C.A. 1901. OF STAMPS THIS was an appeal from an assessment of the Commis COMMISSIONER Sioner of Stamps under section 55 of "The Stamp Act, 1882," and section 17 of "The Deceased Persons' Estates Duties Act GIRLING & Co. 1881 Amendment Act, 1885." v. Elizabeth Ann Girling, of Blenheim, widow, died on the 17th of November, 1899, having made a will dated the 7th of November, 1899, probate of which was, on the 18th of December, 1899, granted to Francis Thomas Clarke, a son of the testatrix by a former marriage, and one of the executors Inamed in the will. The following is a summary of the provisions of the will: The testatrix gave a legacy of £100 to a niece, Florence Alice Ross. She devised to her daughters, Elizabeth Alice, Emily Millicent, and Florence, the part of Section 455, Town of Blenheim, owned by her, and all her land in the Town of Picton, in equal shares, as tenants in common, free from encumbrances. She devised to her son William James Girling her residence and land in High Street, in the Town of Blenheim, free from encumbrances, and bequeathed to him all her household furniture and effects. She devised and bequeathed all the residue of her real and personal estate to her two sons Francis Thomas Clarke and William James Girling absolutely, as tenants in common, subject to the payment of all her debts, including the debts secured on the lands specifically devised. The will then went on to state that it was the desire and wish of the testatrix that her said sons should immediately after her death enter into a bond to pay the sum of 10s. per week to her daughter Elizabeth Alice so long as she remained unmarried, and also into a bond with each of her daughters, Elizabeth Alice, Emily Millicent, and Florence, to keep each of them supplied, without charge, so long as she should remain unmarried, with all necessary and suitable clothing and wearing-apparel; and, further, that it was her wish and desire that her said daughters should live with her son William James Girling so long as they remained unmarried, but that, should they or any of them cease to live with her said son, then her said sons should be tween them pay and allow to each of her said daughters the annual sum of £20 until they should respectively marry. The carrying-out of these desires and wishes was, however, to be in no wise considered to be a charge on any part of her real or personal estate, the testatrix stating that the confidence which she had in her two sons was a sufficient assurance to her that her wishes would be faithfully carried out. The will concluded with the appointment of the testatrix's son Francis Thomas Clarke as executor, and with a provision for her other son, William James Girling (who was a minor), becoming co-executor with him on attaining his majority. The estate of the testatrix at the time of her death consisted of the following properties: 1. Section 455, Blenheim, and a section in Picton, together valued at £528. These were the properties specifically devised to the three daughters. 2. Her residence and land in High Street, Blenheim, and household furniture and effects, together valued at £664 17s. These were the properties specifically devised and bequeathed to William James Girling. 3. The residue of the estate consisted of (a) stock-in-trade and book debts and other assets of a drapery business in Blenheim, carried on by the testatrix at the time of her death; (b) the shop and land where the said business was carried on by the testatrix; and (c) a shop and land in Blenheim occupied by a Mrs. Bushell. The residue of the estate, after paying the debts and providing for the legacy of £100 to Mrs. Ross, was valued at £3,236 16s. 5d. The sons and daughters of the testatrix were all of them minors with the exception of Francis Thomas Clarke. After the death of the testatrix the beneficiaries under the will (other than Mrs. Ross)—that is to say, the sons and daughters of the testatrix-executed a deed the liability of which to duty was the subject of this appeal. The copy set out in the case was dated 1899, but the day and month were left blank. It was expressed to be made between Francis Thomas Clarke, of Blenheim, draper, of the first part, Wil C.A. 1901. COMMISSIONER OF STAMPS GIRLING & Co. 1901. OF STAMPS v. GIRLING & Co. C.A. liam James Girling, of the same place, draper, a minor, of the second part, the three daughters of the testatrix, each COMMISSIONER described as a spinster and a minor, of the third, fourth, and fifth parts, respectively, and Charles Purkiss, of Blenheim, commission agent, and the said Francis Thomas Clarke (afterwards referred to as "the trustees"), of the sixth part. It recited the will, a copy of which was set out in a schedule, and that for various good reasons the parties had mutually agreed between themselves that a distribution of the estate and effects of the testatrix should be made in mauner afterwards appearing in the deed, instead of the distribution provided for by the will, and that the drapery business carried on by the testatrix in her lifetime should be continued in manner afterwards appearing. Clause 1 was to the effect that the will, and the distribution of the estate and effects of the testatrix thereby provided, should be and were thereby set aside, and the following distribution substituted therefor, in the same manner as if the testatrix had by her will so divided the same, and had devised and bequeathed all her property to the trustees in trust for the persons and in the proportions afterwards set forth in the deed. Under clause 2 William James Girling