F.C. of B.'s succession at the time of A.'s death, it could not be paid Re LIGHTOLLER, until that value had been ascertained, which would not be until DECEASED. A.'s death. Shand J. But the provisions of s. 31, and other sections, of the Act of 1892 have always, I think, been construed, and in my opinion rightly construed, as modifying the general provisions of s. 12 in the particular cases to which they apply. Section 7 of the Act of 1918 next goes on to re-enact so much of subsec. 1 of s. 12 of the Act of 1892 as makes the rate at which duty is chargeable dependent on the value of "the whole succession or successions derived from the same predecessor and passing upon any death to any person or persons." Now, it will be noted that although the Act of 1918 makes alterations in the rates chargeable according to the value of "the whole succession or successions," it leaves subsec. 1 of s. 12 unaltered in any other respect. But the subsequent enactments introduced into s. 12 by the Act of 1918 makes this adherence in subsec. 1 to the original phraseology somewhat confusing, because, I think, the words, whole succession or successions derived from the same predecessor and passing on any death," have always been construed to mean the succession, if only one, or if more than one, the aggregate of the successions passing on the same death, whether of the predecessor or someone else. And subsec. 2 of s. 12 of the Act of 1892, as altered by the Act of 1918, seems to me to make this construction no longer possible. This subsec. 2 is an entirely new enactment, and is, to say the least of it, extremely perplexing. Its first paragraph seems to me to deal with the properties which s. 7 of the Act of 1918, in language not perhaps very happily chosen, has already designated "the estates" (sic) "of persons dying after the commencement of this Act," and seems to to me to relate only to cases in which "the deceased "-i.e., the person on whose death the property passes,-is also the predecessor or person from whom the property is derived. It provides" For determining the rate of succession duty so payable there shall be aggregated so as to form one estate' (or, in other words, so as to constitute "the whole succession or successions" referred to in subsec. 1 of s. 12), the value of all property, whether situated within or outside Queensland (after deducting therefrom all debts and liabilities other than contingent liabilities incurred by the deceased and due and F.C. DECEASED. owing by him at the time of his death, except any debt in respect Re LIGHTOLLER, of which there is a right to reimbursement from any estate or person) and passing on such death." Now, making a rest at this point, I suppose the property here referred to in such wide terms must mean the property constituting the estate of a man who is dead, since the debts and liabilities to be deducted from its value are to be those "incurred by the deceased, and due and owing by him at the time of his death." It is also to be property "passing on such death," which I take to mean the death of the person to whose estate the property belongs. are The first paragraph, then, of subsec. 2 seems to me to be dealing only with cases in which the "succession or successions derived from the same person as the person on whose death they pass-in other words, successions arising on the death of the predecessor and its whole object seems to be to include in "the whole succession or successions" property which would not otherwise be so included. Amongst other things, it includes "all successions arising upon any death in respect of which the deceased is the predecessor or creator," and in this connection the words "any death" seem to mean or include a death other than that of the predecessor. That is certainly a somewhat startling provision, because it would, for example, cover the case of property settled by a man on his son for life, with remainder to his son's children, and passing to his son's children on the death of the son, although the settlement were made many years before the settlor's death, and the son did not die for many years after the settlor's death. I am at a loss to imagine how such a succession could be included estate of the settlor, so as to determine the rate at which succession duties would be payable in respect of successions taking effect by 1cason of the settlor's death. Happily, we have not been asked to solve this riddle. in the Counsel for the petitioner did not argue, although it seems to me they might have argued, that as the value of the succession or successions is to include the value of the successions accruing on the death of the testator's widow, no assessment of any kind, not even in respect of the widow's life interest, can be made until the death of the testator's widow, Shand J. F.C. But counsel for the petitioners founded their case on the provisions Re LIGHTOLLER, of s. 31. The question then is Are these provisions rendered nugatory by the second paragraph of subsec. 2 of s. 12? DECEASED. Shand J. This second paragraph seems to be dealing with the properties which s. 7 of the Act of 1918 has already designated-" the estates of persons where a beneficial interest in possession in any property or the income thereof on the determination of any charge, estate, or interest upon any death accrues after the commencement of " the Act of 1918-i.e., 1st June, 1918. And although prefaced by the words "provided that " it does not seem to me to qualify any of the provisions of the first paragraph to which it is tacked on. It does, however, seem to me to qualify subsec. 1, because it appears to me to revolutionise the meaning hitherto attached to the words "the whole succession or successions" in subsec. 1, so far as these words relate to a succession or successions passing on the death of any person who is not also the predecessor. I think that the proviso applies only to cases in which the death upon which the succession takes effect is the death of some person other than the predecessor, although in that case it would obviously be inoperative, unless the predecessor had been considerate enough to die before the person on whose death the "beneficial interest in possession" accrued. And it requires that "the duty payable shall be ascertained as follows:-To the principal value of such interest "-i.e., the beneficial interest-" when it falls into possession shall be added the value as previously ascertained under any law relating to probate or succession duties "not, as I think heretofore, of the whole succession or successions passing on the same death, but of the rest of the predecessor's estate-" and the sum so arrived at shall be the amount on which the rate of duty on such interest shall be fixed in accordance with the above table of duties." This undoubtedly effects a great change in the law relating to succession duty. In cases where the succession passes on the death of some person other than the predecessor the rate at which duty is payable is to be determined by the value of the "estate" of the predecessor. Literally construed and standing alone, the proviso would even make succession duty payable by remaindermen on the death of a life tenant dying after the 1st June, 1918, although prior to the 1st June, 1918, duty had already been paid under the provisions of s. 31 in respect of the interests taken by the life tenant and remaindermen as if such interests constituted a legacy to one person. But I do not feel compelled to hold, and am not disposed to hold, that the provisions of the proviso have any application to successions which, under the provisions of s. 31, are taken out of the category of property given to different persons in succession, and are required to be dealt with as if they were a legacy given to one person. I think, therefore, that the appeal should be allowed, and that it should be declared that no duty should have been assessed in respect of the widow's life interest in the testator's personal estate, but that the interests of all the beneficiaries in his personal estate, other than silver plate, are liable to assessment as in the case of a legacy to one person, and are chargeable with one amount of duty only, which is presently payable. I also think the respondent should pay to the petitioners their costs of this appeal. : LUKIN J. The nature of this appeal, the provisions of the will, the contentions of each side, and the relevant sections-with one exception-affecting such contentions, have been sufficiently set out or referred to in the judgments delivered, so that I think it unnecessary for me to repeat them here. I come to the same conclusion as my brother Shand J. I hold that the proviso to subsec. 2 of s. 12 has no application to, and does not affect the first paragraph of, s. 31 so as to prevent its operation in the present case. I think the difficulty suggested by the terms of the proviso to s. 12, subsec. 2, is removed and explained away when it is considered in conjunction with s. 7 of the Principal Act. That section provides that when any property is subject to any charge, estate, or interest determinable by the death of any person, the increase of benefit accruing to any person upon the extinction or determination of such charge, estate, or interest shall be deemed to be a succession accruing to the person then entitled to the property or income thereof. This "increase of benefit" might arise and accrue in many ways in regard to charges, to estates, and to interests. In this particular case, on the death of the widow, although there had already been-perhaps many, possibly thirty years before on the death of the testator, a succession to such son, a fresh fictional succession would arise on "the increase of F.C. Re LIGHTOLLER, Shand J. Lukin J. F.C. Re LIGHTOLLER, Lukin J. benefit" accruing to him upon the determination of his mother's |