1922. March 12, 31. Real J. Shand J. Lukin J. [IN THE FULL COURT.] Re LIGHTOLLER, DECEASED. Succession duty-Succession-Legacy or residue of personal estate-Given to different persons in succession chargeable with duty at same rate-Increase of benefit-Life interest in widow and remainder to other persons-Duties charged upon legacy as in case of legacy to one person-The Succession and Probate Duties Acts, 1892 to 1918, ss. 7, 31, 32—The Succession and Probate Duties Act of 1892 (56 Vic., No. 13)—The Succession and Probate Duties Act of 1918 (9 Geo. V., No. 16), ss. 7, 12. By his will the testator gave all his real and personal estate to the use of trustees upon trust to receive the rents and profits, and to pay the same to his wife during her life, and upon the death of his wife he directed his trustees to hold all his silver plate upon certain trusts for the benefit of certain persons in succession, and as to all his real estate and all the residue and remainder of his personal estate, to sell and convert the same into money, and to hold the money upon trust to divide the same amongst certain persons (being his lineal descendants or wives of lineal descendants, and so chargeable at the same rate of duty), in certain shares and proportions. Held (per Shand and Lukin JJ., Real J. dissenting) that, under The Succession and Probate Duties Acts, 1892-1918, no duty was assessable in respect of the widow's life interest in the testator's personal estate, and that the interests of all the beneficiaries in his personal estate other than silver plate were liable to assessment, as in the caseof a legacy to one person, and were chargeable with one amount of duty only, which was presently payable. Held also that the silver plate was chargeable with duty under s. 32. PETITION. This was an appeal by way of petition under s. 50 of The Succession and Probate Duties Acts 1892-1918. The petitioners were the widow and the executors and trustees of the will of H. M. Lightoller, deceased, who died at Brisbane on 21st September, 1921, having first duly made and executed his last will, dated 14th November, 1917, and a codicil thereto, dated 10th November, 1919. Probate of the will and codicil was granted by the Supreme Court of Queensland on 9th December, 1921. At the time of his death, the testator was domiciled in Queensland. The testator left real estate in the State of Queensland, valued at the sum of £4250, and left personal F.C. DECEASED. estate in the State of Queensland and in the States of New South Wales and West Australia, valued in the aggregate at the sum of Re LIGHTOLLER, £63,007 16s. 7d. Within two years preceding his death, the said deceased gave to his wife real property of the value of about £825. On 31st January, 1922, the Commissioner of Stamp Duties assessed the succession duty payable on the successions arising or deemed to arise on the death of the testator in respect of the property disclosed in the succession accounts furnished by the executors at the sum of £2924 16s., as per particulars set out hereunder : The petitioners, being dissatisfied with the assessment, gave notice in writing to the Commissioner of Stamp Duties of their intention to appeal against the same, and duly furnished a statement of the grounds of such appeal pursuant to the provisions of s. 50 of The Succession and Probate Duties Acts, 1892 to 1918. The widow and the executors contended-(a) That the assessment by the Commissioner of Stamp Duties was contrary to law; (b) that the successions to so much of the estate as consisted of personalty were liable to assessment as in the case of a legacy to one person, and were chargeable with one amount of duty only which was presently payable; (c) that Maria Theresa Lightoller was not liable in respect of the separate assessment made on her life interest in the personal estate independent of the interests in succession following on her life interest. The petitioners prayed that the Court would declare (i.) That the assessment by the Commissioner of Stamp Duties was contrary to law; (ii.) that the successions to so much of the estate as consisted of personalty were liable to assessment as in the case of a legacy to one person, and were chargeable with one amount of duty only which was presently payable; (iii.) that F.C. DECEASED. the widow was not liable in respect of the separate assessment Re LIGHTOLLER, made on her life interest in the personal estate independent of the interests in succession following on her life interest; (iv.) in what manner, at what rate, and on what sum succession duty was to be assessed on the successions arising under the will and codicil; (v.) by whom the costs of and incidental to the petition and appeal should be paid? By his will the testator gave, devised, and bequeathed all his real and personal estate unto and to the use of his trustees, their executors, administrators, and assigns, upon trust to receive the rents, issues, interest, income, and profits of his said real and personal estate, and to pay the same to his wife during her lite, and upon the death of his wife he directed his trustees to hold all his silver plate upon certain trusts for the benefit of certain persons in succession, and as to all his real estate and all the residue and remainder of his personal estate to sell and dispose of and convert into money all such parts thereof as should not consist of money, and call in and collect all such parts thereof as should consist of money (with power at their discretion to postpone from time to time as they might deem best the sale, conversion, or calling in all or any part of the said real and personal property), and to hold the moneys to be produced by such sale disposition conversion calling in and collection. upon trust to divide the same amongst