PETITION. This was a petition under The Succession and Probate Duties Acts, 1892-1918, in which, inter alia, the following facts were stated: R. Treweeke died in 1919, and by his will he appointed the petitioners to be the executors and trustees (thereinafter called “general trustees"), thereof for all the purposes thereof other than those of managing and winding up the business of a grazier carried on by him in partnership with his sisters, and he devised and bequeathed all freeholds and leaseholds registered in his name unto and to the use of his general trustees upon trust according to the following shares respectively that is to say-in trust as to one-half share thereof for his widow and in trust as to the remaining half share thereof for his sisters in equal shares as joint tenants. The testator also appointed W. H. Treweeke to be the executor and trustee (thereinafter called his "business trustee ") for all the purposes of his share in the partnership, and bequeathed that share unto his business trustee, to be held by him upon trust, and he authorised his business trustee, at his discretion, to carry on his business in co-partnership with the other partners for a term not exceeding five years from the date of his death, unless special circumstances should arise which, in the opinion of his business trustee, should make it expedient to sell his share, and in the event of his business trustee deciding to sell his share, he directed that his business trustee should stand possessed of the net income arising from his share upon trust to pay the same to his widow so long as he continued to carry on the business in partnership with the testator's partners, and upon such sale he directed his business trustee to pay to his general trustees (as and when received) the net proceeds of the sale of his share, to be held by his general trustees upon trust as to the capital and income of one moiety thereof for his widow absolutely, and as to the other moiety thereof to pay the income arising therefrom to his widow for her life for her separate use, without power of anticipation, and after her death as to both capital and income thereof, to such uses as his widow should by will or codicil appoint, and in default of such appointment, for his said sisters in equal shares as tenants in common. 2. Probate of the will was granted, and probate duty amounting to £380 was paid in February, 1920. The value of the freeholds and leaseholds registered in the name F.C. UNION TRUSTEE OF STAMP 80 F.C. COMPANY OF of the testator at his death and devised and bequeathed by him UNION TRUSTEE Was £12,515 11s., and certain sums were paid to and accepted AUSTRALIA LTD. by the Commissioner of Stamp Duties in respect of succession duty on the successions to those freeholds and leaseholds by the testator's sisters jointly and by the testator's widow. AND OTHERS v. COMMISSIONER OF STAMP DUTIES. The net value of the assets of the partnership at the testator's death was £51,127 5s (including the value of the lands, improvements, ringbarking, and live stock), and the testator's half share was £25,563 12s. 6d. The Commissioner of Stamp Duties assessed the duty payable on the succession immediately derived by the widow in respect. of that one-half share as on the succession to a whole life interest therein that is to say, a succession to the right to the income from the half share (deemed to be 5 per centum per annum on the value thereof), for the expectant years of her life, calculated on the mortality tables and amounting in all in value to the sum of £14,540, on which succession duty to the amount of £1307 5s. ld. was demanded by the Commissioner and paid by the petitioners on 21st February, 1920. The petitioners contended that the said assessment was wrongly determined, and was excessive, and that the succession immediately derived by the widow in respect of the half share was a succession to not more than five years' interest therein, amounting in all in value to £5720; and that only the sum of £552 18s 8d was properly payable as succession duty. On 18th April the Commissioner gave notice to the petitioners that "it has come to my knowledge that the lands improvements and live stock in the above estate have been re-valued by the Deputy Federal Commissioner of Taxation, and in pursuance of the powers vested in me by s. 47A of the Succession and Probate Duties Acts, 1892 to 1920, his values have been adopted by me for re-assessment purposes." The notice then purported to make a further account and estimate of the property of the testator, and (a) to determine the value of the freeholds and leaseholds at an increased value; (b) to determine the value of the said lands, improvements, ringbarking, and live stock belonging to the partnership at an increased value; (c) again assessed and demanded duty payable on the succession derived by the widow with respect to the testator's half share in the partnership, on the basis of that increased value; (d) demanded a further sum of £25 in respect of probate duty. The petitioners contended that the said increased valuations F.C. were excessive; and that the increased assessment of duty on UNION TRUSTEE COMPANY OF the succession of the widow with respect to the one-half AUSTRALIA LTD. partnership share was wrongly determined, and was excessive; and that the duty payable did not exceed £552 18s. 8d.; and that the said increased probate duty was excessive. Notice of appeal was duly given to the Commissioner, and the grounds of appeal raised the validity of the assessment of the widow's succession to the partnership property. No notice of intention to appeal against the original assessments made in respect of probate or succession duty had been given to the Commissioner and no appeal against those assessments had been raised. After the Commissioner had received the notice of intention to appeal against the