LIVINGSTON v COMMISSIONER OF STAMP DUTIES (QUEENSLAND)

107 CLR 411

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(Judgment by: DIXON CJ)

Between: LIVINGSTON
And: COMMISSIONER OF STAMP DUTIES (QUEENSLAND)

Court:

Judges:
Dixon CJFullagar J
Kitto J
Menzies J
Windeyer J

Subject References:
Conflict of laws
Assessment of succession duty
Wife entitled to share in residue under husband's will
Husband's estate not fully administered
Assets in New South Wales and Queensland

Legislative References:
Succession and Probate Duties Act 1892 (Qld) - the Act

Judgment date: 16 December 1960

SYDNEY

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Judgment by:
DIXON CJ

By s. 48 of The Succession and Probate Duties Acts 1892 to 1952 (Q.) it is provided amongst other things that if any person accountable for or chargeable with duty on being required by the Commissioner to deliver an account makes default in doing so the Commissioner may, by summons before a judge of the Supreme Court in chambers call upon such person to show cause why he should not deliver the account and pay the duty and costs, and thereupon such order shall be made as the judge thinks just. Some time before 20th April 1956 the Commissioner (who is the respondent in this appeal) required Hugh Duncan Livingston (who is the appellant) to deliver an account of the property or estate of Jocelyn Hilda Coulson deceased. That lady had died intestate on 8th July 1950 resident and domiciled in the State of New South Wales and on 13th November 1951 the Supreme Court of New South Wales had granted to the appellant, who is her son, letters of administration of her estate. The appellant claimed that he was not accountable and that Mrs. Coulson had left no property or estate in Queensland. Nevertheless the appellant filed an account of her estate with the Commissioner but under protest and without prejudice, as he says, to his contention that no succession or administration duty was payable.

Mrs. Coulson's death was caused by a motor accident which also caused the death of her husband. They had married little more than a fortnight before, she then being the widow of Hugh Duncan Livingston deceased. The latter had died on 17th November 1948 domiciled and resident in the State of New South Wales. The property which he left included some freehold and leasehold land in Queensland, on which he carried on a grazing business, and the stock and plant of the business. At his death he was also a member of a partnership of five which carried on a grazing business on leasehold land in Queensland, and in addition he was entitled to an undivided fourth interest in some other freehold and leasehold land in Queensland used for grazing. By his last will he appointed his wife his executrix and two other persons his executors. After a specific bequest to his wife he devised his real and bequeathed the residue of his personal estate to these three persons as his trustees. After payment of debts, testamentary expenses and death, estate and other duties, he declared trusts of this residuary estate as to one-third thereof to his wife absolutely and as to two-thirds upon special trusts in favour of his two sons, one of whom is the appellant Hugh Duncan Livingston. There were certain gifts over in case of failure of these trusts. Among the powers conferred there are powers of conversion and of management but there is no direction to convert. Probate of this will was granted by the Supreme Court of New South Wales on 13th October 1949 to the executrix and executors who are domiciled and reside in that State. Probate of the will was resealed in Queensland by the surviving executors after the death of the executrix, namely on 13th February 1952. At the date of her death, although three large payments on account of duty chargeable by the State of New South Wales on property of the testator there dutiable had been paid in that State, the assessment of duty had not been completed and as it turned out further large payments remained to be paid. Commonwealth estate duty had not been paid or for that matter assessed. There were, too, other steps to be taken in the administration of the estate which was by no means fully administered. The residue of his estate had therefore not been ascertained. It was the claim of the appellant that accordingly at the time of her death Mrs. Coulson had no proprietary right or interest in the specific assets in Queensland or elsewhere which the testator's estate comprised but only a claim against his executors for the due administration of the estate so that the residue should be ascertained and held upon trust as to one-third thereof for her. This, he maintained, was a chose in action or chose in equity subsisting in New South Wales where her fellow executors and herself resided and where the administration of the estate proceeded, the place moreover under the laws of which they were constituted and the trust would be enforced. On the death intestate of Mrs. Coulson her only right of property passing to him as her administrator, so he claimed, was this New South Wales right or chose in action. Except for what she might obtain in the fulfilment of this right she possessed no property in Queensland and moreover it was not a right situated in Queensland but in New South Wales. Notwithstanding this contention the Commissioner (the respondent) issued a notice of assessment of succession duty. The notice was dated 20th April 1956 and was addressed to the appellant's solicitors in Brisbane. It followed substantially Form R in the Schedule to The Succession Duties and Probate Duties Regulations but it nowhere mentioned the appellant by name as the party assessed or otherwise. The "successor" was given as Coulson (that is her husband killed by the motor accident) and others and the relationship as husband and children, the assessable amount was given as R (i.e. realty) PD16,224 5s. 4d., P (personalty) PD13,358 2s. 1d. and the rate of duty as fifteen per cent. The duty amounted to PD4,437 7s. 1d. The appellant paid this sum together with interest to the Commissioner and appealed to the Supreme Court by petition. The appeal was referred to the Full Court and that Court for reasons to which it will be necessary to refer later dismissed the petition. From the order of dismissal the present appeal was brought to this Court as of right.

