benefit.” If in such a case no allowance were made, the taxable fund would presumably be artificially swelled by the amount of the consideration received, and the duties in effect levied twice over. In my opinion, therefore, the decision of the Court of Appeal was right, and this appeal should be dismissed, with costs.
Lord Collins—I need not say that it is with profound diffidence that I venture to differ from the unanimous judgment of the Master of the Rolls and his colleagues in the Court of Appeal. I cannot, however, persuade myself that the incumbrances in respect of which deduction is claimed in this case were “created wholly for the late Duke's own use and benefit” within the meaning of sec. 7, sub. 1 (
a), of the Finance Act 1894. I accept unreservedly the conclusions of fact found by Bray, J., and adopted by the Court of Appeal, and I do not at all question the right of an owner of property so to dispose of it, if he can, as to keep it outside the meshes of a taxing statute. But the real question here is whether he has succeeded in doing so. In my opinion he has not. It is common ground, and expressly found by the learned judge, that “it was the intention of the late Duke to bar the entail and make himself owner in fee simple of the Gordon-Richmond estates, subject to the incumbrances including the bonds, but that the motive which mainly actuated him in taking the steps which he did for that purpose was that he would thereby diminish his estate and lessen the estate duty payable on his death.” Can an incumbrance created mainly from such a motive be fairly said to be “incurred or created wholly for the deceased's own use and benefit,” and not in whole or in part for that of his successor? I think not. No doubt the learned Judge was perfectly logical in holding, notwithstanding this finding, that the deductions were legitimate, because his view was that “the freeing the estate from estate duty at the owner's death is really a benefit to the owner.” “He has so much more at his disposal.” But from this particular view of the learned Judge each member of the Court of Appeal expressly differed, and no argument in support of it was urged before us. The learned Judge further fortified his opinion that no objection could be sustained, on the ground that the incumbrances were not created wholly for the deceased's own use and benefit, by construing the section as enacting, not that the creation of the incumbrance, but that the money or money's worth—
i.e., the consideration—must be wholly for the deceased's own benefit. The Court of Appeal seem to have read the section in the same way. In my opinion that interpretation is not consistent with the plain grammatical construction of the section. Debts and incumbrances are the nominatives which govern the verbs throughout the sentence, and they must fulfil four conditions—they must be made (
a) bona fide, (
b) for full consideration, (
c) wholly for deceased's own use and benefit, (
d) must take effect out of his interest. The reason which the learned Judge gives for rejecting what seems to me the natural construction of the sentence is that incumbrances must always be partly for the benefit of the person in whose favour they are created, and therefore could not ever be created wholly for the use and benefit of their creator. I do not think that this incident of an incumbrance at all qualifies the true interpretation of the section. Just as money may be expended, so may an incumbrance be created, wholly for the use and benefit of the person paying the money or creating the incumbrance, though money passes to a third person in the one case and the right to enforce the security in the other. There being, therefore, no barrier to interpreting the section according to its natural grammatical meaning, and the only suggestion whereby the avoidance of death duty may be regarded as enuring wholly for the benefit of the deceased, rather than of his successor, being ruled out, it would seem to follow that the creation of the incumbrances in this case cannot be brought within the conditions permitting deduction. The Legislature would seem to have fenced round permissible deductions with the precautions above mentioned in order to provide that the estate thus made liable to depletion should receive an equivalent addition in return for the incumbrance. But even if the grammatical construction put on the section by the courts below be adopted, I am far from satisfied that “full consideration in money or money's worth” was received by the deceased in return for the incumbrances. In fact, if it had been, it might have defeated the main purpose of the transaction, which involved a diminution in value of the estate to be left in the hands of the settlor at the close of the transaction. In fact, the machinery put in operation by the elaborate processes adopted would have failed in its main object if it had left the estate which it was contemplated would pass on the death of the settlor at the same value at the close of the proceedings as it would have been had no settlement been made. It was through the means of allowable deductions only that the intended diminution of the taxable value of the estate could be brought about, and to the extent of such deductions the consideration was less than full. Looking, as we are entitled to do, at the transaction as a whole, there is no doubt that the interests of Lord March and his son in the estate which the late duke was to buy up were carefully assessed at the sum for which the incumbrances were created, but the proper equivalent in return for the incumbrances to such an amount would have been an estate equivalent to the sum total of those interests and un in cumbered by a charge for the purchase money. But it was part of the arrangement that the purchase money was to be secured on the estate not paid, and therefore the consideration intended to be given, and actually given, was less than full by the value of the incumbrances, and thus furnished no ground for
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claiming the deduction which has been allowed. There is no evidence that the dominion acquired over the fee was really desired with a view to altering the succession, or had any special value for that reason. In point of fact, the property was at once resettled as nearly as possible on the old lines. I cannot think that a claim thus manufactured can be held good. For these reasons I think that the appeal should be allowed.
