The Gazette 1961 - 64

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