This was an appeal from a judgment of the Supreme Court of the Colony of Victoria.

A Special Case was stated by the consent of the parties for the determination of that Court. The Case stated that the appellant was the executor of James Blackwood, of Melbourne, in the Colony of Victoria, who died in the Colony of Victoria on the 4th of February, 1881, domiciled in Victoria. That James Blackwood was, at the time of his death, possessed of or entitled to real estate and to personal estate, which latter portion of his estate consisted in part of (1) a share in station property in the Colony of New South Wales, held under occupation from the Crown, with improvements, stock, &c., thereon; (2) capital in the mercantile

business of the firm of Dalgety, Blackwood & Co., in the Colony of New South Wales, and accumulated profits in that business up to the date of his death, payable in that colony; (3) a share in station property in New Zealand, with stock, improvements, &c., thereon. All these were situated outside the Colony of Victoria.

The Duties on the Estates of Deceased Persons Statute, 1870 (Act No. 388), of the Colony of Victoria, contains provisions to the following effect which were material to the present case :—

Section 7, sub-section 2: "Every executor and every administrator with the will annexed shall, within the prescribed time from the grant of probate or letters of administration to him or such further time as the Master may allow, file in the office of the Master a statement specifying the particulars of the personal estate of or to which the deceased was at his death possessed or entitled, and of the real estate thereof, and of the debts due by the decomprised in such will, and the value ceased, distinguishing between secured and unsecured debts, and stating the nature of the security held for the same and the estimated value of such security, and shewing the balance remaining after deducting the amount of the debts from the value of the estate of the testator."

Section 8: "Except as herein otherwise provided there shall be paid to the Master, to be by him paid into the Consolidated Revenue of Victoria, by every administrator, executor, administrator with the will annexed, administrator of freehold lands and heir-at-law, the duty mentioned in the schedule to this Act, which shall be calculated upon the final balance appearing upon his statement."

Section 10: "The duty payable under this Act shall be deemed to be a debt of the testator or intestate to Her Majesty, her heirs and successors, and shall be paid by any executor or administrator with the will annexed out of the personal estate of the testator after payment of his testamentary and funeral expenses."

In consequence of the appellant contending that the duty under the Act was payable only in respect of the real estate in Victoria, and of the personal estate locally

Blackwood v. The Queen. situated in that colony, the Crown, on the 9th of September, 1881, commenced an action in the Supreme Court against the appellant in the manner directed by the 7th section of the Crown Remedies and Liability Statute, 1865.

The Special Case was stated by consent, the question for the opinion of the Court being whether the personal estate or any part thereof belonging to the deceased locally situated outside the colony was liable to duty.

The Supreme Court, on the 28th of September, 1881, gave judgment for the Crown, deciding that personal property in the nature of movable property situate outside the Colony of Victoria, belonging to a testator domiciled in Victoria, was liable to the duty imposed by the Act. Leave was given to appeal to Her Majesty in Council.

Davey, Q.C., Macnaghten, Q.C., and Dennistoun Wood, for the appellant.The provisions of sub-section 2 of section 7 of the Duties on Estates of Deceased Persons Act, 1870, does not apply to personal estate situate outside the colony. The expression "personal

and real estate must refer to estates in Victoria, and can only apply to property situate there. In the absence of words indicating an intention that the Act is to extend beyond the colony, the provisions of the Act must be limited to real or personal estate situated within the limits of the colony. The provisions of the Legacy and Succession Duty Acts are confined to the property situated in the United Kingdom. They referred to In re Ewing (1), Arnold v. Arnold (2) and The AttorneyGeneral v. Campbell (3).

Benjamin, Q.C., Kekewich, Q.C., and H. E. Gurner, for the respondent.-Upon the right construction of the Act quoted, personal property in the nature of movable property is liable to the duty imposed. The fact that the property is situate outside the Colony of Victoria cannot exempt it from duty. Personal property has no

(1) 1 Cr. & J. 151; 9 Law J. Rep. Exch. 37. (2) 2 Myl. & Cr. 256; 6 Law J. Rep. Chanc. 218.

