CASES IN THE HOUSE OF LORDS ON APPEALS AND WRITS OF ERROR. WILLIAMSON v. THE ADVOCATE-GENERAL. 1843. WILHELMINA BOYD ROBERTSON WIL- LIAMSON. THE ADVOCATE-GENERAL OF SCOTLAND Defendant in Error. Will. Direction to Sell. Legacy Duty. 66 A testator devised, by two testamentary papers, his real and personal estates to trustees. In the first paper he declared the trusts, and among others he created a power of sale in the following terms: "To sell and dispose of the lands, mills, teinds, woods, fishings, messuages, tenements, and hereditaments, and others hereby generally and particularly disponed to them, &c., on such conditions and at such prices as they shall think fit." To render these sales effectual, he granted full power to convey, &c. The paper then went on thus : Declaring always, &c., that my said trustees shall by their acceptance hereof be bound and obliged, after the sale of the said lands, teinds, and others 4 before disponed, which I recommend to them to be done as soon as convenient after this trust opens upon them, to satisfy and pay all my lawful and just debts," &c. By a second testamentary paper reciting the first, he said that by the recited paper he had disposed of his heritable and movable estates to trustees on the trusts therein mentioned, and "amongst others, my trustees are required to turn my means and [1] VOL. X. 1 *2 effects, thereby conveyed in trust, into money ;" and he gave directions accordingly. He further directed, that in case he should die leaving an heir of his body, his trustees should employ the trust funds for the use of such heir; and that as soon as such heir should attain majority or be married, the trustees should "denude themselves of the whole trust and funds" in favour of such heir, but to return to the trustees in case of failure of heirs of his body, without disposing of the same. Held, that the testamentary papers must be construed as amounting not merely to a power of sale for the purposes of the trust, but to a direction to sell in case the testator should die without leaving any heir of his body living at the time of his death. Held, therefore, that though in fact the real estate was not sold, the positive direction to sell rendered it liable to the legacy duty.' March 16, 17, 1843. THIS was a writ of error from the Court of Exchequer in Scotland, upon a judgment delivered there, by which the plaintiff in error was declared liable to the payment of the sum of 25007. for legacy duty, accruing due to the Crown under the following circumstances, as stated in the form of a special verdict: Archibald Robertson, of Lawers, in the county of Perth, a major-general in the army, was possessed of considerable real and personal property, and, in the year 1799, duly executed a testamentary paper, disposing of his property, in which there were, among many others, the following clauses : "I, Major-General Archibald Robertson, of Lawers, for certain weighty causes and considerations me moving, do hereby assign, dispone, convey, and make over, under the conditions, provisions, and reservations after specified, and in trust always for the uses, ends, and purposes after mentioned, to and in favour of " (certain persons in the deed named), See Wurts v. Page, 4 Green (N. J.), 365; Ex parte Mc Bee, 63 N. C. 332; Green v. Johnson, 4 Bush (Ky.), 164; Harris v. Slaght, 46 Barb. 470; Brolasky v. Gally, 51 Penn. St. 509; Dyer v. Cornell, 4 Penn. St. 359; Grider v. M'Clay, 11 Serg. & R. 224; Pennell's App. 20 Penn. St. 515; Bramhall v. Ferris, 4 Kernan (N. Y.), 41; Wright v. Trustees Meth. Epis. Ch. 1 Hoff. 203; Clay v. Hart, 7 Dana, 11; Bogert v. Hertell, 4 Hill (N. Y.), 492; Brothers v. Cartwright, 2 Jones Eq. 113; 1 Jarman Wills (4th Am. ed.), 483 et seq. and notes; 2 Story Eq. Jur. §§ 1212-1214 a; De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524. |