48 G. III. c. 149. Particulars to be stated in such affidavits other corporation, &c., or their officers may, for their indemnity, require an affidavit (f) or affirmation of the fact, as in s. 37 is mentioned, if it shall not otherwise appear, and thereupon may permit such executors or administrators to transfer the stock or fund in question, and receive the dividends thereof, without regard to the stamp duty on the probate or letters. And where the executors or administrators of any person deceased shall have occasion to recover any debt or other personal estate due to the deceased, and shall allege that he was possessed thereof, or entitled thereto, either wholly or partially, as a trustee; the person liable to pay such debt, may require a like affidavit as aforesaid, and thereupon make over such debt or effects to such executors, &c., regardless of such stamp duty as aforesaid; and where the executors, &c., of any person deceased, shall have occasion to assign or transfer any debts due to the deceased, or any chattels real, or other personal estate, whereof or whereto the deceased was possessed or entitled, and shall allege that the same were due to, or vested in him, either wholly or partially, as a trustee, the person to whom or for whose use such debts, chattels real, &c. shall be proposed to be assigned, may require such affidavit as aforesaid, and thereupon accept such assignment or transfer, regardless of such stamp duty as aforesaid. And by sect. 37 of the same statute, upon any requisition as in sect. 36, such executors or administrators, or some per&c., respecting son to whom the fact shall be known, shall make a special trust property. affidavit or affirmation of the facts, stating the property by executors, in question and that the deceased had not any beneficial interest in the same, or no other than shall be therein set forth, but was possessed of or entitled thereto, wholly or in part, in trust for some other person, whose name or other description shall be specified, or for such purposes as shall be therein specified, and that the beneficial interest of the deceased, if any, in the property in question, does not exceed (f) See ante, p. 536. 149. a certain value, also therein specified, according to the best 48 G. III. c. estimate that can be made thereof, if reversionary or contingent; and that the value of the estate for which the stamp duty was paid on the probate or letters, is sufficient to cover all such beneficial interest, as well as the rest of such personal estate of the deceased, and for which such probate or letters have been granted, as far as the same has come to the knowledge of such executors or administrators: and where such affidavit or affirmation is made by any other person than the executors or administrators of the deceased, they also shall make an affidavit or affirmation that the same is true, to the best of their knowledge, and that the property in question is intended to be applied accordingly; which affidavits or affirmations shall be sworn before a Master in Chancery, and shall be delivered to the party requiring the same, and be sufficient indemnity to them, and if any person making such affidavit or affirmation shall knowingly and wilfully make a false oath or affirmation of the matters therein contained, such persons shall, on conviction, be liable to the pains inflicted on persons guilty of perjury. c. 72. Commissioners of stamps may probates of cancel useless Wills and let ters of adminis tration, and allow such By stat. 39 & 40 Geo. III. c. 72, s. 16, Where due proof 39 & 40°G. III. on oath is made to the commissioners of stamps, (which oath one of such commissioners may administer) that any Will has, through inadvertence, been proved, or that any letters of administration have been taken out on the same property, in more than one Ecclesiastical or Prerogative Court, or more than once in any such Ecclesiastical Court, and by reason stamps, thereof more than one stamp duty has been paid, such commissioners may, on delivery to them, of the useless probate or letter, to be cancelled, and on production of the valid probate or letters granted on any such Will or property, cancel the useless probate, &c., and stamp any vellum, &c., with stamps of the like denomination and value as those cancelled, without taking any money for the same. By stat. 41 Geo. III. c. 86, s. 3, after reciting that "it is expedient that the duties payable in respect of probates or letters of administration should not be paid more than once 41 G. III. c. 86, s. 3. To prevent the double payment of duties, the Stamp Office shall provide a stamp of administra- before taken Probate, &c., on the same estate;" it is enacted, "that it shall be lawful for the said commissioners of stamps, and they are hereby authorized and required to provide a stamp or mark distinguishable from all other stamps or marks used in relation to any stamp duties, for the purpose of stamping or marking any piece of vellum, parchment or paper, whereon any probate of any Will or letters of administration shall be engrossed, printed, or written, in relation to any estate in respect whereof any probate or letters of administration shall have been before taken out, and the full amount of the duties payable thereon, by any Act or Acts of Parliament then in force, according to the full value of such estate, shall have been duly paid and discharged; and in every case where any probate or probates, or letters of administration, shall have been taken out, duly stamped according to the full value of the estate in respect