At the same time as the foregoing proceedings with respect to succession duty were in train, parallel proceedings took place with respect to the duty payable under s. 55 of the Act in respect of every grant of probate or of letters of administration. It is true that letters of administration in respect of the intestate estate of the late Mrs. Coulson had not been applied for in Queensland. But by s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935 (Q.) (26 Geo. V No. 27) it is declared that (to the extent of the property described in the section) the Commissioner may assess and recover duties "notwithstanding that probate or administration ... has not been granted in Queensland or if probate or administration of such property has been granted in any place outside Queensland without the reseal in Queensland of such probate or administration." Whether the respondent Commissioner purported to act under this or some other provision, he is said to have required the appellant to file an account of Mrs. Coulson's estate and, under protest and without prejudice to his contention that no succession or administration duty was payable on the death of Mrs. Coulson, the appellant filed an account of her estate. Doubtless this is the same account and same protest as has already been referred to. The respondent Commissioner gave notice to the appellant's solicitors of his assessment of administration duty. The notice followed Form 0 of the Regulations and stated that the Commissioner had assessed the administration duty payable in the estate of Mrs. Coulson at PD607, proceeding to say, as if a grant of letters of administration had been applied for and made, that upon the receipt of the sum the grant would be duly stamped and returned to the Registrar of the Supreme Court. The notice then stated the value of the property upon which such sum had been assessed, but that is a matter with which this appeal is not concerned, subject to a particular item to be mentioned in due place. The appellant appealed by petition to the Supreme Court against the assessment to administration duty but the Full Court dismissed the appeal. As the amount involved in the case of administration duty is insufficient to enable him to appeal as of right the appellant applies for special leave to appeal. Special leave is not opposed and the case of administration duty was argued as an appeal.

