Livingston v Commissioner of Stamp Duties

Mrs. Coulson's death was caused by a motor accident which also caused the death of her husband. They had married little more than a fortnight before, she then being the widow of Hugh Duncan Livingston deceased. The latter had died on 17th November 1948 domiciled and resident in the State of New South Wales. The property which he left included some freehold and leasehold land in Queensland, on which he carried on a grazing business, and the stock and plant of the business. At his death he was also a member of a partnership of five which carried on a grazing business on leasehold land in Queensland, and in addition he was entitled to an undivided fourth interest in some other freehold and leasehold land in Queensland used for grazing. By his last will he appointed his wife his executrix and two other persons his executors. After a specific bequest to his wife he devised his real and bequeathed the residue of his personal estate to these three persons as his trustees. After payment of debts, testamentary expenses and death, estate and other duties, he declared trusts of this residuary estate as to one-third thereof to his wife absolutely and as to two-thirds upon special trusts in favour of his two sons, one of whom is the appellant Hugh Duncan Livingston. There were certain gifts over in case of failure of these trusts. Among the powers conferred there are powers of conversion and of management but there is no direction to convert. Probate of this will was granted by the Supreme Court of New South Wales on 13th October 1949 to the executrix and executors who are domiciled and reside in that State. Probate of the will was resealed in Queensland by the surviving executors after the death of the executrix, namely on 13th February 1952. At the date of her death, although three large payments on account of duty chargeable by the State of New South Wales on property of the testator there dutiable had been paid in that State, the assessment of duty had not been completed and as it turned out further large payments remained to be paid. Commonwealth estate duty had not been paid or for that matter assessed. There were, too, other steps to be taken in the administration of the estate which was by no means fully administered. The residue of his estate had therefore not been ascertained. It was the claim of the appellant that accordingly at the time of her death Mrs. Coulson had no proprietary right or interest in the specific assets in Queensland or elsewhere which the testator's estate comprised but only a claim against his executors for the due administration of the estate so that the residue should be ascertained and held upon trust as to one-third thereof for her. This, he maintained, was a chose in action or chose in equity subsisting in New South Wales where her fellow executors and herself resided and where the administration of the estate proceeded, the place moreover under the laws of which they were constituted and the trust would be enforced. On the death intestate of Mrs. Coulson her only right of property passing to him as her administrator, so he claimed, was this New South Wales right or chose in action. Except for what she might obtain in the fulfilment of this right she possessed no property in Queensland and moreover it was not a right situated in Queensland but in New South Wales. Notwithstanding this contention the Commissioner (the respondent) issued a notice of assessment of succession duty. The notice was dated 20th April 1956 and was addressed to the appellant's solicitors in Brisbane. It followed substantially Form R in the Schedule to The Succession Duties and Probate Duties Regulations but it nowhere mentioned the appellant by name as the party assessed or otherwise. The "successor" was given as Coulson (that is her husband killed by the motor accident) and others and the relationship as husband and children, the assessable amount was given as R (i.e. realty) £16,224 5s. 4d., P (personalty) £13,358 2s. 1d. and the rate of duty as fifteen per cent. The duty amounted to £4,437 7s. 1d. The appellant paid this sum together with interest to the Commissioner and appealed to the Supreme Court by petition. The appeal was referred to the Full Court and that Court for reasons to which it will be necessary to refer later dismissed the petition. From the order of dismissal the present appeal was brought to this Court as of right.

At the same time as the foregoing proceedings with respect to succession duty were in train, parallel proceedings took place with respect to the duty payable under s. 55 of the Act in respect of every grant of probate or of letters of administration. It is true that letters of administration in respect of the intestate estate of the late Mrs. Coulson had not been applied for in Queensland. But by s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935 Q. (26 Geo. V No. 27) it is declared that (to the extent of the property described in the section) the Commissioner may assess and recover duties "notwithstanding that probate or administration has not been granted in Queensland or if probate or administration of such property has been granted in any place outside Queensland without the reseal in Queensland of such probate or administration." Whether the respondent Commissioner purported to act under this or some other provision, he is said to have required the appellant to file an account of Mrs. Coulson's estate and, under protest and without prejudice to his contention that no succession or administration duty was payable on the death of Mrs. Coulson, the appellant filed an account of her estate. Doubtless this is the same account and same protest as has already been referred to. The respondent Commissioner gave notice to the appellant's solicitors of his assessment of administration duty. The notice followed Form 0 of the Regulations and stated that the Commissioner had assessed the administration duty payable in the estate of Mrs. Coulson at £607, proceeding to say, as if a grant of letters of administration had been applied for and made, that upon the receipt of the sum the grant would be duly stamped and returned to the Registrar of the Supreme Court. The notice then stated the value of the property upon which such sum had been assessed, but that is a matter with which this appeal is not concerned, subject to a particular item to be mentioned in due place. The appellant appealed by petition to the Supreme Court against the assessment to administration duty but the Full Court dismissed the appeal. As the amount involved in the case of administration duty is insufficient to enable him to appeal as of right the appellant applies for special leave to appeal. Special leave is not opposed and the case of administration duty was argued as an appeal.

The appeals present difficulties both of substance and of procedure. In the end they must be resolved by the application of the provisions of the Acts. But to apply the Acts, which are notoriously involved and obscure, it is necessary first to determine what under the law of Queensland were the beneficial rights, if any, of Mrs. Coulson in respect of the assets in Queensland forming part of the estate of her late husband. The legislature of Queensland did not follow the other Australian colonies in providing that upon death realty should vest in the personal representative and the rule that it passed directly to the devisee continued (see Kerr, Australian Lands Titles (1927), p. 457). By the enactment of The Public Curator Acts 1915 to 1957 Q., s. 30, all property, including land, not disposed of by will vests in the Public Curator until a grant of letters of administration: see ss. 12 and 14 of The Intestacy Act of 1877 Q. as amended. As probate of Livingston's will was not resealed until 13th February 1952, at the time of Mrs. Coulson's death on 8th July 1950 the devolution or vesting of his assets in Queensland was governed by the general law. Real estate vested in her and the two executors as devisees. Actually a transmission to them in that character was produced at the Real Property Office in Brisbane and entered upon the titles after her death. Under the law of Queensland this registration meant that she must be considered as one of the three proprietors of the legal estate in the land in question at the time of her death. The law of Queensland would also regard the chattels personal and chattels real as vesting in them as well as their testator's interest in the partnership. The beneficial interest would of course depend upon the provisions of the will. In these appeals we are concerned with the law of Queensland. In the courts of Queensland the law of New South Wales is not foreign law in the same sense as it was before federation. For there is s. 118 of the Commonwealth Constitution and there is the State and Territorial Laws and Records Recognition Act 1901-1950 Cth . In this Court where the law of all parts of the Commonwealth and its Territories is a matter of judicial notice the law of New South Wales is ascertained on that footing. But nevertheless it is the law of Queensland that governs the case. It is well to begin by seeing if any and what beneficial interest in the items of property in Queensland of her husband's estate existed under that law in Mrs. Coulson at the time of her death. The appellant denies that any legal or equitable interest in her husband's estate whether in Queensland or New South Wales then existed in her beneficially: her right was to have the assets applied in a due course of administration and until the administration was completed the residue of which the trustees were to stand seised and possessed upon the trusts of the will under which she was cestui que trust could not be ascertained. The locality of this right was New South Wales. It is hardly necessary to say that, for the appellant, the important thing is not whether such a right subsisted under the law of New South Wales with a locality in that State but whether under the law of Queensland Mrs. Coulson had no equitable interest in the property in Queensland forming part of the estate of Hugh Duncan Livingston deceased. In Lord Sudeley v. Attorney-General [1] , a decision that has been the source of much difficulty and misunderstanding, the question was the liability to the inclusion in the estate of a domiciled English woman for the purpose of English probate duty of the value of certain mortgages in New Zealand. She was not the mortgagee. But at the time of her death she was entitled under the testamentary dispositions of her late husband, who had died only fifteen months earlier, to a fourth share in his then unadministered estate. That estate included the mortgages in New Zealand. These doubtless are to be considered movables and not immovables for the purposes of our private international law: see per Cussen J. in In re Ralston [2] ; per Salmond J. in In re O'Neill [3] and McClelland v. Trustees Executors and Agency Co. Ltd. [4] and the paper in (1928) 2 A.L.J. 85 there referred to which was contributed by Sir Frank Kitto. In Lord Sudeley's Case [1] no point was made of the fact that the mortgages were movable though perhaps in considering that decision it is a matter that ought not to be left out of account. At all events the order made by the majority of the Court of Appeal [2] which the House of Lords affirmed, appears to have been expressed in accordance with the prayer of the information and declared that one-fourth part of the value of the mortgage securities in New Zealand forming part of the residuary personal estate of the husband should have been included in the value for the purpose of probate duty of the personal estate of the deceased [3] . Lord Herschell said that the fallacy of the argument in support of the appeal rested on the assumption that the deceased or her executors were entitled to any part of the New Zealand mortgages as an asset - she in her own right or they as her executors. His Lordship continued, "I do not think that they have any estate right or interest, legal or equitable, in these New Zealand mortgages so as to make them an asset of her estate." [4] . An important gloss was placed upon the language of Lord Herschell by Lord Russell of Killowen in Skinner v. Attorney-General [5] , where an unsuccessful attempt was made to apply the decision to the operation of a provision of a will of a testator by which he had charged an annuity bequeathed by the will upon an unascertained residue. It was attempted to establish that the charge did not attach to the individual or "specific" items of his estate but only to the undefined residue considered as an inseparable mass, that is to say, independently of its then present components. Lord Russell said that he emphasized the last ten words of Lord Herschell's sentence, viz. the words "so as to make them an asset of her estate", "which", his Lordship said, "show clearly that the interest which was being repudiated was a proprietary interest. The case is not in any way a decision that the widow or her executors had no interest in the mortgages " [6] . In the same case in the Court of Appeal Greene M.R. spoke of the line of authorities in which Lord Sudeley's Case [1] stands and said, "They were concerned with the local situation to be attributed to property for purposes of probate or probate duty," (scil. in England) "and the questions which arose were two (a) what was the property which the deceased owned at his death? (b) what, for the purposes of a grant of probate" (scil. in England) "was its local situation? The property in question being merely a right to have another estate duly administered, it was held that the local situation of the property was in the country of the forum of administration of that other estate." [1] . This explanation may perhaps be said to adopt a, or the, forum concursus and thence to import the lex loci concursus as supplying the entire governing law. Devolution and administration of assets are two distinct things. The latter must involve many matters of substantive right, to take an example the order or priority of payment of debts. But "the crucial difference between the two concepts is that administration from the point of view of the administrator is not beneficial but in the nature of a duty, while succession is essentially of benefit to the successor.": The Conflict of Laws (1st ed.) R. H. Graveson, at p. 288, q.v. It is devolution or succession that is the subject of the present question and devolution or succession as recognized by the forum situs, if not by the lex loci situs. No one need doubt that the forum concursus or lex loci concursus may treat a right to share in the ultimate distribution as a single right devolving under that law and subject to whatever tax may by that law be imposed on devolution. That is what is done by the actual decision in Lord Sudeley's Case [2] . But to do so does not imply a denial of the existence under the lex loci rei sitae of a beneficial right in the property and devolution of that right taxable under the law of that place. Lord Sudeley's Case [3] itself appears to provide an example. For according to the report of the argument [4] , counsel for the defendant executors said that the defendants had registered in New Zealand a claim to the mortgaged property and had paid a sum for probate duty there. But the contention that Mrs. Coulson had at her death no equitable interest in the property in Queensland forming part of her deceased husband's estate is put less upon the basis of the law of his domicil or her domicil, less on the lex loci concursus, than upon a positive doctrine attributed to the law, of law and of equity, which apparently is taken to be part of the law of Queensland. That would mean that according to the law of Queensland the items of property that have been enumerated forming part of the estate of Livingston deceased vested in his executors (whether as devisees or as executors) subject to their duties of administration but not beneficially and yet subject to no equitable estate or interest of any kind in a cestui que trust. It would mean that the beneficial interest is nowhere until the completion of their duties of administration. Moreover the theory seems to be that the forum to which those who would become interested in residue when ascertained must resort to enforce performance of such duties is the Supreme Court of New South Wales.

