SELLERS L.J. - (1.) I agree with the judgment the Master of the Rolls has just delivered, which I have had an opportunity of reading beforehand, and I too would uphold the decision of Upjohn J. and would dismiss the appeal.I have the misfortune to dissent from the conclusions arrived at by my Lords.
(2.) THE words to be construed are 'the proper law regulating... the disposition.' I agree with Lord Evershed M.R. in holding that the disposition here is the testators will and I accept his views both as to the origin of the words 'proper law' and the meaning to be attached to them. I feel no great difficulty in applying these words to an unilateral document such as a will but as will be seen hereafter they do not produce the same effect as when applied to contracts where the proper law is to be determined once for all at the contract date. In the case of a will, the proper law may, and in the instant case does, change at a time after the testators death, and cannot be settled on the happening of that event. The testator here has expressly declared that his will should operate according to the law of England 'so for as the case admits.' and the question is whether in the case of foreign immovables the case does so admit. The words are an acknowledgment that in many countries the law does not allow freedom of testamentary disposition. The law in South Africa apparently does allow it in this respect, but it is that law and not the English law which makes the disposition effective. It is conceded by the Crown that if the Finance Act, 1949, had been law before the testators death, estate duty would not have been payable on the happening of that event, nor indeed on a devolution thereafter so long as the administration of the estate in South Africa was not complete. This must be because the South African law was the law regulating the disposition at those stages. It is furthermore conceded that if there had been a direct devise of the property to Sir Elliot after his mothers death, no estate duty would have been payable when the property devolved upon him because the proper law would still be that of South Africa.
(3.) IT is, however argued that there comes a point when there is a change in the proper law and, indeed, so far both parties agree. What is in dispute is the point at which this event occurs. The Crown argues, and my brethren agree, that this point had been reached before Sir Elliots death because the administration was complete and the former tenant for life at the time of his death was receiving the rents and profits by virtue of the English will. The taxpayer argues that this point will not come until the date when, if ever, the trust for sale in the English will is carried into effect and the proceeds are transferred to this country.;