cile. If the reports of those cases, and the opinions delivered on them in the House of Lords, be attentively considered, it is perfectly clear that they proceeded upon the assumption that, because the testator resided in India at the time of his death, he was domiciled in that country. The difference between a person residing abroad as an officer in her Majesty's army, and residing abroad in the East India Company's service, was not pointed out. The Attorney-General v. Jackson is, in truth, so considered, but another case falling within the same rule, and must be treated as the case of a domicile in India. The English statute not extending to property in India, the property in that case was exempt from legacy duty. If the case of The Attorney-General v. Jackson be treated as it was treated by the House of Lords in Thompson v. The Advocate-General, it falls exactly within the same rule. The distinction now pressed upon us was not urged in that case; but the ratio decidendi comes exactly within the same rule as Thompson v. The Advocate-General. This rule is a very intelligible one, although, no doubt, there appears a difficulty in its application, because it is not easy in some cases to ascertain the place of a person's domicile at the time of his death. In this case Mr. Alcock has very properly abstained from arguing that the intestate's domicile was in India. If a natural born subject, domiciled in England, enters into her Majesty's service, and goes abroad at the Queen's command into foreign service, it is quite clear that his original domicile has not been parted with by him. He goes for a temporary purpose, and is supposed to be there for a time only, but not for the purpose of fixing his permanent abode abroad. In this case the officer was, no doubt, domiciled in England; and that being the fact, according to the plain principle laid down by the House of Lords, this is a case in which the Crown is entitled to the legacy duty on the property.

1851.

ATT.-GEN.

v.

NAPIER.

1851.

ATT.-GEN.

v.

NAPIER.

ALDERSON, B.-I am of the same opinion. It is clear that the case of The Attorney-General v. Forbes and the case of Arnold v. Arnold were supposed by Lord Cottenham to be cases identical in their circumstances. It is now contended that in The Attorney-General v. Jackson the party was a British subject, one of the King's officers, residing in India at the time of his death; if so, he was certainly not domiciled there. Upon the facts of The Attorney-General v. Jackson that case was incorrectly decided; but the rule of law laid down in the case of The Attorney-General v. Forbes was upon the supposition that the party was domiciled in India, and that the legacy duty in that case could not attach upon property which was situate in England at the time, because the Judges observed in that case that the property in England followed the domicile or the residence of the party in the East Indies. So, in Arnoldv. Arnold, legacy duty was held not to be payable; and that decision was correct, both in point of law and fact. There the domicile was in India, the party being a Company's officer at the time, and his residence being there; therefore, when Lord Cottenham said that the Attorney-General v. Jackson and Arnold v. Arnold were the same case, it is quite clear that he proceeded on the ground that in both cases the domicile was in India and not in England. Then there is the decision of the House of Lords in Thompson v. The Advocate-General, in which all the Judges and the Lords unanimously state that the domicile governs the question. The principle is this, that where a man is domiciled, there the personal property is to be considered as situate. Applying that rule to the present case, the intestate was domiciled in England; his personal property was in fact in India, and his local debts were paid there; but as the personal property follows his domicile, that property is to be treated as being in England at the time of his death. He was in England in point of law, al

though he was in India in point of fact, because his domicile was in England, although his person was in India. His personal property, though in fact in India, was legally in England also. But then legacy duty attaches upon the property of all persons being English subjects and dying here. I think therefore that the case is governed by that of Thompson v. The Advocate-General; and that the two cases are undistinguishable. The rule must therefore be absolute.

Rule absolute.

1851.

ATT.-GEN.

v.

NAPIER.

DOE d. JONES v. ANN HUGHES.

Feb. 14.

power to sell

or mortgage scends to the heir charged simpliciter with the payment of

land which de

debts.