1. [1897] A.C. 11. 2. [1906] V.L.R. 689, at p. 694. 3. [1922] N.Z.L.R. 468. 4. (1936) 55 C.L.R., at p. 483. 5. [1897] A.C. 11. 6. [1896] 1 Q.B. 354; (1896) 74 L.T. 91. 7. (1896) 74 L.T., at p. 92. 8. [1897] A.C., at p. 18. 9. [1940] A.C. 351. 10. [1940] A.C., at p. 359. 11. [1897] A.C. 11. 12. [1939] Ch. 131, at p. 141. 13. [1897] A.C. 11. 14. [1897] A.C. 11. 15. (1896) 74 L.T. 91, at p. 92, 2nd col.

This diversity between the duties or functions of administration and the equitable interests of beneficiaries is no new thing. It appeared even in Farr v. Newman [1] which at the end of the eighteenth century established, not without the dissent of Buller J., that even at law the goods of the testator could not be taken in execution for the executor's own judgment debt. Here Buller J. contrasted the rule at law with that in Chancery which he described thus: "The Court of Chancery consider the fund as debtor; and therefore they pursue that; collect it all in their own hands, under the notion of taking an account; call all persons before them who have any demand on that fund; and distribute it amongst all, according to their priorities at law (if they have any); or if not, equally. But that Court has never said that, if the effects of a testator get bona fide and for a good consideration into the hands of a third person, they will take them from him." [2] . Needless to say equity has never deprived a third person taking the legal title bona fide and for value of any property. But the key to the matter lies in the last sentence of Buller J. For it impliedly recognizes that an equitable interest attaches to the assets, not the interest of creditors, but of a beneficiary. It was not long before this was made very clear in Chancery. In Hill v. Simpson [3] a bill by two persons entitled to general pecuniary legacies was filed against bankers to whom an executor had transferred assets to secure his personal debt and relief was decreed by Sir William Grant M.R. In McLeod v. Drummond [4] Lord Eldon referred to the decision of the Master of the Rolls and said: "I cannot conceive why in a case falling within the exception, a creditor and a specific legatee should be able to follow the assets; and not a pecuniary or residuary legatee. The case of a residuary legatee is stronger than that of a pecuniary legatee. It is said in Farr v. Newman [1] , that the residuary legatee is to take the money, when made up: but I say he has in a sense a lien upon the fund, as it is; and may come here for the specific fund. If it is wrong, as against a creditor, for the executor to apply the fund in payment of his own debt, why is it not equally wrong, both in Law and Equity, to allow a third person wilfully and fraudulently to take from the executor that money, which in his hands the residuary legatee can call for, as the specific property of the testator?" [5] . By the "exception" Lord Eldon means the exception to the rule enabling an executor to sell or pledge assets to a bona fide purchaser. The words with which the citation from Lord Eldon concludes make it clear that the residuary legatees' ultimate title to the specific property is the basis of the continuing equitable interest. What then did Lord Russell mean when he said that what Lord Herschell was repudiating was a proprietary interest? It is not easy to say unless the words mean an unqualified ownership or interest. It cannot mean that he was asserting a complete absence of any equitable interest. An equitable interest is not ownership; but it is proprietary. Its true nature was explained luminously by Maitland in the ninth, tenth and eleventh of his Lectures on Equity . In Australia we have the advantage of the able and cogent examination of the matter by the late Sir Frederick Jordan C.J. in McCaughey v. Commissioner of Stamp Duties [1] . At one point in his judgment his Honour said this and it is difficult to see how in principle there could be any other view: "The idea that beneficiaries in an unadministered or partially administered estate have no beneficial interest in the items which go to make up the estate is repugnant to elementary and fundamental principles of equity" [2] . However his Honour concluded with what is perhaps a calculated paradox which he attributed to the coercive effect of authority to which he surrendered. Perhaps the surrender was needless and the paradox is not an unavoidable consequence. Some years later this Court dealt with the difficulty in Smith v. Layh [3] . After quoting a passage from Lord Cave's judgment in the case of Dr. Barnado Homes National Incorporated Association [4] we said this: "But it is not the consequence that the residuary legatee or next-of-kin has no right of property in the totality of assets forming the residue of the intestate estate. The beneficial interest is not vested in the legal personal representative, subject to the rights of creditors. The right of the next-of-kin or residuary legatee to have the estate properly administered and to receive payment of the net balance gives them an equitable interest in the totality and therefore in the assets of which it is composed: cf. Horton v. Jones [5] . It is what equity calls property: a jus in personam ad rem " [6] . In the paper of Dr. Hanbury (1928) 44 L.Q.R., at p. 471, to which we there refer that learned writer remarks: "However much equitable rights begin to look like iura in rem they cannot belong to this category because they are always liable to be defeated by a bona fide purchaser for value of the legal estate." But it is none the less true that in virtue of her share in the residue of her first husband's estate Mrs. Coulson was entitled at her death to an equitable interest in the Queensland property forming part of his estate. The interest is not to be defined in the terms appropriate to legal estates or chattels real. But it is an equitable interest capable of description by reference to the rights which it gives to share in the residue after debts, death duties or other liabilities have been discharged or otherwise cleared. That equitable interest is in or in respect of land and other property situate in Queensland and as such it devolved on the death of Mrs. Coulson upon her next of kin and, if he survived her for any interval of time, her husband.

1. (1792) 4 T.R. 621 [100 E.R. 1209]. 2. (1792) 4 T.R., at pp. 636, 637 [100 E.R., at p. 1218]. 3. (1802) 7 Ves. Jun. 153 [32 E.R. 63]. 4. (1810) 17 Ves. Jun 152 [34 E.R. 59]. 5. (1792) 4 T.R. 621 [100 E.R. 1209]. 6. (1810) 17 Ves. Jun., at pp. 169, 170 [34 E.R., at p. 66]. 7. (1945) 46 S.R. (N.S.W.) 192. 8. (1945) 46 S.R. (N.S.W.), at p. 204. 9. (1953) 90 C.L.R. 102. 10. [1921] 2 A.C. 1, at p. 10. 11. (1935) 53 C.L.R. 475, at p. 486. 12. (1953) 90 C.L.R., at pp. 108, 109.

The questions which remain are (1) whether the devolution of this equitable interest is comprehended by The Succession and Probate Duties Acts in its provisions imposing succession duty or in those imposing probate and administration duties or in both; (2) whether the appellant Hugh Duncan Livingston junior is an accountable party liable to be assessed for either tax or both; and (3) whether an appeal is given to him by the Acts from the assessments on any of the foregoing grounds if otherwise he is entitled to succeed.

Section 4 of The Succession and Probate Duties Acts includes in its description of a "succession" every devolution by law of any beneficial interest in property upon the death of any person to any other person in possession or expectancy. The word "succession" is defined by s. 3 to denote any property chargeable with duty under the Acts. By s. 4 the dispositions and devolutions which the section describes shall be deemed to confer on the person entitled by reason of such disposition or devolution a "succession"; and the term "successor" shall denote the person so entitled; and the term "predecessor" shall denote the settlor, testator, obligor, ancestor or other person from whom the interest of the successor shall be derived. On the death of Mrs. Coulson the equitable interest to which she was entitled in the property in Queensland forming part of the estate of her late husband passed to or became vested in the Public Curator under s. 30 of The Public Curator Acts. But that seems to be immaterial, for the persons to whom the beneficial interest in that equitable interest passed were her next of kin as for brevity we may call them, that is her two sons and perhaps her husband. It may be taken that a beneficial devolution is the subject of the duty. It follows that together there was a devolution upon the two sons and perhaps the husband amounting to a "succession". Section 12 provides that there shall be levied and paid to the Crown in respect of every succession according to the value thereof at the time when the succession takes effect the duties that the section proceeds to prescribe. It seems clear enough having regard particularly to s. 43 that every successor is liable for duty, though curiously enough the statute nowhere says so directly and totidem verbis. There are however a number of references to the liability, of which it is enough to mention two. Section 20 provides that the duty imposed by the Act shall be paid at the time when the successor, or any person in his right or on his behalf, becomes entitled to his succession or to the receipt of the income and profits thereof. Secondly, s. 46 provides that "the following persons, besides the successor, shall be accountable to Her Majesty for the duty payable in respect of any succession"; then follows a statement of various capacities held by persons in whom the property or its management might be vested. If therefore it is correct that the next of kin are successors notwithstanding that the interest immediately became vested in the Public Curator, it only remained to assess the next of kin or one of them. The third paragraph of s. 47 seems to confer power upon the Commissioner to make such an assessment. The assessment is made by the section "subject to appeal as hereinafter provided". The provision evidently referred to by these words is s. 50 which enacts that any accountable party dissatisfied with the assessment of the Commissioner may appeal by the procedure there laid down, a condition being the payment of the duty. A statement of the grounds of appeal must be furnished and the appeal is by petition, the procedure followed in the present case. A serious difficulty is raised by the fact that s. 50 is expressed to give an appeal only to "any accountable party". Can he appeal on the ground that he is not accountable, as Hugh Duncan Livingston did in the present case? Philp J. after a full examination of the provisions of the statute reached the conclusion that an appeal on such a ground does not lie and in his judgment Wanstall J. and Stable A.J. agreed. In their view to resist assessment on the ground that the party assessed was not accountable some resort to other remedies was necessary. He might contest a summons under s. 48. Section 56A (2) at first sight may appear to create great difficulty in contesting liability except on appeal once an assessment has been made, but it is susceptible of a limited construction and probably should be restricted in its conclusive effect to the procedure of assessing and the amount and particulars of property and value. Yet par. (b) of s. 56A (2) (i) seems rather to imply that on appeal everything that is covered by the paragraph is open to attack. The question whether a party denying his accountability may appeal for the purpose of establishing that he is not accountable has apparently not been raised in Queensland before and there are examples of proceedings where an appeal has been used for such a purpose. On the other hand, the view adopted by Philp J. is that which was taken in England of s. 50, a provision which even bears the same number in the Succession Duty Act 1853 (16 and 17 Vict. c. 51). In Hanson on Death Duties, 8th ed. (1931) p. 559 there is a note to the section containing this statement: "The right of appeal conferred by the present section only applies to cases where there is a question as to the value of the succession or the details of the account; cases, in other words, where the liability to some duty is admitted, and the only question is as to the amount." It might not seem impossible to construe the expression in s. 50 "any accountable party dissatisfied with the assessment" as meaning "any party accountable according to the assessment who is dissatisfied" and one may be permitted to hope that such a construction accords with legislative policy. But in strictness the question does not arise in this case if the appellant is accountable and the foregoing reasons show that he is accountable. It is true, or at least so it would seem, that he was assessed because he had obtained letters of administration to his mother's estate from the Supreme Court of New South Wales. If so, the reason was misconceived. That would neither give a title to the equitable interest in Queensland nor expose him to assessment. He is accountable as one of the next of kin upon whom the equitable interest evolved under the law of Queensland.

As to probate and administration duty there is a separate difficulty. What has already been said shows that there devolved an equitable interest in property in Queensland and if application had been made to the Supreme Court of Queensland for a grant or reseal of letters of administration of Mrs. Coulson's estate no doubt the duty would have been assessable. The judgment of E. A. Douglas J. in Re Guest [1] was to the effect that the duty was only assessable when such an application was made. His Honour had referred to s. 11B which provides that any person who takes possession of or in any manner administers any real property of a less tenure than an estate of freehold or any personal property whatsoever in Queensland or any interest therein belonging to any person who dies (after the date specified for the commencement of the provision) shall be liable to a penalty unless within a given time he obtains a grant or reseal of probate or letters of administration. The learned judge took the view that a suit by the Crown to recover the duty might lie against such a person. Referring to this in his judgment which was delivered in July 1935 he said: "I have already indicated that under The Succession and Probate Duties Act, 1892 to 1931 , in a properly constituted action after the lapse of the necessary time, I think the petitioners would be liable to probate duty in respect of personal assets and real property of a less tenure than freehold situated in Queensland." The case was evidently regarded as revealing a defect in the legislation and in December of the same year the Parliament of Queensland passed The Succession and Probate Duties Acts Declaratory and Amendment Act 1935 . By s. 2 it was declared that the duties were payable, to put it shortly, independently of the grant or reseal of probate or letters of administration and the duties might be assessed and recovered accordingly. The operation of the section however is limited to "any real property of a less tenure than an estate of freehold or any personal property whatsoever in Queensland or any interest therein of a person who dies taken possession of or in any way administered" without grant or reseal of probate or letters of administration. This limitation appears in the judgment of E. A. Douglas J. in the passage already quoted and comes from s. 11B. It is not clear, however, why the limitation is made. The duty is imposed by s. 55 of the Principal Act and the Schedule upon all the property of the testator or intestate. The reason probably is to be found in the devolution of a descendible estate of freehold which if devised vested in the devisee, though as from 1878, if undisposed of it was distributed in the same manner as personal estate and since 1915 vested in the Public Curator: ss. 12 and 13 of The Intestacy Act 1877 and s. 36 of The Public Curator Act of 1915. The point however was not made in support of the appeal and on the whole it may be right to regard the anomalous equitable interest of Mrs. Coulson as within the provision.