Lord Shaw—On the 6th October 1897 the late Duke of Richmond granted a bond and disposition in security over his estates after mentioned for £415,000 in favour of his son, the present Duke. On the same day he granted a bond over the same estates for £287,000 in favour of his grandson, the present Earl of March. The question in the present case is Whether, in determining the value of these estates for the purposes of estate duty, allowances should be made for these incumbrances. The provisions of section 7, sub-section 1, of the Finance Act 1894 applicable to the present case are as follows:—“In determining the value of an estate for the purpose of estate duty, allowance shall be made … for debts and incumbrances, but an allowance shall not be made (
a) for debts incurred by the deceased or incumbrances created by a disposition made by the deceased unless such debts or incumbrances were created or incurred
bona fide for full consideration in money or money's worth wholly for the deceased's own use and benefit, and take effect out of his interest.” I am of opinion that in order to arrive at a just determination upon the elements for consideration presented by this clause it is necessary to consider not merely the transaction of creating incumbrances by itself, but the entire transaction of which they form a part. I think that this must be done if mistake is to be avoided. It is for that reason that I give the brief narrative which follows:—Among the Scotch Entail Acts cited in these proceedings, the Rutherfurd Act (11 and 12 Vict. c. 36) and the Act of 1875 (38 and 39 Vict. c. 61) are those outstanding. By the former of these Acts an heir of entail in possession received for the first time in the law of Scotland power to disentail on obtaining the necessary consents of succeeding heirs. By the latter statute such consents if not given might, in the case of new entails of which this is one — namely, entails executed after the 1st August 1848—be dispensed with by the Court on payment of the value of the expectancy or interest of the heir or heirs of entail. The beginning of the series of transactions after mentioned was made on the 12th April 1897, when a petition was presented to the Court of Session by the late Duke of Richmond, the prayer of which was for the disentail of what may be comprehensively termed the Gordon-Richmond estates lying in six counties in Scotland. The petition necessarily craved for service upon the succeeding heirs of entail, and in the event of any of those whose consent was necessary refusing or failing to give such consent, then for the ascertainment of the value in money of such heirs' expectancy or interest, and the payment of the amount or the giving of proper security therefor over the entailed estates. Upon such payment or security the Court was asked to dispense with consent and to approve of the instrument of disentail tendered in the course of the proceedings. The parties were at one as to the object to be achieved. The consents of the heirs of entail were not given, mortgages were accordingly granted for their interests, and after various steps of procedure the petition was granted. So far as the proceedings were concerned they appear to have been in proper form. This observation applies not only to the valuation of the interests of those heirs whose consent was necessary, but also to the bonds and dispositions in security granted over the estates and to the instrument of disentail. The procedure is accurately summed up and ratified in the interlocutor of the 20th October 1897. As already stated, the finance of the transaction was arranged by security being given over the estates to the next heirs for the ascertained value of their interests, that value being in the case of the Earl of March, now Duke of Richmond, £415,000, and of Baron Settrington, now Earl of March, £287,000, together a sum of £702,000. As the late Duke was at the date of his petition seventy-nine years of age, it is plain that actuarially the value of the succeeding heirs' interest, for which bonds and dispositions in security had to be granted, went a long way towards evacuating the entire value of the entailed estates. As it turned out, this evacuation was completed prior to the Duke's death on the 27th September 1903. In the interval between the disentailing proceedings and his death instalments of interest became due on the bonds and dispositions in security. These were not, however, paid; from the beginning to the end of the series of transactions no money passed. At certain dates balances of overdue interest were struck, and further bonds and dispositions in security over the estates were granted to the amount of £88,000. The result was that so far as the financial interest of the late Duke in the Scotch entailed estates was concerned, that interest had at the date of his death been reduced to nothing. Indeed, in the estate-duty account presented by the solicitors to the Inland Revenue it is expressly stated that there is an excess of debts and incumbrances over the value of the heritable property of £47,092. So far for finance. But as the statute under construction deals not only with
bona fide and full consideration, but provides that the incumbrances are to be created
bona fide for full consideration “in money or money's worth wholly for the deceased's own use or benefit, and take effect out of his interest,” it becomes necessary to inquire what became of the Gordon-Richmond estates, thus left unentailed but depleted in value in the hands of the late Duke; and, secondly, what became of the
