CO129-557-12 Armstrong and Turner v. Estate Duty Commissioner- appeal to Privy Council 18-5-1936 - 2-10-1936 — Page 58

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No. 14.

Notes of the Chief Justice on the

Appeal

to the

Full Court.

8th January 1936.

(Continued)

Judgment of Lush J. p. 430

"Annuitant had no estate in residuary estate"-therefore no settlement. Other cases merely decide that in order to create settlement specific fund

must be allocated to payment of annuity.

So Owen's case.

Why never argued that annuity simple created settlement?

Kennedy J. at p. 266.

What fund here was ever enjoyed by Lady C. ?

So re Campbell.

Fund set aside is one to be enjoyed by c.q.t. Either whole estate was settled or no part.

Re Waller.

Annuity was charged on whole residuary fund. Dictum of Sargant J. on p.158 was not obiter.

p.159—under original gift no settlement estate duty payable.

Re Earl of Carnarvon estates (1927) 1 Ch. 139.

Did jointure charged on property effect a settlement?

Romer J. 148, 155 says “No.”

No distinction between jointure and annuity.

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In Re Lord Alington's estates (1927) 2 Ch. 253, decides much same point. 20 Russell J. p. 261.

Effect of these two cases is to establish by analogy that simple annuity

can't create settlement.

But note conflicting decision

In re Trafford's Estates 1915 1 Ch. 9.

II. Equity looks on that as done which should have been done.

Can't apply here- without express direction.

13 Halsbury 73 Foot note (h).

Ashburner's Equity 252

Snell (19th Edit.) 186

Clause 13 gives absolute discretion--no direction.

Direction must be imperative and definitive

Twopenny's Settlement (1924) 1 Ch. 522 at p. 529 and 533 and 537. Harbin v. Masterman (1895) 1 Ch. 351.

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