A separate but minor question was raised as to money coming to the hands of the executors of Hugh Duncan Livingston deceased in virtue of the Wool Realization (Distribution of Profits) Act 1948-1952 Cth in respect of wool from Queensland properties submitted for appraisement. There is no sufficient ground for treating these payments as so localized in Queensland as to form or contribute to part of the subject of Mrs. Coulson's equitable interest in the State. The money was paid in New South Wales and the mere fact that wool grown and presumably submitted for appraisement in Queensland was the source in fact cannot matter.

One-third of the sum of £3,527 15s. 5d. appears to have gone into the valuation of the equitable interest of Mrs. Coulson in consequence of the view that these moneys should be treated as located in Queensland at her death. This is erroneous. The valuation of the interest should be reduced accordingly. As it is a matter not depending upon accountability but upon assessment of value the assessment of succession duty is in that respect clearly subject to appeal. As to probate or administration duty under s. 55 the question whether the assessment is subject to appeal in the same respect is very difficult. The judgment of Philp J. gives very strong reasons for saying that logically s. 50 ought not to be construed as covering probate and administration duty. But the course of practice in Queensland seems to have been to the contrary. At all events there are other reported cases of appeal with respect to that duty in addition to Re Guest: Union Trustee Co. of Australia Ltd. v. Commissioner of Stamp Duties [1] .

Once s. 2 (3rd par.) of the Act of 1935, 26 Geo. V. No. 27, was passed the assessment by the Commissioner to probate or administration duty independently of the grant of probate or letters of administration became possible and it is perhaps not going too far to treat this as "accountability" on the part of a person liable to be assessed. The Act is declaratory: it declares but does not profess to alter the law. In all the circumstances the better view seems to be that on assessment s. 50 was intended to apply, with the result that a person assessed may appeal against the correctness of the assessment.

The result is that in both the case of succession duty and administration duty the assessments should have been reduced by the Supreme Court by the exclusion from the valuation of the intestate's share of her late husband's estate or interest in Queensland of so much of the distribution of moneys under the Wool Realization (Distribution of Profits) Act 1948-1952 as has been included. The order of the Supreme Court should be varied to give effect to the reduction so required. Otherwise the appeals should be dismissed.

We have before us appeals from two orders of the Supreme Court of Queensland (Full Court). Those orders were made on appeals by the present appellant against assessments of (1) succession duty, and (2) administration duty, under The Succession and Probate Duties Acts 1892 to 1952 Q. . Those appeals were by way of petition, and purported to be brought under s. 50 of the Acts. The actual decision of the Supreme Court in each case was that the appeals were not authorized by s. 50, so that the Court had no jurisdiction to deal with them, but the learned judges who constituted the Court (Philp and Wanstall JJ. and Stable A.J.) expressed the opinion that both appeals should fail. The order made in each case was that the appeal be dismissed.

In my opinion both appeals to the Supreme Court were authorized by s. 50, but I will postpone giving my reasons for this view until after I have dealt with the appeals to this Court on the merits. It should be mentioned that, while the amount involved in the appeal as to succession duty is such as to give an appeal to this Court as of right, the amount of administration duty involved is such that special leave is required, but we were all of opinion that special leave should be given.

The essential facts are simple. Hugh Duncan Livingston the elder (who is so described to distinguish him from the appellant, who bears the same name and is his son) died on 17th November 1948. I will refer to him as the testator. By his last will, dated 9th December 1944, the testator appointed his wife, Jocelyn Hilda Livingston, and two other persons as executors and trustees. He bequeathed to his wife the proceeds of certain life policies, and devised and bequeathed the whole of his real estate and the residue of his personal estate (described as his "trust property") to his trustees upon trust (after payment of debts &c.) as to one-third thereof for his wife absolutely, and as to the other two-thirds thereof for the maintenance education and advancement of his two sons until they should respectively attain the age of twenty-three years. As I read the will, any balance up to one-third of income in any year was payable to the wife of the testator. Upon each son attaining the age of twenty-three years the testator directed his trustees to "pay and transfer" one-half of the two-thirds of his "trust property" to him. The will made provision for the contingencies of either or both sons dying under the age of twenty-three with or without leaving children. In fact both sons survived him, the elder being aged nineteen years and the younger seventeen years at his death, and both have since attained the age of twenty-three years. The will contained a power to sell any part of the estate and invest the proceeds in trustee securities or pastoral properties, but provided that the trustees should "not be bound to sell" any part of the estate until the younger son should have attained twenty-three years. I do not think it is necessary to consider whether the estate is now held on trust for sale.

The three named executors proved the testator's will in New South Wales in 1949. On 22nd June 1950 the testator's widow married Bruce Thomas Coulson, and became Jocelyn Hilda Coulson. She died intestate on 8th July 1950, she and her husband being killed in the same motor car accident. The material before us does not make it clear whether her next of kin were her husband and her two sons or her two sons alone, but for present purposes this does not matter. At the date of her death the estate of the testator had not been fully administered, and the residue had not been ascertained and could not be ascertained. In other words, it was not possible to predicate of any asset or assets that it or they formed part of the residue of the estate.

The testator was at all material times resident and domiciled in New South Wales. Mrs. Coulson and the other executors of his will were also at all material times resident and domiciled in New South Wales, and the place of administration of his estate was New South Wales. His estate comprised large assets situate in New South Wales, and also large assets situate in Queensland. The assets in Queensland were (1) certain freehold and leasehold land, on which he carried on a grazing business, and the stock and plant thereon, (2) an interest in a partnership with four other persons, which carried on a grazing business with stock and plant on certain leasehold land known as Maranoa Downs, and (3) an undivided one-fourth interest as tenant in common in certain other freehold and leasehold land. It has never been disputed that these assets must, for duty purposes, be regarded as having their local situation in Queensland. The first and third were immovables in fact situate in Queensland, and, with regard to the second, the well-settled general rule is that an interest in a partnership must be treated as locally situate at the place, or the principal place, where the partnership business is carried on: see, e.g., Stamp Duties Commissioner v. Salting [1] . What is now in question is not the liability of the testator's estate to Queensland succession or administration duty in respect of these assets in Queensland, but the liability of Mrs. Coulson's estate to those duties in respect of her interest in the testator's residuary estate under his will.

It is, I think, of great importance in this case to state with precision the question or questions on which the liability of Mrs. Coulson's next of kin to each of the two duties depends. For this purpose, it is not necessary to examine in detail the provisions of the relevant Queensland legislation, but it is necessary to state the main provisions of The Succession and Probate Duties Acts and to consider their scope.

The original Queensland Act of 1892 , so far as succession duty is concerned, followed, in its essential features, the English Act of 1853 . Section 3 provides that the term "property" includes real property and personal property. "Real property" is defined as including "all freehold, leasehold and other hereditaments in Queensland", and all estates in any such hereditaments. "Personal property" includes all property not comprised in the definition of real property. Section 4, so far as material, provides that every disposition of property by reason of which any person shall become beneficially entitled to any property upon the death of any person and every devolution by law of any beneficial interest in property shall be deemed to confer on the person entitled by reason of such disposition or devolution a "succession". The term "successor" denotes the person so entitled, and the person from whom the succession is derived is called the "predecessor". The section which imposes succession duty is s. 12, which provides that "There shall be levied and paid to His Majesty in respect of every such succession as aforesaid, according to the value thereof at the time when the succession takes effect, the following duties." Then follows a graduated scale of rates. Administration duty is imposed by s. 55, which, so far as material, provides that "there shall be paid, in respect of every grant of probate or letters of administration made in respect of the estate of any person dying duties at the rates mentioned in the Schedule to this Act." The Schedule provides (subject to certain exemptions) for duty at a flat rate of 1 per cent.

So far as what has been called in this case "administration duty" - the duty imposed by s. 55 - is concerned, there is no difficulty in stating the question upon which the liability of Mrs. Coulson's next of kin depends. That duty belongs to a well-known class of death duties. It is a true "probate duty". It is payable, in effect, as the price of a grant of probate or letters of administration. It is well settled that such a duty is, unless a contrary intention appears payable in respect of, and only in respect of, assets which cannot be administered by an executor or administrator without the grant which he seeks. That is to say, it is payable in respect of, and only in respect of, assets locally situate within the territorial jurisdiction: see Blackwood v. The Queen [1] and Commissioner of Stamps v. Hope [2] . The liability of Mrs. Coulson's next of kin to "administration duty" depends, therefore, on whether her estate comprised assets locally situate in Queensland.

With regard to succession duty, the position is not quite so simple. The original Queensland Act of 1892 made it quite plain that the charge fell on successions to real property which was situate within the territorial jurisdiction, but not on successions to real property which was outside that jurisdiction: see the definition of real property in s. 2. But neither Act contained any express definition or limitation of the successions to personal property which were to be chargeable with duty. In England the question of what successions to personal property were chargeable under the English Act of 1853 came before Lord Cranworth L.C. in Wallace v. Attorney-General [1] . His Lordship held that succession duty was not chargeable in respect of the personal property in England of a testator domiciled in France. In holding that the question in every case of personal property, was "not where the property was situate but what was the domicile of the testator", his Lordship followed an earlier decision of the House of Lords in Thomson v. Advocate-General [2] , which was a case of legacy duty. He said: "Parliament has, no doubt, the power of taxing the succession of foreigners to their personal property in this country; but I can hardly think we ought to presume such an intention, unless it is clearly stated" [3] . Lord Cranworth's decision was applied by the Privy Council to the Queensland Act of 1892 in Harding v. Commissioners of Stamps for Queensland [4] . The property there in question included debts secured by mortgages of land in Queensland, freehold and leasehold lands in Queensland, and shares in a company incorporated in Queensland, but the testator was domiciled in Victoria. It was held that the Queensland Act did not extend to personal property given by the will, or devolving on the intestacy, of a person domiciled outside Queensland, whether that property were locally situate in Queensland or not.

1. [1865] L.R. 1 Ch. App. 1. 2. (1845) 12 Cl. & F. 1 [8 E.R. 1294]. 3. [1865] L.R. 1 Ch. App., at p. 9. 4. [1898] A.C. 769.

If the matter had stopped there, it would seem that on no view of the nature of Mrs. Coulson's "interest" in the residue of the testator's estate could the succession to it have been charged with duty in respect of his interest in the partnership. For, whatever might have been the position in relation to the testator's freehold and leasehold lands, which were real property within the meaning of the Act, his interest in the partnership was personal property, and Mrs. Coulson was not domiciled in Queensland. However, in 1895 the Queensland Parliament passed an amending Act, s. 2 of which provided: "It is hereby declared that succession duty is chargeable in respect of all property within Queensland, although the testator or intestate may not have had his domicile in Queensland." This Act had in fact been passed before Harding's Case [4] came before their Lordships, but the testator had died before its commencement. It was argued for the Crown that it was retrospective in operation, but this argument was rejected. If we disregard the curious fact that it does not appear to refer to successions under settlements, the effect of s. 2 of the Act of 1895, read with s. 4 of the original Act, seems to be, so far as presently material, that the duty falls, irrespective of the domicile of a testator or intestate, on successions to interests in real or personal property which are locally situate in Queensland. It is unnecessary to consider whether it falls also on interests, wherever situate, in the personal property of a testator or intestate who was domiciled in Queensland.

It seems clear, therefore, that, as a result of s. 2 of the Act of 1895, the question upon which the liability of Mrs. Coulson's next of kin to succession duty depends is the same question as that on which their liability to administration duty depends. That question is whether her estate comprised assets locally situate in Queensland. The answer to that question is, in my opinion, determined by clear authority.

It is a commonplace that the law must, for a variety of purposes, attribute a locality to rights which cannot naturally be said to have any local situation. It has very frequently had to do this in relation to death duties, and especially probate duties. Everyday examples are shares in companies, shares in partnerships, mortgage debts. In most cases rules have now been laid down and are well established. It would probably be going too far to say that there is any general principle of law to be discerned in these attributions of local situation. From the very nature of things, such attributions must be in some degree artificial or conventional, and general rules must be modified to meet special cases: it is interesting to compare Attorney-General v. Higgins [1] with Brassard v. Smith [2] . But, when faced with a question of the locality of a right, the courts have examined the nature of the particular right, and have generally localized it in the place where it must be exercised or enforced, or would normally and naturally be exercised or enforced. Thus a simple contract debt is held to be situate where the debtor resides. Proceeding on this basis, the courts have consistently held in a large number of cases that the right of a residuary legatee or next of kin, before the administration of the estate is complete, is a right against the executors or administrators to have the estate duly administered, and the residue ascertained and disposed of according to the will or according to law. From the nature of the right it follows that it must be treated as situate in the place of administration, or the principal place of administration, of that estate - the place where the executors are, and where they must, or most naturally would, be sued. The locality, natural or artificially ascribed, of the assets comprising the estate is immaterial.