The appeals present difficulties both of substance and of procedure. In the end they must be resolved by the application of the provisions of the Acts. But to apply the Acts, which are notoriously involved and obscure, it is necessary first to determine what under the law of Queensland were the beneficial rights, if any, of Mrs. Coulson in respect of the assets in Queensland forming part of the estate of her late husband. The legislature of Queensland did not follow the other Australian colonies in providing that upon death realty should vest in the personal representative and the rule that it passed directly to the devisee continued (see Kerr, Australian Lands Titles (1927), p. 457). By the enactment of The Public Curator Acts 1915 to 1957 (Q.), s. 30, all property, including land, not disposed of by will vests in the Public Curator until a grant of letters of administration: see ss. 12 and 14 of The Intestacy Act of 1877 (Q.) as amended. As probate of Livingston's will was not resealed until 13th February 1952, at the time of Mrs. Coulson's death on 8th July 1950 the devolution or vesting of his assets in Queensland was governed by the general law. Real estate vested in her and the two executors as devisees. Actually a transmission to them in that character was produced at the Real Property Office in Brisbane and entered upon the titles after her death. Under the law of Queensland this registration meant that she must be considered as one of the three proprietors of the legal estate in the land in question at the time of her death. The law of Queensland would also regard the chattels personal and chattels real as vesting in them as well as their testator's interest in the partnership. The beneficial interest would of course depend upon the provisions of the will. In these appeals we are concerned with the law of Queensland. In the courts of Queensland the law of New South Wales is not foreign law in the same sense as it was before federation. For there is s. 118 of the Commonwealth Constitution and there is the State and Territorial Laws and Records Recognition Act 1901-1950 (Cth). In this Court where the law of all parts of the Commonwealth and its Territories is a matter of judicial notice the law of New South Wales is ascertained on that footing. But nevertheless it is the law of Queensland that governs the case. It is well to begin by seeing if any and what beneficial interest in the items of property in Queensland of her husband's estate existed under that law in Mrs. Coulson at the time of her death. The appellant denies that any legal or equitable interest in her husband's estate whether in Queensland or New South Wales then existed in her beneficially: her right was to have the assets applied in a due course of administration and until the administration was completed the residue of which the trustees were to stand seised and possessed upon the trusts of the will under which she was cestui que trust could not be ascertained. The locality of this right was New South Wales. It is hardly necessary to say that, for the appellant, the important thing is not whether such a right subsisted under the law of New South Wales with a locality in that State but whether under the law of Queensland Mrs. Coulson had no equitable interest in the property in Queensland forming part of the estate of Hugh Duncan Livingston deceased. In Lord Sudeley v Attorney-General, ^[F1] a decision that has been the source of much difficulty and misunderstanding, the question was the liability to the inclusion in the estate of a domiciled English woman for the purpose of English probate duty of the value of certain mortgages in New Zealand. She was not the mortgagee. But at the time of her death she was entitled under the testamentary dispositions of her late husband, who had died only fifteen months earlier, to a fourth share in his then unadministered estate. That estate included the mortgages in New Zealand. These doubtless are to be considered movables and not immovables for the purposes of our private international law: see per Cussen J. in In re Ralston; ^[F2] per Salmond J. in In re O'Neill ^[F3] and McClelland v Trustees Executors and Agency Co Ltd ^[F4] and the paper in (1928) 2 A.L.J. 85 there referred to which was contributed by Sir Frank Kitto. In Lord Sudeley's Case ^[F5] no point was made of the fact that the mortgages were movable though perhaps in considering that decision it is a matter that ought not to be left out of account. At all events the order made by the majority of the Court of Appeal ^[F6] which the House of Lords affirmed, appears to have been expressed in accordance with the prayer of the information and declared that one-fourth part of the value of the mortgage securities in New Zealand forming part of the residuary personal estate of the husband should have been