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He Estate of MARGARET WERNHAM.
D. C., Kandy, 1,979.
Stamp Ordinance, No. 3 of 1896—Executor's inventory in testamentary pro-
ceeding—Civil Procedure Code, s.733—Affidavit verifying such inventory—Stamp duty thereon—Interpretation of Ordinance.
Per Bonseb, C.J., and Lawbie, J. (dissentients Wjthebs, J.).—Anaffidavit in support of an intermediate account filed by an executorunder section 733 of the Civil Procedure Code is not chargeable withstamp duty under the Ordinance No. 3 of 1890, section 5 (schedule B,part III.).
In interpreting an Ordinance imposing burdens on the subject, itmust be construed favourably to the subject; and optima est legisinterpres consuetudo.
HE facts relevant to this appeal, which came on for argument
on 8th November, 1898, appear in the following judgmentspronounced on the 16t:h December, 1898.
Van Langenberg, for the administrator, appellant.
Loos, C. C., for the Attorney-General.
In this case, the District Judge of Kandy has required the affi-davits verifying respectively an executor’s inventory of the estateof his testator and an intermediate account filed by an executorunder section 733 of the Civil Procedure Code to be stamped withan ad valorem duty, as being “ affidavits in a testamentary pro-ceeding, ’ ’ and chargeable with duty under part IH. of the scheduleto the Stamp Ordinance, 1890. It was contended by Mr. VanLangenberg that the verification on oath of the correctness of theinventory required by section 538 of the Civil Procedure Code isnot an affidavit. But I am clearly of opinion that it is. The onlyquestion in both cases is whether these affidavits are chargeablewith stamp duty.
Now, the first observation which I would make is that it hasnever been suggested that these documents were chargeable withduty until the question w'as raised by the District Judge of Kandyin the present case. I have ascertained by inquiry that it hasbeen the practice of the two principal District Courts of theIsland—the Courts of Colombo and Kandy—ever since the year1841, when stamp duties were first imposed on legal proceedings,to treat these affidavits as not being chargeable with duty, and itmay safely be assumed that the practice of these Courts was alsothe practice of the other Courts of the Island.
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It is not necessary to go further back than the Stamp OrdinanceNo. 11 of 1861. Part II. of the schedule to that Ordinance headed“ Containing the Duties on Law Proceedings ” contains tables ofthe fees chargeable in the various Courts under the headings“ Supreme Courts,” “ District Courts,” and “ Courts of Bequests,”respectively. The first item in each table is “ every affidavit oraffirmation,” and the stamp depended in each case on the class ofthe action, which class was determined by the value of its subject-matter. There was a footnote to the table of fees in the SupremeCourt in the following words:—” Testamentary proceedings shall“ be charged in the class corresponding with the value of the estate,
“ which must be set out by affidavit when the application for” probate or letters of administration is made.” This note was re-peated at the foot of the table of District Court fees. There wasno such note appended to the table of fees in the Courts ofBequests, for the obvious reason that Courts of Bequests have notestamentary jurisdiction. Part III. of the schedule to the sameOrdinance was headed thus:—" Containing the Duties in Testa-mentary Proceedings; on Probates of Wills and Letters of Ad-ministration.” This part contained only four items, viz., (1) everyaccount, provisional or final; (2) every bond; (3) every copy ofany document; and (4) probates and letters of administration.It is obvious, therefore, that this part III. did not comprise all theduties payable on testamentary proceedings, but that the duties ondocuments such as petitions, affidavits, proxies, applications to theSupreme Court for the conferring of jurisdiction on a particularDistrict Court, and the like, were left to be determined by part II.In 1884 a new Stamp Ordinance was passed, but in the particularsto which I have referred above it was identical with the Ordinanceof 1861. In 1890, the Stamp Ordinance now in force was passed.The schedule was remodelled by striking out the notes relatingto testamentary proceedings, at the foot of the tables of fees inthe Supreme Court and the District Courts in part II., and byinserting specifically in the table in part III. the items of thevarious proceedings which had been up to that time chargeableunder the tables in part II. by virtue of the appended notes.Amongst those items appears “ every affidavit or affirmation.”The duty for a provisional account was omitted, whilst an ‘‘ inven-tory was, for the first time, rendered liable to duty. In myopinion, this remodelling of the schedule was not intended to have,nor did it have, the effect of altering the meaning of the words“ every affidavit or affirmation.” The usage of twenty-three yearsbetween the Ordinance of 1861 and 1884 had fixed the meaningof that expression as not including affidavits verifying accounts
December 16.Bonseb, C.J.
