Turtle, 11 Mees. & W. 567; Denn v. Diamond, 6 D. & R. 329; 4 B. & C. 243. (e) Hobson v. Neale, 17 Beav. 178. (ƒ) Per Lord Lyndhurst, 2 Cr. Mees. & Rosc. 221. See Farquharson v. Cave, 2 Coll. C. C. 356. (g) Ante, p. 81. (h) Ante, pp. 89, 126. (i) Ante, p. 83. (k) Attorney-General v. Ramsay's Trustees, 2 Cr. Mees. & Rosc. 229. |