included in the value for the purpose of probate duty of the personal estate of the deceased. ^[F7] Lord Herschell said that the fallacy of the argument in support of the appeal rested on the assumption that the deceased or her executors were entitled to any part of the New Zealand mortgages as an asset - she in her own right or they as her executors. His Lordship continued, "I do not think that they have any estate right or interest, legal or equitable, in these New Zealand mortgages so as to make them an asset of her estate." ^[F8] . An important gloss was placed upon the language of Lord Herschell by Lord Russell of Killowen in Skinner v Attorney-General, ^[F9] where an unsuccessful attempt was made to apply the decision to the operation of a provision of a will of a testator by which he had charged an annuity bequeathed by the will upon an unascertained residue. It was attempted to establish that the charge did not attach to the individual or "specific" items of his estate but only to the undefined residue considered as an inseparable mass, that is to say, independently of its then present components. Lord Russell said that he emphasized the last ten words of Lord Herschell's sentence, viz. the words "so as to make them an asset of her estate", "which", his Lordship said, "show clearly that the interest which was being repudiated was a proprietary interest. The case is not in any way a decision that the widow or her executors had no interest in the mortgages ... ". ^[F10] In the same case in the Court of Appeal Greene M.R. spoke of the line of authorities in which Lord Sudeley's Case ^[F11] stands and said, "They were concerned with the local situation to be attributed to property for purposes of probate or probate duty," (scil. in England) "and the questions which arose were two (a) what was the property which the deceased owned at his death? (b) what, for the purposes of a grant of probate" (scil. in England) "was its local situation? The property in question being merely a right to have another estate duly administered, it was held that the local situation of the property was in the country of the forum of administration of that other estate." ^[F12] . This explanation may perhaps be said to adopt a, or the, forum concursus and thence to import the lex loci concursus as supplying the entire governing law. Devolution and administration of assets are two distinct things. The latter must involve many matters of substantive right, to take an example the order or priority of payment of debts. But "the crucial difference between the two concepts is that administration from the point of view of the administrator is not beneficial but in the nature of a duty, while succession is essentially of benefit to the successor.": The Conflict of Laws (1st ed.) R. H. Graveson, at p. 288, q.v. It is devolution or succession that is the subject of the present question and devolution or succession as recognized by the forum situs, if not by the lex loci situs. No one need doubt that the forum concursus or lex loci concursus may treat a right to share in the ultimate distribution as a single right devolving under that law and subject to whatever tax may be that law be imposed on devolution. That is what is done by the actual decision in Lord Sudeley's Case. ^[F13] But to do so does not imply a denial of the existence under the lex loci rei sitae of a beneficial right in the property and devolution of that right taxable under the law of that place. Lord Sudeley's Case ^[F14] itself appears to provide an example. For according to the report of the argument, ^[F15] counsel for the defendant executors said that the defendants had registered in New Zealand a claim to the mortgaged property and had paid a sum for probate duty there. But the contention that Mrs. Coulson had at her death no equitable interest in the property i n Queensland forming part of her deceased husband's estate is put less upon the basis of the law of his domicil or her domicil, less on the lex loci concursus, than upon a positive doctrine attributed to the law, of law and of equity, which apparently is taken to be part of the law of Queensland. That would mean that according to the law of Queensland the items of property that have been enumerated forming part of the estate of Livingston deceased vested in his executors (whether as devisees or as executors) subject to their duties of administration but not beneficially and yet subject to no equitable estate or interest of any kind in a cestui que trust . It would mean that the beneficial interest is nowhere until the completion of their duties of administration. Moreover the theory seems to be that the forum to which those who would become interested in residue when ascertained must resort to enforce performance of such duties is the Supreme Court of New South Wales.

