Wyndham v Mackenzie [1918] HCA 46

H. C. oF A.

1918. a) Sypney,

Aug. 8, 9, 23.

Isaacs Gavan Duffy and Rich JJ.

WYNDHAM AND OTHERS é 2 2 . APPELLANTS

MACKENZIE AND OTHERS R s . Responvents.

| ON APPEAL FROM THE SUPREME COURT OF

Administration and Probate~Testamentary expenses—Stamp duty—Corpus com-

HIGH COURT re

[HIGH COURT OF AUSTRALIA.}

AND

NEW SOUTH WALES.

mission—Direction in will to pay out of residue—Bvoneration of real estate— Stamp Duties Act 1898 (N.S.W.) (No. 27 of 1898), secs. 4, 49, 56, Third Schedule —Perpetual Trustee Company (Limited) Act 1888 (N.S.W.), sec. 13—Wills,

Probate and Administration Act 1898 (N.S.W.) (No, 13 of 1898), secs. 44, 46, 61,

By sees. 4 and 49 of the Stamp Duties Act 1898 (N.S.W.) and the Third Schedule thereto, stamp duty is imposed upon probate or letters of adminis- tration to be granted in respect of any estate real and personal of deceased persons. By sec. 56 it is provided that "(1) Any duty payable under this eutor or administrator shall be deemed to be a debt of the testator or intestate to Her Majesty, and shall be payable out of his personal

'Act by any e

estate. (2) If the personal estate is insufficient to pay such duty the executor or administrator. . . may apply to the Supreme Court, which may order that a sufficient part of the real estate be sold to pay the said duty. (3) Every executor or administrator may deduct from any property devised or bequeathed

to any person an amount equal to the duty thereon, calculated at the same — rate as is payable upon the estate under this Act, unless the testator has made a different disposition as to the payment of the said duty in his will."

By sec. 13 of the Perpetual Trustee Company (Limited) Act (N.S.W.), it is provided that the Company shall be entitled to receive a commission not exceeding a certain percentage upon the corpus, and a certain other percentage upon the income, of any estate of which the administration shall have been committed to it, which commission shall be accepted by the Com- pany in full satisfaction of any claim to remuneration for acting as executor,