bate duty was payable upon the probate of the will of Judith Ann Platt in respect of the estate and effects of John Ramsden, appointed by her in pursuance of the power given to her by his will; and that legacy duty was payable in respect of the bequests contained in the will of Judith Ann Platt, at the same rate at which such duty would have been payable if the bequests had been mere legacies given by her, payable out of her own personal estate. An inquiry before the Master was directed accordingly.

*

William Walker Drake appealed against this decree, so far as it declared that legacy duty of one per cent became payable under the will of John Ramsden in respect of the be*265 quest in his will contained of the residue of his estate and effects to Judith Ann Platt, and that legacy duty was payable in respect of the bequests contained in her will, at the same rate at which duty would have been payable if the bequests had been mere legacies given by her, payable out of her own personal estate: and the Attorney-General appealed against the decree, so far as the same declared that no probate duty was payable upon the probate of the will of Judith Ann Platt in respect of the estate and effects of John Ramsden, appointed by her in pursuance of the power given to her by his will.

Mr. Tinney (Mr. Pemberton Leigh and Mr. Teed were with him), for the appellant Drake. The two cases are intimately connected, and both alike depend on the question, whether Judith Ann Platt was to be considered as the owner of this property under her father's will, or as only enjoying an estate for life in it, with a power of appointment, which she might exercise within certain restrictions. The AttorneyGeneral here seeks what the law will not allow, the payment of two legacy duties on the same property and taken under the same right, one from her and the other from her appointees; and he further demands the probate duty as if this estate had been the real property of Judith Ann Platt. The Court of Exchequer negatived this last demand, but allowed the two others; and the Master of the Rolls adopted in substance that opinion.

This case depends on the construction of two sections in the Act 36 Geo. 3, c. 52. Those sections are the 7th and the 18th. The former applies to the question of the legacies now charged as being given under the will of John Rams

*

den; the latter applies to the power of appointment * 266 created by that will. With regard to this power of appointment, it is submitted that it does not fall within the provisions of this statute. In the first place, it is not a power of appointment where the parties are specially named; in the next place, it is not one which can properly be called general and absolute. On the contrary, it is a power where the persons specially named are those who are directly excepted from taking any benefit under it, and one where the power given is one of a restricted nature. It does not, therefore, in either case fall within the words of the statute. It is clearly nothing more than a qualified power of appointment. In the first place, Mrs. Platt could not appoint during her life; the appointment must be by will; and then there are certain persons who are expressly excluded from the benefit of her appointment. Whatever were her own wishes, she could not confer any benefit on them. It was contended before the Master of the Rolls that this was not a case within any one of the three branches of the 18th section of the Act, and that consequently no duty as imposed by that section was payable upon it. It is again submitted that that argument is well founded, and that the case here is not one for which the statute has provided.

Then comes the second question, whether the legacy duty was payable by the person in whose favour the gift of the estate of John Ramsden was made by Judith Ann Platt. That depends on the 7th section of the Act. But that section must be construed with the 18th, and can only be held to apply in the case of a gift made by a person who has power to dispose of the estate "as he or she shall think fit." It was, therefore, contended in the Court below, that the appellant here, not taking any benefit under an absolute, but only under a restricted power of appointment, *did * 267 not fall within the 7th section, and was not liable to pay legacy duty either under the will of John Ramsden, or

under the appointment of Mrs. Platt. Then, as to the probate duty, both the Court of Exchequer and the Master of the Rolls were satisfied that no probate duty was payable. In the judgment of the Court of Exchequer it was said: (a) "The points on which the opinion of this Court is desired are These as to the legacy duty payable in respect of the bequest contained in the two wills, and as to the liability of Judith Ann Platt's will to the probate duty. The question, so far as regards the legacy duty, appears to us to depend entirely on the construction to be put on the 18th section of the 36 Geo. 3, c. 52, which regulates the duty in cases where legacies are given subject to a power of appointment. It will be observed that the legislature in this section refers to two sorts of powers of appointment only: first, powers of appointment to or for the benefit of any person or persons specially named or described as objects of the power; and, secondly, general and absolute powers of appointment. It is plain, from the whole context of the Act, that these two classes of powers were meant to include all possible cases; and the question, therefore, is, under which class does the power now under consideration range itself? It does not literally come within either description. It is not a power to appoint for the benefit of persons specially named or described, for no persons are either named or described. It is not a general and absolute power, because there are certain persons, and their families, in whose favour the power cannot be executed. In applying

