STRONG CENSURE BY JUDGE

Press, Volume LXXVIII, Issue 23798, 18 November 1942, Page 2

STRONG CENSURE BY JUDGE

* COMMISSIONER OF STAMP DUTIES CLAIMS AGAINST -ESTATE REJECTED (P.A.) WELLINGTON. Nov. 17. Strong censure of the attitude adopted by the Commissioner of Stamp Duties in two Hawke’s Bay cases stated by him under tly- Death Duties Act is expressed by Mi Justice Blair in a reserved judgment Remarking that the Commissioner is clothed with certain judicial functions and has high public duties to perform, his Honour comments; “The effect of the attitude he takes in this matter is that he entirely disregards any moral or ethical considerations”; and in a later passage of the judgment his Honour emphasises that, as with His Majesty’s law courts, the administration of State depaiumerits must be le.ir, just, impartial, and fearless. ... * . He describes as fantastic, if not to a lawyer then at least to a layman, the Commissioner’s claims in the proceedings. The appellants in the two cases stated were Charles Athol Williams, a farmer of Pukehou, and George Falkland Gardiner, an accountant, of Napier, as administrators of the estate of the late Helena Keith, of Pukehou. spinster, and Messrs Williams and Gardiner as appellants in their respective personal capacities. The cases concerned the will of Miss Keith, in which she left her estate to the appellants and expressed the hope “but without in any way qualifying the absolute nature of the foregoing, that they will carry out any wishes expressed by me in writing that may be found with this will or with my papers at the time of my death.” A deed of arrangement, which incorporated the effect of a memorandum signed by the testatrix about four years after the making of the will and in which she expressed the wish that certain persons should be assisted “as my executors may think fit,” was subsequently made between a Mrs Helena Howes, of Sydney, the sole next-of-km. and the appellants’ solicitors. This deed provided, among other things, that he devise and bequest to the appellants should be deemed a trust for the persons detailed in the memorandum as if those persons and their respective shares had been so set out in the will itself. - “Morally Bound” His Honour in his judgment says that correspondence showed that the appellants considtred themselves bound in respect io the dying wishes of the testatrix, no mattei What the legal position was, and it appeared also that Mrs Howes, had she been the person entrusted by the testatrix to carry out her last wishes, would have felt morally bound to respect those wishes. “What actually did happen,” says the judgment, "is that the late Miss Keith’s judgment of the character of the men she trusted was sound, and instead of a legal fight based upon technicalities the twe gentlemen selected by her as worthy of her trust refused to look at the matter otherwise than as one of a sacred duty to the dead.” His Honour next deals with the effect of the Commissioner’s claims and his contentions, that the will contained an absolute gift to Williams and Gardiner of the whole of her estate, untrammelled by any trust, and that death and gift duties should be assessed accordingly. “From the Commissioner's point of view, he disregards the fact that the persons to whom Williams and Gardiner are making these so-called gifts are persons whom the late Miss Keith wished to benefit,” says his Honour. “He Cannot pretend that he does not know that Williams and Gardiner make no pretence of having made any gifts. All they consider they have done is to dispose of property given to them in tryst strictly in accordance with that trust “Any honest man placed in the position of Williams and Gardiner would unquestionably do what they have done, and I io not suppose they glaim any credit for so doing, because they are acting only in strict consonance with the ordinary honest man’s natural ideas of honesty. Indeed, I venture to say.tha' had they elected to .adopt thK Mr)thinkable course of pocketing the money with which Mies Keith entrusted them they would not have been able, to holo up their heads among their fellow men. Department’s Honour “The fact that the Commissioner of Death Duties does not appear to hold with • these sound but, unfortunately, perhaps old-fasbioned views, is to be regretted, if not for his own sake, then at least lor the honour of a gfeat State department.” His Honour states that his concern for the reputation of a great State department was such that before the actual hearing at Napier, and having read the Commissioner’s statement of his case, he had special inquiries made through counsel to make certain that the head of the department was advisedly adopting the course which the papers m the case indicated he was adopting. “The reply I received was a curt message to (he effect that the department wished the case to proceed, as filed,” says his Honour. “Therefore it cannot be claimed that the Commissioner of Stamp Duties has not gone into this matter with his eyes open.’’ His Honour said it looked to him as if it appeared to the Commissoner of Stamp Duties to be of more importance that he became enabled to claim (axes upon what was really one transaction in four and possibly five separate and distinct ways than it was to see an honest trustee being honest f o his trust It was plain to him (his Honour) that tlu Commissioner could not have a shred of moral justification for his claim. His Honour allowed the appeal of Williams and Gardiner as administrators of the estate, and held that succession duly should be assessed against each person taking under the deed of arrangement He also allowed the second appeal in the personal capacities, and held that nc gift duly was attracted by the oeed or otherwise.