Commissioner of Succession Duties (SA) v Isbister [1941] HCA 2

OF AUSTRALIA. 375

{HIGH COURT OF AUSTRALIA.)

COMMISSIONER OF SUCCESSION TIES (SOUTH AUSTRALIA) - LAI EY B Responvent. AND RR AND ANOTHER . . . . RESPONDENTS.

APPELLANTS,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

th and Succession Duties —Declaration of trust—Power of revocation reserved by H.C. oF A.

not exercised during settlor's lifetime—Whether trust to take effect 1941. Ww

MELBOURNE, March 5, 6.

: daughter for life and after her death upon other trusts, but reserved to a power to revoke the trusts and appoint new trusts. He died without es 'exercised the powers of revocation and new appointment, and his survived him, 'Held that the deed was not an instrument " containing trusts or dispositions ) take effect upon or after the death of the settlor," and accordingly was chargeable, on the settlor's death, with duty as a "settlement " within 'meaning of sec, 4 of the Succession Duties Act 1924-1936 (S.A.).

Decision of the Supreme Court of South Australia (Full Court) affirmed.

AL from the Supreme Court of South Australia.

James Isbister and Annie Marie Gellert, the trustees under poll dated 12th March 1919 and 16th April 1929, respec- nd executed by the Honourable Sir John Langdon Bonython, 'in favour of his daughter, Edith Annie Bonython, appealed e Court of South Australia by way of originating an assessment made by. the Commissioner of Duties of South Australia in respect of succession duty

H.C. oF A.

1941, Ww Commns- SIONER OF Succession Dorres

(S.A.) v. IspisTER.

HIGH COURT [gan

charged on the above-mentioned deeds on the death of the settlor on 22nd October 1939. Ina statement of facts agreed upon between the parties to the appeal, it appeared that by the first deed, the settlor declared himself the trustee, as from Ist January 1919, of certain South-Australian Treasury fixed deposits of a face value of £25,000 upon trust to pay the income therefrom to his daughter, Edith Annie Bonython, during her lifetime, and after her death, to stand possessed of the trust funds, and the income and the accumula tions of income thereof, upon trust for her child, children, or remoter issue, at such ages and times (not being earlier than the age of twenty-one years or date of marriage), and in such shares, if more than one, as she should by deed or will appoint, and, in default of appointment, in trust for all her children in equal shares who, being sons, should attain the age of twenty-one years or, being daughters, should attain that age or marry, and, if there should be but one child, then the whole to be in trust for such child, and, if there should be no such child or children, in trust for all his grandchildren who should survive him and, being male, should attain the age of twenty- one years or, being female, should attain that age or marry, in equal shares. Having declared these trusts, the settlor then declared: "T shall have full power at any time by any deed or deeds with or without power of revocation and new appointment to revoke either wholly or partially the trusts and powers hereby declared concerning the trust funds and/or the income and/or accumulations thereof or the moneys or property for the time being representing the same or any part thereof respectively and by the same or any other deed or deeds may appoint and declare any new or other trusts or powers concerning the trust premises to which such revocation shall extend as to me shall seem meet but so that any such new or other trusts or powers shall be for the benefit of the said Edith Annie Bonython or of her husband (if any) and/or of the children or remoter issue of the said Edith Annie Bonython or any other child or children, grandchild or grandchildren of mine." By the second deed, which was indorsed on the first, the settlor declared that he as trustee, as from 20th March 1929, should hold certain described Commonwealth stock of a face value of £75,000 upon the same trusts, and subject to the same powers and provisions, including the power of revocation and new appointment, as were contained. in the first deed. The settlor died on 22nd October 1939 without having exercised the powers of revocation and new appointment reserved to him by the deeds, and the value of the trust funds at his death was £101,109 10s. 2d. His daughter, Edith Annie Bonython, was still living and unmarried.