LAW REPORTS.

Dominion, Volume 4, Issue 1112, 27 April 1911, Page 3

LAW REPORTS.

COURT OF APPEAL. DEATH DUTY ON ESTATE OF £91,000. TRUSTEES' REWARD. CAN THE DEPARTMENT TAX IT? An interesting position, as between thiexecutors and trustees in the will of the late Kliznbeth Knox, of Auckland (Thomas Huddle, Archibald Clements, and I'rank I). Clayton), and the Commissioner of Stamps, was argued yesterday. It was an appeal by the trustees against a ruling of the Commissioner of .Stamps in regard to the assessment of death duties on the estate. The Court consisted of Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Denniston, and Mr. Justice Sim. Mr. H. 1\ Richmond appeared for the appellants, and Mr. .T. \Y. Salmond, Solicitor-General, for tho respondent In her will, deceased made a provision that her trustees should (in remuneration for their services), be entitled to charge a commission of 3 per cent, on the total value of the estate at her death.' Half of the commission was to be paid on proving the will, and the balance by lialf-yearly instalments. She died on October 19. IJIOS, and the final balance of the real and personal estate was certified (under the Death Duties Act, 130S) to bo valued at .£91,353 !)s. 2d. The death duty on tho estate was assessed by tht Deputy-Commissioner of Stamps, Auckland, at XMO2 16s. Part of this sum the trustees declined to pay, their ground for refusal being that a sum of ,£2749 Is.—the commission which they are entitled to charge under the will— had been wrongly included in tho final balance of the personal estate. They held that it should have been deducted from the final balance as a "testamentary expense," as it was within tho meaning of that term as used in Section 3, SubSection. 3, of the Death Duties Act, 1903. Subsequently the trustees had the assessment referred to the Minister of Stamps for decision, and lie disallowed their claim. Being dissatisfied with the. decision of the Minister, they had asked him.to state a case for the opinion of the Court. The question of the Court was:— "Is the sum of .£2749 45., given to ■ the appellants by the will, deductible as a testamentary expense from tho final balance. upon which the assessment was made?" Mr. Richmond remarked that Section 3 of the Death Duties Act stated that, for the purpose of computing the amount for taxation of a deceased person's estate, funeral and testamentary expenses should be deemed to be debts due by deceased. A commission allowed by will to a trustee was a testamentary expense. When commission was allowed by the Court it was, he urged, so regarded, and therefore commission allowed by the will (which could have been obtained in tho Court if it had not been so provided for) was equally a testamentary expense. It was argued by Mr. Salmond that commission fixed by will (as in this case) at a special rate per cent, was not a testamentary expense, and was properly considered as a legacy, and, as such, was liable to duty. Tho Court reserved its decision. FARMER AND COUNTY COUNCIL HIS LAND TAKEN. The hearing of the appeal against the judgment of Mr. Justice Sim in the case £dward butler Harrison, of Waihao | Downs, near Waimate, farmer (appellant), and the Waimate County Council (respondents), .was concluded yesterday before the Court of Appeal. The Court consisted of the Chief Justice (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, and Mr. Justice Chapman. Mr. H. D. Bell, K.C., with him Mr. Kinnerney, appeared for tho appellant Harrison, and Mr. T. F. Martin, with him Mr. W. Hamilton, for tho County Council. ' Argument was directed at the point whether the judgment of the Supreme Court, which authorised an injunction prohibiting Harrison from proceeding with a claim for compensation against the County Council for certain of his farm lands taken for road purposes, could stand. After hearing argument, the Court reserved its decision.