1 Vandiest v. Fynmore, 6 Sim. 570. * Pearse v. Pearse, 9 Sim. 430. the power accordingly; it has been determined that probate duty is not again payable in respect of this sum, " for the appointees take as if they had been named in the original will1." A testator, who was domiciled in England, had, in the hands of his agents in India, certain securities of the Indian government, the principal and interest of which was payable in India, either in cash or by bills on the India Company, at the option of the creditor. Shortly before his death, he accepted an offer made by the Company to him and other creditors, to have his notes converted into stock, to be registered in England, and to be saleable and transferable there. The conversion was not completed at the testator's death, nor till after his will had been proved in England; but, ultimately, the stock was transferred to his executors: Held, that no probate duty was payable in respect either of the notes or the stock 2. 2. Administration Duty.]-Where the estate and effects in respect of which such letters of administration without a will annexed shall be granted, exclusive of what the deceased was possessed of in trust, shall be above the value of 207. and under 507., 108., with a progressively increasing duty*. 3. Exemptions from Probate and Administration Duty.]—Probate of a will, letters of administration, and inventory of the effects of any common seaman, marine, or soldier, who shall be slain or die in the service of his Majesty, his heirs or successors. 4. Legacy Duty.]—For every legacy, specific or pecuniary, or of any other description, of the amount or value of 201., or upwards, given by any will or testamentary instrument, either out of the personal estate, or out of, or charged upon the real estate of the testator, or out of any monies to arise by the sale, mortgage or other disposition of his real estate, or any part thereof; and *If of the value of £50 100 and under £100 200 3 also, for the clear residue (when devolving to one person) and for every share of the clear residue (when devolving to two or more persons) of the personal estate of any person, (after deducting debts, funeral expenses, legacies, and other charges first payable thereout), whether the title to such residue, or any share thereof, shall accrue by virtue of any testamentary disposition, or upon a partial or total intestacy; where such residue, or share of residue, shall be the amount or value of 207. or upwards, and where the same shall be paid, delivered, retained, satisfied, or discharged after the 31st day of August, 1815; and also for the clear residue (when given to one person) and for every share of the clear residue (when given to two or more persons) of the monies to arise from the sale, mortgage, or other disposition of any real estate, directed to be sold, mortgaged, or otherwise disposed of, by any will or testamentary instrument, of any person, (after deducting debts, funeral expenses, legacies, and other charges first made payable thereout, if any), where such residue, or share of residue, shall amount to 201. or upwards, and where the same shall be paid, retained, or discharged after the 31st August, 1815: Where any such legacy or residue, or any share of such residue, shall have been given, or have devolved, to a child of the deceased, or any descendant of a child of the deceased, or to or for the benefit of the father or mother, or any lineal ancestor of the deceased, a duty of .... .. 1 per cent. per Where any such legacy, &c. shall have been given, or have devolved, to a brother or sister of the deceased, or any descendant of a brother or sister of the deceased, a duty of 3 cent. Where any such legacy, &c., shall have been given, or have devolved, to a brother or sister of the father or mother of the deceased, or any descendant of such brother or sister of the father or mother, a duty of 5 per cent. Where any such legacy, &c. shall have been given, or have devolved, to a brother or sister of a grandfather or grandmother of the deceased, or any descendant of such brother or sister, a duty of 6 per cent. ... And where any such legacy, &c. shall have been given, or have devolved to any person, in any other degree of collateral consanguinity to the deceased than is above described, or to or for the benefit of any stranger in blood to the deceased, a duty of .. 10 per cent. And all gifts of annuities, or by way of annuity, or of any 'Logan v. Fair- 2 Coombe v. other partial benefit or interest, out of any such estate or effects as aforesaid, shall be deemed legacies within the intent and meaning of this schedule. And where any legatee shall take two or more distinct legacies or benefits under any will or testamentary instrument, which shall together be of the amount or value of 201., each shall be charged with duty, though each or either may be separately under that amount or value. A testator having property in India, dies there, and his property is administered and appropriated there, no legacy duty is payable on legacies remitted to legatees in this country; but if it remain in the hands of the executor unappropriated, and come to be administered in England, the legacy duty will attach1. 5. Exemptions from Legacy Duty.]