CO129-557-12 Armstrong and Turner v. Estate Duty Commissioner- appeal to Privy Council 18-5-1936 - 2-10-1936 — Page 108

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gift of an annuity simpliciter sacompanied by a discretionary

power to appropriate and set apart, which was not exercised.

The words in clause 8 above referred to are merely a

statement of a thing which by law is a condition precedent

to the distribution of the residuary estate and no legal

obligation to make provision for the annuities arises until

the time for d is tri bution arrives. The Will contains no

direction to appropriate and set aside; on the contrary, this

is placed by ole use 13 in the entire discretion of the

discretion which they did not nee fit to

trustees

exercise.

The contention that equity will come to the appellants

aid is based on the fallacy that there is an obligation to

appropriate.

If, as the respondent contends. there was no obligation

or duty to appropriate, then the whole weight of legal

authority appears to be directly against the appellants

contention 990 noll's quity, 19th edn. p.186 et seq.

Ashburner's Squity. 35%.

Fletcher v. shburner (1779) 1 White & Tudor. L.C. Eq.

8th edn. 347.

Re Twopenny's Settlement (1924) 1 Ch. 592.

Re Newhould, Oorter r. Newbold (1914) 110 L.T. 6.

Re Bird, Pitmen v. Pitmm (1892) 1 Ch. 279.

Re Lyson, Challinor v. Dykes (1910) 1 Ch. 750.

Re Vrinthorpe, Beckett v. Grimthorpe (1908) 2 Ch. 675

It will be noted that while Kaneou (Deeth Cuties, 8th

adr. p.105) expressor the via that the gift of an annuity

simpliciter would not constitute a settlement, Dymond.

(Death Duties Toh Län. p.262), who on this point cites no

authority) says that the expression "settled property" is

given a liberal constration and continues "The exemption

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