LEGACY TO A CHURCH.

Otago Witness, Issue 3808, 8 March 1927, Page 31

LEGACY TO A CHURCH.

ASSESSMENT OF DUTY.

In the Supreme Court Chambers on Tuesday afternoon, before his Honor Mr Justice Sim, the hearing was commenced of the case the Perpetual Trustees, Estate, and Agency Company of New Zealand (Ltd.), as executors and trustees of the will of Peter Grant Mackintosh, late of Dunedin, retired accountant, v. the Commissioner of Stamp Duties. On behalf of appellant, Mr 11. Brasch had associated with him Mr J. Wilkinson, while Mr F. B. Adams, on behalf of the defendant, had Mr R. S. M. Sinclair with him.

Mr Brasch said that the case was an appeal against the assessment of the Commissioner of Stamp Duties in respect to a legacy from Peter John Mackintosh to the Presbyterian Church to assist it in its foreign mission work. The amount was £4441 18s 7d, and the commissioner assessed the duty at £441 15s lOd. Appellant was dissatisfied with the assessment, and asked the commissioner to state a case for the court. Counsel said the whole case would revolve round the words “beneficial interest” in the clauses of the Act bearing on the case. He contended that the church was not the true successor, but that the heathen of foreign countries were. The money was left to the church, as trustee, for a specific purpose, and since it could not be used for any other purpose it could not be said that the church was “beneficially entitled.” The characters of a trustee and a beneficiary were incompatible—the church could not be both. It was trustee for the people indicated in the will. His Honor: There must be beneficial owners, who are they? Mr Brasch: I submit that the church is merely trustee.

His Honor: Then the heathen of the world are the beneficial owners. Counsel submitted that the legacy was a charitable trust. There were two exceptions under the clauses of the Act bearin o ' on the matter—(l) In the case of propertv left on charitable trust in New Zealand"; and (2) in all v other cases, excluding relationship, where the value of succession did not exceed £5OO. The onus was on the commissioner to prove that someone took a “beneficial interest” to the extent of £SCO. In support of his case Mr Brasch quoted numerous authorities.

Mr Adams contended that the gift was made to the church for one of its principal purposes—the propagation of the Gospel abroad. In that respect the church had a “beneficial interest.” If a testator left money to a church for something foreign to its objects then the church would be a trustee.

His Honor: But could this trust be diverted to other purposes? Mr Adams said he thought not. He admitted that there was a trust to a certain extent, but the church could use the money in fulfilment of missionary obligations already undertaken. Presuming a church had a bank overdraft, so far as its missionary activities were concerned, could it not relieve itself of its liability in that respect by using the money left to it? It was impossible to point to any person other than the church who took a “beneficial interest” ; it was merely juggling with words to say that the heathen were “beneficially interested.” Where there was no identifiable successor, then the church as trustee was liable. If appellant succeeded, which charitable trust could be caught by the Act? The exception clause would be valueless. Air Adams also quoted numerous authorities.

At the sitting of the Supreme Court in Chambers on Wednesday, before his Honor Mr Justice Sim, the hearing was concluded of the case the tees, Estate, and Agency Company of New Zealand (Ltd.), as executors and the trustees of the will of Peter Grant Mackintosh, late of Dunedin, retired accountant, v. the Commissioner of Stamp Duties. The case constitutes an appeal against the assessment of the Conimisioner of Stamp Duties in respect to a legacy from Peter John Mackintosh to the Presbyterian Church to assist it in its foreign mission work. The amount was £4441 18s 7d, and the Commissioner assessed the duty at £441 15s lOd. In advancing further argument on behalf of appellant yesterday, Mr H. Brasch said that Mr Adams (for defendant) had contended that where there was no separate or identifiable “beneficial interest,” the trustee was liable, but in many similar cases it had been held that churches did not have a “beneficial interest.” Where money was left for charity generally, the court would not allow the object to Ee defeated. It had been argued that if appellant succeeded then no charity would be taxable, but if the Legislature did not choose to make adequate provision in that respect the responsibility was not appellant’s. Charities.outside New Zealand exceeding £5OO were taxable, and the onus was on the Commissioner to prove that someone had a ‘“beneficial interest” exceeding that amount. Counsel stressed the extreme particularity with which the words “beneficially entitled’’ were used in the Act, and contended that the church was merely “legally entitled.” Those who would ultimately benefit • were the heathen of the world. Several English cases cited by Mr Adams were, he contended, not applicable in this country. Mr Brasch quoted further authorities in support of his case, and his Honor intimated that he would take time to consider the matter.

One of the very finest eucalyptus trees in the Dominion is growing on Mi- M. Butler’ farm, Pukeroro. Mr Butler has a a considerable number of mangificent eucalyptus trees on the property (says the Taranaki Herald), but this particular specimen is remarkably fine.. It is 157 ft in height, and the trunk, which does not taper much for a very' considerable distance, is about 4ft 6in in diameter. There is a stretch of about 75,ft to the first, branch of the tree. It is of the variety known as eucalyptus seginna, a valuable hardwood. Each year seed is gathered from this tree for planting in the Government forest nurseries.