Penalty for not proving a will,

or taking out letters of administration.

say, in inquiring into the number and amount of all his debts, in ascertaining how many were just, and how many might be disputed, and in weighing the chances of success and failure in actions which he would have to commence or defend, and all this before he should qualify himself to take possession of any part of the property; if it be said that there would be less trouble in all this than in paying duty upon the gross amount of the property, it is an assertion to which few persons will be found to agree. Admitting that the tax is to be fairly paid on the net value of the estate, a rigid investigation of the accounts must be gone through at some period or other, and persons who have no desire to pay less than the law imposes will find it at least as practicable to make the investigation after one or two years' acquaintance with the affairs of a testator, as before; but as a general proposition, it will scarcely be denied, that to the revenue it may make some difference whether this investigation is performed for the purpose of obtaining a return of money from the commissioners, and according to forms and regulations prescribed by them, or simply for the satisfaction of an executor's conscience.

By the 37th section of the 55th Geo. III. c. 184, a penalty of one hundred pounds, and ten pounds per cent. on the amount of the duty, is imposed on any person who shall take possession of, or in any manner administer the estate of a deceased person without proving the will, or taking out letters of administration within six calendar months from the date of his death: that is to say, for six months after the death of the testator or intestate, his effects may be collected and administered without probate, or letters of administration, and without any penalty being incurred; but if the effects have been in any manner dealt with, the probate or administration must be obtained immediately on the expiration of the six months, or a penalty will attach for every act of administration since the decease; and if the effects have been in no wise interfered with until the six months have elapsed, the proving of the will, or taking out letters of administration must, to avoid the penalty, precede any act of

administration since the decease; and if the effects have been in no wise interfered with until the six months have elapsed, the proving of the will, or taking out letters of administration must, to avoid the penalty, precede any act of interference with the property. Where the bona notabilia of the deceased shall happen to lie in the two provinces, and it shall consequently be necessary to obtain two probates or letters of administration, the stamp duty must be paid on each, without any reference to the other, and without regard to the question, whether, by such division of the property, more duty in the aggregate is or is not paid, than would have been paid, if the whole of the property could have been legally comprised in one probate. If, for example, a testator, having property in the province of Canterbury, of the value of £9500, which would require a probate with a stamp of £180, should be found to possess a mortgage for £300, in the county of Chester, which is in the province of York, it will be necessary to obtain a probate at Chester, with a stamp of £8 thereon; although, if the mortgage had happened to be in Derbyshire, or elsewhere, in the province of Canterbury, the probate bearing the stamp of £180, would have been sufficient to cover the whole. And in like manner, there must be an inventory of moveable estate in Scotland, without reference to any English probate.

It must be borne in mind, that no act whatever can be legally performed by an administrator before the grant of administration to him; and though an executor may do certain acts, yet there are many other acts which he cannot do, before probate; and therefore it is always advisable to obtain probate or letters of administration in the first instance, and as soon as possible after the death of the testator or intestate.

In cases where the property claimed to belong to the deceased shall be found to be so circumstanced as not to be immediately got possession of, or to be of very high value, and in either case the executor or administrator shall not have money sufficient either of his own or of the deceased to pay the requisite stamp duty on the probate or letters of

C

Inventories in
Scotland.

administration, the commissioners may, on being satisfied of the facts, cause the probate or letters of administration to be stamped on credit, taking security on bond from the executors or administrators, and two or more other persons, for the payment of the duty within six months, or any less time, which periods the commissioners may afterwards extend upon such terms and conditions as they may think proper. The application for a probate or administration stamp on credit, must be made in the first instance by memorial to the commissioners of stamps and taxes.

The same duties, which in England and Ireland are payable on the probate or letters of administration of a deceased person, are charged in Scotland upon an inventory of his personal or moveable estate and effects.

Previously to the act 48th Geo. III. c. 149, the duty was payable upon the confirmation of a testament testamentary, or testament dative, of a deceased person; but inasmuch as by the law of Scotland it is not compulsory upon an executor to confirm, there was no adequate security for the payment of the duty, and the same was therefore by the act referred to, imposed upon an inventory of the estate and effects in lieu of the confirmation. The duty however still remains payable upon the confirmation in cases where the deceased person shall have died before the 10th of October 1808, but it is payable on an inventory as before stated in cases where the death shall have occurred since that period.

Every executor or other person who shall take possession of, uplift, or administer, the effects of a deceased person in Scotland, is bound, before taking possession of or administering the same, or at all events within six calendar months next after having assumed such possession or management, to exhibit upon oath in the proper commissary court in Scotland, a full and true inventory, duly stamped, of all the personal or moveable estate and effects of the deceased, and in case of neglecting so to do, or of omitting any part of the property, the party guilty of the neglect or omission incurs a penalty of twenty pounds and double the amount of the proper duty.

The executor or administrator in Scotland has to ascertain,

in the first instance, as nearly as possible the amount and value of the estate and effects of the deceased; and then, by a reference to the stamp act, the amount of the duty payable thereon; and he will then have to apply at the office of the stamp distributor nearest his residence, for an inventory stamp of the requisite value, whereon he will proceed to write his inventory, taking due care to distinguish between the case of a person leaving behind him a testamentary disposition of his estate, and that of a person who shall have left no such disposition, as in the cases of a testator and an intestate in England.

If an executor live in England and have to administer to personal estate in Scotland, the inventory is to be exhibited in the same manner, and the stamp may be purchased at the head office in London.

The inventory, when exhibited and sworn to, is to be recorded with the testament or other writing relating to the disposal of such estate and effects in the books of the commissary court.

CHAPTER III.

Leaseholds.

THE DESCRIPTION OF PROPERTY LIABLE TO PROBATE, AD-
MINISTRATION, AND INVENTORY DUTY, AND THE MODE
OF VALUING THE SAME.

The value of the property, as a guide for the amount of stamp duty to be paid on the probate or letters of administration, is the next object of attention to the executor or administrator.

The tax is laid in the first instance on the gross value of the deceased's personal or moveable estate, or to use a more strictly legal expression, so far as regards England, on all property which shall be bona notabilia in the hands of the

executor.

Two points are, therefore, to be well considered; First, what to include in the enumeration of the items, which compose the personal or moveable estate; and, Secondly, how to ascertain their value for the purpose of paying the legal duty.

On the first point, the distinction between real and personal estate is, in most instances, too well known to require explanation here. There are, however, some species of property on which it may be necessary to say a few words. Leaseholds for years, whether absolute or determinable on a life or lives, are, in all cases, personal estate, and must be included in the estimate for the payment of stamp duty; leaseholds for lives only are not however in all cases to be included, but only when by the nature of the grant they are applicable by law as personal estate; as for example, when the lease is granted to the lessee, his executors and administrators; or to the grantee only, without any mention of heirs, or executors, or administrators.