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sum of over £700,000, for which, as stated, his Grace granted incumbrances in favour of his son and grandson. With regard to the estates themselves, the late Duke of Richmond on the 20th April 1898 executed a
mortis causa deed of entail in favour of the same line of succession as that favoured by the entail of 1872. With regard to the £700,000, that was settled by an assignation and deed of trust dated the 11th and 15th Nov. 1897, and recorded on the 18th Nov. 1897. Substantially the result arrived at by these deeds was to put the money represented upon trust for the same line of succession, viz., the old heirs of entail. It will be seen, accordingly, that at the end of these transactions the parties affected thereby were, for practical purposes, restored pretty nearly to the identical position which they occupied at the beginning. This, I think, was exactly what was sought to be achieved. Whatever may have happened to others, it is at all events fairly clear that the one man who had not benefited was precisely the petitioner for disentail, the grantor of repeated mortgages, and re-entailer of the reversion—the late Duke himself. For myself I can see no benefit produced to the late Duke of Richmond by this series of transactions, and I am unable to affirm that the incumbrances which formed essential items of the series were, in the language of the statute, “for deceased's own use and benefit. What the motive for the transaction was is not denied. Answering the learned Judge who tried the case, his Grace speaks with perfect frankness to a conversation with his father—“You had a conversation with your father before he began this transaction?—Yes. He told you what his motive was?—Yes, his motive, as I think I said yesterday, was to lessen the amount of the death duties if he could.” The interests of all the three parties to the transaction were ably attended to by the same firm of solicitors. They accepted the task of endeavouring to give effect to the motive of the late Duke. In doing so they incurred no risk of prejudicing the interest of his son or grandson. On the contrary, the result, if it could be legally accomplished, would benefit them, as, under the judgments appealed against, it has benefited them by a saving in estate duty to the amount of £55,000. That saving of estate duty (I purposely do not use the term evasion or even avoidance of estate duty), that savingformed the object and purpose of the transaction. It was for this that the incumbrances were created, and not “for full consideration in money or money's worth wholly for the deceased's own use or benefit,” or to “take effect out of his interest.” The saving was not to take effect till he was dead, and then could be for the benefit only of those who would have to pay the estate duty. I therefore agree with the conclusion arrived at by Lord Collins. In doing so I admit to the full the difficulties arising out of the clause and referred to in the judgment of Lord Macnaghten. On the construction of the sub-section I agree that the insertion of the words “
bona fides” would, of course, hit a fraudulent creation of an incumbrance, but I think, further, that the words “
bona fides” must be read in collocation with the other words, “for full consideration in money or money's worth, wholly for the deceased's own use or benefit.” By this I mean that the transaction of creating the incumbrances must not be technically and apparently for the benefit of the grantor, but really and intentionally so. I cannot think that this was the case in the present instance. With reference to the judgments in the Courts below, I will only say that they do not appear to me to give effect to the strong and carefully worded language of the statute. When, for instance, Bray, J., reasons that “It is a mistake to assume that to free one's heir from estate duty is necessarily an act done for his benefit,” and that “it does not necessarily follow that the present Duke will reap the whole benefit if he escapes the payment of estate duty,” the point of the provision appears to have been missed, viz., that escape is not permissible unless the incumbrance was created,
inter alia,” wholly for the use and benefit,” not of the present Duke but of the late Duke, the grantor of the deed. And with reference to the decision of the learned Judges in the Court of Appeal, I think (1) that it was too closely confined to the one item of the transaction as a purchase of a reversion without taking into account the fact, appearing from other parts of the transaction, that the reversion was purposely reduced to a shadow, and (2) that too much stress was laid upon argument, possible but not put forward, as to fraud. The deeds make no attempt at concealment, but disclose quite openly the inter-relation of the facts, deeds, and transactions which go to make up the scheme. To view these so inter-related as if they were in isolation would be for me—and I speak, of course, only for myself—to shut out the light, to lose their true meaning, and to produce a risk of failure to get down to the reality and substance of the case. I think that the creation of these incumbrances was not for the use and benefit of the late Duke of Richmond, but was simply part of a plan for saving death duties to his heirs. I do not think that the scheme was in this case accomplished without a contravention of the letter as well as a very plain violation of the spirit of the statute.