Stamp Duties, Commissioner of (NSW) v Sprague [1960] HCA 13

High Court of Australia Dixon C.J. Fullagar, Kitto, Menzies and Windeyer JJ. Stamp Duties, Commissioner of (NSW) v Sprague [1960] HCA 13

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1960, Mar. 1 Dixon C.J.

This is an appeal from an order of the Supreme Court of New South Wales made upon a case stated by the Commissioner of Stamp Duties under the Stamp Duties Act 1920-1940 N.S.W.. By the order the questions submitted were determined against the commissioner who now appeals to this Court. The questions arise under s. 102 (2) (a) of the Act. That paragraph includes in the estate of a deceased person all property which the deceased has disposed of by will or by a settlement containing any trust in respect of that property to take effect after his death, including a will of settlement made in the exercise of any general power of appointment, whether exercisable by the deceased alone or jointly with another person: provided that the property deemed to be included in the estate of the deceased shall be the property which at the time of his death is subject to such trust.

I have failed to understand what in the context is meant by the words "by will". The words "including a will made in the exercise of any general power of appointment" seem to suggest that there are other forms of property which might pass by will which are not caught by s. 102 (1)—the provision dealing with the testator's own property. However, my difficulty may be passed by because it is not directly material to the present case.

The words upon which the present case depends are "property which the deceased has disposed of by settlement containing any trust in respect of that property to take effect after his death". The deceased with whom we are concerned, whose name was Leslie Sprague, made a settlement dated 28th June 1924 which contained the following trust of the "settled property": "Upon trust for all or such one or more exclusively of the other or others of the children or remoter issue of the said Leslie Sprague such remoter issue to be born and take vested interests within twentyone years of the death of the said Leslie Sprague for such estate or estates interest or interests and if more than one in such shares and with and subject to such powers provisions and limitations over for the benefit of any one or more of such children or remoter issue and in such manner as the said Leslie Sprague shall by any Deed or Deeds revocable or irrevocable or by Will appoint and in default of and subject to any appointment under the power hereinbefore contained In Trust for all or any the children or child of the said Leslie Sprague who being sons or a son attain the age of twentyone years or being daughters or a daughter attain that age or marry if more than one in equal shares as tenants in common". The power of appointment conferred by this trust was not exercised. The trust which took effect is the trust for all or any of the children of Leslie Sprague. The deceased in fact left six children and they all had attained the age of twenty-one during his lifetime. The question is whether in these circumstances the settlement contained a trust in respect of the settled property to take effect after his death.