(3) 41 Law J. Rep. Chanc, 611; Law Rep. 5 H.L. Cas. 531.

locality, and must be considered as situate in the country in which its owner is domiciled, and is therefore subject to the laws of that country. The legal effect of this rule is recognised in the maxim Mobilia sequuntur personam. The personal estate of a deceased person which is comprised in the term mobilia is subject to the law of the country where the deceased was domiciled. Personal property has no locality. It follows the owner. They referred to Story's Conflict of Laws, p. 380, The Attorney-General v. Napier (4), Freke v. Carbery (5) and Chatfield v. Berchtoldt (6).

SIR ARTHUR HOBHOUSE delivered the judgment of their Lordships (7).

In this case an action was brought by Her Majesty the Queen in the Supreme Court of Victoria against the appellant, as executor of James Blackwood, for the recovery of 5,000l. for duty claimed under the Duties on the Estates of Deceased Persons Statute, 1870. It appears that James Blackwood died domiciled in Victoria, and that, besides his property in Victoria, he was the owner of certain property both real and personal in New South Wales and New Zealand. The Crown claimed duty on so much of the foreign assets as consisted of personal estate, and the appellant resisted the claim. By consent, a Special Case was stated, setting forth in a schedule the foreign assets on which duty was claimed, and concluding as follows:

"5. The question for the opinion of the Court is :

"Whether the personal estate in the said schedule or any part thereof belonging to the deceased and locally situated outside the Colony of Victoria is liable to duty. under The Duties on the Estates of Deceased Persons Statute, 1870.

"6. If the Court shall be of opinion in the affirmative, then judgment shall be entered up for Her Majesty for an amount to be ascertained by the Court, or in such (4) 6 Exch. Rep. 217; 20 Law J. Rep. Exch. 173.

(5) Law Rep. 16 Eq. 461.

(6) 41 Law J. Rep. Chanc. 255; Law Rep. 7 Chanc. 192.

(7) Lord Fitzgerald, Sir Barnes Peacock, Sir Montague E. Smith, Sir Richard Couch and Sir Arthur Hobhouse.

Blackwood v. The Queen.

manner as the Court may direct, with the costs of suit.

"7. If the Court shall be of opinion in the negative, then judgment of nol. pros. with costs of defence, shall be entered up for the defendant.

"The Schedule of Personal Property above referred to.

"1. A share in station property in New South Wales, held under occupation from the Crown, with improvements, stock, &c., thereon.

"2. Capital in the mercantile business of Dalgety, Blackwood & Co. in New South Wales, and accumulated profits in that business to date of death, payable in that colony. "3. A share in station property in New Zealand, with stock improvements, &c., thereon."

The Court directed judgment to be entered for the Crown for the amount found to be due on so much of the sche

duled property as was of a movable

nature so as to fall within the maxim Mobilia sequuntur personam. They held that the nature of the property should be ascertained by enquiry with reference to the laws of New South Wales and New Zealand. The correctness of that decision is challenged by the present appeal. No copy of any order is set out in the Record, as ought to have been done, and their Lordships take the decision to be as described in the judgment of the Chief Justice.

The statute under discussion was passed in the year 1870, and is numbered 388. Its general scheme is to make the representatives of a deceased person, as regards both real and personal estate, liable to pay the duty mentioned in the schedule (section 8), which duty is (section 10) to be deemed a debt du from the deceased to the Crown. For this purpose (section 7), the representatives are to file statements specifying the particulars and value of the personal and real estate and of the debts due by the deceased, and shewing the balance remaining after deducting the debts from the value of the estate. The duty payable is (section Ɛ) to be calculated upon the final balance appearing by the statements. The time of payment is to be fixed by rules made by the Governor.