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December 10.Bonbgr, C.J.
in testamentary cases. That usage must be taken to have beenapproved by the Legislature, when in 1884 it re-enaeted theschedule in identical terms with those of the schedule to theOrdinance of 1861. Again, in 1890, when the present Ordinancewas passed, the Legislature manifested no express intention ofmaking these affidavits, which had hitherto been consideredexempt from duty, chargeable with duty. The Ordinance of1890 made no difference in this respect. It simply re-enactedthat every affidavit or affirmation in a testamentary proceedingshould be chargeable with duty. Such affidavits as the presentwere never regarded as chargeable with duty under the Ordinancesof 1861 and 1884, and I hold that they are. not chargeable with dutyunder the Ordinance of 1890.
There are two well-known rules which are applicable to this case.The first is, that a charge on the subject must be expressed in clearand unambiguous language, or, in other words, that Ordinanceimposing burdens on the subject must be construed favourably tothe subject. The other is expressed in the maxim: Optima estenim legis interpi'es consuctudo. Iii the present case we have anunbroken usage from 1861 to 1898, under which these affidavits,though they were undoubtedly “ affidavits in testamentaryproceedings,” and therefore, primd facie, liable to duty, have beenuniformly regarded as not being such for the purpose of duty. Iam therefore of opinion that these appeals must be allowed.
I may add that this decision, at all events in the case ofprovisional accounts, furthers the policy of the Legislature, whichin 1890 deliberately exempted provisional accounts from duty, nodoubt with the intention of encouraging a frequent accounting tothe Court by executors and administrators. The duty on a provi-sional account was five shillings, i.e., Rs. 2.50, in every caseirrespective of the value of the estate. Is it conceivable that theLegislature intended, whilst abolishing the duty on these accounts,to re-introduce it indirectly by imposing a duty, varying fromRs. 2 to Rs. 10, according to the value of the estate, on the affidavitsverifying such accounts, or that, while it increased the duty on afinal account from the uniform fee of Rs. 2.50 to a duty varyingfrom Rs. 2.50 to Rs. 10, it intended by a side wind to double thatincreased duty by charging a like varying duty on the affidavitwhich must necessarily accompany every account for the purposeof verification? It is abundantly clear to mv mind that such wasnot the intention of the Legislature. I need hardly point out thehardship and injustice of holding otherwise.
The proctors who have filed these affidavits without objectionwill be liable to be called upon to make good to Government the
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December 16Bokskr, C.J
The Stamp Ordinance is silent as to the stamping of theverification of an inventory. The verification is required by section538, and should be in the form 92 (p. 543).
It seems to me that the verification should (in the ordinarycase) be made in open Court by the executor or administrator inthe presence of the District Judge, and if, that be done it isevidence taken in Court, on the record of which no stamp isrequired but if from special circumstances the executor isexcused from verifying the inventory by oath in open Court, if(he being absent) his proctor submits an inventory to the judgeon which is written a verification in the form of an affidavitsworn to before a Justice of the Peace, or other officer havingpower to administer oaths, then I read the inventory and theverification as one document, not as two. The inventory withoutthe verification is a mere list. With the verification it becomesan inventory, and to that inventory must be affixed the stampsrequired by the Ordinance in an estate of that value; but no otherstamp on the verification seems to me to be necessary.
The next question raised in this appeal is whether, when anadministrator or executor files an account under chapter LV. dulyverified by affidavit, the affidavit must be stamped. On thisquestion I am content to agree with the Chief Justice.
These are questions arising under the Stamp Ordinance of 1890.One is: How should a verified inventory exhibited in the courseof testamentary proceedings, under chapter XXXVIII. of theCivil Procedure Code, be stamped? The other is: Is an affidavitin support of an intermediate account rendered by an executor oradministrator chargeable with duty? Part III. of the scheduleto the Stamp Ordinance of 1890 appears to me to be decisive onthe point. It contains the duties on testamentary proceedings,and by it every affidavit or affirmation is made chargeable withduty. Section 538 of the Civil Procedure Code requires theinventory of a deceased person’s estate and effects to be verified
stamp duties which, with the acquiescence of the Courts and theofficers of Government, they have innocently omitted to pay.In my opinion the District Judge was ill-advised in making theorder now appealed from. He should not have disturbed thesettled practice of his Court thus of his own mere motion, butshould have left the Law Officers of the Crown to make a formalapplication in the matter.