This diversity between the duties or functions of administration and the equitable interests of beneficiaries is no new thing. It appeared even in Farr v Newman ^[F16] which at the end of the eighteenth century established, without the dissent of Buller J., that even at law the goods of the testator could not be taken in execution for the executor's own judgment debt. Here Buller J. contrasted the rule at law with that in Chancery which he described thus: "The Court of Chancery consider the fund as debtor; and therefore they pursue that; collect it all in their own hands, under the notion of taking an account; call all persons before them who have any demand on that fund; and distribute it amongst all, according to their priorities at law (if they have any); or if not, equally. But that Court has never said that, if the effects of a testator get bona fide and for a good consideration into the hands of a third person, they will take them from him." ^[F17] . Needless to say equity has never deprived a third person taking the legal title bona fide and for value of any property. But the key to the matter lies in the last sentence of Buller J. For it impliedly recognizes that an equitable interest attaches to the assets, not the interest of creditors, but of a beneficiary. It was not long before this was made very clear in Chancery. In Hill v Simpson ^[F18] a bill by two persons entitled to general pecuniary legacies was filed against bankers to whom an executor had transferred assets to secure his personal debt and relief was decreed by Sir William Grant M.R. In McLeod v Drummond ^[F19] Lord Eldon referred to the decision of the Master of the Rolls and said: "I cannot conceive why in a case falling within the exception, a creditor and a specific legatee should be able to follow the assets; and not a pecuniary or residuary legatee. The case of a residuary legatee is stronger than that of a pecuniary legatee. It is said in Farr v Newman, ^[F20] that the residuary legatee is to take the money, when made up: but I say he has in a sense a lien upon the fund, as it is; and may come here for the specific fund. If it is wrong, as against a creditor, for the executor to apply the fund in payment of his own debt, why is it not equally wrong, both in Law and Equity, to allow a third person wilfully and fraudulently to take from the executor that money, which in his hands the residuary legatee can call for, as the specific property of the testator?". ^[F21] By the "exception" Lord Eldon means the exception to the rule enabling an executor to sell or pledge assets to a bona fide purchaser. The words with which the citation from Lord Eldon concludes make it clear that the residuary legatees' ultimate title to the specific property is the basis of the continuing equitable interest. What then did Lord Russell mean when he said that what Lord Herschell was repudiating was a proprietary interest? It is not easy to say unless the words mean an unqualified ownership or interest. It cannot mean that he was asserting a complete absence of any equitable interest. An equitable interest is not ownership; but it is proprietary. Its true nature was explained luminously by Maitland in the ninth, tenth and eleventh of his Lectures on Equity. In Australia we have the advantage of the able and cogent examination of the matter by the late Sir Frederick Jordan C.J. in McCaughey v Commissioner of Stamp Duties. ^[F22] At one point in his judgment his Honour said this and it is difficult to see how in principle there could be any other view: "The idea that beneficiaries in an unadministered or partially administered estate have no beneficial interest in the items which go to make up the estate is repugnant to elementary and fundamental principles of equity". ^[F23] However his Honour concluded with what is perhaps a calculated paradox which he attributed to the coercive effect of authority to which he surrendered. Perhaps the surrender was needless and the paradox is not an unavoidable consequence. Some years later this Court dealt with the difficulty in Smith v Layh. ^[F24] After quoting a passage from Lord Cave's judgment in the case of Dr. Barnado Homes National Incorporated Association ^[F25] we said this: "But it is not the consequence that the residuary legatee or next-of-kin has no right of property in the totality of assets forming the residue of the intestate estate. The beneficial interest is not vested in the legal personal representative, subject to the rights of creditors. The right of the next-of-kin or residuary legatee to have the estate properly administered and to receive payment of the net balance gives them an equitable interest in the totality and therefore in the assets of which it is composed: cf. Horton v Jones. ^[F26] It is what equity calls property: a jus in personam ad rem". ^[F27] In the paper of Dr. Hanbury (1928) 44 L.Q.R., at p. 471, to which we there refer that learned writer remarks: "However much equitable rights begin to look like iura in rem they cannot belong to this category because they are always liable to be defeated by a bona fide purchaser for value of the legal estate." But it is none the less true that in virtue of her share in the residue of her first husband's estate Mrs. Coulson was entitled at her death to an equitable interest in the Queensland property forming part of his estate. The interest is not to be defined in the terms appropriate to legal estates or chattels real. But it is an equitable interest capable of description by reference to the rights which it gives to share in the residue after debts, death duties or other liabilities have been discharged or otherwise cleared. That equitable interest is in or in respect of land and other property situate in Queensland and as such it devolved on the death of Mrs. Coulson upon her next of kin and, if he survived her for any interval of time, her husband.