In

the case of legal personal representatives the Act contemplates (section 7) a grant of probate or administration prior to the filing of statements, but provides (section 12) that the actual probate or letters of administration shall not issue until the duty has been paid, nor be receivable in evidence unless indorsed with a certificate by the proper officer certifying the fact of payment and its amount. The same principle applies to administrations of freehold lands and rules to administer. In the case of heirs-at-law (section 7, sub-section 4), if the heir does not file his statement in proper time, the Master in equity may assess the duty. When the legal personal representative comes to distribute the property, he is (section 11), unless a testator has made a different disposition, to deduct from every devise, bequest and legacy an amount equal to the duty upon such devise, bequest or legacy, calculated at the same rate as is payable on the estate. The schedule imposes duty upon the estate in bulk at a percentage rate, increasing from one to five per cent., as the value of the estate increases, but (section 24) a more favourable rate is allowed to the widow and children of the deceased.

There has been a great deal of discussion, both in the Court below and at the bar here, on the question whether the duty imposed by this statute is to be considered a probate duty or a legacy duty. If those terms are used merely as short descriptions familiar to English lawyers of two classes of statutes, the principle of one being to tax the property to which probate gives title and to levy that tax at a time prior to administration, and the principle of the other being to tax the property which actually falls to the successors of the deceased and to levy the tax at the time when the enjoyment accrues, they may be conveniently used for the purposes of the argument. If used for any more exact application, they are misleading. The statute under discussion does not make any such distinction as the English law has made between probate and legacy duties. It imposes a single duty on the property of deceased persons. That duty resembles our probate duty in being made a condition of the issue of the probate, and in being taken from the estate while it is

Blackwood v. The Queen.

yet in bulk and before the process of administration begins. In other respects, notably by reason of its incidence on real estate, and of its being chargeable against every legatee, and of the difference in its rate according to the relation of the successor to the deceased, it more resembles our legacy or succession duties. The one term or the other will seem more appropriate to the statute according to the point from which it is approached or the operation it is called on to perform.

This discussion, therefore, is not very profitable. The essential question is whether the Victorian Legislature intended that a legal personal representative in Victoria should state accounts of all personal or all movable estate belonging to the deceased wherever actually situate, or only accounts of so much as comes under his control by virtue of his probate. That question must be decided by a careful examination of the statute itself.

There are decisions on the construction of English statutes with reference to English methods of taxation which would be of great value if it were first found that the Victorian Legislature had adopted any such method, but which are of little value until that conclusion has been reached. It appears to their Lordships that the Court below has first searched for a rule of law, and has then bent the statute in accordance with it; whereas, until the true scope and intention of the statute has been discovered, it cannot be seen what rules of law are applicable to it.

The words of the statute which directly affect the appellant are to be found in section 7, sub-section 2, and run as follows:

"Every executor and every administrator with the will annexed shall within the prescribed time from the grant of probate or letters of administration to him, or such further time as the Master may allow, file in the office of the Master a statement specifying the particulars of the personal estate of or to which the deceased was at his death possessed or entitled, and of the real estate comprised in such will, and the value thereof, and of the debts due by the deceased, distinguishing between secured and unsecured debts, and stating the nature of the

security held for the same and the estimated value of such security, and shewing the balance remaining after deducting the amount of the debts from the value of the estate of the testator." The Chief Justice says, "Prima facie, the expressions' personal estate' and 'real estate' refer to estates in Victoria, affect persons resident there, and relate to property within the limits of the country." Mr. Justice Higinbotham says, "In the absence of words indicating a clear inten tion to extend the duty beyond Victoria, the duty must be held to be limited to real and personal estates within the limits of the colony." But then he adds, "As there are no words of limitation, I think that the Legislature must be deemed to have intended that the duty shall be paid upon all real and personal estates whatsoever which are in contemplation of law situate in Victoria." Thus, he appears to treat the absence of qualifying words as indicating a clear intention to extend the duty beyond the prima facie meaning of the words which impose it. Then it is said that personal estate is governed by the law of the country in which the owner at the time of his death was domiciled. The result of the two latter propositions is that the duty is to be paid on all personal estate, wherever situated, which belonged to the testator in this case. the Court qualify that result by confining the duty on foreign personal estate to such part of it as is of a movable character. The counsel of the respondent followed the same line of argument at this bar, excepting that they do not admit that the prima facie construction of the statute is against them.

