St Aubyn v Attorney General (No.2)

Lord

Simonds

Lord
Normand

Lord

Oaksey

Lord
Radcliffe

Lord
Tucker

ST. AUBYN AND OTHERS

v.
ATTORNEY-GENERAL (on behalf of His Majesty), et e contra

12th July, 1951.

Lord Simonds

MY LORDS,

This appeal and cross appeal are brought from an order of the Court
of Appeal, by which that Court as to the subject matter of the appeal
reversed an order of Croom-Johnson, J., and as to the subject matter
of the cross-appeal thought fit to make no order.

The facts of the case are somewhat involved but present no real difficulty.
It is in the application to them of the relevant sections of the Finance
Act, 1940, that I have found it impossible to reach any conclusion that is
wholly satisfactory.

I will give a broad outline of the relevant facts supplementing it as
occasion demands.

Immediately before the execution by the late Lord St. Levan, who died
on the 10th November, 1940, and to whom I will refer as Lord St. Levan,
of the instruments dated in March, 1927, which are next mentioned, he was,
under a Resettlement dated the 26th April, 1879, tenant for life in
possession of certain settled property consisting of (a) freehold lands in
the counties of Devon and Cornwall (b) investments representing capital
moneys arising under the Resettlement and (c) equitable interests which by
virtue of the Law of Property Act, 1925, represented certain undivided
shares in land which at the date when that Act came into operation were
subject to the Resettlement. The whole of the settled property was under
the Resettlement and a Deed Poll dated the 9th January, 1905, subject to
an overriding general power of appointment exercisable by Lord St. Levan
and Sydney Alexander Ponsonby (hereinafter called " Mr. Ponsonby ") who
was one of the trustees of the Resettlement but had no beneficial interest
thereunder. The subsequent limitations of the Resettlement, as varied by
the said Deed Poll and other instruments, were such as to cause the settled
property to devolve together with the Barony of St. Levan, which on the
death of Lord St. Levan without having had a son devolved on and is now
held by his nephew Francis Cecil St. Aubyn.

On the 21st March, 1927, St. Aubyn Estates Ltd. (hereinafter called
" the Company ") was incorporated under the Companies Acts, 1908 to 1917
(by the name of St. Aubyn Settled Properties Ltd. which was afterwards
changed) with a nominal capital of £200,000 divided into 200,000 shares
of £1 each with power to issue any part of its capital with such preferential
rights as might be thought expedient. The Company's Memorandum of
Association was subscribed by seven persons, including Lord St. Levan and
Mr. Ponsonby, each of whom agreed to take one share. These seven shares
were held by the subscribers as nominees of the Trustees of the Resettle-
ment. By the Company's Articles of Association it was provided that Lord
St. Levan…