was to be absolutely entitled to the residence and land and household furniture and effects specifically devised and bequeathed to him by the will, and also to the part of Section 455, Blenheim, which was by the will specifically devised to the three daughters. these properties free from encumbrances. provided that the legacy of £100 to Mrs. Ross, and the debts, secured and unsecured, should be paid out of the residue of the properties. Clause 5 provided that as to such residue (which was to include the whole of the residue under the will, and, in addition, the section of land at Picton, which by the will was specifically devised to the three daughters) the five sons and daughters were to be deemed to be partners therein as from the date of the death of the testatrix, in the shares and proportions and for the period and upon the terms following. And the five sons and daughters mutually covenanted with one another that they would become and remain partners for He was to take Clauses 3 and 4 the purpose and period, and under and subject to the stipulations and provisions, afterwards expressed. Clauses 6 to 9 were to the effect that the business of the partnership was to be that of drapers, that the partnership was to be for a term of ten years, that it was to be carried on by the trustees for the partners under the firm of "W. B. Girling & Co.," and that the capital of the partnership was to consist of the beforementioned residue of the real and personal estate of the testatrix (that is to say, of the residue under the will and of the section at Picton specifically devised to the daughters). Clause 12 provided that Francis Thomas Clarke should devote his whole time to the partnership business, and should be allowed an annual salary of £250, and that Charles Purkiss (the other trustee) should be allowed such salary or fee per annum as should be agreed upon between him and Clarke. Clause 13 provided that a sum of £150 per annum should be paid to William James Girling to assist in the expenses incurred by him in having his three sisters living with him, and that, should any of them cease to reside with him, the above sum of £150 per annum was to be reduced by £37 108. per annum for each one so ceasing to reside, and such sum of £37 10s. was to be paid to the sister so ceasing to reside. The above sum of £150 per annum was to be charged equally between William James Girling and his three sisters as advances to them on account of their respective shares of the partnership business. Clauses 14 to 19 contained a number of usual partnership provisions. Clause 20 provided that the profits of the partnership should be divided into six equal parts, of which Francis Thomas Clarke was to have one and one-half parts, the three sisters each one part, and William James Girling, the remaining one and one-half, and that the amounts of such respective parts should be carried to the credit of the partners respectively in the partnership books immediately after the annual general rest; that 75 per cent. thereof should be forthwith applied in and towards the liquidation of all outstanding liabilities of the partnership business, and that the remaining 25 per cent. might be drawn out at pleasure by the partners entitled thereto. Clauses 21 to 25 C.A. 1901. COMMISSIONER OF STAMPS V. GIRLING & Co. C.A. 1901. COMMISSIONER V. GIRLING & Co. contained other usual partnership provisions. Clauses 26, 27, and 28 were in the following terms: 26. The said Francis Thomas Clarke and Charles Purkiss shall be joint trustees of the estate and effects of the said deceased forming the partnership property hereinbefore mentioned and the same is hereby vested in them for the benefit of the said partners according to the terms hereof until the said William James Girling attains the age of twenty-one years when he shall take the place and stead of the said Charles Purkiss as such trustee and the said Charles Purkiss shall when called upon to do so execute all necessary documents for the purpose of carrying this into effect. 27. Such of the parties hereto as are at the date hereof under the age of twenty-one years shall on attaining that age respectively by writing under their hands confirm this present deed. 28. And this deed further witnesseth that in pursuance of the arrangement for that purpose hereinbefore entered into the said Francis Thomas Clarke and Elizabeth Alice Girling do and each of them doth hereby convey assure assign transfer and set over unto the said trustees all that the shares estate interest property claim and demand of whatever kind or nature of them the said Francis Thomas Clarke and Elizabeth Alice Girling or either of them in the lands estate property credits and effects of the said Elizabeth Ann Girling deceased either under her said will or otherwise howsoever to hold the same to the said Francis Thomas Clarke and Charles Purkiss as joint tenants upon trust for the purpose of carrying out the intentions expressed in the terms and conditions hereinbefore set forth. The duty on the above deed was assessed by the Deputy Commissioner of Stamps at Blenheim as follows: £ S. d. 3,236 16 4 1.618 8 2 528 0 0 Amount on which gift duty is chargeable... 1,090 8 2 This assessment was confirmed by the Commissioner of Stamps, and the case stated that it was contended on his behalf that the deed, if not comprising a deed or deeds of gift, was either a conveyance on sale or a deed of settlement. The questions stated by the case for the opinion of the Court were, 1. Is the said deed liable to duty as comprising a deed or deeds of gift? |