But

It does not appear to their Lordships that the doctrines relied on are by any means conclusive of the present question. In the first place, the statement that personal estate is governed by the law of its owner's domicile must be taken with material qualifications. To say nothing of other limitations, it is limited just at the point which is material for the present purpose. The grant of probate does not of its own force carry the power of dealing with goods beyond the jurisdiction of the Court which grants it, though that may be the Court of the testator's domicile.

At

Blackwood v. The Queen. most it gives to the executor a generally recognised claim to be appointed by the foreign country or jurisdiction. Even that privilege is not necessarily extended to all legal personal representatives; as, for instance, when a creditor gets letters of administration in the Court of the domicile. And when the legal personal representative has been constituted in the foreign country, whether he be the executor of the domicile or another, the administration of assets must take place in the foreign country, with the effect of giving the foreign creditors priority as regards the foreign assets; as is shewn by the cases of Preston v. Melville (8) and Cook v. Gregson (9). For the purpose of succession and enjoyment the law of the domicile governs the foreign personal assets. the purpose of legal representation, of collection, and of administration, as distinguished from distribution among the successors, they are governed not by the law of the owner's domicile, but by the law of their own locality.

For

It is true that under the English Legacy Duty Acts, which impose a tax on the succession at the time when the enjoyment of it takes place, it has been held that the intention of the Legislature was to tax all the property of a domiciled English testator, the enjoyment of which is carried and regulated by his will. That is settled by the cases of In re Ewing (1) and The Attorney-General v. Napier (4), and other well known cases. But it is not easy to see why it should be thence inferred that the Victorian Legislature, when imposing a tax on the property while yet in bulk and waiting for administration, and as a condition precedent to the issue or validity of the instrument which is the foundation of the right to administer, intended to tax the same class of property.

The Supreme Court, as above stated, thinks that prima facie the words "personal estate" relates to property within the limits of the colony.

In their

strict and literal meaning the words clearly include all personal estate, whereever it may be. By their prima facie meaning the learned Judges perhaps intend to indicate the meaning they are (8) 8 Cl. & F. 1.

(9) 2 Drew, 286; 23 Law J. Rep. Chanc, 734.

calculated to bear when the subject-matter of the statute is ascertained, and before legal rules and maxims are applied to it. But then they ought to have decided that the duty attaches only on the property so indicated. For their Lordships find no reason assigned for enlarging the meaning of the words so interpreted, except the application of the maxim Mobilia sequuntur personam. And the foregoing considerations appear to them to preclude the application of that maxim to a duty like the present, unless it is made apparent by the Act itself that the Legislature intended it to apply.

Before entering into verbal criticism of the statute, it is to be remarked that no one contends for any construction of it without substantial modification of its literal meaning. According to that meaning the duty would be levied in respect of all the property of every deceased person. But the Supreme Court think that the necessary correlative of holding that the foreign assets of a domiciled Victorian must be taken into account is that the Victorian assets of one who, though resident in Victoria, had a foreign domicile, escape taxation altogether. It appears that they have so decided in the case of Bagot's estate. That question is not before their Lordships, and they express no opinion upon it.

Their Lordships conceive that one of the safest guides to the construction of sweeping general words which it is difficult to apply in their full literal sense is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification. But that is exactly what we do find in the statute under discussion. Sub-section 2 of section 7 which has been quoted above must be read with the other sub-sections, and in them we find repeated use of the expressions of "personal estate" and "real estate," without qualifying words, while it is impossible to read them as unqualified.