KOCH J.—Corolis v. Commissioner of Stamps.
1938Present: Koch and Soertsz JJ.
CAROLIS v. COMMISSIONER OF STAMPSS. C. 31/1938 Special.
Probate duty—Estate of person dying in 1908—Probate issued.in 1937—Effectof repealing Ordinances Nos. 8 and 10 of 1919—Estate Duty Ordinance,No. 8 of 1919, s. 34.
Where the last will of a person, who died in 1908, was admitted toprobate in July, 1937, and the executor, when called upon to pay probateduty, contended that the duty had been repealed by the Estate DutyOrdinance, No. 8 of 1919, and the Stamp Ordinance, No. 10 of 1919,—Held, that the effect of section 34 of the Estate Duty Ordinance, No. 8 of1919, which repealed the .duty was to incorporate into.the provisions of thatOrdinance, sections 68 to 73 of the Stamp Ordinance, No. 22 of 1909, in sofar as regards the duty on the estates of persons dying before the com-mencement of the Estate Duty Ordinance of 1919, and that the estatewas liable for probate duty.
Held, further, probate must be stamped in accordance with the law inforce at the time it is. signed by the Judge.
fT'SIS was an appeal from an order of the Commissioner of Stampsunder section 32 of the Stamp Ordinance.
Seneviratne, for appellant.
E. A. L. Wijeyewardene, K.C., S.-G. (with him Pulle, C.C.), for Crown,respondent.
April 25, 1938. Koch J.—
Although the deceased, the widow of one W. D. Carolis, died in the year1908, no steps in respect to probate of her will were taken till July, 1936.On July 13, 1937, the Court, however, issued probate in testamentary
KOCH J.— Carolis v. Commissioner of Stamps.
case No. 7,443 in which her estate was being administered, and a duty ofRs. 2,937 was levied on and paid for by her executor. On July 21, 193'",an application was made by the executor to the Commissioner of Stampsfor a ruling as to whether the probate duty was rightly levied, the executortaking up the position that no such duty was leviable and that the sumshould be refunded to him. By his letter of February 10, 1938, theCommissioner of Stamps, acting under section 30 of the Stamp Ordinance,No. 22 of 1909, informed the executor that probate had been correctlystamped with a duty of Rs. 2,937. The executor being dissatisfied withthe determination of the Commissioner has duly appealed to this Courtunder section 32.
It was Contended on behalf of the appellant that probate was an.instrument, that it was executed when signed by the Judge, and that ithas to be stamped in accordance with the law in force at the date of its:execution. This was conceded by the learned Solicitor-CJeneral who,nevertheless, took up the position that at such date, namely, on July 13,1937, probate duty was leviable and that that duty amounted to the sumof Rs. 2,937.
The appellant, on the other hand, maintained that the law in regard topayment of probate duty had been repealed by Ordinance No. 19 of 1927,that since that Ordinance came into operation no probate duty waschargeable, and that wills had since then been admitted to probate freeof duty. He was not quite correct here, for the estates of persons whichescaped duty were the estates of those who died after October 1, 1935.
In taking up this position, the appellant’s Counsel has also failed totake into account the effect of Ordinance No. 10 of 1919, which substituteda new schedule B for schedule B of the principal Ordinance No. 22 of 1909,(the Stamp Ordinance), as amended by Ordinance No. 16 of 1917. Thisnew schedule B, in Part III., does not make provision for probate dutyas was previously made in the principal Ordinance and its amendment,so that the position after Ordinance No. 10 of 1919, was precisely the sameas it became after Ordinance No. 19 of 1927 was enacted. But, howeverthis may be, the fallacy underlying the argument of the appellant’sCounsel is his ignorance of the effect of section 34 of the Estate DutyOrdinance, No. 8 of 1919. This section runs thus :
“ Sections 68 to 73 (both inclusive) and Part III., of schedule B, sofar as the duty on probate or letters of administration is concerned, of‘ The Stamp Ordinance, 1909 • are hereby repealed, except as regardsthe property and estate of any person dying before the commencement ofthis Ordinance”.
The learned Solicitor-General argues that the words used clearlyindicate that sections 68 to 73 and Part III. of schedule B, so far asprobate duty is concerned, have not been repealed in respect of the estatesof persons who died before the commencement of this Ordinance, andthat the effect of this section is to incorporate into this Ordinance theprovisions of the Stamp Ordinance relating to probate in respect of theestates of persons who died before this Ordinance came into operationIf he is right, the repeal by Ordinance No. 10 of 1919 of probate duty willnot affect the cases of persons who died before the commencement of theEstate Duty Ordinance, No. 8 of 1919, provided that the effect of that
KOCH J.—Carolis v. Commissioner of Stamps.
repeal does not extend to the repeal of this incorporation also. In supportof his argument, he cited the case of The Queen v. Smith
The question there was whether an appeal lay to Quarter Sessions froma refusal by the Justices of Lancashire to grant the applicant a certificateto sell beer, wines and spirits, for, if it did, the application for a writ ofmandamus would fail. The application for a certificate was made underthe Wine and Beerhouse Act, 1869 (32 & 33 Victoria c. 27), and thequestion therefore arose whether an appeal lay under this Act.