1. (1857) 2 H. & N. 339 [157 E.R. 140]. 2. [1925] A.C. 371.

So much is, I think, quite clear. I should have preferred to state the rule in much wider terms, for logically I think that all equitable estates and interests should be held, whenever it is necessary to attribute locality to them, to be locally situate in the place of administration of the trust: see Re Cigala's Settlement Trusts [1] , and Dicey, Conflict of Laws, 7th ed. (1958) p. 508. But, as the authorities stand, I do not think it is possible to state the rule in wider terms. If the view of Lord Sumner and Lord Blanesburgh in Baker v. Archer-Shee [2] (to which I shall refer later) had prevailed, what I cannot help regarding as anomalies would have been avoided. It may be that applications in later cases of the view of the majority in that case have been based on a misunderstanding of that view, but the fact is that since the decision in that case unsatisfactory distinctions have been drawn between cases where an estate is "fully administered" and cases where it is not, and, in the former class of case, between cases where there is a single beneficiary and cases where two or more beneficiaries are entitled to shares: see, e.g., Stannus v. Commissioner of Stamp Duties [3] . There is, however, no occasion now for considering whether these distinctions are sound or unsound. For the rule, as I have narrowly stated it, appears to have been universally accepted, and the present case falls within it. I proceed to consider some of the numerous authorities.

1. (1877) 7 Ch. D. 351. 2. [1927] A.C. 844. 3. [1947] N.Z.L.R. 1.

The case of Re Ewing [4] was not a duty case, but a case of an application for probate in England. The headnote to the report is unsatisfactory. William Ewing was at the date of his death entitled to £10,000 under the will of his uncle, John Orr Ewing, and was also entitled to one-sixth of the residue of his deceased uncle's estate, which was in course of administration by executors in Scotland. Unless this interest in his uncle's estate was an English asset, William Ewing had only trifling assets in England. Sir James Hannen held that that interest was not an English asset. On this question he said: "It is not disputed that the deceased, J. O. Ewing, was a domiciled Scotchman, and that his will was properly proved in Scotland, and is being administered there in accordance with Scotch law. The claim of the executors of W. Ewing in respect of the interest of their testator under his uncle's will, is a claim on the executors of the uncle duly to administer his estate and to pay the legacy to W. Ewing out of the funds which may be applicable to that purpose. It cannot be disputed that this claim or interest in the estate of the uncle constitutes an asset of the estate of the deceased W. Ewing, because it is recoverable by the executors of W. Ewing virtute officii, but it appears to me that it is an asset in Scotland and not in England." [1] . It may be noted that in Ewing's Case [2] the principal asset of John Orr Ewing's estate was in fact situate in Scotland, but Sir James Hannen did not base his opinion on this fact, or regard it as relevant.

1. (1881) 6 P.D. 19. 2. (1881) 6 P.D., at pp. 22, 23. 3. (1881) 6 P.D. 19.

In Lord Sudeley v. Attorney-General [3] which must be regarded as the leading case on the subject, a question of liability to English probate duty arose. The duty was imposed by s. 27 of the Customs and Inland Revenue Act 1881 on "the estate and effects for or in respect of which the probate or letters of administration is or are to be granted". This meant, of course, estate and effects situate in England. The essential facts were these. A by his will gave to his wife one-fourth of the residue of his estate. He died on 16th January 1892, domiciled in England. His executors were in England, and proved his will in England. The wife died on 15th April 1893, while the estate was in course of administration. Included in the assets of A's estate were certain large sums owing (presumably) by persons resident in New Zealand, and secured by mortgages of land in New Zealand. The Crown claimed probate duty in respect of these mortgage debts. The whole question in the case was as to the local situation of the interest of the wife at her death in A's estate, but that question was approached by way of an examination of the nature of the wife's interest in A's estate. The mortgage debts were situate in New Zealand, but it was held by a majority of the Court of Appeal and a unanimous House of Lords that the right of the wife's executors was not to any share of the mortgage debts, but a right as against A's executors, who were in England, to have the estate administered and to receive from them in due course a fourth part of the residue. It followed that the asset in question was situate in England, and probate duty was payable.

I will cite only one passage from Sudeley's Case [4] , and that is from the speech of Lord Herschell. His Lordship said "In truth, the right she had was to require the executors of her husband to administer his estate completely, and she had an interest to the extent of one-fourth in what should prove to be the residuary estate of the testator, Algernon Tollemache. Well, where was that situate? It seems to me that it can only be said to have been situate in this country" [1] . Sudeley's Case [2] is the converse of the present case, but, in my opinion, it governs the present case. It may be thought that there are passages in it which go beyond the necessities of the case and deny too much. Probably no one would deny that Mrs. Coulson here had an "equitable interest" in the entire mass of the testator's estate, and some may think it follows that she had an equitable interest in every part of that mass. We may call it a proprietary interest, if we wish, or equity may call it "property" (Smith v. Layh [3] ), but whether it should have this dignity conferred upon it seems to me to be little more than a matter of "words and names", capable of leading to the kind of strife which moved Gallio to say that he "cared for none of these things". To say that Mrs. Coulson had an equitable interest in the estate is to say something that requires explanation and analysis, and the explanation is given, and the nature of the "interest" analysed, in Sudeley's Case [2] . It is a single interest which is localized at the death of the testator, and cannot change its locality as investments are bought and sold in the course of administration.

1. [1897] A.C. 11. 2. [1897] A.C., at p. 19. 3. [1897] A.C. 11. 4. (1953) 90 C.L.R., at pp. 108, 109. 5. [1897] A.C. 11.

Sudeley's Case [2] has been followed and applied in a large number of reported cases, and has doubtless been acted upon in very many other cases. In In re Smyth [4] a testator, resident and domiciled in England, gave real and personal property in Jamaica to trustees upon trust for certain persons for their lives, and after the death of all of them upon trust to sell and divide the proceeds between certain other persons. The trustees of the will were resident and domiciled in England and one of them proved the testator's will in England. One of the persons entitled in remainder died while persons entitled for life were still living. The question arose whether English probate duty was payable in respect of his interest under the testator's will. It was held by Romer J. that that interest was situate in England, and that probate duty was payable upon it. I will quote at some length from the judgment - partly because it disposes of the relevance of the argument that in some conceivable circumstances a suit might have been brought by Mrs. Coulson in a Queensland forum in respect of the testator's Queensland property. Romer J. said: "The right of the legatee as against the trustee was only to have the trusts of the will administered. Administered where? The testator was domiciled in England, his will was proved in England, his trustee was in England, and the money recoverable would in the ordinary and proper course be brought to England. The trustee could only be properly and in the ordinary course sued in the English Court by the legatee, who was in England. It was suggested as against the Crown that possibly under some circumstances an action might have been brought by the legatee to enforce his rights in Jamaica. I am bound to say that at present I do not see what action could have been properly brought there. But even admitting that under some conceivable circumstances or change of circumstances some action might have been brought there, the question is not in what place under extraordinary circumstances an action might be brought, but what place under existing circumstances was the natural and proper one in which the legatee should enforce his rights - in other words, what was the proper forum for deciding upon the legatee's claim; and the answer to this clearly is that the forum was English." [1] .

1. [1897] A.C. 11. 2. [1898] 1 Ch. 89. 3. [1898] 1 Ch., at p. 94.

The same principle was applied in Attorney-General v. Johnson [2] : see especially what was said by Bray J. [3] , and cf. what was said by Russell J. (as he then was) in Favorke v. Steinkopf [4] . These were both cases in which the local situation of an asset was in question. A question as to succession duty in similar circumstances arose in the Canadian case of Minister of National Revenue v. Fitzgerald [5] . The facts of this case were somewhat complicated, because there were successive devolutions of interests in estates in course of administration. The relevant physical assets in question were in British Columbia, and the relevant administrations were in California. It was held by the Exchequer Court and the Supreme Court of Canada that the situs of the interests in question was California, and that succession duty was not chargeable under a statute which defined "succession" in the same terms as does the Queensland Act. In New Zealand Sudeley's Case [6] was applied, after an exhaustive examination of the authorities, by Northcroft J. and the Court of Appeal in Stannus v. Commissioner of Stamp Duties [7] : see especially the judgment of Callan J.

1. [1907] 2 K.B. 885. 2. (1907) 2 K.B., at p. 895. 3. [1922] 1 Ch. 174, at p. 178. 4. [1949] Can. S.C.R. 453; [1949] 3 D.L.R. 497. 5. [1897] A.C. 11. 6. [1947] N.Z.L.R. 1.

Apart from cases which are concerned with the local situation of such interests, there are many cases in which the exposition in Sudeley's Case [6] of the nature of such interests has been accepted without question. It was expressly accepted and acted upon by a House consisting of Viscount Finlay, Viscount Cave, Lord Atkinson and Lord Sumner in Barnardo's Homes v. Special Income Tax Commissioners [1] . It was treated as clear authority in Glenn v. Commissioner of Land Tax [2] per Griffith C.J. [3] , per Isaacs J. [4] . In In re Rowe [5] , Dixon A.J. (as he then was) said of a person in the position of Mrs. Coulson's next of kin [6] : "He is entitled to have the assets applied in due course of administration; but he is not entitled to a legal or equitable interest in any specific asset. His position is not dissimilar to that of a residuary legatee, of which, in Barnardo's Homes v. Special Income Tax Commissioners [1] , Viscount Cave said [7] - "When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him; but until that time he has no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors and are applicable by them as a mixed fund for the purposes of administration. This was fully explained in Lord Sudeley v. Attorney-General [8] " ". In Watt's Case [9] Knox C.J. and Gavan Duffy J. said in a joint judgment: "The interest of the deceased under the settlement was not an interest in the specific property in which the trust funds were for the time being invested, but a right to call on the trustees of the settlement to account to him as a beneficiary under the settlement. The trustees were resident in New South Wales and not elsewhere, and the interest of the testator was a chose in action enforceable by action against the trustees. The Courts of New South Wales were the proper forum for the enforcement by the deceased or by his representatives of his claim as a beneficiary, and his interest under the settlement was, therefore, a New South Wales asset" [10] . See also Horton v. Jones [11] (where the interest in question was held to be an "interest" in land within the meaning of the Statute of Frauds ), Pagels v. MacDonald [12] , Robertson v. Commissioner of Land Tax [13] , MacKinnon v. Campbell [14] (a decision of Roper J.), Young v. Commissioner of Stamp Duties [15] , and Re Young [16] .

1. [1897] A.C. 11. 2. [1921] 2 A.C. 1. 3. (1915) 20 C.L.R. 490. 4. (1915) 20 C.L.R., at p. 500. 5. (1915) 20 C.L.R., at pp. 501, 502. 6. [1926] V.L.R. 452. 7. [1926] V.L.R., at p. 454. 8. [1921] 2 A.C. 1. 9. [1921] 2 A.C., at p. 10. 10. [1897] A.C. 11. 11. (1926) 38 C.L.R. 12. 12. (1926) 38 C.L.R., at p. 30. 13. (1935) 53 C.L.R. 475, at p. 486. 14. (1936) 54 C.L.R. 519, at pp. 524, 525. 15. (1941) 65 C.L.R. 338, at pp. 345, 346, 347. 16. (1944) 45 S.R. (N.S.W.) 140. 17. (1931) 31 S.R. (N.S.W.) 316. 18. [1942] V.L.R. 4.

