A WILL CASE.

Press, Volume LXIII, Issue 12936, 16 October 1907, Page 3

A WILL CASE.

THE SIOORE ESTATE

ARGUMENT IN THE CX>URT' OF

APPEAL,

(mSSS ASSOCIATION TEUeSAX.) WELLINGTON, October 15. The Court of Appeal .to-day heard the case of in re Moore, deceased, and Townend v. the Commissioner of Stamps. This was a case removed into thf Ccurt of Appeal for argument. The appellant was Annie Quayle Townend, daughter of George Henry Moore, deceased, and co-executrix with two executors under his will, and the respondent wae the Commissioner of Stamps. The testator died at Christchurch on the 7th of July, 1905, in his 93rd year. By his will he left all his property to his daughter, the appellant. The final balance of hie estate in New Zealand was certified by the respondent to be of tho value of £636,158 l(js "d, and duty thereon was assessed at £31,307 18s 10d. The executors declined to pay this sum, claiming that the value of tho estato was £2. r >3.936 16s 3d, and that the-bo- ! lance of £432,222 Oβ 4d, on wliich duty I had been assessed, was the absolute property of tlie appellant, the testator's -daughter. In itiii'd tho testator had I appointed his daughter hie attorney for the management of hia business. From that date until his death tl»e deceased was failing in health, and in 181)3 ho had become almost, totally blind. His daughter managed his business herself, and tho respondent alleged that while co doing, tshe invested large sums in her own name with tlte concurrence of the testator,, so as to avoid the payment of duty, part of the .money bo invested being 1 tho proceeds of the eub-divuion and ! sale of the Glenmark station, which ; belonged to the testator. The moneys 1 alleged by the respondent to be so mii vested amounted to £432,222 Oβ 4d, and ■ the respondent* , claimed that this amount was still the property of the i testator at hie death, and liable to j duty or alternately, that it was put ! into the appellants name for the purpose of evading tho payment of duty, or as a third alternative that it came into her hands by deed of gift, and was therefore liable to the payment of d'lity. The Minister of Stamps petitioned tho Court for leave to examine the appellant before the Court as to how she became possessed of these moneys. The petition and the appeal the assessment of duty were both moved into the Court of Appeal for argument. Mr C. P. Skerrett, K.C., and Mr Brown, of Christchurch, appeared for the appellant, and Mr T. "W. Stringer, K.C., and Mr Myere for the respondent. Mr Skerrett, after a full statement of the facts, proceeded to contend that before the respondent could succeed, he must show that the moneys transferred from the account of the deceased testator to that of has daughter,/the appellant, were transferred by the appellant acting as the testator's attorney without hie knowledge or consent. The whole of the evidenoe was against that contention. In 1898 the 'testator had made bis will leaving everything to hie daughter and the correspondence .which, pawed between him and hie solicitors, ana which was part of the evidenoe before the Court, showed. plainly that it was his intention to transfer as much of bis property to his daughter in. his lifetime as he could, so as io escape death duty. In 1900 the appellant, with the testator's concurrence, had opened a banking account, and all moneys which were payable to the testator, either us oapitel or income, were with the testator's concurrence paid into her account* 'Such payments were gifts of money, which were not subject toJbJta .^yiu^^^ty^n 1 -atty.'#a#;-''A''i* U --. : eon Had the right by any legal means of evading the payment of duty, and the, means adopted, by the testator attcTthe appellant were j>erfectly legal and unimpeachable. No question of undue influence or of the fiduciary relationship of the appellant could arise in the oase, the appellant being the sole beneficiary, and no suit having been brought by, or on behalf of, the testator, the Court must presume conclusively that the course of action pur* sued by the appellant was with her father's consent and approval. Thai course of conduct had been commenced and followed in pursuance of tho advice of counsel, which had ~ been ob-j tamed with the concurrence of the testator. The authority to the appellant to pay all moneys into her own account might have been voidable b> the testator, but he never repudiated the arrangement before his death, and on his death it became valid beyond all power 1 of revocation. The gift, although made for the purpose of evading duty, was a complete and bona tide gift, and she exercised complete oontrol over the moneys paidi into her name, there being no reservation on behalf of the testator. The motive for the gift was immaterial, if the gift wae complete and if the gift was absolute. Even if the motive was to escape the payment of duty, it was not an era' si on within section 35 of the Deceased Persons Estates Duties Act, 1881. Mr Skerrett completed his argbment at 3 p.m., ana Mr Brown then briefly'eddreseed the Court in explanation of the accounts. Mr Stringer, X.C.. on behalf of the respondent, then addressed tho Courts He contended that there was not sufficient evidence of a gift of these moneys b.r the testator to his daughter, i girt without writing having to be completed by manual delivery of the subject of the gift. In this case this was never domo, but the appellant received the money es attorney for the t««tator, and th*n invested it in hei own name, and there was-no manual delivery by the testator. There must be to constitute a valid gift of peieonal property—either a deed or actual delivery—and these was neither here. Further, «t tlie time the appellant received these eh* was a trustee for the testntor under the power of attorney, and that made the presumption against a eift stronger. Mr Stringer had not concluded h»V nddress when the. Court rose for tlio da 7>