COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5821, 25 November 1879, Page 3

COURT OF APPEAL.

Monday, November 24. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, Mr. Justice Richmond, and Mr. Justice Williams.) IN RE WILL OF W. B. RHODES, AND IN RE THE STAMP ACT, 1875. This was a case stated by the Commissioner of Stamp Duties, under the provisions of the 41st section of the Stamp Act, 1873, for the opinion of the Supreme Court, and removed for argument into the Court of Appeal, by order of his Honor Mr. Justice Richmond, The Hon. the Attorney General appeared on behalf of the Commissioner ; and Mr. Travers (with him Mr. Brandon, juu.,) for the executors of the will. It appears that in February, 1878, William Barnard Rhodes made his last will and testament, in which, after making certain dispositions in favor of his wife and others, not affectthe question at issue, he directed that from and after the decease of his wife without leaving issue of his marriage, his trustees should stand possessed of all the undisposed residue of his real and personal estate, in trust for his natural daughter Mary Ann, for and during the term of her natural life, with further provision in case of her death or marriage. The testator died two days later. His natural daughter is still unmarried, and is about 26 years of age. The executors of the will have filed with the Commissioner of Stamp Duties the statement of property required under part 3 of the Act, and by this statement it appears that the value of the residuary estate which is alleged to be the subject of the above-mentioned trust has been assessed at £272,796 sd„ and the dutiable value of this sum on a life of 26 years, at 10 per cent., in accordance with the third schedule of the Act, is £18,405 ss. sd. This duty had been so assessed by the Commissioner, in accordance with the provisions of part 3 of the Stamp Act, on the ground that there being no life interest immediately preceding that taken by the daughter of the testator, the duty is payable immediately on his death, and has been paid by the executors accordingly. The Heaton Park estate, valued at £74,970 17s. 6d., and Highland Park estate, valued at £10,600, have been included in the foregoing valuation. The executors are dissatisfied witii this assessment, and appealagainst the same onthegrounds —(1.) That looking to the terms of the will thealleged lifeinterestof thedanghterof testator is not iu possession, but is ocitingeut upon her surviving the widow of testator, and that pending the determination of that contingency, the income should be accumulated for the benefit of the person or persons who would then be entitled thereto. (2.) That the Stamp Act, 1875, makes no provision fur the immediate payment of duty in respect of unascertainable and contingent future interests. The questions therefore submitted for the decision of the Court are—(l) whether the assessment made by the commissioner can be sustained under part 3 of the Act, or whether he is precluded from making such assessment on the grounds alleged by the executors ; (2) if the assessment made by the Commissioner cannot be ascertained, what duty ought he to have assessed under the Act in respect of the interest appearing to be taken by testator’s daughter under the will. The case was argued at some length, and judgment was reserved. The Court shortly after 3 p.m. adjourned till next day.