The two Archer-Shee Cases - Baker v. Archer-Shee [17] (to which I have already referred) and Archer-Shee v. Garland [18] - require special mention. They were income tax cases, and it is unnecessary to refer to the facts or the complex statutory provisions involved. In the earlier case the majority of their Lordships fully accepted Sudeley's Case [1] , but considered that it was not applicable because in the case before them the estate had been "fully administered" and a "definite and specific trust fund" constituted, to the income of which Lady Archer-Shee was entitled. Lord Sumner and Lord Blanesburgh dissented. In their opinion it could make no difference whether the estate was or was not, at the material time, "fully administered". In their judgments is to be found a very clear exposition of what was really decided by Sudeley's Case [1] , and I will quote Lord Sumner. His Lordship said: "Again the case of Lord Sudeley v. Attorney-General [1] is said by Sargant L.J. to be in its general reasoning precisely applicable. The points referred to there were, first, the local situation, for the purposes of English taxation, of an equitable right to have an estate administered, in which the testatrix was interested as a residuary legatee at the time of her death, and, second, the question, whether for such taxation her interest was to be deemed to be confined to a specified fraction of the residuary estate, corresponding to her share under her husband's will, or extended to the whole of that residuary estate. In applying this to the present case the learned Lord Justice says, that Lady Archer-Shee has not any specific right to any particular item of income, but, following Lord Herschell's reasoning, only an equitable right to have handed over to her the net income of the estate, subject to all proper deductions, which right of hers is a form of property situate in New York, in whose Courts it would have to be asserted. I think the reasoning of this judgment is correct. It is immaterial that in Lord Sudeley's Case [1] the estate of the husband of the testatrix had not yet been administered, whereas here, no doubt, this has been long ago accomplished." [2] . Cf. what was said by Lord Blanesburgh [3] . In an article in the Law Quarterly Review entitled A Menace to Equitable Principles ((1928) 44 L.Q.R. 468) Hanbury commended strongly the dissenting judgments as upholding "Maitland's position", which "could not be too strongly established": see in this connexion Maitland's refutation of Austin in his ninth lecture.

1. [1927] A.C. 844. 2. [1931] A.C. 212. 3. [1897] A.C. 11. 4. [1897] A.C. 11. 5. [1897] A.C. 11. 6. [1897] A.C. 11. 7. [1927] A.C., at pp. 855, 856. 8. [1927] A.C., at p. 877.

Baker v. Archer-Shee [4] was decided by the majority on the assumption that the law of New York was, in the absence of evidence to the contrary, the same as the law of England. In Archer-Shee v. Garland [5] , where an assessment of a later year was in question, evidence was called which was regarded as establishing that the law of New York was in accordance with what Lord Sumner and Lord Blanesburgh had thought to be the law of England, and the income in question was held not to be taxable. (It is rather surprising that the law of New York should differ from the law of England on such a subject.) The actual decision in the earlier case does not, of course, affect the present case, where the testator's estate was at Mrs. Coulson's death still in course of administration.

The Commissioner relied on the case of Skinner v. Attorney-General [1] . But that case does not appear to me to help him. The facts were simple. A died in 1923, domiciled in Northern Ireland, having by his will bequeathed to his wife an annuity charged on all his residuary estate. His wife died in 1936. At his death his estate consisted almost entirely of assets in Northern Ireland and the United States. Between the date of his death and the date of his wife's death his executors purchased a number of English securities, but the estate was not at the date of the wife's death fully administered. The Commissioner claimed estate duty from the wife's executors in respect of the English securities. The claim was made under ss. 1 and 2 (1) (b) of the Finance Act 1894. Section 1 provided that the duty should be payable on the value of "all property, real or personal, which passes on the death of" a person. If s. 1 had stood alone, one would have thought that it did not touch the case, but s. 2 (1) (b) provided that "Property passing on the death of the deceased shall be deemed to include property in which the deceased had an interest ceasing on the death of the deceased". It was held that the wife had, within the meaning of s. 2 (1) (b), an interest in the English assets of her husband's estate, and that interest ceased, of course, on her death, when the annuity ceased to be payable. That is all that Skinner's Case [1] decided. Referring to Sudeley's Case [2] , Lord Russell of Killowen said: "The whole point of the decision was that the widow did not own any part of the mortgages." (In the present case the widow did not own anything in Queensland.) "As Lord Herschell pointed out in his speech the whole fallacy of the argument of the widow's executors rested on the assumption that she or they were entitled to any part of the mortgages as an asset - she in her own right or they as executors. "I do not think", he said, "that they have any estate, right, or interest, legal or equitable, in these New Zealand mortgages, so as to make them an asset of her estate. " My Lords, I emphasize the last ten words of that sentence, which show clearly that the interest which was being repudiated was a proprietary interest" [1] .

1. [1940] A.C. 350. 2. [1940] A.C. 350. 3. [1897] A.C. 11. 4. [1940] A.C., at pp. 358, 359.

In Skinner's Case [2] the question was simply: was there an "interest" in property within the meaning of s. 2 (1) (b) of the Finance Act? If there was, that was an end of the matter. The question whether that interest was an asset in the wife's estate was wholly irrelevant. Indeed, since it ceased with her death, it could not be an asset in her estate, and no question could arise as to its character or local situation. In Sudeley's Case [3] , on the other hand, the wife's estate could only escape liability to duty by establishing not merely an interest in a general fluctuating mass of assets but a proprietary interest in specific assets in New Zealand. The idea that she had such a proprietary interest in any specific asset was the idea which was "repudiated". In the present case it is on that repudiated idea that the Commissioner in Queensland must rely. He must establish not merely an interest in the general mass, but a proprietary interest in specific assets in Queensland as distinct from a proprietary interest in specific assets in New South Wales. This case is like Sudeley's Case [3] and unlike Skinner's Case [2] in that we are here concerned with the question whether Mrs. Coulson had such an interest in specific property in Queensland as to constitute an asset of her estate.

1. [1940] A.C. 350. 2. [1897] A.C. 11. 3. [1897] A.C. 11. 4. [1940] A.C. 350.

In Minister of National Revenue v. Fitzgerald [4] Kerwin J., after quoting from Lord Russell's speech in Skinner's Case [2] , said: "These extracts from Lord Russell's speech indicate the difference between the Skinner case, on the one hand, and the Sudeley case and the present one, one the other. Here, we are not dealing with a statute imposing a tax on the passing of property in which a deceased had an interest, ceasing on his death, but with one which imposes a tax upon a succession to property situate in Canada. All that devolved was a right to have the estate of Bonnie Steed administered; and that right was a chose in action properly enforceable and therefore situate in California and not in Canada." In the same case Kellock J. quoted the following passage from the judgment of Lopes L.J. in Sudeley's Case [5] : " "The right of the executors of Frances [the widow and residuary legatee of the testator] as against the executors of her husband is a right to have his estate administered. Administered where? The husband was domiciled in England, his will was proved in England, his executors are in England, and his estate is being administered in England, and the money recoverable will be brought to England. The executors of the husband can only be sued in the English Courts by the executors of Frances. It is an English chose in action, recoverable in England, and is, in my opinion, an English and not a foreign asset." " The judgment of Lopes L.J. was approved in the House of Lords.

1. [1949] 3 D.L.R., at p. 502. 2. [1940] A.C. 350. 3. (1896) 1 Q.B., at p. 363.

I must refer briefly in conclusion to the case of McCaughey v. Commissioner of Stamp Duties [1] . In this case Jordan C.J., delivering the judgment of himself and Halse Rogers and Roper JJ., expressed strong disapproval of Sudeley's Case [2] , regarding it as inconsistent with the decision of the House of Lords in Cooper v. Cooper [3] . His Honour said: "Had not both cases been decisions of the House of Lords, one or other would have long been overruled, and that, I venture to think, would have been Lord Sudeley v. Attorney-General [2] . The idea that beneficiaries in an unadministered or partially administered estate have no beneficial interest in the items which go to make up the estate is repugnant to elementary and fundamental principles of equity." [4] The Court nevertheless, the estate having been "fully administered", applied Sudeley's Case [2] as it understood that case to have been qualified by Baker v. Archer-Shee [5] , and, with the greatest respect, I am unable to see a sound reason for this assault upon a case which is, to my mind, especially after reading the opinions of Lord Sumner and Lord Blanesburgh in Baker v. Archer-Shee [5] , sinned against rather than sinning. One may say with respect, as I have said, that there may be passages in Sudeley's Case [2] which deny too much, but I would not regard that case as deciding that "beneficiaries in an unadministered or partially administered estate have no beneficial interest in the items which go to make up the estate". What it does is simply to explain the nature of the interest of such beneficiaries, and to attribute a local situation to it accordingly. Younger J. (as he then was) in Vanneck v. Benham [6] , has reconciled Cooper v. Cooper [3] with Sudeley's Case [2] , if they needed reconciling.

1. (1945) 46 S.R. (N.S.W.) 192. 2. [1897] A.C. 11. 3. (1874) L.R. 7 H.L. 53. 4. [1897] A.C. 11. 5. (1945) 46 S.R.(N.S.W.), at p. 204. 6. [1897] A.C. 11. 7. [1927] A.C. 844. 8. [1927] A.C. 844. 9. [1897] A.C. 11. 10. [1917] 1 Ch. 60, at p. 76. 11. (1874) L.R. 7 H.L. 53. 12. [1897] A.C. 11.

It remains only to explain why I think that an appeal lay to the Supreme Court of Queensland under s. 50 of the Queensland Act.

Section 43 makes the succession duty "a debt due to the Crown from the successor" and "a first charge on the interest of the successor". Section 46 provides that certain other persons, in addition to the successor, "shall be personally accountable" for the succession duty. Section 47 authorizes the Commissioner to assess the succession duty, and he did in fact make an assessment of that duty in this case. Section 50 provides that "any accountable party dissatisfied with the assessment of the Commissioner" may appeal to the Supreme Court. Jurisdiction is then given to the Court to hear and determine the appeal, and the section proceeds: "The costs of any such appeal shall be in the discretion of such court or judge, having regard to the extent to which the Commissioner's assessment exceeds the amount admitted by the appellant before the appeal commenced and the extent to which the Commissioner's assessment is upheld or varied."

It was argued that s. 50 does not authorize an appeal based (as the appeal to the Supreme Court in this case was) on the contention that the appellant is not an accountable party at all because no succession duty is exigible. The right is given, it is said, only where liability is admitted and the only issue is as to amount. The argument is, of course, supported by reference to the last paragraph of s. 50, which I have quoted above. But I am not able to accept the argument. Its acceptance would create an absurd position, and in the construction of a statute an absurd result is to be avoided if possible. I can see no real difficulty in reading "any accountable party" as meaning "any party made accountable by the assessment". A person assessed to duty is an "accountable party" unless and until he upsets the assessment on appeal: see s. 56A (2) (i) (a) and (b). And the last paragraph is not literally incapable of application to a case where the Commissioner's assessment exceeds, to the extent of the whole amount of the assessment, the "amount admitted by the appellant". Even if it were incapable of such an application, the meaning of the section cannot be controlled by making an assumption that the last paragraph was intended to be applicable to every possible case.

With regard to administration duty, the difficulty up to 1935 was that the appeal which s. 50 gives is an appeal against an assessment, and, although s. 47A (which was not introduced until 1918) refers to "any assessment of succession or probate duty", no express power to make an assessment of the latter duty was given to the Commissioner. This position, however, was remedied in 1935 - presumably in consequence of the decision of the Full Court in Re Guest [1] . Section 2 of the Act of 1935 (which was retrospective) gave to the Commissioner express power to make an assessment of administration duty whether or not a grant of probate or letters of administration be sought or made. An assessment was in fact made in the present case. In the light of that provision, I can see no sufficient reason for reading s. 50 as giving the right of appeal only in respect of succession duty.

The late Mrs. Coulson was a beneficiary under the will of a former husband, Hugh Duncan Livingston the elder. By the will, the proceeds of all policies of assurance on the testator's life were bequeathed to Mrs. Coulson, and the real estate and the residue of the personal estate were devised and bequeathed to the trustees of the will, subject to the payment thereout of the debts funeral and testamentary expenses and all death estate and other duties, upon trust as to one-third thereof for Mrs. Coulson absolutely and as to the remaining two-thirds thereof for other persons.

In Mrs. Coulson's lifetime the estate was apparently cleared of unsecured debts, funeral and testamentary expenses, and the greater part of the duties. But the proceeds of the life assurance policies had been absorbed in the process, and there was still some New South Wales death duty to be assessed and paid. In other words, the estate was still not fully administered. The assets as they stood at the time included real and personal property in Queensland, as well as property in New South Wales. The husband had died domiciled in New South Wales, and the executors and trustees of his will were there. Probate had been granted in New South Wales; but not until some two years after Mrs. Coulson's death was the grant resealed in Queensland. Mrs. Coulson herself died intestate and domiciled in New South Wales. Letters of administration of her estate have been granted in that State, but there has been no grant or reseal in Queensland.

In these circumstances the respondent Commissioner has claimed that both Queensland succession duty and Queensland administration duty became payable, upon Mrs. Coulson's death, in respect of an interest in the Queensland assets of the husband's estate; and the object of the proceedings out of which these appeals arise is to test the validity of the claims.

