By the Succession Duty Act, 1853, a duty known as succession duty was made payable in respect of the succession to property or the income thereof to which any person after the passing of the Act, i.e., 19th of May, 1853, becomes beneficially entitled, whether by disposition or devolution by law, upon the death of any person dying after the commencement of the Act (a).

Section 1

In the case of real or leasehold property {h), the Act makes the duty imposed a first charge on the interest of the successor and all persons claiming in his right; it also makes it a debt due to the Crown from the successor having priority over all charges and interests created by the successor on the property comprised in the succession (c). But in cases where the successor is competent to dispose of the property (d), succession duty is now made a charge on the property itself and not on the interest of the successor only. And the value of the property in such cases for the purpose of succession duty is the principal value of the property after deducting the estate duty payable in respect of it and the expenses properly incurred in raising and paying the same (e) ; and the duty is payable by instalments, as in the case of estate duty (f), and, it seems, continues to be payable though the successor dies after the estate has fallen into possession but before all the instalments have become due.

Succession duty, when payable.

Is a first charge on the interest of the successor.

(u) See s. 2. And sees. 16, which makes trustees for charitable or public purposes, though not beneficially entitled, liable to account for duty ; see also s. 44 ; A.-G. v. Jewish Colonization Abb., 1901, 1 K. B. 123 ; 72 L. J. K. B. 101.

(b) See s. 1. (c) S. 42.

(d) This does not include a power exerciseable in a fiduciary capacity under a disposition not made by himself or exerciseable as tenant for life under the S. L. Acts or as mortgagee ; as to who is competent to dispose, see Finance Act, 1894, s. 22 (2) (a), and notes thereto in Cartmell's Finance Acts, 3rd ed.

(e) Finance Act, 1894, s. 18 (1).

The duty, however, does not become payable until the successor or some person in his right or on his behalf becomes entitled in possession to his succession or to the receipts of the income and profit thereof (g).

When payable.

Where the property the subject of the succession is subject to a prior charge estate or interest not created by the successor himself the duty in respect of the increased value accruing upon the determination thereof need not be paid until such determination (h), though it may be previously paid, compounded for, or commuted (i).

When property subject to prior charges.

As against a purchaser for value (k), or a mortgagee, the property does not remain liable for succession duty after six years from the notice to the commissioners that the successor, or any person in his right or on his behalf, has become entitled in possession to his succession or to the income and profits thereof: or from the date of the first payment of an instalment of duty: or after two years from the time for the payment by the successor of the last instalment: or in the absence of any such notice or payment after the expiration of twelve years from the happening of the event which gave rise to an immediate claim to such duty (I); and the duty (if any) unpaid at the expiration of such six or twelve years as aforesaid becomes payable by the successor or other person accountable for duty, other than the purchaser or mortgagee, and becomes charged substitutively upon any other estate or interest comprised in the succession and remaining vested in him or in any person in his right or on his behalf, other than the purchaser or mortgagee, and in the case of a mortgage, on the equity of redemption (m) ; and the purchaser or mortgagee for the purpose of obtaining the exemption conferred is not bound to see that the duty is discharged out of the money or the considerations given for the sale or mortgage (n).

Liability of purchaser or mortgagee.

(f) Finance Act, 1894, s. 18 (1).

(g) S. 20.

(h) lb.

(i) lb. ss. 39, 41.

(k) Including trustees of a marriage settlement, Me Donclan's Est., (1902) 1 Ir. R. 109.

(I) See Customs and Inl. Rev. Act, 1889, s. 12 (1).

Every receipt and certificate purporting to be in discharge of any succession duty, for the time being payable, is sufficient to exonerate a purchaser in good faith and for value and without notice from such duty, notwithstanding any suppression or misstatement in the account or any insufficiency in the assessment; and no purchaser in good faith and for value, under a title not appearing to confer a succession, is subject to any duty which may be chargeable upon the property by reason of any extrinsic circumstances of which he has no notice at the time of the purchase (o). In one case where it was doubtful whether succession or legacy duty was payable, a certificate from the Inland Revenue Office that the latter duty had been paid was held to have discharged the land in the hands of a purchaser (p).

Official receipt and certificate sufficient to discharge purchaser.

Where two or more persons hold property jointly and take by survivorship, the death of one of the joint tenants is deemed, as regards his interest, to create a succession within the meaning of the Act, and duty is payable in respect thereof by the survivor, or the survivors, in proportion to their respective interests in the succession (q). If the property is sold, or the joint tenancy severed during the lives of the joint tenants, of course no duty can be claimed in respect thereof on the subsequent death of one of the tenants. "Where, upon a purchase or loan by trustees, the conveyance or mortgage is taken in their names as joint tenants without disclosing the trust, and death occurs, a difficulty is sometimes experienced in practice by reason of the provision in s. 3 of the Act under which the accruer of interest by survivorship, by reason of the death of a joint tenant, confers a succession on the survivors. In such a case, the disclosure of the trust may often he the only mode of satisfying a purchaser who persists in requiring to be assured that no duty is payable.