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credit shall be

crown.

aforesaid, if any shall become due: but the same shall 55 G. III. c.

184. nevertheless be prodụced in evidence by some officer of the commissioners of stamps, at the expense of the executor or administrator, as occasion shall require.”

Sect. 48. “ The duty for which credit shall be given as Duty for which aforesaid, shall be a debt to his Majesty, his heirs or succes- given to be a sors, from the personal estate of the deceased, and shall be debt to the paid in preference to and before any other debt whatsoever due from the same estate ; and if any executor or administrator of the estate of the deceased shall pay any other debt in preference thereto, he or she shall not only be charged with and be liable to pay the duty out of his or her own estate, but shall also forfeit the sum of five hundred pounds."

Sect. 49. “If before payment of the duty for which credit Provisions for shall be given in any such case as aforesaid, it shall become letters of adnecessary to take out letters of administration de bonis non of ministration

de bonis non, the deceased, it shall also be lawful for the said commis- taken out be

fore payment sioners to cause such letters of administration de bonis non, of the duty for to be duly stamped with the particular stamp provided to be which credit

shall be given used on letters of administration of that kind, for denoting the payment of the duty in respect of the effects of the deceased, on some prior probate or letters of administration of the same effects, in such and the same manner as the duty had been actually paid, upon having the letters of administration de bonis non deposited with the said commis. sioners, and upon having such further security for the payment of the duty as they shall think expedient; and such letters of administration shall be as valid and available as if the duty for which credit shall be given has been paid.”

It has been decided that this section authorises the commissioners of stamps to stamp letters of administration de bonis non on security given, and without payment of the duty, as well in cases where too low a duty has been paid on the original letters of administration, as when such letters of administration have been originally stamped on credit (c). By sect. 50, it is further enacted, in regard to probate of Directions con

(c) Doe v. Wood, 2 Barn. & Ald. 724.

55 G. III. c. Wills and letters of administration, " That where any part 184.

of the personal estate which the deceased was possessed of cerning affidavits by execu- or entitled to, shall be alleged to have been trust property, tors, &c., residing out of if the person or persons who shall be required to make any England, re

affidavit or affirmation relating thereto, conformably to the lating to trust property : provisions of the said act of the forty-eighth year of his

Majesty's reign (d), shall reside out of England, such affidavit or affirmation shall and may be made before any person duly commissioned to take affidavits by the Court of Session or Court of Exchequer in Scotland, or before one of his Majesty's Justices of the Peace in Scotland, or before a Master in Chancery, Ordinary or Extraordinary, in Ireland, or before any Judge or civil Magistrate of any other country or place where the party or parties shall happen to reside; and every such affidavit or affirmation shall be as effectual as if the same had been made before a Master in Chancery in England, pursuant to the directions of the said last

mentioned act.” A return of Sect. 51. “Provided always, That where it shall be proved duty on probates, &c., to by oath or proper vouchers, to the satisfaction of the said spect of debts, commissioners of stamps, that an executor or administrator if claimed

had paid debts due and owing from the deceased, and payable by law out of his or her personal or moveable estate, to such an amount as, being deducted from the amount or value of the estate and effects of the deceased, for or in respect of which a probate or letters of administration, or a compensation of a testament, testamentary or dative, shall have been granted, after the 31st day of August, 1815, or which shall be included in any inventory exhibited and recorded in a Commissary Court in Scotland as the law requires, after that day, shall reduce the same to a sum, which, if it had been the whole gross amount or value of such estate and effects, would have occasioned a less stamp duty to be paid on such probate or letters of administration, or confirmation or inventory, than shall have been actually paid thereon under and by virtue of this Act, it shall be lawful

three years.

(d) See post, p. 539.

184.

for the said commissioners to return the difference, provided 55 G. III. c. the same shall be claimed within three years after the date of such probate or letters of administration or confirmation or the recording of such confirmation as aforesaid; but where by reason of any proceeding at law or in equity, the debts due from the deceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in consequence thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid within the said term of three years, it shall be lawful for the Commissioners of the Treasury to allow such further time for making the claim as may appear to them to be reasonable under the circumstances of the case.” By stat. 5 & 6 Vict. c. 79, s. 23, after reciting that by the 5 & 6 Vict. c.