The two duties are provided for in the one collection of Acts, The Succession and Probate Duties Act of 1892 Q. and a dozen or more amending Acts. Into this dark jungle, full of surprises and mysteries, it is our duty to peer.

The succession duty is imposed, primarily, by s. 12. It is to be levied and paid "in respect of every such succession as aforesaid". The word "succession" here refers not to the passing of property from one person to another on the death of the former, but to the property itself: s. 3. The duty is in respect of the property to which the Act refers. It is payable when a "successor" becomes entitled in possession to "his succession" or to the receipt of the rents and profits thereof: s. 20. There are two ways in which a person may become a "successor" and property a "succession": first, the making of a disposition by reason of which a person becomes beneficially entitled to any property or its income upon a death, and secondly, a devolution by law of a beneficial interest in property or its income, upon the death of a person, to any other person: s. 4. In the present case, no one became beneficially entitled on Mrs. Coulson's death to any property or income by virtue of her husband's will; but whatever beneficial interests in property Mrs. Coulson had at the time of her death devolved by the law of intestate succession, and they therefore became by her death a "succession" to which the person or persons upon whom they devolved must be considered the "successor". Before the commencement of the amending Act of 1895 (59 Vic. No. 28), s. 4 was to be construed as referring only to devolutions by virtue of Queensland law, that is to say the municipal law of Queensland. The devolution of immovables in Queensland was thus within the section, but the devolution of movables, even though they were in Queensland, was not within the section unless the deceased had died domiciled in Queensland, for if he had died domiciled elsewhere the Queensland rules of private international law would apply the lex domicilii as the law governing the devolution: Harding v. Commissioners of Stamps for Queensland [1] . By s. 2 of the 1895 Act, however, it is declared that succession duty is chargeable in respect of all property within Queensland, although the testator or intestate may not have had his domicile in Queensland. "Within Queensland" means, of course, (in the case of corporeal property) actually situate in Queensland, or (in the case of incorporeal property) regarded in law as situate in Queensland. By making the rule mobilia sequuntur personam irrelevant for the purposes of the Act, the amendment ensured that s. 4 should operate as if "devolution by law" had been defined to mean devolution either by the municipal law of Queensland or by the municipal law of another country as applied in Queensland by the Queensland rules of private international law.

Administration duty, on the other hand, is provided for primarily by s. 55. That section, considered by itself, makes duties payable at the rates mentioned in the Schedule in respect of every grant of probate or letters of administration made in respect of the estate of any person dying after the time appointed for the commencement of the Act; and the Schedule refers to the net value of the property of the deceased person in respect of which the grant of probate or letters of administration is made. Then s. 2 of the amending Act of 1935 (26 Geo. V No. 27) declares that duties at the rates in the Schedule are payable in respect of any real property of a less tenure than an estate of freehold or any personal property whatever in Queensland or any interest therein "belonging to any person" taken possession of or in any manner administered without the grant in Queensland of probate or administration or the reseal of a grant made elsewhere. The duty is, therefore, a duty on property which belonged to the deceased and is included in the deceased's estate.

It follows from the foregoing that the central question to be considered in regard to succession duty is whether any beneficial interest under Livingston's will which was the subject of a devolution by law upon Mrs. Coulson's death is to be considered as having been then situate in Queensland; and in regard to administration duty it is whether any property, consisting of an interest under Livingston's will, which belonged to Mrs. Coulson and formed part of her estate at her death is to be considered as having been then situate in Queensland.

Mrs. Coulson's rights as one of the residuary legatees under Livingston's will may be described in two ways, each of them correct. They may be described by saying that she was entitled to have the administration of the estate completed, and one-third of the residue, when ultimately ascertained, paid or transferred to her. They may also be described by saying that she was entitled at her death to have every individual asset which at that time was comprised in the estate dealt with in a due course of administration. Both descriptions recognize that she was entitled to have a process carried out; but while the one emphasizes the purpose of the process and its ultimate benefit to her, the other directs primary attention to the property presently available for the carrying out of the process. Which description is to be used on a given occasion is a question of appropriateness to the purpose in hand; but it is important always to remember that there is only the one set of rights that is being referred to. I venture to think that for the purpose of solving a concrete legal problem with respect to such a set of rights, more hindrance than help is likely to come from an attempt to classify them according to Austinian terminology as rights in personam or rights in rem. More than forty years ago those distinguished jurists Prof. A. W. Scott and Prof. Harlan F. Stone (as he then was) learnedly disputed as to whether the rights of a cestui que trust were in rem or in personam, the former being able to invoke such great names as Maitland and Holland, the latter Salmond and Pound: Columbia Law Review, Vol. XVII (1917) pp. 269, 467; but it may be doubted whether much illumination was provided for a case like the present. Dr. Hanbury strongly opposed the "realist" theory in his Essays in Equity (1934) pp. 16 et seq., 23 et seq. I must confess, however, that I incline to the view of Mr. R. W. Turner, who wrote in his book The Equity of Redemption (1931) p. 152: "It is a moot question whether the whole discussion raised by these arbitrary classifications borrowed from Roman law and distorted to fit in with new facts is not a mere academical tourney with no real bearing upon the practice of the law, and, being faulty in hypothesis and unsatisfactory in result, would be better abandoned altogether".

Since one way of describing Mrs. Coulson's interest as a residuary legatee is to say that she had a right in respect of each individual asset of the Livingston estate that that asset should be dealt with, and dealt with only, in a due course of administration so that she might receive her share in the ultimate distribution, it is in accordance with the ordinary terminology of English law, and with the terminology of the Act we have here to consider, to say that among the beneficial interests which devolved by law on Mrs. Coulson's death was a beneficial interest in the Queensland assets of Livingston's estate, and that that interest was property which belonged to her at her death. To maintain that a residuary legatee has no beneficial interest in the individual assets of the estate, or has no such interest in them as itself constitutes property, would be, I think, to deny to the word "interest" its accepted meaning in the law. The interests of the beneficiaries under a general residuary gift must absorb the whole beneficial interest in the assets not otherwise disposed of (subject of course to their diminution by the discharge of liabilities and other payments in the course of administration); for the legal personal representatives as such have no beneficial interest, those who would take on intestacy are excluded, and it is axiomatic that, with the one exception provided by the law of charities, the whole beneficial interest in property must reside in some individual or collection of individuals: Pearson v. Lane [1] ; Glenn v. Federal Commissioner of Land Tax [2] . Hence the law of resulting trusts. That a residuary beneficiary has a beneficial interest in each asset not disposed of otherwise than by the residuary gift is the proposition for which cases such as Cooper v. Cooper [1] ; Attorney-General v. Watson [2] ; Skinner v. Attorney-General [3] ; and Smith v. Layh [4] , are authority. A clear example of its application is found where land is among the assets included in a residuary disposition, and a question arises while the administration is still incomplete, and while the land remains in the estate, as to whether a residuary beneficiary has, as such, an interest in land. The answer is plainly, Yes: Horton v. Jones [5] .

1. (1809) 17 Ves. Jun. 101, at p. 104 [34 E.R. 39, at p. 40]. 2. (1915) 20 C.L.R. 490, at p. 503. 3. (1874) L.R. 7 H.L. 53. 4. [1917] 2 K.B. 427. 5. [1940] A.C. 350. 6. (1953) 90 C.L.R. 102. 7. (1935) 53 C.L.R. 475, at pp. 487, 490; (1934) 34 S.R. (N.S.W.) 359, at p. 366.

But the existence of a beneficial interest is one thing, and the nature of it is another. If a question arises as to whether a particular asset "belongs" to the residuary legatee within the meaning of some statute or other instrument, the answer cannot be reached without consideration of the precise rights of which the residuary interest consists. Similarly, if the question is where should the interest be considered in law as locally situate, the rights which it comprehends must be clearly understood before an answer can be given. After all, the expression "beneficial interest" is a nomen generale, not to say generalissimum; and the label is not sufficiently informative to enable such questions as these to be answered. In Baker v. Archer-Shee [6] the difference of opinion which arose among the members of the House of Lords who sat on the case was simply upon the question whether the rights of a cestui que trust in respect of the income of a trust fund were such as to justify a description of that income as belonging specifically to her, and as for that reason falling within a particular statutory provision. That the cestui que trust had a beneficial interest in the income no one doubted; but the question could not be answered save by consideration of the rights of which the interest consisted. Again, in Barnardo's Homes v. Special Income Tax Commissioner [7] , the question whether, so long as a testator's estate is not fully administered, the income produced by its assets is income of the residuary beneficiaries was decided in the negative upon consideration of the rights which constituted the beneficiaries' interests in that income. It was because those rights were adjudged not to be sufficiently direct and exclusive that a negative answer to the question was returned. The point which the lastmentioned case emphasizes is that the rights of residuary beneficiaries while administration is incomplete stop short of entitling them to any of the assets in specie, or to any of the income in specie, or to any property or any part or share of property into which either the assets or their income may be converted. The beneficiaries are entitled only to receive, eventually, a share of whatever turns out to be left when the administration is complete; and that may not include any of the existing assets or their income, or anything representing either, for conceivably an asset may be sold and its proceeds used up in the process of administration, and the income may be similarly absorbed. Of course the beneficiaries' rights are rights with respect to, or "in", or ad each specific asset for the time being in the estate; but the important point to notice is that each such asset is liable, in the very working out of those rights themselves, to disappear from the estate. In other words, the nature of the beneficiaries' interests in the particular assets necessarily accords with the nature of their interests in the residue as a whole.

We are, of course, considering interests which, being intangible property, cannot possess geographical situation. For some purposes, for the exercise of probate jurisdiction for example, or for the application of statutes which depend upon local situation, the law must attribute a notional locality to such property. It does so by fixing upon a place with which the property has, by reason of its nature, a special connexion. For the more common classes of property the special connexion, and consequently the criterion of locality, have become defined by authority; though it may be observed that in a particular instance the circumstances may require a deviation from a general rule: see R. v. Lovitt [1] ; New York Life Insurance Co. v. Public Trustee [2] (as to which, see In re Claim by Helbert Wagg & Co. Ltd. [3] ). An interest in property is no doubt often so much more closely connected with the place where the property itself exists than with any other place that it is naturally to be considered as situate there; but generalization on the point is, in my opinion, unwarranted, for it denies the prime necessity to take account of the nature of the rights which are comprised in the interest under consideration in the particular case. The interest of a residuary beneficiary in an asset of an unadministered estate, consisting as it does of rights with respect to that asset which form an integral part of the beneficiary's rights with respect to the whole estate, possess most substantial connexion with the place of the appropriate forum for enforcing the due administration of the estate; and the law, if I understand it correctly, for that reason accords to the interest in the individual asset, no less than to the interest in the whole estate, a local situation at that place.

1. [1912] A.C. 212, at p. 219. 2. [1924] 2 Ch. 101, at p. 111. 3. [1956] Ch. 323, at pp. 342-344.

This is what I understand to be laid down in Lord Sudeley v. Attorney-General [1] . It is true that expressions used by some of their Lordships in the course of their ex tempore speeches in that case have been understood at times as meaning that residuary beneficiaries have no interest of any kind in the individual assets of an unadministered estate; and those who have so understood what was said have not unnaturally exhibited signs of shock at the apparent contradiction of the considered pronouncements of Lord Cairns and other great lawyers in Cooper v. Cooper [2] : see e.g. McCaughey v. Commissioner of Stamp Duties [3] . With others, incredulity at such seeming apostasy has led to interpretation; though not all have felt so badly about the need for that process as to join in the acid comment of Holmes L.J., that "Lord Cairns, in addition to great knowledge and experience, was such a master of language and logical exposition that he has perhaps an unfair advantage when his judgments are compared with those of lawyers of equal learning.": Tevlin v. Gilsenan [4] . Bearing in mind what has been said of Lord Sudeley v. Attorney-General [1] in cases decided since, I think that the judgments in that case should be understood as meaning that in considering the application of a statute which is concerned with "the estate and effects of the deceased" in England to the interest of a deceased residuary beneficiary, it is not to the point to refer to the locality of individual assets of the head estate. The beneficiary in his lifetime had no "proprietary" interest in those assets (to use the expression of Lord Russell of Killowen in Skinner v. Attorney-General [5] ) if by that is meant such an interest that he might have said of any of the assets "This is mine. Hand it over to me": Vanneck v. Benham [6] ; In re Cunliffe-Owen [7] ; and there is no logical or legal justification for subdividing the mass of his rights as residuary beneficiary so as to separate his rights with respect to each asset from his rights with respect to the others and attribute to each set of rights a separate local situation derived from the situation of the separate assets. You must, according to the law as laid down in Lord Sudeley v. Attorney-General [1] , attribute a local situation to the totality of rights, fixing on the place with which the totality is specially connected; and there is no need to go further in order to attribute their proper situation to the rights which exist as to the particular assets.

