LEGACY TO A CHURCH.

Otago Witness, Volume 1851, Issue 3809, 15 March 1927, Page 86

LEGACY TO A CHURCH.

APPEAL AGAINST DUTY -assessment; JUDGMENT FOR APPELLANT. In the Supreme Court on Tuesday morning his Honor Mr Justice Sim gave judgment in the case in which the Perpetual Trustees Estate and Agency Company of New Zealand (Ltd.), as executor and trustee of the will of Peter Grant Mackintosh, late of Dunedin, a retired accountant,- appealed against the duty assessment of the Commissioner of Stamp Duties on a legacy to the Presbyterian Church.

When the case was heard Messrs H. Brasch and J. Wilkinson appeared for the appellant, and Messrs F. B. Adams and R S. M. Sinclair for the respondent. In giving judgment his Honor said: — ‘‘This is a case stated under section 62 of the IJeath Duties Act, 1921. The appellant is the executor of the will of Peter Grant Mackintosh, who died on the 2nd of October, 1925. By his will the testator directed the appellant to hold the residue of his estate in trust for the Presbyterian Church of New Zealand for the purposes of assisting their foreign missionary work. This residue is valued at £4417-IBs 7d, and the respondent assessed succesion duty thereon at the sum of £441 15s lOd as being 10 per centum of the value of the succession. The appellant contends: (1) That the Presbyterian Church of New Zealand is not a person who acquires a beneficial interest under the will, and is, therefore, not a ‘successor’ within the meaning of section 16 of the Death Duties Act, 1921; (2) that the true successors are the foreign Utathen persons for whom the benefits of the trusts will ultimately be applied ; (3) that if they are the successors there is no succession whiih exceeds in value £5OO. The bequest of the residue to the Presbyterian Church is clothed, I think, with a trust, and the church is bound to use that residue exclusively for the purposes of its foreign missionary work. The obligation, can be enformed in a properly constituted suit in this court: Commissioner of Stamps v. M‘Doual, 28, N.Z.L.R.. 573, 561. TJiis was not disputed by Mr Adams, but he contended that the church must be treated as the beneficial owner of the residue unless there was some other separate person who could be identified as the successor within the meaning of section 16 of the Act. He did not cite any authority in support of this contention, and, I am unable to accept it as sound. The church takes the residue in trust for the benefit of the foreign heathen, and does not itself acquire any beneficial interest therein, although the gift may benefit the church indirectly by setting free for its general pin poses funds which otherwise would . have been spent in missionary work. The persons who acquire the beneficial interest in the residue are the heathen for whose benefit the money will be spent, and it is impossible to say that the interest of any one of these persons exceeds in value £5OO. The case, therefore, does not conge within the terms of sub-section 7 of section 17 of the Act, and the assessment cannot be supported. That is the answer to the question submitted bv the ease. The appellant is allowed -«£7 7s for the costs of the appeal.”