The questions which remain are (1) whether the devolution of this equitable interest is comprehended by The Succession and Probate Duties Acts in its provisions imposing succession duty or in those imposing probate and administration duties or in both; (2) whether the appellant Hugh Duncan Livingston junior is an accountable party liable to be assessed for either tax or both; and (3) whether an appeal is given to him by the Acts from the assessments on any of the foregoing grounds if otherwise he is entitled to succeed.

Section 4 of The Succession and Probate Duties Acts includes in its description of a "succession" every devolution by law of any beneficial interest in property ... upon the death of any person ... to any other person in possession or expectancy. The word "succession" is defined by s. 3 to denote any property chargeable with duty under the Acts. By s. 4 the dispositions and devolutions which the section describes shall be deemed to confer on the person entitled by reason of such disposition or devolution a "succession"; and the term "successor" shall denote the person so entitled; and the term "predecessor" shall denote the settlor, testator, obligor, ancestor or other person from whom the interest of the successor shall be derived. On the death of Mrs. Coulson the equitable interest to which she was entitled in the property in Queensland forming part of the estate of her late husband passed to or became vested in the Public Curator under s. 30 of The Public Curator Acts. But that seems to be immaterial, for the persons to whom the beneficial interest in that equitable interest passed were her next of kin as for brevity we may call them, that is her two sons and perhaps her husband. It may be taken that a beneficial devolution is the subject of the duty. It follows that together there was a devolution upon the two sons and perhaps the husband amounting to a "succession". Section 12 provides that there shall be levied and paid to the Crown in respect of every succession according to the value thereof at the time when the succession takes effect the duties that the section proceeds to prescribe. It seems clear enough having regard particularly to s. 43 that every successor is liable for duty, though curiously enough the statute nowhere says so directly and totidem verbis. There are however a number of references to the liability, of which it is enough to mention two. Section 20 provides that the duty imposed by the Act shall be paid at the time when the successor, or any person in his right or on his behalf, becomes entitled to his succession or to the receipt of the income and profits thereof. Secondly, s. 46 provides that "the following persons, besides the successor, shall be accountable to Her Majesty for the duty payable in respect of any succession"; then follows a statement of various capacities held by persons in whom the property or its management might be vested. If therefore it is correct that the next of kin are successors notwithstanding that the interest immediately became vested in the Public Curator, it only remained to assess the next of kin or one of them. The third paragraph of s. 47 seems to confer power upon the Commissioner to make such an assessment. The assessment is made by the section "subject to appeal as hereinafter provided". The provision evidently referred to by these words is s. 50 which enacts that any accountable party dissatisfied with the assessment of the Commissioner may appeal by the procedure there laid down, a condition being the payment of the duty. A statement of the grounds of appeal must be furnished and the appeal is by petition, the procedure followed in the present case. A serious difficulty is raised by the fact that s. 50 is expressed to give an appeal only to "any accountable party". Can he appeal on the ground that he is not accountable, as Hugh Duncan Livingston did in the present case? Philp J. after a full examination of the provisions of the statute reached the conclusion that an appeal on such a ground does not lie and in his judgment Wanstall J. and Stable A.J. agreed. In their view to resist assessment on the ground that the party assessed was not accountable some resort to other remedies was necessary. He might contest a summons under s. 48. Section 56A (2) at first sight may appear to create great difficulty in contesting liability except on appeal once an assessment has been made, but it is susceptible of a limited construction and probably should be restricted in its conclusive effect to the procedure of assessing and the amount and particulars of property and value. Yet par. (b) of s. 56A (2) (i) seems rather to imply that on appeal everything that is covered by the paragraph is open to attack. The question whether a party denying his accountability may appeal for the purpose of establishing that he is not accountable has apparently not been raised in Queensland before and there are examples of proceedings where an appeal has been used for such a purpose. On the other hand, the view adopted by Philp J. is that which was taken in England of s. 50. a provision which even bears the same number in the Succession Duty Act 1853 (16 and 17 Vict. c. 51). In Hanson on Death Duties, 8th ed. (1931) p. 559 there is a note to the section containing this statement: "The right of appeal conferred by the present section only applies to cases where there is a question as to the value of the succession or the details of the account; cases, in other words, where the liability to some duty is admitted, and the only question is as to the amount." It might not seem impossible to construe the expression in s. 50 "any accountable party dissatisfied with the assessment" as meaning "any party accountable according to the assessment who is dissatisfied" and one may be permitted to hope that such a construction accords with legislative policy. But in strictness the question does not arise in this case if the appellant is accountable and the foregoing reasons show that he is accountable. It is true, or at least so it would seem, that he was assessed because he had obtained letters of administration to his mother's estate from the Supreme Court of New South Wales. If so, the reason was misconceived. That would neither give a title to the equitable interest in Queensland nor expose him to assessment. He is accountable as one of the next of kin upon whom the equitable interest evolved under the law of Queensland.

