IN-BANCO.

Dominion, Volume 1, Issue 205, 23 May 1908, Page 13

IN-BANCO.

(Boforo His Honour Mr. Justice Cooper.) THE JACOB JOSEPH ESTATE. Ilis Honour gave judgment in a case between tho Commissioner of Taxes and tlio Trustees of the Estato of tho lato 'Jacob Joseph.

Mr. Bell, K.C., represented tho plaintiff and Mr. Chapman, K.C., the defendants. In tho judgment, His Honour said that Mr. Joseph owned at tlio time of his death a very largo amount-of freehold property in New Zealand. Ho devised his real and personal property to his trustees upon trust to sell, call in, and convert ■ at such time and in such manner as they, should think fit, with full power to postpone tho conversion of all or part during such period as they should think fit. Ho bequeathed certain legacies to certain-persons, and declared that the trustees should d'.vido the residue of the moneys arising from tho estato - into four amounts to be called respectively tho Joseph' Joseph Fund, tho Amelia- Nathan Fund, tho Rose Miriam Joseph Fund, and the Elsie Florenco Joseph Fund, and so that the Rose Miriam Joseph Fund and tho Elsio Florenco Joseph Fund should oath exceed the Amelia Nathan Fund or tho Joseph Joseph Fund by £5000, the Amelia Nathan Fund and tlio Joseph', Joseph Fund being equal to one another. The questions for tho opinion of tho Court were:—(l) Where land is devised to trustees upon trust to pay the income in equal or unequal shares to two or. moro beneficiaries, aro tho beneficiaries and tho trustees as a body to be treated as a singlo taxpayer under the. provisions of tho Act of 1900 for the purposes, of graduated land tax, or is each beneficiary to bo considered a separate o.wner for such purpose? (2)-' If this general guestioa lis decided in favour of tho Commissioner, havo. tho four beneficiaries in this caso becomo separate owners by virt-uo of the temporary appropriation of tho land referred to in tho caso? His Honour held that there had been no appropriation' within the terms of tho will, that the community of interest of -tho beneficiaries had nevor been .broken, and that there was but ono trust for a collective body of beneficiaries. ,»' Judgment was : accordingly given for the plaintiff, with costs £30 and Court fees., ' , V A TANGI CASE. ;His Honour also gave judgment in an ap-peal-from tho decision. ,of tho. Stipendiary Magistrate at; Groytown -•■-in 1 a i.ease between tho Public Trusteo and David Peel Lpasby. Mr. Blair appeared■ for'appellant, and Mr.Bell, K;C., witn him Mr."Ostler for tho defondant. ' Tho respondent's claim, His Honour said, was. to rccovor .from tho defendant, as administrator of tho estato of Hamuera Tarealiau Mahupuku,- a deceased nativo chief, tho sum of £111 3s. 6d. for goods-sold anu delivered. 'Mahupuka died January 14, 1904. Tho floods, which wore provisions, tobacco, and cigarettos, were supplied first >upon' tho verbal order of Arotp,Mahupuku, the-prin-cipal -wife of the deceased chief, and subsequently upon her written ordor, for tho uso of visitors at a tangi held in consequence of tho death of .Malntpukui Tho, supply '• commenced on January 15, 1904, and continued until ; June 28, 1904. Tho order in writing is as follows: —" Please supply goods to 1110 per order H. Parata or George M'Fa-rlane, on, account of tho estate of tho late EL T. Mahupuku' until : furfclier • ordor, and chargo tho samo and all goods ordered-by them previous' .to..this :dato' against ,tho , said- estato,. and'... oblige—Arot-o H. .Mahupuku.", Tho Magistrate disallowed- £19, 2s. of the claim, ■principally the charges for tobaciio and cigarettos, a-nd gave judgment for £D 2 Is. 6d. His Honour-found the following facts to bo proved :—(1) That the deceased Native was ■a'Maori chief of high rank, and tho owner of .large interest- in Nativo land (2)- That, it is still; and jhas beian from a very early ;period in-.tho.history of,the Maori race,-the Maori, custom to hold upon .the , death of a'"Native. cheftain a tangi. The .number of, visitors ,'nnd' tho import-anco and duration of the tangi. depend upon tho rank of the dead chief, and , tho tangi isj according to Maori' custom, inseparablo from and. a part of t-h'o burial of the chief. (3) That the status and rank of Mahupuku was. such. that , the great/chiefs and many Maoris'of rank attended the, tangi from different'parts' of, the North Island, and that, as a mark of respect to the memory of the dead man, His Excellency tlio Governor, the Right Hon. R: J. $eddon (tho late Premier), the Hon. ;J: Carroll (the Nativo Minister), and othors were present at'-the funeral of'tho decea.sed. (4) That the Maori custom is that the! costs of a tangi have in the past been levied' out,of tho property of the. dead chief in_ Whose honour, the tangi lias been held. (5) That the omission to hold a tangi would bo considered ■ a ' breach of : Maori, custom and a. great insult to the memory of a deceased chief. ;In ancient times such an omission would .have caused ;a tribal war. In the present day. it would result in many cases in great ill-feeling among' the' different hapus and tribes'; and, (6) that tho period during which this tangi laste'rl was not, according to . Maori custom, an -unreasonable period considering tho rank and influence of) the deceased' chief, and tho total cost of the' tangi was' not, according to Maori ■ custom, excessive. • : ' .. .' ,