whereof the same shall have been granted, then, and in such case, any further or other probate or letters of administration as aforesaid, which shall be at any time thereafter applied for or in respect of such estate, shall and may be issued and granted upon any piece of vellum, parchment, or paper, stamped or marked with the stamp or mark provided by the said commissioners by virtue of this Act, for such other probates or letters of administration as aforesaid; and every such other probate or letters of administration, which shall be duly stamped or marked with such stamp or mark as last aforesaid, shall be as available in the law, and of the like force and effect in all respects whatever, as if the vellum, parchment, or paper where on the same shall be engrossed, printed, or written, had been duly stamped with the stamp or mark, denoting the full amount of the duties payable in respect of the probate or letters of administration taken out on the full value of such estate; anything in any Act or Acts, or this Act, before contained, to the contrary thereof in anywise notwithstanding " (g). A very important regulation, as to the consequences of (g) See also stat. 5 & 6 Vict. c. 82, s. 36. not properly stamped, cannot be given in evidence : must cover the claim on which the action is brought. not obtaining the requisite stamp, which was contained in the former stamp acts, and re-enacted by section 8 of the stat. 55 Geo. III. c. 184, is that no instrument not properly stamped shall be given in evidence (h). Hence, where an the stamp executor or administrator brings an action, in which it is necessary for him, at the trial, to prove his representative character, if his case shows that he sues for a greater value than is covered by the stamp of his probate or letters of administration, he cannot recover; for the instrument, not being properly stamped, cannot be given in evidence; and he is therefore excluded from the only means of showing the fact of his being executor or administrator (i). Nor wil it make any difference, that he is suing for a doubtful claim (j). Again, in a suit in equity, it should seem that a party suing as executor or administrator cannot sustain proceedings to recover a larger sum than that upon which the probate duty is calculated (k). But the grant is not void by reason of an original defect of stamp and therefore a commission of bankrupt may be supported on a debt due to the petitioning creditor in the character of executor, although he has not obtained a probate on a sufficient stamp, at the time when the commission issues, if he afterwards procures the proper stamp to be affixed to the probate (1). The executor or administrator, it should seem, is bound to Construction of foregoing take out the grant to the extent of the sum he expects to statutes: receive (m). (h) 3 Taunt. 116. The old statute of 8 & 10 W. III. c, 25, s. 19, first contains the clause enacting this prohibition, and it has been continued through all the succeeding acts: Ib. The first Act relating to Probate Duty is the stat. 5 W. & M. c. 21, s. 3. (i) Hunt v. Stevens, 3 Taunt. 113. (j) Ibid. Carr v. Roberts, 2 B. & Adol. 905. Post, p. 545. See infra, Pt. v. Bk. 1. Ch. 1. (k) Jones v. Howells, 2 Hare, to what amount the grant should be taken out: In the case of Moses v. Crafter (n), Lord Tenterden held that desperate and doubtful debts need not be included in the amount for which the probate duty is paid; and that the as to debts due executor has a right to exercise his judgment fairly and boná fide, whether a debt is doubtful or bad. to deceased: mortgage debt belonging to the owner of estate : In Swabey v. Swabey (0), on the death of a mortgagor, his daughter became entitled, as his heir, to the equity the mortgaged of redemption of an estate which he had mortgaged to the trustees of his own marriage settlement, and under that settlement she also became entitled, as cestui que trust, to the mortgage money: The trustees then conveyed the estate to her, subject expressly to the equity of redemption, and did not release her father's covenant for the repayment of the money: Afterwards she granted an annuity, and as a security for it, conveyed the estate and assigned the money to a trustee for the annuitant: By her Will she devised the estate, but did not dispose of her personal estate: And Sir L. Shadwell held, that though, as between her devisee and her next of kin, the latter had no claim to the stock, yet she was, when she died, cestui que trust of her father's covenant for repayment; and that, therefore, the debt remained, and probate as well as legacy duty was payable on it. goods in both provinces: the stamp must be of an amount sufficient to cover the value as it stood at the If there be personal estates in both the provinces of York and Canterbury, and a probate be taken in the province of York only, the duty is paid upon the property in that province only, and it is not paid upon the other property, until a probate be taken in the province of Canterbury (p). The stamp must be of a sufficient amount to cover the value of the assets as it stood, not merely at the time of the death of the deceased, but also at the date of the grant of administration. Thus, in a modern case, A., being possessed grant of letters. of a term of years in a house and land, died intestate in 1828: In 1841, his next of kin took out administration to him: In the meantime B. had been wrongfully in possession, and had date of the (n) 4 C. & P. 524. (0) 15 Sim. 502, (p) In re Ewin, 1 Crompt. & Jer. 153, 154, 157. S. P. S. C. 1 |