the provisions of the Act to a case like the present, *268 some violence, therefore, must be done to the * lan

guage of the clause in question; and after much consideration, we think that there is less difficulty in treating this as a general and absolute power than as a power to appoint for the benefit of persons specially named or described."

So far the judgment is conclusive in favour of the appellant. The Act contains no provision for the payment of legacy duty in any other case but these two; and the present case falls within neither branch.

(a) 6 M. & W. 788.

THE LORD CHANCELLOR. But you should refer to one sentence of the judgment you have quoted, where it is declared that the Act was obviously intended to include all possible cases.]

That is so, but that refers the matter to intention and inference; and it is a settled principle of law that a duty cannot be levied on the subject by way of inference only. No legacy duty is payable under the 7th section, except out of the personal estate of the person dying. Here the personal estate is that of John Ramsden, but here was no legacy by John Ramsden to any person whatever, at the time when he came within the description of the Act, and was "the person dying." The Judges in the Exchequer said, that the power must be considered as coming within one of two classes. But that is a mistake. mistake. The section provides for the payment of legacy duty out of the personal estate of the person dying. This is the personal estate of John Ramsden. But the money was not given by him, nor was it money given to certain persons; nor was it given by a person who could dispose of it as she might think fit. This is the case of a limited interest, with a power of appointment. But even that power is not general nor absolute.

[THE LORD CHANCELLOR. If there is a general and absolute power, you admit that the duty is properly imposed?

LORD COTTENHAM-The words of the 18th section are, "specially named or described."]

*

*Those words cannot apply here, for the legacy * 269 duty must take effect upon a legacy made under the will of a person out of whose estate it is to be paid. That is not so here. Judith Ann Platt is not a person specially named or described; she is not a legatee. Then she can only be liable to pay, as a person having a general and absolute power of appointment. But she has no such power. With regard to penal Acts, and Acts which impose duties on

the subject, Courts cannot go upon conjecture; Williams v. Sangar, (a) Denn d. Manifold v. Diamond, (b) and Brandling v. Barrington, (c) all of which decide that statutes of that class must be construed strictly. And in Rex v. Barham, (d) Lord TENTERDEN said, "Our decision may, perhaps, in this particular case, operate to defeat the object of the statute; but it is better to abide by this consequence, than to put upon it a construction not warranted by the words of the Act, in order to give effect to what we may suppose to have been the intention of the legislature." To make the parties here liable to legacy duty, is to put a construction on the Act not warranted by its words, and only adopted on the supposition that it is in accordance with the intention of the legislature. In Cockburn v. Harvey (e) it was held, as it was in the cases above referred to, that a statute which varied or took away the rights of parties ought to be strictly construed. Applying these principles to this case, it is clear that no duty is payable. The power is not for the benefit of Judith Ann Platt, for she could not sell, pledge, nor charge the fund, nor even make it the subject of a contract. An appointment, even for a * 270 * valuable consideration, made during her life, and not by will, would not give the appointee any right, but the fund would go to the person entitled to take in default of appointment. Reid v. Shergold. (g) All the authorities on this point are collected in Sugden on Powers, (h) where it is said that "a power to be executed by will cannot be executed by any act to take effect in the lifetime of the donee of the power."

[THE LORD CHANCELLOR. She might exercise the power in one way for her own advantage, for she might contract debts, and might make the creditor the appointee.]

She could only do that by nominating the creditor by

(a) 10 East, 66.

(c) 6 B. & C. 467, 475.

(e) 2 B. & Ad. 797.

(b) 4 B. & C. 243.

(d) 8 B. & C. 99, 104.
(g) 10 Ves. 370.

(h) 2 edit. p. 209, and Vol. II., p. 27, last edit.