certain persons in certain shares and proportions, which were afterwards altered by a codicil to other shares and proportions. Douglas and McGill, for the appellants: The question submitted involves the construction of s. 31 of The Succession and Probate Duties Act of 1892 and s. 7 of the amending Act of 1918. Section 31 was not directly repealed or amended, but it is contended there is an implied amendment. Section 31 of the Succession Duties Act, p. 6, is taken from The Legacy Act of 1796, with certain slight alterations. On a gift of residue (which this is), persons who are chargeable with the duties thereby imposed at one and the same rate are charged as in the case of a legacy to one person. Section 20 provides that succession duty is payable at the time when the successor becomes entitled to possession. In re Goggs (1). Section 12, by a proviso, provides that the duty payable shall be ascertained at certain rates (cf. section in (1) 1909, St. R. Qd. 27, F.C. DECEASED. its original form). It is now contended that the proviso has altered the rate of duty payable in all cases of life interests, Re LIGHTOLLER, because at some future date the value of the portion of the estate in which a life interest has been given may, not must, fluctuate in value. Prior to the amending Act, there is no doubt that the rate of duty referred to in s. 31 related only to the rate of duty as fixed by the nearness of relationship to the deceased. That construction has been in force for many years, and for some two years at least, 1918, 1919, 1920, since the Act was passed. The words" are chargeable," must relate to a state of affairs existing on death, and cannot relate to future dates, when the succession may fall into possession. Even if they do, it cannot be assumed by reason of fluctuation in value, there may be an alteration in rate. In a taxing Act, the words must be explicit. Halsbury, Vol. XIII., pp. 242, 246; Commissioner of Stamps (Queensland) v. Wienholt (1), Emmerton v. Federal Commissioner of Land Tax (2), Gibson & Howes Ltd. v. Lennon (3), Brunton v. Commissioner of Stamp Duties (4). The first paragraph of s. 12 in the enacting part is subject to s. 31, and the words in the proviso must be read in the light of this paragraph. Pro isoes will not be given a meaning wider than the enacting part of the section. In re Brockelbank (5), Beal, p. 266 ; R. v. Dibdin (6), R. v. Taunton St. James (7), Ex parte Partington (8). General words in a later section do not control particular enactments in an earlier section. Goodwin v. Phillips (9), Taylor v. Corporation of Oldham (10), Mitchell v. Scales (11). Section 12 only applies to cases where s. 31 does not operate. Re Brockelbank (12), Seward v.“Vera Cruz" (13), Barker v. Edger (14), The Queen v. Champneys (15), Beale, pp. 465, 466, 467, 468. Henchman and Entricken, for the Commissoner: Section 31 of the Act of 1892 has no application, for since the amendment made by s. 12 of the Act of 1918 it cannot be predicated that the widow and the children are chargeable at the same rate. In re Goggs (16), it was held that the rate of duty was determinable by the value at the time of death, and that the amount on which (1) 1915, 20 C.L.R. 531, at p. 541. In (9) 1908, 7 C.L.R. 1, at p. 10. F.C.. duty was payable at that rate was the value of the succession Re LIGHTOLLER, when possession was taken. Under the Act of 1892, s. 12, a wife, DECEASED. husband, or lineal issue was chargeable at half the stated rates. As the rate was fixed at the time of the death of the predecessor, it followed that all paid duty at the same rate. The Act of 1918, s. 7, amended s. 12 of the 1892 Act, making entirely new provisions. Of s. 7, subsec. 1, is similar to the original; subsec. 2 adopts the principle of aggregation, and lays down two rules for determining duty-(i.) a general rule; (ii.) a particular rule applicable to cases where the interest in possession arises on the determination by death of a prior charge or interest. Under the general rule the rate can be determined at once by aggregating the interests which pass on the death, but under the particular rule the rate cannot be ascertained until the prior estate determines. Section 31 cannot therefore apply to cases within the particular rule. That section is a general provision, and must be read as modified by the subsequent particular enactment. If the section is construed in that way, it still has operation-e.g., on interests for years during minority or widowhood, where the prior interest does not determine on death, and also in cases of death, where the legacy has a definite and fixed value. To read s. 31 in the manner contended for by the petitioners, the Court would have to construe the proviso to s. 12, subsec. 2, as limited by s. 31, which would be a limitation of the later enactment by an earlier and of a special provision by a general provisioncf. Beal, Cardinal Rules of Interpretation, 2nd Ed., pp. 470-475and practically leaves little operation for the new proviso. Section 31 is repealed by implication. The petitioners are within the proviso; it is for them to establish their exemption. Swinburne v. Federal Commissioner of Taxation (1). Counsel traced the history of the legislation referring to The Succession Duties Act of 1886 (50 Vic., No. 2), s. 7 (1); The Succession and Probate Duties Act, 1892 (56 Vic., No. 13), s. 12; The Succession and Probate Duties Act of 1904 (4 Edw. VII., No. 17), s. 7; The Succession and Probate Duties Act Amendment Act of 1906 (6 Edw. VII., No. 13), s. 2; The Succession and Probate Duties Acts Amendment Act of 1918 (9 Geo. V., No. 16), s. 7. Section 31 of the Act of 1892 is identical with s. 12 of the English Legacy Act, 1796 (36 Geo. III., c. 59), s. 12. Douglas in reply. (1) 1920, 27 C.L.R. 377. C.A.V. |