re-assessment and the grounds of appeal, he gave written notice that his letter of re-assessment, bearing date 18th April last, was thereby withdrawn and cancelled. The petition having been filed, an order, by consent, was made on the petitioner's summons for directions that the questions of law arising in the cause be argued before the Full Court before any evidence was given or any question or issue of fact was tried, and that the rest of the summons for directions be adjourned, and that the costs of the application and order be costs in the cause. Feez K.C. and Gore, for the appellants: The main question raised by the petition is whether the succession of the testator's widow to the interest of the testator in the partnership should be assessed as a succession to the whole life interest (as claimed by the Commissioner), or as a succession to an interest for five years. The answer to that question depends on the proper interpretation of the will. Real, for the Commissioner, took the preliminary objection that an appeal did not lie. There is no appeal against the re-assessment, for that had been withdrawn and cancelled before the petition was filed, and now does not exist; and the petitioners are out of time in respect of the first assessment. The Succession and Probate Duties Act of 1892, s. 50. [LUKIN J. The objection is highly technical, and it does not come well from an important Government Department. Surely the Department does not desire to retain money to which it is not entitled under cover of a technical error in procedure.] E AND OTHERS v. OF STAMP F.C. [SHAND J. I am inclined to think that the re-assessment is UNION TRUSTEE the assessment for the purposes of an appeal under s. 50.] COMPANY OF AUSTRALIA LTD. AND OTHERS v. OF STAMP The Court intimated that the contentions of the Commissioner COMMISSIONER and of the petitioners concerning the method of assessing the duty payable (as those contentions were set out in the petition), appeared to be incorrect. The widow succeeded to one moiety of testator's interest in the partnership-that is to say, to one-fourth of the whole assets of the partnership, and there was also a succession to the widow of a life interest in another one-fourth of those assets. Duty was therefore payable on a succession to an absolute interest in one-fourth of the partnership property, and on a succession to a life interest in another fourth share of that property, and the Court suggested that counsel should confer, and ascertain whether the Commissioner was prepared to assess the duty on that basis. The case was adjourned, and subsequently coming before the Court. Real stated that the Commissioner was prepared to make an assessment on the basis stated above,-viz., that the widow should be assessed for duty at £1,213 on her succession to £12,557, one-fourth of the partnership assets, and at £702, being the value of her succession to a life in trust in £12,557; that further duty should be payable on the succession to the remainderman on the termination of her life interest; that the petitioners were willing to accept such assessment; and that consequently a decision on the technical objection raised would be unnecessary. Feez K.C. applied for costs, but the Court made no order therefor. Petition dismissed; no order as to costs. Solicitors for appellants: Morris & Fletcher, for E. Fletcher, Goondiwindi. Solicitor for Commissioner of Stamp Duties: The Crown Solicitor. [IN THE FULL COURT.] BISHOP v. GOLLAGHER. Deserted wives and children-Illegitimate child-MaintenancePaternity-Corroboration of oath of mother-Order by Magistrate-Appeal to District Court-Failure to state grounds of appeal forthwith-Rehearing-Appeal dismissed-Appeal to Supreme Court by special case-The Deserted Wives and Children Act of 1840 (4 Vic., No. 5), s. 8-The Justices Act of 1886 (50 Vic., No. 17), ss. 237, 239, 243, 245. On the hearing of a complaint made by the mother of an illegitimate child, a Magistrate made an order against the defendant as the father of the child. The defendant appealed to the District Court, the main ground of appeal being the absence of evidence corroborating the oath of the mother as to the paternity of the child. During the hearing of the appeal counsel for the appellant applied for a rehearing, but the Judge decided that the application was made too late, and dismissed the appeal. On appeal to the Supreme Court by way of special case, it was stated by the Judge, as part of the special case, that he was of opinion there was ample corroboration, whether he treated the matter as a rehearing or an appeal. Held, that in view of the Judge's statement of his opinion as to there being corroboration, it would be idle to send the matter back to him, and the appeal should be dismissed. Semble (per O'Sullivan D.C.J.), that failure to state forthwith the grounds of an appeal from Justices does not affect the jurisdiction of a District Court Judge to hear the appeal, but only the right to a stay of execution. APPEAL FROM DISTRICT COURT BY SPECIAL CASE. The facts of the case appear in the special case which was stated for the opinion of the Supreme Court by O'Sullivan D.C.J. and was as follows: These proceedings were commenced by complaint against the abovenamed appellant, made on the 14th day of April, 1921, by the abovenamed respondent, who says that she is the mother of an illegitimate female child born on the 5th day of March, 1920, (amended by leave of the Police Magistrate to 1921), and that the appellant is the father of the said child, and that on the 14th day of April, 1921, the said child had been left by the appellant without adequate means of support. The appellant was, on the 4th day of July, 1921, adjudged by F. J. Cherry, Police Magistrate, then sitting at Brisbane, to be the father of the respondent's illegitimate female child, Mavis 1922. February 15. Real J. Shand J. Lukin J. |