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There was no stipulation in the agreement with regard to the payment of the legacy duty; and, upon the supposition of its being exigible by the statute 36 Geo. III. chap. 52, the question came to be upon which of the parties that burden must be held, by the implication of law, and the construction of the agreement, to fall.
The pursuers petitioned against this interlocutor; but, when the case came to be advised with the answers, the Court expressed doubts how far the legacy duty was payable in this case, the testator at his death being domiciled abroad, and the legatees being foreigners and resident in a foreign country. This having been tried before the Court of Exchequer, it was found by that Court that the legacy tax was due on the legacies in question.
Lord Gillies said, that this was a casus improvisus in the agreement. He thought that each of the parties had been successful in shewing that the burden ought not to fall exclusively upon himself; but neither of them had succeeded in shewing that the other was liable. Upon principles of equity, therefore, he suggested whether it might not be proper to make each liable in a half.
The Court found the defenders entitled to retain the property-tax out of the sum pursued for.
Lord Ordinary, Meadowbank. Act. Jeffrey, J. A. Murray, Fullerton. Agent, D. Cleghorn, W. S. Alt. Moncrieff, Cockburn, Skene. Agents, M'Kenzie & Innes, W. S. Hamilton, Clerk.
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