1. [1897] A.C. 11. 2. (1874) L.R. 7 H.L. 53. 3. (1945) 46 S.R. (N.S.W.) 192, at p. 205. 4. [1902] 1 I.R. 514, at p. 537. 5. [1897] A.C. 11. 6. [1940] A.C. 350, at p. 358. 7. [1917] 1 Ch. 60, at p. 76. 8. [1953] Ch. 545, at p. 554. 9. [1897] A.C. 11.

Similar reasoning applies, I think, to an interest in a trust fund of inherently variable composition. In re Smyth; Leach v. Leach [1] and Favorke v. Steinkopff [2] , provide clear examples. The interest to be located in the latter case was the interest of an annuitant in a fund which was vested in trustees on trust to pay annuities. The fund stood invested, at the time when the question arose, in a German State loan; but as Russell J. pointed out, the investment could be altered from time to time. The right of the annuitant being simply to have the fund properly administered, his interest in the fund as it stood for the time being was held to be not where the German State loan investments were situate, but where the proper forum for the enforcement of the trusts was situate. See also Commissioner of Stamp Duties v. Perpetual Trustee Co. Ltd. (Watt's Case) [3] . I must not be understood, however, as holding that where Blackacre is vested at law in X upon trust for Y absolutely, Y's interest is situate anywhere but where Blackacre is. As at present advised, I think that the fixed nature of Y's rights with respect to Blackacre should be considered the decisive factor in determining their locality.

1. [1898] 1 Ch. 89. 2. [1922] 1 Ch. 174. 3. (1926) 38 C.L.R. 12.

An analogy may be seen also in the case of a partner's interest in the partnership assets. That he has a beneficial interest, which the law will recognize and enforce, in every piece of property which belongs to the partnership is clearly established: In re Holland; Brettell v. Holland [4] ; Manley v. Sartori [5] ; In re Fuller's Contract [6] ; and none the less so because the nature of the interest is peculiar in that his share in the partnership, by virtue of which the interest in a given asset exists while the asset belongs to the partnership, consists not of a title to specific property but of a right to a proportion of the surplus after the realization of the assets and payment of the debts and liabilities of the partnership: In re Ritson, Ritson v. Ritson [7] ; Bakewell v. Deputy Federal Commissioner of Taxation [8] ; that is to say, not a "definite" share or interest in a particular asset, no "right to any part" of it, but an interest which "can be finally ascertained only when the liquidation has been completed, and consists of his share of the surplus": Rodriguez v. Speyer Brothers [9] . Yet, the local situation of the interest in the partnership as a whole being considered in law to be where the business is carried on, so also is the partner's interest in a partnership asset: In the Goods of Ewing [1] . In the leading cases of Laidlay v. Lord Advocate [2] ; Beaver v. Master in Equity [3] and Stamp Duties Commissioner v. Salting [4] , it occurred to no one to distinguish for the purposes of locality between the interest in the partnership and the interest in the assets; and indeed in Beaver v. Master in Equity [3] the emphasis given by the Privy Council to the fact that the business of the partnership in Melbourne was a distinct business from others which the partnership carried on in London and Adelaide indicates that the partner's interest in the Melbourne assets would not have been treated as situate there if there had been only a single business and that had been carried on in London. There is a case in the Supreme Court of Canada in which the contrary view was taken by a majority of the Court, but, with respect, I would prefer the dissenting judgment of Anglin J: Boyd v. Attorney-General for British Columbia [5] .

1. [1907] 2 Ch. 88, at p. 91. 2. [1927] 1 Ch. 157, at pp. 163, 164. 3. [1933] Ch. 652, at p. 656. 4. [1898] 1 Ch. 667; [1899] 1 Ch. 128. 5. (1937) 58 C.L.R. 743, at p. 770. 6. [1919] A.C. 59, at p. 68. 7. (1881) 6 P.D. 19, at p. 23. 8. (1890) 15 App. Cas. 468. 9. [1895] A.C. 251. 10. [1907] A.C. 449. 11. [1895] A.C. 251. 12. (1917) 36 D.L.R. 266.

For these reasons I am of opinion that neither succession duty nor administration duty was payable in this case. The learned judges of the Supreme Court thought otherwise, but they considered that in any event the appeals should be dismissed on the ground that although the Act provides for an appeal as to quantum where succession duty is admittedly payable, it does not provide for an appeal as to succession duty in which all liability for the duty is denied, and it does not provide for any appeal at all in respect of administration duty. This conclusion their Honours reached with an evident reluctance which no doubt was all the greater because over a long period of time appeals denying that any duty was payable, and relating to each kind of duty, have been entertained and decided by the courts, and in that period the Queensland Parliament, though frequently engaged in amending the Act, has never seen fit to put an end to the practice.

The only provision which gives a right of appeal is to be found in s. 50. The right is given to "any accountable party dissatisfied with the assessment of the Commissioner". The expression "the assessment of the Commissioner" refers back to s. 47 which, as the Act stood originally, empowered the Commissioner (I shall speak of the Commissioner though until 1918 it was the Commissioners) to assess succession duty in a limited class of cases only. He was not expressly given any power to make an assessment of administration duty, and the cases in which he might assess succession duty were those only in which persons described as "the persons hereby made accountable for the payment of duty or some of them" had performed the obligation, which the section in its first paragraph cast upon them, of giving notice to the Commissioner of their liability to such duty and delivering to him a full and true account of "the property for the duty whereon they are respectively accountable" and of the value thereof, and the deductions claimed by them, together with other particulars. A second paragraph required verification of the account, and a third conferred the power of assessment. The power was limited to two cases: if the Commissioner were satisfied with the account and estimate as delivered, he might assess the duty on the footing thereof; and if he were dissatisfied with the account and estimate, he might take his own account and estimate and assess the duty on the footing thereof, "subject to appeal as hereinafter provided".

I share the view of their Honours that it is extremely difficult to see how the Act, while it stood thus, could have been read as giving a right of appeal against liability, as distinguished from quantum, in the case of succession duty, or as giving a right of appeal at all in the case of probate or administration duty. The expression in s. 50 "the assessment of the Commissioner" must have meant the assessment of succession duty, made on the footing either of the account delivered, or of the account taken by the Commissioner himself upon his being dissatisfied with the account delivered; and the account delivered must have been delivered by some or all of the persons made accountable for the payment of succession duty. Moreover, the prescribed locus standi for an appellant consisted in being "any accountable party"; and "accountable" is a word which was frequently used in fiscal statutes of the nineteenth century to refer, as indeed may be seen clearly enough from s. 47 itself, to accountability, i.e. liability, for duty, and not to liability to deliver an account of dutiable property. The persons so accountable for succession duty are the "successor" (s. 43) and certain other persons (s. 46).

But in 1918 an amending Act (9 Geo. V No. 16) made an important change. By inserting additional words in the third paragraph of s. 47, it provided for a second case in which the Commissioner might make an assessment of succession duty on the footing of an account and estimate of his own, namely, the case where no account and estimate had been delivered. The words "subject to appeal as hereinafter provided" thus came to apply to assessments made where no account had been delivered; and an amendment made to the words in the fourth paragraph referring to appeal reinforce the conclusion that this was intended. The most obvious case in which no account and estimate would be delivered is the case where the persons who would be accountable for payment of the duty if it were payable deny liability in toto. Since 1918, therefore, there has been nothing in s. 50, except the expression "any accountable party", to limit the right of appeal to cases where an assessment had been made after an account submitted by persons accountable for the payment of duty. This was not because the meaning of any of the words of s. 50 had been changed, but because the words "appeal against such assessment" had acquired a more extended application. The referential word "such" was sufficient to give consequential effect to the enlargement of the power of assessment in s. 47; and the result was that the appeal that was spoken of came to include an appeal against an assessment which had been made notwithstanding that everyone who, according to the Commissioner, was accountable for payment of duty denied that any duty was payable. Was there, then, no necessary implication as to the expression "any accountable party"? To extend a right of appeal so that it will exist in a new class of cases seems necessarily to imply that the persons who are the proper appellants in a case of the new class may be appellants notwithstanding any limitation formerly arising from words by which competent appellants have been described. In my opinion s. 50 should be read, since the 1918 amendment, as if it began "any accountable party or party who would be accountable if the assessment were correct".

As regards administration (or probate) duty, again it must be conceded that as the Act stood originally there would have been much difficulty in maintaining that a right of appeal was conferred. But once more amending legislation seems to me to imply that s. 50 is to be read as if words extending its application had been expressly inserted. There is no difficulty about the word "accountable" as applied to administration duty. True, the word does not occur in the Act in relation to that duty, but it is not a technical word of succession duty law: it refers only to liability to make a payment, and a person liable for administration duty is quite aptly described as an accountable party. The difficulty which did exist, however, was that the expression "the assessment of the Commissioner" referred back, as I have mentioned, to s. 47, and had no application at all in respect of administration duty. But the 1918 amending Act altered this by inserting a new s. 47A in the following terms: "If, within two years after any assessment of succession or probate duty has been made or any such duty has been paid it is discovered that the account and estimate as originally delivered disclosed a less amount than the true value of such property at the time the succession took effect, or that for any reason too little duty has been paid, the Commissioner may take a further account and estimate and reassess the duty on the footing of such further account and estimate subject to appeal as hereinafter provided, and recover any further duty payable on such reassessment, together with the whole or any part of the expenses incident to the taking of such last-mentioned account and estimate.". In my opinion it is unsound to treat the references in this section to probate duty as inserted by mistake. The draftmanship is careless in the extreme, but the intention is too plain to be missed. Running the two duties together in the one provision, Parliament has indicated, in my opinion, that if the Commissioner in fact makes an assessment of probate duty (the omission to mention administration duty is of no significance, for the description obviously refers to the duty under s. 55 whatever it may be called), or such duty has been paid without assessment, and within two years thereafter it is discovered that for any reason too little duty has been paid, the Commissioner may take an account and estimate of his own and reassess the duty, but the reassessment is to be "subject to appeal as hereinafter provided". The only provision to which the words quoted can refer is s. 50. The implication is surely plain that s. 50 is to be read as applying to "probate" duty; and if that be so, any verbal alteration of s. 50 which may be necessary for its application to such duty must be treated as impliedly made.

In my opinion, therefore, both petitions to the Supreme Court were competent and should have succeeded. I would accordingly allow the appeal in respect of succession duty, and grant special leave and allow the appeal in respect of administration duty.

The late Jocelyn Hilda Coulson (whom I will refer to as "the intestate"), who died intestate domiciled in the State of New South Wales, was absolutely entitled under the will of her first husband, Hugh Duncan Livingston (whom I will refer to as "the testator"), to a one-third interest in the residue of his estate ascertained after the payment of debts, funeral and testamentary expenses, and duties. At the time of the death of the intestate, the executors of the testator, who were domiciled in the State of New South Wales, had not fully administered his estate, part of which was real and personal property situated in Queensland. Upon the merits of these proceedings (which are an appeal by the administrator of the estate of the intestate from the decision of the Full Court of the Supreme Court of Queensland with regard to succession duty (£5,339 9s. 11d.) assessed and paid in respect of the estate of the intestate and an application for special leave to appeal with regard to administration duty (£607) assessed and paid in respect of that estate), the questions are whether Queensland administration duty and succession duty are payable by the administrator, to whom letters of administration have been granted by the Supreme Court of New South Wales, in respect of any part of the interest that the intestate had in the estate of the testator.

Administration duty, although originally payable in respect of a grant of letters of administration, was by s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935 declared payable under The Succession and Probate Duties Act of 1892 Q. as amended, s. 55, in respect of "any personal property whatsoever in Queensland or any interest therein taken possession of or in any manner administered without the grant in Queensland of administration ". Succession duty, although originally not chargeable in respect of the personal estate of a person domiciled outside Queensland was, by s. 2 of The Succession and Probate Duties Act 1892 Amendment Act of 1895, declared chargeable "in respect of all property within Queensland although the testator or intestate may not have had his domicile in Queensland". More exactly the principal question is therefore whether because of her interest in an estate which included property in Queensland, there belonged to the intestate any property in Queensland.