—Legacies and residues, or shares of residue, of any such estate or effects as aforesaid, giving or devolving to or for the benefit of the husband or wife of the deceased, or to or for the benefit of any of the royal family; and all legacies which were exempted from duty by the act passed in the 39th year of his Majesty's reign, c. 73, for exempting certain specific legacies given to bodies corporate, or other public bodies, from the payment of duty. Payment into court is payment to the parties who may become ultimately entitled, for the purpose of ascertaining whether the legacy duty be payable2. Where the residue was bequeathed to Trist, 1 My. & executors in trust, to divide the interest " among poor pious persons, in ten or fifteen pounds, as they should see fit;" it has been determined, that no legacy duty was payable, as the duty attaches only on persons taking beneficially a legacy to the amount of 201. or upwards 3. C. 69. 'Att.-Gen, v. Nash, 1 Mee. & W. 237. CHAPTER IV. POWERS. 1. COMMON LAW AUTHORITIES. 2. CLASSIFICATION OF POWERS. 3. LEGAL INCIDENTS OF POWERS, &C. 4. EXECUTION OF POWERS. 7. NON-EXECUTION OF POWERS. 8. FRAUDULENT EXECUTION. 9. LEASING POWERS. 10. POWERS OF SALE, &c. 11. DESTRUCTION AND SUSPENSION OF POWERS. SECT. I.-COMMON LAW AUTHORITIES. 1. Powers and Common Law Authorities distinguished, 301. 2. Instances of Common Law Authorities, 302. 3. By what Instrument a Common Law Authority may be executed, 302. 4. Effect of an Authority to sell given by Will, 303. 5. By whom Common Law Authorities may be executed, 304. 1. Powers and Common Law Authorities distinguished.]Where the declaration of a future use is left to a specified individual, the authority to declare the limitations of the use is called, in technical language, a POWER *; the person to whom this authority is given is called the DONEE OF THE POWER, and the exercise * Mr. Hayes, in his "Introduction of a use, but the authority to make to Conveyancing," 4th edit. p. 64, says, "When uses were limited to arise from the volition of a person to whom a bare authority was delegated to declare them, the limitation was called for distinction's sake a POWER." There is some inaccuracy of expression here. If the limitation of a use mean the same thing as the declaration of a use, which in this instance will probably not be disputed, then what Mr. Hayes says, amounts to this, that the declaration of a use is a power, which could not have been his meaning. A power is not the declaration the declaration. The same kind of inaccuracy occurs in other parts of this work, where he speaks of" powers" and "executory uses" as being identical. The phrase, executory use, is, at best, ill chosen; but its meaning, if it have any, must be a use to be declared at a future time, in contradistinction to a use executed, or a use already declared; and therefore, Mr. Hayes, in employing the expression just cited, must be understood to state, that a power is a use to be declared, whereas a power is but the authority to declare the use. of his authority an APPOINTMENT. To this species of authority the term "power" is understood to apply exclusively, as distinguished from a mere power of attorney, or any other common law power, and which for convenience' sake is commonly spoken of as an “authority." It is material to distinguish accurately between authorities which take effect, as the declaration of uses, by force of the statute, and powers which operate at common law or under an act of Parliament. The former is completely distinct from the latter, both in its nature and its consequences: to mix them up together is to confound things essentially distinct, and to make that obscure and confused, which is in its nature clear and simple. Sir Edward Sugden's valuable "Treatise on Powers," is open to considerable observation on this ground; indeed, much as the profession is indebted to him for his contributions towards some of the most abstruse parts of our law, it may be observed generally of this work, that the subject is not presented under a natural and consecutive arrangement; and it is to be regretted, that, in 'the pains he has bestowed upon the last edition, he had not further improved it by giving to it a better arrangement, and striking out matter which was very properly introduced in the first and earlier editions, but which, by force of subsequent decisions, has been entirely superseded. 2. Instances of Common Law Authorities.]—The most familiar instance of a common law authority is a power or letter of attorney, as it is more frequently called. Such powers, or more correctly common law authorities, occur also in wills, by which a power is given to executors to sell or mortgage,—particularly in the case of copyholds, to give the purchaser a title immediately under the testator, without the necessity for the executors being admitted, under the Bankrupt and Insolvent Acts, and also under other public acts, as the Land Tax Redemption Acts, Inclosure Acts, &c.; though, in the latter cases, it would be more correct to call them Parliamentary authorities. 3. By what Instrument a Common Law Authority may be executed.]-The instrument by which this common law authority is executed is called a bargain and sale. The most familiar example which could be given of such an assurance is the bargain and sale, under the old bankrupt law, from the commissioners to the assignees. The bargain and sale in these cases actually transfers the legal seisin by virtue of the act of Parliament under which it is authorized; and it is to be noticed, that, in this respect, it differs essentially from the bargain and sale under the Statute of Uses, |