The position was this. Sections 27 to 29 of 9 George IV. c. 61 providedthat a person who thought himself aggrieved by any act of any Justicedone in or concerning the execution of this Act may appeal against such actto the next General or Quarter Sessions. There were also certain formali-ties and proceedings with respect to such appeals that were prescribed.
Section 8 of the Wine and Beerhouse Act, 1869 (32 & 33 Victoria c. 27),enacted, inter alia, that all the provisions of 9 George IV. c. 61 as toappeals from any act of any Justice shall, so far as may be, have effect withregard to grants of certificates under this Act.
Schedule 2 of section 75 of the Licensing Act, 1872 (35 & 36 Victoriac. 94), repealed, inter alia, sections 27 to 29 of 9 George TV. c. 61 except incertain cases not material for the present point; but section 8 of the Wineand Beerhouse Act was left untouched.
The question arose as to whether the repeal by the third Act of sections27 to 29 of the first Act had the effect of taking away the right of Appealgiven in section 8 of the second Act by reference to sections 27 to 29 of thefirst Act. It was held that the incorporation of the provisions of the firstAct into the second Act was the same thing as if the words of the first Actwere repeated in the second Act, and the repeal by the third Act of thefirst Act did not take away the effect of the words which were so repeatedin the second Act -by incorporation. The consequence was that as theright of appeal was not taken away the applicant had his remedy byappeal and the application for a writ of mandamus failed.
Again Maxwell in his “ Interpretation of Statutes ” (7th ed.) at page 344says : “ Where the provisions of one statute are, by reference, incorporatedin another and the earlier statute is afterwards repealed, the provisions soincorporated obviously continue in force so far as they form part of thesecond enactment ”.
Now, applying the same principles to the case before us, the effect ofthe language of section 34 of the Estate Duty Ordinance, No. 8 of 1919, isto incorporate into that Ordinance, sections 68 to 73 (both inclusive) andPart HI. of schedule B of the Stamp Ordinance, No. 22 of 1909, so far asthe duty on probate or letters of administration is concerned in regard tothe property and estate of any person dying before the commencement ofthe Ordinance, namely July 1, 1919, the incorporation being equivalentto a repetition of the words of the Stamp Ordinance in the Estate DutyOrdinance. Therefore, although Part III. of schedule B of the StampOrdinance of 1909 was repealed by Ordinance No. 10 of 1919 and Ordi-nance No. 19 of 1927, Part m. of schedule B continued to remain in theEstate Duty Ordinance, 1909, and was unaffected as the repeal of thatpart of the Stamp Ordinance did not take away the effect of the words40/121 Lav> Reports (1872-3) 8 Q. B. 146.
Visaladchypillai v. Sivapak kiammal.
■which were repeated by incorporation in the Estate Duty Ordinance. Itis further significant that sections 68 to 73 of the Stamp Ordinance havenot been expressly repealed, the repeal being confined only to Part HI.of schedule B, and also-that Ordinance No. 10 of 1919, came into operationon the same day as the Estate Duty Ordinance, 1919.
In 1935, by Ordinance No. 51 of 1935 (section 2), the levy of estate dutywas abolished only in respect of the estates of persons dying on or afterOctober 1, 1935. This would imply that the abolition was not to affectthe'estates of those who died before that date. Section 3 makes thisimplication express and section 4 goes a step further in fully establishingthis position by stating that “nothing in this Ordinance shall affect theprovisions of section 34 of the principal Ordinance ”, and that “ therepeal effected by that section shall continue to be operative subject tothe exception in that section contained ”, namely, that the repeal was notto affect the estates of those who-died before July 1, 1919.
It would therefore transpire that on July 1, 1937, the provisions of theEstate Duty Ordinance of 1919, with the incorporation of sectipns 68. to73 and Part III. of schedule B of the Stamp Ordinance, 1909, were in fullforce as regards the estates of all persons who died before July 1, 1919;and, as the deceased testatrix, Mrs. Carolis, died in 1908, the levy ofprobate duty on her will was quite in order.
The appeal will therefore be dismissed with costs.
Soertsz J.—I agree.
CAROLIS v. COMMISSIONER OF STAMPS