The conclusion that I have reached is that because the intestate's interest was in the totality of the estate of the testator and because she had no separate or separable property in the Queensland assets of that estate, her interest in the estate of the testator was property situated in New South Wales, where the trustees were domiciled, and not as to any part in Queensland. Indeed, prior to the administration she had but one asset, not as many assets as there were assets in the estate of the testator. Were the executor of the testator's will to realize Queensland assets to pay debts, it could not, I think, with accuracy be described as property of the intestate that was being sold; her right was to share in residue ascertained by administration in due course.

This conclusion appears to me to be in line not only with the decision of the House of Lords in Lord Sudeley's Case [1] and the many cases in which that decision has been followed, but also with the dictum of this Court in Smith v. Layh [2] when in speaking of the right which residuary beneficiaries take in the unconverted assets of an estate before it is fully administered, it was said: "They have no separate or separable property in the specific items or assets of which the estate is made up". Although upon the death of the intestate there was a devolution of her one-third interest in the residue of the testator's estate, there was, for the reasons I have given, no devolution of any property in Queensland, and it would not be correct to say that the administrator of her estate, in getting in her interest in the estate of the testator, has taken possession of, or in any manner administered, property in Queensland or any interest therein. Any merely colloquial use of the word "interest" is, of course, to be disregarded because without question the Act is throughout concerned with assets, i.e., proprietary interests.

1. [1897] A.C. 11. 2. (1953) 90 C.L.R. 102, at p. 108.

I have had the advantage of reading the judgment of Fullagar J., surveying the authorities bearing upon the problem before us, and because I agree with his survey I refrain from making one of my own. There are, however, difficult questions regarding the jurisdiction of the Supreme Court to determine the appellant's appeals to it which I feel obliged to consider with some particularity for myself.

There are to be found in various sections of the Act references to persons "accountable for the payment of duty", to persons "accountable for duty" who may be required by the Commissioner to "deliver an account", and to "every person who under the provisions of this Act delivers any account", and it seems to me that the word "accountable" is used in two senses - the first, liable to pay duty (e.g., s. 46); the second, liable to deliver an account (e.g., s. 49). Sometimes the duty to deliver an account and to pay duty are imposed upon the one person, but this is not always the case. Section 50, which gives "any accountable party dissatisfied with the assessment of the Commissioner" a right of appeal - and is the section under which these appeals were instituted - does, it seems to me, authorize an appeal by a person accountable in either of the senses in which the word is employed in the Act. The appellant here is the administrator of the estate of the intestate, to whom letters of administration were granted by the Supreme Court of New South Wales on 13th November, 1951. He did not apply for a grant of letters of administration in Queensland, but did as required by the Commissioner file an account of the estate of the intestate with the Commissioner, and subsequently he paid the succession and the administration duty assessed thereon. The appellant did these things under protest and "without prejudice to his contention that no succession or administration duty under The Succession and Probate Duties Acts was payable on the death of the said Jocelyn Hilda Coulson". He then instituted two appeals - one in relation to administration duty, the other in relation to succession duty. The Full Court of the Supreme Court of Queensland, before which the appeals came, dismissed them, deciding that they were incompetent. The Court decided that an appeal with respect to administration duty was altogether outside s. 50 and that, as regards succession duty, the section authorized an appeal only when accountability (in the sense of accountability for the payment of duty) is admitted and the details of the assessment are alone in dispute.

There is, of course, no doubt that an assessment of administration duty by the Commissioner is necessary because the duty is payable according to a scale upon the "net value of the property": and see ss. 47A and 56A (2) of the Principal Act, and s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935. The Acts themselves do not in terms provide for any person making a return for the purpose of the assessment of administration duty, but having regard to their provisions as a whole, it is, I think, clear that a person in the position of the appellant should both make a return and pay administration and succession duty if the Acts apply. To infer an obligation upon an administrator to pay administration duty assessed with respect to the estate is not going very far, and as regards succession duty, s. 46 makes, besides the successor, "every trustee in whom any property, or the management of any property, subject to such duty, is vested" personally accountable for the duty payable in respect of any succession. The administrator here, therefore, is the person who, as required by the Commissioner, has delivered an account and has paid the duty assessed therein and may therefore properly be described as an accountable party, unless for the purposes of s. 50, notwithstanding the success of a party's appeal, his liability for some duty must remain. I do not regard it as necessary to read s. 50 as so restricted, but before elaborating this it is necessary to refer to a particular difficulty about administration duty, that is, that s. 50 stands as it did before the Act related to administration duty and, therefore, as it was enacted, s. 50 related only to appeals against assessments of succession duty. The section must, however, now be read in the context of the Act as it has been amended, and that context includes s. 47A which recognizes that s. 50 does relate to appeals against assessments of "probate duty", which clearly enough includes administration duty. I have therefore reached the conclusion that s. 50 does authorize appeals against assessments of probate and administration duty.

This brings me to the contention that as regards both administration and succession duty, the right of appeal given by s. 50 is limited to questions of amount, as the Full Court decided, and does not extend to questions of liability. In its forceful judgment, the Full Court points out that ss. 47, 48 and 50 of the Queensland Act correspond with ss. 45, 47 and 50 of the English Act, and the accepted view in England is that liability to account is not to be determined upon such an appeal: Hanson on Death Duties 7th ed. (1925) pp. 532, 535. It appears to me, however, that the language of s. 50 is capable of a construction that would cover appeals as to liability itself and there is nothing in any other provision of the Act which requires a more limited construction. In favour of according the section the larger construction is the consideration that s. 56A (2) (i) (b) provides that in legal proceedings other than on appeal against an assessment, the production of the assessment is conclusive evidence that the amount and all the particulars of the assessment are correct, which seemingly would apply to proceedings by or on behalf of the Crown to recover any duty that has been assessed. If this be so, to construe s. 50 to cover an appeal as to liability would be the only means of testing whether or not there is liability for duty which has been assessed. Upon the whole I have reached the conclusion that s. 50 does authorize the appeals which resulted in the orders that are the subject of these proceedings.

In my judgment the appeal in relation to succession duty should be allowed, there should be special leave to appeal from the judgment of the Full Court in relation to administration duty and that appeal should also be allowed.

I agree that in this case an appeal lay to the Supreme Court of Queensland in respect of both succession duty and administration duty, although I appreciate the force of the contrary view expressed by the Supreme Court. The legislation is a patchwork and s. 50 in its context is far from clear. On the questions of substance concerning succession duty and administration duty, I can state my conclusions shortly, for I fear they are naive: I think that if a person has an interest in Queensland land, of a kind recognized by the law of Queensland, then, for the purposes of Queensland law, that interest is in Queensland and is property there. It matters not, I think, what in juristic theory is the nature of the interest or by what name it is called. And similarly I think that an interest in the undertaking and assets of a partnership in a station in Queensland is, for the purposes of Queensland law, property in Queensland.

To go fully into all the matters argued in this case, and to discuss all the cases referred to would involve a consideration of the juristic nature of proprietary rights and equitable interests. I think I can avoid this. The noun "property" and the adjective "proprietary" are notoriously capable of much variety of explanation by writers on jurisprudence: but when used in statutes or judgments the meaning depends upon the context; and little is to be gained, I think, by theoretical analysis. As to the nature of equitable interests in our system of law, I think it enough to quote what Dr. Hanbury has said, reviewing Sir George Paton's, A Textbook of Jurisprudence 1946: "The vexed question of the nature of the right of a beneficiary is one that must exercise the mind of a jurist, though it is questionable how far the discussion is not purely academic, except in the realm of Private International Law" ( (1947) 63 L.Q.R. 115). This case is within the realm of private international law: and the nature of the interest of a beneficiary in trust property is fundamental to it - the particular question here being the nature of the interest of those entitled as next of kin to the estate of a deceased person while that estate is in course of administration. It is, I think, the inevitable result of our system of equity and of the impact of equitable remedies upon legal rights that the rights of a beneficiary under a trust can be regarded as a right to be asserted against the trustee who has the legal title to the trust property or as an interest in that property. This double aspect of the existence of equitable remedies is peculiar to our system. "The continental jurist" is puzzled by any reference to a right that partakes of the nature of rights in rem and rights in personam. He asks: "Who has the ownership? If it is given to the trustee, the beneficiary has a mere right in personam; if to the beneficiary then the trustee is a mere agent". That is how Professor Paton puts it in the work above referred to, 2nd edition (1951) p. 432. We were, of course, pressed with the decision in Lord Sudeley v. Attorney-General [1] . Remarks in the speeches of their Lordships in that case concerning the nature of the interest of a beneficiary in the assets of an estate in the course of administration have been much criticized, trenchantly so by Jordan C.J. in McCaughey v. Commissioner of Stamp Duties [2] . But those remarks must now be read in the explanatory light of what was said later in Skinner v. Attorney-General [3] , and in In re Cunliffe-Owen; Mountain v. Inland Revenue Commissioners [4] . No one would now say that Mrs. Tollemache had no interest in the New Zealand assets in question in Sudeley's Case [1] . True she could not have said, "they are mine: give them to me", for her husband's estate had not been fully administered. The New Zealand assets were still in his estate; and her share in that estate was an English asset in respect of which probate duty under English law was payable. But, as we now know, that does not mean that she had no interest in the items of property that were comprised in that English asset. A situation comparable with that in question here would have arisen if Sudeley's Case [1] had been concerned not with a liability of the English estate to English probate duty but with a liability under the law of New Zealand to duty upon property locally situate there. It is not without significance that in the original judgment in Sudeley's Case in the Queen's Bench [2] , Lord Russell of Killowen C.J. and Charles J. referred to the fact that the English executors could only possess themselves of the assets in New Zealand by the aid of the Court there, and that administration duty had been paid on the estimated value of the share of Frances L. Tollemache in New Zealand.

1. [1897] A.C. 11. 2. (1945) 46 S.R. (N.S.W.) 192, at pp. 202-206. 3. [1940] A.C. 350. 4. [1953] 1 Ch. 545. 5. [1897] A.C. 11. 6. [1897] A.C. 11. 7. [1895] 2 Q.B. 526.

If then it be correct, as I think it is, to regard Mrs. Coulson as having had an interest in the several items of property that make up the estate of Livingston, where is that interest situate? In my view it is where that property is. The land and stock and plant of the station are in Queensland. The partnership business of conducting Maranoa Downs was carried on in Queensland. That does not, I think, contradict the parallel proposition that Mrs. Coulson would ordinarily have had to assert her rights under Livingston's will by insisting that Livingston's executors perform their duties, and that the proper tribunal to compel them to do so would be the New South Wales court. But the land and other physical things and the partnership in which Mrs. Coulson had an interest were all in Queensland. Her interest in those things existed only so far as the law of Queensland recognized it and would aid the New South Wales courts in enforcing it. It was not, I think, accurate to say, as was said, that proceedings in relation to her rights in those things could only be taken in New South Wales, and that those rights would only be protected by the New South Wales court. The Queensland court would, in some circumstances, exercise jurisdiction at her suit, certainly in relation to the Queensland realty, provided of course that the executors of Livingston were made parties, as they could be by service outside Queensland.

I have written this merely to emphasize my view that the matter must be judged from the point of view of Queensland law; the opposite situation from that under consideration in Sudeley's Case [1] . Having done so, I need say no more than that I concur in the conclusions of the Chief Justice and in the general principles he has stated on which his conclusions are based. There are, of course, some distinctions between succession duty and administration duty: in a sense they reflect the basic distinction that Dicey emphasizes between administration and succession. Westlake's description of the nature of succession duty, in the course of his explanation of the differences between it and probate duty, in his earlier editions e.g. 3rd ed. pp. 125, 126 gave rather too limited an effect to succession duty. In the sixth edition the same passage (s. 116) is restricted to succession duty when it is incident on settled property. Here we are concerned with duty on a succession under s. 4 of The Succession & Probate Duties Act, which is in the same terms as s. 2 of the English Act of 1852. And a "succession" as so described, it is always important to remember, is not an event: it is property, a proprietary interest (see per Rowlatt J. in Attorney-General v. Anderton [2] ). And, as a result of the amendment to the law made in 1895, succession duty is chargeable on all property within Queensland. Administration duty, on the other hand, is in the nature of a probate duty, as ordinarily understood but with its scope extended by the amending Act of 1935. It is levied in respect of property belonging to a deceased in Queensland. So that substantially the same question arises in respect of both duties. In my opinion, there was, in this case, a liability for both succession and administration duty to the extent that the Chief Justice has stated. That involves excluding the wool realization moneys. I have not considered whether the valuations of the property in respect of which the duties were levied were made on a proper basis. That was not really contested: and, in any event, as most members of the Court think the duties are not payable, I need not consider it. I would dismiss the appeals.

1. [1897] A.C. 11. 2. [1921] 1 K.B. 159, at p. 170.