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December 10.Withbrs, J.
on oath or affirmation. The Stamp Ordinance of 1890, section 63,enacts that “ if more than one instrument is written upon the same“piece of material, every one of such instruments is to be separately“and distinctly stamped with the duty with which it is chargeable.”
A duly verified inventory is at once an inventory and an affidavit.It must therefore be stamped with an amount of duty appropri-ate to an inventory and an affidavit of the particular class in whichit is filed. We are informed that, since the Stamp Ordinance of1890 came into operation, it has not been the practice in theprincipal Courts of first instance to stamp a verified inventoryexcept as an inventory, and not to stamp at all an affidavitappended to an intermediate account.
I should attach much weight to that usage if the terms of theStamp Ordinance of 1890 were not quite clear to my mind. Thepreceding Stamp Acts of 1884 and 1861 were drawn up differentlyto that of 1890 in regard to duties chargeable on testamentaryproceedings, and I must say somewhat confusedly. In the bodyof those earlier statutes it was provided that the several instru-ments mentioned and described in the schedule annexed (exceptthose standing under the head of exemptions, and as shall thereafterbe excepted) should be subject to the stamp duties set down infigures against the same respectively or otherwise specified andset forth in the said schedules.
The schedules were divided into three parts. Part I. need notbe considered. Part II. purported to contain duties on lawproceedings, and in the Supreme Court, District Court, and Courtof Requests respectively. Part III. purported to contain the dutieson testamentary proceedings; on probates of wills and letters ofadministration.
One would expect to find that part III. exhausted the contentsof the duties. But it does not appear to do so. It contains a fewfixed charges Iot provisional and final accounts for bonds, copiesof a will, codicil, or extract therefrom, or (copy?) of any docu-ment mentioned in this part of the schedule, and it furthercontains a scale of duties chargeable on probate of a will or lettersof administration according to the value of the deceased’s estate,exclusive of trust property and of debts due by the estate onmortgage or other notarial bonds. Oddly enough under the headof Exemptions under part II. containing the duties on law, i.e.,civil proceedings in the Supreme Court, are to be found thesewords: —‘ ‘ Testamentary proceedings shall be charged in the class“ corresponding with the value of the estate, which must be set“ out by affidavit when the application for probate or letters of“ administration is -made.” A similar clause in part II. containing
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the duties chargeable in civil proceedings in the District Courtimmediately precedes the clause of exemptions from duties onproceedings in that Court.
Thus, instruments specified in Part II. which were used intestamentary proceedings were chargeable in a class different tothe class specified in Part III., for no allowance was made inPart II. for trust property or debts on mortgage or other notarialbonds.
To reduce this state of things into order, part III. in theschedule to the Stamp Ordinance of 1890 was made so as to exhaustthe duties chargeable in testamentary proceedings in the SupremeCourt and the District Courts, and part II. makes no reference tosuch proceedings.
I take it then that part III. is a clear indication of what instru-ments are chargeable with duty in testamentary proceedings.
A further difference in the old and new law on the pointsbefore us is that, whereas an inventory was not before, it is nowchargeable with duty, and whereas a provisional account waschargeable with duty, it no longer is so.
It was suggested that, as the new Ordinance has taken off thestamps from a provisional account, we should be only carryingout its intention if we admitted without a stamp the affidavitwhich is required by the Civil Procedure Code to be appendedto a provisional account. It was also suggested that as an inven-tory was not chargeable under the earlier Ordinances, and wasintroduced for the first time into the Stamp Ordinance in 1890,it was introduced to make but one dutiable instrument of it,though the Code requires an inventory verified By affidavit.
I cannot accept those suggestions. The law, as I said before,,is too hard for us. It has been the practice to accept affidavits ofthe kind unstamped and to accept an inventory as a single instru-ment subject to duty, but the practice is, to my mind, wrong.
December 16.Withbrs, J.