the statutes which give the definition of the term. The 7th section of the 36 Geo. 3, c. 52, enacts, "that any gift by any will or testamentary instrument of any person dying after the passing of this Act, which shall, by virtue of such will or testamentary instrument, have effect or be satisfied out of the personal estate of such person so dying, or out of any personal estate which such person shall have power to dispose of, as he or she shall think fit, shall be deemed and taken to be a legacy within the intent and meaning of this Act, whether the same shall be given by way of annuity or in any other form, and whether the same shall be charged only on such personal property, or charged also on real estate," &c. The 45 Geo. 3, c. 28, s. 4, provides, "that every gift by any will or testamentary instrument of any person dying after the passing of this Act, which, by virtue of any such will or testamentary instrument, shall have effect, &c. ;" and the 8 & 9 Vict. c. 76, s. 4, after reciting, that doubts have been entertained whether certain gifts by will or testamentary instruments are legacies liable to the said duties, enacts, "that every gift by any will or testamentary instrument of any person, which, by virtue of any such will or testamentary instrument, is or shall be payable, or shall have effect, or be satisfied, &c." It therefore appears by the language of these statutes, that a "legacy" is a gift by any will or testamentary instrument, which, by virtue of such will, shall take effect. Now, in this case, if it were not for the deed of May, 1814, the legacies would altogether fail, as it appears from the case that there were not any assets for the payment of the legacies out of the testator's personal estate. No reference is made to the deed in the will. By the will, certain legacies are to be paid, but no fund is created for the payment of those legacies. In Pickard v. The Attorney-General (a), in the Exchequer Chamber, Lord Denman, C. J., in deliver

(a) 6 M. & W. 348.

1851.

ATT.-GEN.

v.

METCALFE.

1851.

ATT. GEN.

V.

METCALFE.

ing the judgment of the Court, says, "We are bound by the principle disclosed in this proviso to refer the liability to duty to the question what is, in legal operation, the instrument by which that charge is made." The charge here is created by the deed, and, without it, the legatees would have no means of enforcing the payment of the legacies; and a gift by deed is not liable to legacy duty. [Alderson, B.-The will operates by virtue of a power previously given by the deed.] It is submitted, therefore, that this is not a gift by will, which, according to the language of the statutes referred to, takes effect by virtue of that instrument: Cathcart v. Cathcart (a).

The next question is, taking the deed of May, 1814, and the will together, whether there is a positive direction to the trustees to effect a sale at all events. The words of that deed are, that the estates are to be conveyed, "upon trust, within six calendar months, to be computed, &c., by sale and not by mortgage of any competent part of the said manors, &c., to raise such sum, not exceeding &c., as should be necessary to make good the deficiency of the personal estate of the said Lord Eardley in payment of his debts and legacies, &c. The defendants contend, that the words "as should be necessary" give the trustees a discretion whether they should sell. In The Attorney-General v. Ramsay's Trustees (b), which was decided in the Exchequer in Scotland, the Lord Chief Baron (Sir Samuel Shepherd) in delivering the judgment of the Court, says, "When one considers the intention of the Acts, as the Lord Advocate well pointed out, it is, that every thing which comes or is directed to come into the hands of the donee in the shape of a money gift or bequest, should pay tax." In The Attorney-General v. Holford, which has been relied upon by the Crown, there was a direction to sell, although there was not a sale, and it was held that the duty was payable. In

(a) 8 Shaw, Dunlop, & Bell, 803.

(b) 2 Cr. M. & R. 224, n.

The Attorney-General v. Mangles (a), there was no direction to sell, but a portion of the property was sold, and a portion was not sold, and this Court held, that the legacy duty attached only upon the portion which was sold. In the present case, as to one portion of the property, there has not been any sale. In Williamson v. The Advocate-General (b), Lord Brougham says, that the case of In re Evans is distinguishable from the case then before the House. [Parke, B.—In re Evans must be now considered as overruled by The Attorney-General v. Simcox (c), as to the meaning of the term "direct." If the will permits the executors to sell the real estate, and they sell it, the legacy duty is payable, in the same way as it would have been if there had been an express direction to sell the real estate.] (He quoted passages from the judgments of the learned Judges in The Attorney-General v. Jones (d), Stockton and Darlington Railway Company v. Barrett (e), and In re Evans (ƒ), to support the proposition, that in order to render the defendants liable to the payment of the duty, it was incumbent on the Crown to bring the case clearly within the provisions of the statute in question.)

