Lord Advocate v Earl of Moray’s Trustees: HL 4 Aug 1905

The Finance Act 1894 by section 9 (5) makes provision that the person required to pay the estate-duty in respect of any property shall have power to raise the amount of such duty by the sale or mortgage of or a terminable charge on the property or any part thereof. Section 9 (6) enacts-‘A person having a limited interest in any property, who pays the estate-duty in respect of that property, shall be entitled to the like charge as if the estate-duty in respect of that property had been raised by means of a mortgage to him.’
Held 1st (approving the judgment of the First Division in Laurie, February 22, 1898, 25 R. 636, 35 S.L.R. 496) that an heir of entail in possession is ‘a person having a limited interest’ in the estate in the sense of the statute; and 2nd ( diss Lord Robertson- rev judgment of the First Division) that the executors of a deceased heir of entail are liable for estate-duty upon instalments of estate-duty paid by him, although no steps had been taken by him to perfect the charge on the estate, the instalments forming by force of the statute, and without any such steps being taken, a charge upon the estate transmissible by him and carried to them.
Opinion (per Lord Dunedin) that the charge upon the entailed estate formed by the instalments of estate-duty paid by the heir of entail in possession could be perfected by his executors by means of adjudication.
Observations on the application to Scotland of an imperial statute conceived in terms inappropriate to Scotland.
References: [1905] UKHL 839, 42 SLR 839
Links: Bailii
Judges: Lord Chancellor (Halsbury), Lords Macnaghten, Davey, James Of Hereford, Robertson, and Dunedin
Jurisdiction: Scotland

Last Update: 21 November 2020; Ref: scu.621188