130 / 328
in rem cannot be squared, as Mr. Justice Kingsmill-
Moore pointed out, with the right of the beneficiary
to follow the trust property in specie into the hands
of anyone except a purchaser for value without
notice. A beneficiary whose trustee goes bankrupt
can claim the trust property.
All of the investments, as such, except £400,
4j% Land Bonds and £264, 4% Land Bonds, might
be taken as situate outside this country.
Having mentioned the investments located abroad,
Mr. Justice Teevan had said that the Revenue
Commissioners claimed estate duty on these assets
on the basis that the interest of Mr. Knox in the
funds invested abroad was a chose in action (a thing
of which a man has not the possession or actual
enjoyment but has a right to demand it by action or
other proceedings), enforceable in Ireland, and not
an interest or ownership in those funds in specie.
Mr. Justice Kingsmill-Moore stated that the argu
ment for the Revenue was vitiated by an underlying
assumption that, if a person had only a " chose in
action ", it followed that what he had was only
a right of action, and not a proprietary interest:—
Stocks and shares may come under the wider meaning
of a " chose in action ", but it is equally indisputable
that such property can be the subject of trusts, and
that equitable interests could exist in it.
Mr. Justice Kingsmill-Moore held, having con
sidered all
relevant authorities,
that what
the
Testator died possessed of was a proprietorial
interest in foreign assets, which would not be
subject to estate duty here ;
it was not a mere right
to bring an action against the trustees under instru
ments whose proper law was Irish, a right which
would be subject to Irish Estate Duty.
Having gone into the history affecting the trust,
and its nature, Mr. Justice Teevan had said that he
accepted the contention of counsel for the petitioners
that the interest of Mr. Knox was an absolute
equitable interest in the trust investments, subject
to an incumbrance in respect of the annuity.
What passed on the death of Mr. Knox was that
absolute interest, and so much of the trust funds as
were located abroad must be treated as foreign.
Accordingly, he held that the interest of Mr. Knox
in the trust investment was an interest in specie,
and he made a declaration to that effect.
The grounds of the appeal were that Mr. Justice
Teevan had been wrong in holding that the interest
of Mr. Knox in the property was at the date of his
death an interest in specie;
in holding that no
estate duty was chargeable on the funds specified
and on the income assessed thereon at the date of
his death and in holding that the funds were
aggregable with other property in the Republic of
Ireland to which Mr. Knox was entitled at the time
of his death.
(Barclay's Bank Trustee Co. (Channel Islands)
Ltd.
v.
Revenue Commissioners.
Irish Times,
13th January, 1962.)
Conacre and gracing agreement—lands
charged
rvitb
repayment ofprincipal sum with interest—mortgage suit—
order for possession—termination of agreement
The plaintiff was the owner of registered lands,
and by deed dated the 5 th of June, 1955, he charged
the
lands with repayment of certain principal
money and interest.
The chargeant obtained an
order for sale on the 28th January, 1957. By an
agreement dated the 4th of January, 1958, and made
between the plaintiff and the defendant, the plaintiff
gave to the defendant a licence to use the lands for
grazing and conacre for five separate periods of
11 months each, the first such period being from the
ist of November, 1957 to the 3Oth of October, 1958.
The defendant was at all times aware of the mortgage
suit and order of sale made in respect of the lands.
By an order in the mortgage suit dated the roth
September, 1958, the plaintiff was restrained from
making further lettings of the lands and was ordered
forthwith to deliver up possession of the lands. To
comply with the order plaintiff requested possession
of the lands from the defendant, and was refused.
The defendant subsequently defaulted in the payment
of an instalment of the amount due under the
agreement.
The plaintiff in his action sought
inter-alia
(i) a declaration that the licence granted to
the defendant had been lawfully terminated, (2)
possession of the lands and (3) damages for trespass.
It was held by Budd J. that the grazing and conacre
agreement should be construed as containing an
implied condition that the agreement would be
treated as at an end should the chargeant take any
steps to enforce the order of the 28th of January,
1957, and seek possession of the lands.
It had been contended also on the defendant's
behalf that as the plaintiff was not in actual possession
of the lands he had no right to bring an action for
trespass and that mere plea of ownership would not
support such a claim.
It was contended that the
plaintiff had not any right to immediate possession
and such right, since the date of the order for sale,
vested in the chargeant. The learned judge, however,
held that the agreement was really an agistment
agreement and that the plaintiff was to be regarded
as being in possession of the lands. Furthermore,
the mortgagee's interest at the time the order for
sale was made, did not give any right to possession
as it involved only a charge over the lands. The
plaintiff was therefore entitled to sue in trespass for
wrongful possession as he had the legal and equitable
iz