79, s. 23. stat. 53 Geo. III. c. 164, “the Commissioners of the Treasury are authorized to allow time for making claims for a return of stamp duty paid upon probates of Wills and letters of administration, in cases where an executor or administrator hath paid debts out of the personal or moveable estate of any deceased person, and it is expedient to authorize the commissioners of stamps and taxes to allow time for making such claims;” it is enacted, “That where it shall be proved by oath and proper vouchers, to the satisfaction of the said commissioners of stamps and taxes, that an executor or administrator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or moveable estate, to such an amount as, being deducted (e)

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(e) It has been held, in the construction of this enactment, that if two probates are taken out, the one in the province of Canterbury, in respect of assets there, and the other in the province of York, in respect of assets there, and separate duties paid on each probate, and the executors afterwards pay debts indiscriminately out of the whole personalty, they are not entitled to add together the amounts in respect of which the

two probate duties were paid, deduct from the gross sum the amount of the debts, and then estimate the duty payable on the remainder, and demand back the difference between such duty and the aggregate of the sum paid on the two probates : R. v. Commissioners of Stamps, 9 Q. B. 637. Assets situate abroad are not to be taken into the account: Q. B. Feb. 1849. 13 Jurist, 624.

5 & 6 Vict. c.

from the amount or value of the estate and effects of the 79, s. 23.

deceased for or in respect of which a probate or letters of administration shall have been granted in England after the 31st day of August, 1815, or which shall be included in any inventory duly exhibited and recorded after that day in a commissary court in Scotland, shall reduce the same to a sum which, if it had been the whole gross amount or value of such estate or effects, would have occasioned a less stamp duty to be paid on such probate, or letters of administration or inventory, than shall have been actually paid thereon, it shall be lawful for the said commissioners of stamps and taxes, and they are hereby required to return the difference, provided the same shall be claimed within three years after the date of such probate or letters of administration, on the recording of such inventory as aforesaid; but where, by reason of any proceeding at law or in equity, the debts due from the deceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in consequence thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid, within the said term of three years, it shall be lawful for the said commissioners of stamps and taxes to allow such further time for making the claim as may appear to them to be reasonable under the circumstances of

the case.” 55 G. III. c. Besides these enactments, it is provided by s. 8, “That 184.

all the powers, provisions, clauses, regulations and direcPowers and provisions of tions, fines, forfeitures, pains and penalties, contained in extend to this and imposed by the several Acts of Parliament relating to

the duties hereby repealed, and the several Acts of Parliament relating to any prior duties of the same kind or description, shall be of full force and effect with respect to the duties hereby granted, and to the vellum, parchment and paper, instruments, matters and things charged or chargeable therewith, as far as the same are or shall be applicable, in all cases not hereby expressly provided for, and shall be observed, applied, enforced and put in execution, for the

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raising, levying, collecting, and securing of the said duties 55 G. III. c.

184. hereby granted and otherwise relating thereto, so far as the same shall not be superseded by, and shall be consistent with the express provisions of this Act, as fully and effectually to all intents and purposes as if the same had been herein repeated and specially enacted with reference to the said duties hereby granted."

It is therefore necessary to recur to some of the provisions of the earlier statutes.

By stat. 48 Geo. III. c. 149, s. 35, it is enacted, that 48 G. III. C. “The probate of the Will of any person deceased, or the

Probates of letters of administration of the effects of any person Wills and letdeceased, &c. &c., shall be deemed and taken to be valid tration valid as

to trust proand available by the executors or administrators of the

perty, although deceased, for recovering, transferring, or assigning any debt the value or debts, or other personal estate or effects, whereof or covered by the whereto the deceased was possessed or entitled, either wholly stamp duty. or partially, as a trustee, notwithstanding the amount or value of such debt or debts, or other personal estate or effects, or the amount or value of so much thereof, or such interest therein, as was trust property in the deceased (as the case may be) shall not be included in the amount or value of the estate in respect of which the stamp duty was paid on such probate or letters of administration.”

And by s. 36 of the same statute, it is provided, that Where execuwhere the executors or administrators of any person de- ters

, boat any

legethat ceased, shall be desirous of transferring, or of receiving the property was dividends of any share standing in the name of the deceased, deceased, as a

trustee, a speof and in any government or parliamentary stocks or funds, cial affidavit transferable at the Bank of England, or of and in the stock

required in the and funds of the Governor and Company of the Bank of several inEngland, or of and in the stock and funds of any other com- cified : pany, corporation, or society whatever, passing by transfer in the books of such company, corporation, &c., under any such probate or letters of administration, and shall allege that the deceased was possessed thereof, or entitled thereto, either wholly or partially, as a trustee; the bank and any

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