As to probate and administration duty there is a separate difficulty. What has already been said shows that there devolved an equitable interest in property in Queensland and if application had been made to the Supreme Court of Queensland for a grant or reseal of letters of administration of Mrs. Coulson's estate no doubt the duty would have been assessable. The judgment of E. A. Douglas J. in Re Guest ^[F28] was to the effect that the duty was only assessable when such an application was made. His Honour had referred to s. 11B which provides that any person who takes possession of or in any manner administers any real property of a less tenure than an estate of freehold or any personal property whatsoever in Queensland or any interest therein belonging to any person who dies (after the date specified for the commencement of the provision) shall be liable to a penalty unless within a given time he obtains a grant or reseal of probate or letters of administration. The learned judge took the view that a suit by the Crown to recover the duty might lie against such a person. Referring to this in his judgment which was delivered in July 1935 he said: "I have already indicated that under The Succession and Probate Duties Act, 1892 to 1931, in a properly constituted action after the lapse of the necessary time, I think the petitioners would be liable to probate duty in respect of personal assets and real property of a less tenure than freehold situated in Queensland." The case was evidently regarded as revealing a defect in the legislation and in December of the same year the Parliament of Queensland passed The Succession and Probate Duties Acts Declaratory and Amendment Act 1935. By s. 2 it was declared that the duties were payable, to put it shortly, independently of the grant or reseal of probate or letters of administration and the duties might be assessed and recovered accordingly. The operation of the section however is limited to "any real property of a less tenure than an estate of freehold or any personal property whatsoever in Queensland or any interest therein of a person who dies ... taken possession of or in any way administered" without grant or reseal of probate or letters of administration. This limitation appears in the judgment of E. A. Douglas J. in the passage already quoted and comes from s. 11B. It is not clear, however, why the limitation is made. The duty is imposed by s. 55 of the Principal Act and the Schedule upon all the property of the testator or intestate. The reason probably is to be found in the devolution of a descendible estate of freehold which if devised vested in the devisee, though as from 1878, if undisposed of it was distributed in the same manner as personal estate and since 1915 vested in the Public Curator: ss. 12 and 13 of The Intestacy Act 1877 and s. 36 of The Public Curator Act of 1915. The point however was not made in support of the appeal and on the whole it may be right to regard the anomalous equitable interest of Mrs. Coulson as within the provision.

A separate but minor question was raised as to money coming to the hands of the executors of Hugh Duncan Livingston deceased in virtue of the Wool Realization (Distribution of Profits) Act 1948-1952 (Cth) in respect of wool from Queensland properties submitted for appraisement. There is no sufficient ground for treating these payments as so localized in Queensland as to form or contribute to part of the subject of Mrs. Coulson's equitable interest in the State. The money was paid in New South Wales and the mere fact that wool grown and presumably submitted for appraisement in Queensland was the source in fact cannot matter.

One-third of the sum of PD3,527 15s. 5d. appears to have gone into the valuation of the equitable interest of Mrs. Coulson in consequence of the view that these moneys should be treated as located in Queensland at her death. This is erroneous. The valuation of the interest should be reduced accordingly. As it is a matter not depending upon accountability but upon assessment of value the assessment of succession duty is in that respect clearly subject to appeal. As to probate or administration duty under s. 55 the question whether the assessment is subject to appeal in the same respect is very difficult. The judgment of Philp J. gives very strong reasons for saying that logically s. 50 ought not to be construed as covering probate and administration duty. But the course of practice in Queensland seems to have been to the contrary. At all events there are other reported cases of appeal with respect to that duty in addition to Re Guest: Union Trustee Co of Australia Ltd v Commissioner of Stamp Duties. ^[F29]

Once s. 2 (3rd par.) of the Act of 1935, 26 Geo. V. No. 27, was passed the assessment by the Commissioner to probate or administration duty independently of the grant of probate or letters of administration became possible and it is perhaps not going too far to treat this as "accountability" on the part of a person liable to be assessed. The Act is declaratory: it declares but does not profess to alter the law. In all the circumstances the better view seems to be that on assessment s. 50 was intended to apply, with the result that a person assessed may appeal against the correctness of the assessment.

The result is that in both the case of succession duty and administration duty the assessments should have been reduced by the Supreme Court by the exclusion from the valuation of the intestate's share of her late husband's estate or interest in Queensland of so much of the distribution of moneys under the Wool Realization (Distribution of Profits) Act 1948-1952 as has been included. The order of the Supreme Court should be varied to give effect to the reduction so required. Otherwise the appeals should be dismissed.