143-NLR-NLR-V-02-In-the-Matter-of-the-Last-Will-and-Testament-of-H.-A.-EVATT,-Deceased.pdf
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In the Matter of the Last Will and Testament of H. A. Evatt,
Deceased.
D. C., Kandy, 1,998.
Stamp duty on probate of will of person who held property only as trustee—Stamp Ordinance of 1890, s. 28.
Where a person dies leaving property which he held only astrustee, probate of his will or letters of administration of his estate,as the case may be, need not be stamped.
E facts of the case appear in the judgments.
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Van Langenberg, for appellant..
Wendt, Acting S.-G., for respondent.
6th Jaily, 1897. Lawbie, A.C.J.-^-
The deceased Mr. Evatt died in England possessed of personalestate there and of trust property in Ceylon. His executrix got
1*97.
July 1 and (,
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1897.
July 1 and 6,
Lawbtb,
A.C.J.
probate of his will in England and administered his estate there.
‘ She has been advised that it is necessary that she should getadministration (with the will annexed) in Ceylon, for thepurpose of transferring title “to the trust property here. Lettershave heen granted, and the question is whether these may heissued unstamped, or whether they should bear stamp dutyappropriate to the value of the trust estate. The words ofthe Stamp Ordinance are clear. Duty , shall be levied on theestate of the deceased “ exclusive of what the deceased shall“ have been possessed of or entitled to as trustee for any other“ person or persons and not beneficially.” It was argued that thisdoes not apply when the sole object of getting administration isto give a title to transfer trust property. I am unable to appre-ciate the argument.. The words of the Ordinance seem to heconclusive. It may be that the Stamp Ordinance does not con-template nor provide for a case when the deceased had noproperty of his own. When administration is sought only toadminister trust property, the case may be a casus improvisus.But if it be, the letters are exempt from stamp duty, which isonly exigible when clearly imposed.
Withers, J.—
Mr. Evatt was one of the original trustees of the will of GeneralFrazer, who died in 1862. In the course of time Mr. Evatt’sco-trustees died, and Mr. Evatt was minded to appoint a trusteejointly with himself. A part of the trust estate was a propertysituate in Ceylon. Evatt, it seems, omitted to execute a con-veyance of this property to the new trustee in the way thatour law requires for the transfer of immovable property. Hedied without doing so, and the executrix of his estate appliedfor letters of administration in Ceylon for the purpose oftransferring the title in the Ceylon property to the trusteeappointed by the late Mr. Evatt. On her application this Courtappointed the District Court of Kandy as the one to which theexecutrix should apply for a grant limited to this special purpose.In these circumstances, the question arises for decision whetherthe grant should bear a stamp duty proportionate to the value of,the property. The Stamp Ordinance of 1890, section 24, enacts asfollows : “ No court in this island shall grant probate or letters“ of administration of the property and estate of any‘ deceased“ person, without first requiring ^nd receiving from the person or“ persons applying for the same, or from some other competent“ person or persons, an affidavit that the movable and immovable“ property and estate of the deceased in this island, for or in
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“ respect of which, probate or letters of administration are to be 1807.
“ granted, exclusive of what the deceased shall have been «f«dy 1 and, 6.“ possessed of or entitled to as a trustee, and not beneficially, and Withebs, J.“ without deducting anything on account of the debts due and“ owing from the deceased (excepting debts due on mortgage or on“ notarial bonds), are of the value of a certain sum, to be therein“ specified to the best of deponent’s knowledge, information, and“ belief, in order that the proper and full stamp duty may be paid“ by the person to whom such probate or letters of administration“ shall be granted.”
I presume in this case that.the Court was satisfied by affidavitthat Mr. Evatt had no estate in Ceylon when he died, except thistrust property. By section 539 of the Civil Procedure Code aDistrict Court may grant probate or administration limited toany particular property or for any particular purpose in anycase where it considers that a large grant is unnecessary. By theEnglish Statute (48 George III., chap. . 49x section 35) it is enactedthat “ the probate of a will of any person deceased or the letters
“ of administrationshall be deemed to be taken to be
“ valid and available by the executors or administrators of the“ deceased for recovering, transferring, or assigning any deb tor“ debts or other personal estate or effects whereof or whereto the“ deceased was possessed or entitled, either wholly or partially as“ a trustee, notwithstanding the amount or value of such debt or“ debts or other person’s estate or effects, or the amount or value of“ so much thereof, or such interest therein as was trust property“ in the deceased (as the case may be) shall not be included in the“ amount or value of the estate in respect of which the stamp duty“ was paid on such probate or letters.” Now, in Ceylon an executoror administrator has the same power to deal with real estate asin England he has to deal with personal estate. But as executrixin England, this lady, has no power to transfer immovableproperty in Ceylon. She was obliged to come to the local courtsin Ceylon to be clothed with power to assign this property to hertestator’s joint trustee, so as to give him, what he has not at thpresent moment, a legal title to the property. It seems to mecontrary to the letter and spirit of the law that duty should bepaid for this grant on Mr. Evatt’s trust estate in Ceylon. Theappeal is in my opinion entitled to succeed.*i
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