His Honour held that tho costs of the tangi should havo been 'paid out of tlio chiefs estate, and the appeal would bo allowed without costs. ' Leave of appeal was granted. THE TAXATION OF AN ANNUITY. A case' regarding land and income-tax was heard, the parties being Helen Sophia James and Slessrs. TFhite and-Baker, executors of the will of tho.late W". M.-Bsnnatyno. The .plaintiff was entitled to an aruitrity for the rest of. her life under the will. Hie estate consists entirely of land mortgages. Tho Court was asked'to dccido whethor the plaintiff, ■as recipient of part' of tho income of the trust c-state, was bound to contribute to the-tax paid in New Zealand. Her annuity was liable to income-tax only if to any tax. Tho second point was that tho annuity was less than £300 per annum, and, therefore, exempt from income-tax if she' lived in New Zealand, but it was contended that she was liable -because she lived in New South Wales, and whether it was this duty 'of the trustees to deduct sucli income--tax. Tho; third point- was whether tho trustees wero entitled to dedu'et in tho future, as they had failed to do so in tho past.- - Mr. Blair appeared for tho plaintiff, and Mr. Bell, K.C. (with him Mr. Hadfiold), for. the defendants. , Decision was reserved. . ■ QUESTION OF A RETAINING WALL. His Honour heard an appeal from tho decision of Dr. M'Arthur,'S.M., in a caso botween Jorgeson Brothers and Joliann, -builders, and Edward John Falkinor.. It was an appeal by the defendant in the case in tho lower Court, where it was dismissed. The claim was that tho plaintiff agreed to reniovo an' existing retaining wall on, defendant's property at Kelburne, and to erect 'a. new wall in its place. Tho amount of tho claim was £50 10s. It was alleged that tho •wall was negligently and improperly erected, and in consequence gave way. The appeal was brought on the following grounds :—(1) That the plaintiff linow the purpose for which th» %'»U pis .t» be erected, and guaranteed that the retaining wall was suitable for th»purpose; (J) tbet tie e»*tract was not -ta erect tlws rtiwinisit wall according plass and »p»cifleeta'«M, Wt fre »r»ct » new antl propsr wall iwtttble ftr iti intended purpose; (3)'Vli&i lthe tlooiffioß wat .against tlio'wagbt of the eridence. Mr. W-cotou,. instructed by Mr. Smith, appeared for tho appellants, and Mr. Findlny, instructed by Mr. Webb, for the respondent. After ' hearing. argument, His Honour ordered a new trial. ■