64
65
No. 15. Notes of
the Puisne
Judge on the
appeal to
the Full
Court.
8th January,
1936. (Continued)
24
Does not matter whether the funds were set aside or not.
Court will act on the maxim that equity regards as done that which ought
to have been done.
The word interest" is used in ss. 5 and 25. Annuitant had an "interest"
in the residuary property.
13 Halsbury p. 229 s. 304.
A G. v. Watson (1917) 2 K. B. 427--Held that the annuitant had an
"interest in the testator's residuary estate.
A. G. v. Owen (1899) 2 Q. B. 253 at p. 256 and at 261, 263 from "We may
be obliged.....
.to the residuary legatee", also at 265 and 266. 10 Re Campbell (1902) 1 K. B. 113 at 115, 116, 117, 118, 120, 121, 122. Particular fund means a determinable fund.
Re Waller (1916) 1 Ch. at 158.
A. G. v. Robinson (1893) 1 Q. B. 293, re meaning of succession-see p.
298 also 301.
Passes to equitable maxim above referred to in 13 Halsbury p. 73 s. 82 Harbin v. Masterman (1896) I Ch. 351 at 360.
Adjourned to 2.30 p.m.
2.30 p.m. Same counsel and solicitors.
Macnamara continues,
Can read into the Will a direction that a fund shall be set aside-refers to Clause 8 "subject to making provision for the payment of any annuities' etc. Also to Clause 13 which is merely administrative. Carmichael v. Gee (1879-80) 5 Appeal Cases 588 headnote and at 593 (end
uf), at 545.
Will Clause 14 points to settled property.
10 9.1.36
10 a.m.
20
20
Refers to judgment in this case of Sir Atholl MacGregor C. J.—last para. of p. 47. An annuity is the interest on so much property-it does not matter whether you designate it by its capital or by its income. P. 48-in the case of the present. Will there is a provision for appro- 30 priation. In re Waller (supra) the passage from the judgment of Sargant J. is only a dictum.
Also p. 49. We only contend that a part sufficient to pay the annuities.
I am not going to argue the 2nd ground of appeal.
In land cases it is a settlement of all the land or nothing but this is not
the case in the case of money.
In re Trafford's Settled Estates (1915) ↑ Ch. 9.
30
25
No. 15.
the Pujsue
In re Carnarvon (1927) 1 Ch. 138, Lord Alington (1927) 2 Ch. 253 and
In re Trafford's Estate are in fact not relevant to this case.
From Notes of the C. J.'s judgment in order that the Will should be a settlement Judge on the there would have to be appropriation and that must be wrong, as Will Appeal to must be either a setttement or not.
the Full Court. 8th January,
(Continued)
The Will amounts to a settlement of sufficient money to pay an annuity of 1936.
£10,000 per annum. Adjourned to 10 a.m. on 9.1.36.
Same counsel and solicitors.
Potter, K.C.:-
init. J.J.II.
l'oint does the bequest of an annuity to Lady Chater constitute a settlement. Will Clause 5 grants an annuity simpliciter.
Will Clause 8 sote object is to provide for the distribution of the residuary estate. Before the residuary legatees can get anything provision must be made for payment of legacies etc
No direction to appropriate property for payment of annuities. Will Clause 13 gives trustees complete liberty to appropriate or not a
fund for the payment of annuities as they think fit.
Hanson on Death Duties 8th Ed. 105.
Harman Finance Act, 1894, 4th Ed. p. 79 "An annuity charged on corpus with power to set aside a fund to answer the annuity, is not, it is submitted, settled property". An annuity granted simpliciter gives no charge on a specific fund.
A.G. y. Watson (1917) 2. K.B. 427 merely directed that if there is a simple annuity the case is brought within the scope of the Act for the purpose of payment of duty as the annuitant has an "interest" but it does not decide that that interest" is settled property.
Refers to passage in judgment of Lush J. at end of p. 430. Refers to passage in judgment of Lush J. p. 431- and I think
.........look for the payment of her annuity".
A.G. v. Owen (1899) 2 Q.B. 253, at p. 263, at 265, also at 265. What property or what fund has ever been enjoyed by Lady Chater? Re Campbell (1902) 1 K.B. 113 at 119, at 120, at 122.
It is the fund which is directed to be set aside to secure the annuity which
is settled--no direction in this case.
Re Waller (1916) i Ch. 153 at 154, at 156, at 158. The passage referred to in the judgment of Sargant J. by Mr. Macnamara is not dictum
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