POLLOCK, C. B.-We are all of opinion that there must be judgment for the Crown. We do not entertain any doubt upon the case. In reality the question does not in any degree depend upon the sale of the estate, and hardly any authority bears directly upon the question. The facts are shortly these:-Lord Eardley had settled his estates in 1800, and at that time he had abundance of personal property; and being desirous that that property, in case it were left chargeable with debts and legacies, should not be sold, and thereby become alienated from his country and

(a) 5 M. & W. 120. (b) 10 Cl. & Fin. 1. (e) 1 Exch. 749.

(d) 3 Price, 368.
(e) 11 Cl. & Fin. 590.
(f) 2 Cr. M. & R. 206.

1851.

ATT.-GEN.

V.

METCALFE.

town mansions, he made a bargain with his son in the year
1814, that, inasmuch as both parties were desirous that the
son should have the ornamental furniture, pictures, and
statues, &c., but that if they were left absolutely to the
son, there would not remain personal property enough to
answer the objects Lord Eardley might have in view with
respect to justice and generosity, by satisfying his debts
and legacies, for this reason Lord Eardley proposed to
increase his personal estate, and yet at the same time to
allow the pictures and statues to go to his son. Then the
indenture of May, 1814, states the object expressly in so
many words, that the sum of 50,000l. is to be raised after
the death of the said Sampson Lord Eardley, and applied
in augmentation of his personal estate. By this arrange-
ment, Lord Eardley transfers in trust a certain portion
of his personal estate, and receives in return a power to
charge the estate in which he then had a life-interest only,
to the extent of 50,000l.; that is in substance a mortgage,
which therefore is personal estate. It is perfectly clear,
that if Lord Eardley had given a legacy to John Nokes out
of this fund, the duty would have been payable on that
property, which Lord Eardley himself expressly said was in
augmentation of his personal estate. Not only, therefore,
was it in truth and in law personal estate, but it was in-
tended to be personal estate. But then it so happens that
the legacy eventually comes to a person who is also en-
titled to the estate; and instead of the estate being sold,
he agrees to take it in satisfaction.
in satisfaction. But such an arrange-
ment cannot prevent the legacy duty from attaching.
It is a matter of no difference whether the legacy is pay-
able to a stranger, or to a person who also has the real
estate. It is, therefore, a legacy payable by virtue of the
will out of that which, by arrangement and contract between
the parties, was the personal estate of Lord Eardley.

PARKE, B.-I am of the same opinion. I think this

case does not turn upon the construction of the 45 Geo. 3, c. 28, s. 4, which incorporated the provisions of the statute 36 Geo. 3, c. 52, s. 7. Our decision would have been in favour of the Crown, supposing there had been no provision with respect to legacies charged upon real estate. Looking at the nature of this transaction, I agree with my Lord that this is, and always was, personal estate. The transaction is equivalent to this: Lord Eardley being possessed of valuable ornamental furniture, transferred it to his son for a mortgage of the estate by the latter. That being so, that mortgage was personal property, and all the legacies payable by means of that mortgage would be payable out of personal estate.. I think this charge of 50,000l., or so much of that sum as would be required to satisfy the legacies left by him under his will, was meant to be personal estate, and always was personal estate, and consequently it falls within the 55 Geo. 3, c. 184; and the only question is, whether that is paid or satisfied. Part of it has been paid or satisfied out of what was clearly the personal estate of the testator, irrespective of this mortgage. With respect to that Mr. Mills admits there is no question. The remainder is satisfied by a compromise with the person who was entitled to the real estate, and has paid off the mortgage. It comes, therefore, to just the same thing, and I think clearly the duty attaches.

ALDERSON, B-I am of the same opinion. In truth, Lord Eardley sold personal estate, to be paid for after his death in a certain way; and what he was to receive is equivalent to and really was personal estate; and he left it and these legacies; and out of it the legacies have been paid. It so happens that both the legacy and the real estate come into the possession of the same person. It was competent for him to say, and for the trustees to agree, that the money should be charged upon the real estate of the person to whom the legacy belonged. The