West v Federal Commissioner of Taxation [1949] HCA 50

79 C.L.R.] OF AUSTRALIA. 319

[HIGH COURT OF AUSTRALIA.] WEST . 5 : z : : f 5 . APPELLANT ; AND

FEDERAL COMMISSIONER OF TAXATION . Responpsnr.

Estate Duty (Cth.)—Assessment—Dutiable property— Property . . . comprised H.C. oF A.

in a settlement made by . . . deceased . . . under which he had any 1949. interest . . . for his life" —Deceased entitled under will to have property = "~ settled on her for her life and after her death on her children—Whether provision MELBOURNE,

in will a mere power or an imperative trust—Title to property in trustees of will Oct. 27, 28. —Setilement executed by trustees and deceased—Hstate Duty Assessment Act SYDNEY,

1914-1928 (No. 22 of 1914—No. 47 of 1928), s. 8 (4) (c). Nov. 16. A testator by his will declared trusts in specified shares in his trust estate Tatham C..,

in favour of his sons and daughters, including his daughter H.; this declara- Dixon JJ. tion was followed by a proviso by which in effect it was willed and declared that the shares should not vest in the daughters until they attained forty or married under that age. 'The testator then willed and declared that the share of each daughter should be enjoyed by her as a personal provision and free, when she should be covert, from the control and engagements of her husband "and it is my will and desire that the share . . . of every daughter . . . who . . . shall be about to be married under the age of forty years shall be by deed settled and assured upon her and her children . . . and in such way and manner as my trustees shall in" their "discretion . . . appoint or think best but so nevertheless as not to deprive any such daughter of the annual income arising from her share during her life."

The daughter, H., being about to be married under the age of forty, a settle- ment of her share was made by an indenture to which the trustees were parties of the first part and H. was party of thesecond part. It recited, inter alia, the desire of the trustees to comply with the "' direction and declaration " in the will as to settling daughters' shares on marriage under the age of forty; that "in accordance with such declaration and desire" the trustees '' have caused to be prepared such settlement or assurance in such form . . . as herein- after in these presents expressed"; and that H. was similarly desirous and