Therefore, where a testa

tor, after charg

ing all his real

EJECTMENT to recover certain houses in the town of An executor Bala, in the parish of Llanycil, in the county of Merioneth. has no implied At the trial, before Talfourd, J., at the last Merionethshire Assizes, the lessor of the plaintiff was proved to be entitled as devisee of Jane Hughes, deceased, who was the heir at law of Evan Hughes, the person last seised. The defendant, who was the widow and executrix of Evan Hughes, put in evidence his will, which was in the following terms: "I subject and make liable all my real and personal estate with the payment of my just debts, funeral and testamentary expenses, and charges thereon, and the legacy hereinafter by me bequeathed; and subject thereto and to the payment thereof, I give and devise the rents and profits of all and singular my messuages, farms, and lands (except my Bala houses) situate in the parishes of Llanfyllin and Llanycil, unto my dear wife Ann Hughes, for and during the term of her natural life; and that my said wife has a power to charge one half of the value of

and personal estate with his

debts, funeral

and testamen

tary expenses,

and a certain legacy, devised

the rents and

profits of all

his messuages and lands, exhouses, to his wife,

cept his Bala

wife, for life, with remainder

in fee to H.;

and also bequeathed to his wife the whole of his personal estate, and appointed her sole executrix:-Held, that the Bala houses descended to the heir, subject to a charge which could only be enforced in equity; and that the executrix had no implied power to sell or mortgage them for the payment either of the debts, funeral or testamentary expenses, or legacy.

VOL. VI.

Q

EXCH.

1851.

DOE

d.

JONES

v.

my Llanfyllin property, and to be at her own disposal; and after her decease, I give and devise my messuages called Brynmoel, Bryndu, and Erwbach, unto my relation Hugh Hughes, his heirs and assigns, for ever. I give and HUGHES. devise, after my wife's decease, all and singular other the farms, tenements, messuages, and lands, situate in the several parishes of Llanycil and Llanfyllin, unto my friends and relations Robert Jones and Cadwalader Jones, their heirs and assigns, for ever. I give and bequeath unto my friend Edward Rowlands, 5l. for making this my will. And as touching and concerning the rest, residue, and remainder of all and singular my personal estate, ready money, plate, china, linen, and furniture, of what nature or kind soever and wheresoever, although not herein specifically named and particularised, I give and bequeath the same unto my said dear wife Ann Hughes, to be at her own disposal; and I do hereby appoint her the sole executrix of this my last will and testament."

It was then proved that the testator, Evan Hughes, had died indebted to nearly the amount of 20007.; and that the defendant had by deed appointed and conveyed the Bala houses to one John Jones and his heirs, in trust, by sale or mortgage thereof, to raise money for payment of the testator's debts; and it was contended that, under the will, the defendant, in her character of executrix, had an implied power of appointment for that purpose, either of real estate devised by the will, or of real estate which, not being disposed of by the will, descended to the heir at law. No proof was given of the amount of the testator's personal estate.

Under the direction of the learned Judge, a verdict passed for the plaintiff, leave being reserved to the defendant to move to enter a nonsuit.

In last Michaelmas Term, E. Beavan obtained a rule accordingly; citing Anonymous (a), and Forbes v. Peacock (b). (b) 11 M. & W. 630.

(a) 3 Dyer, 371 b.

Welsby and E. V. Richards shewed cause at the present Sittings (Feb. 12, 13).—The argument in support of this rule must be, that merely from a general charge of debts and legacies by will upon the real estate of the testator, there is implied by law a power in the executor named in the will, to raise money for payment of the debts or legacies, by appointing away the real estate or any part of it, at his discretion. There is neither principle nor authority for such a position. What was decided by the cases cited on moving for this rule, and others which will be referred to, is this:that where there is in a will an express devise in trust to sell for the payment of debts or legacies, or an express direction to sell for that purpose, or words from which such a direction is necessarily to be implied, but no person is named as the devisee in trust, or as the party who is to exercise the power, then the devise or authority is to be carried into effect by the executor, as being the person to whose office it belongs to distribute the proceeds of the estate when sold: but no such interest or authority can be implied merely from the fact that the will contains a general charge of debts or legacies upon the real estate, the only effect of which is to make such estate assets in the hands of the heir or devisee, distributable in equity for that purpose. The authorities are thus summed up in Sugden on Powers, vol. 1, p. 138:-"It appears, therefore, to be settled, that a power in a will to sell or mortgage, without naming a donee, will, if a contrary intention do not appear, vest in the executor, if the fund is to be distributable by him either for the payment of debts or legacies; and it seems that, while the chain remains unbroken, the power, until exercised, will go from him to his executors. And if the produce of the real estate is blended with the personal estate, the power to sell will vest in the executors by implication." The case cited from Dyer is as follows:"A man seised of divers manors, lands, and tenements in

1851.

DOE

d. JONES

V.

HUGHES.