Wedge v Acting Comptroller of Stamps (Victoria)

64 CLR 75
1941 - 0228A - HCA

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(Judgment by: Starke J)

Between: Wedge
And: Acting Comptroller of Stamps (Victoria)

Court:

Judges: Rich ACJ

Starke JWilliams J

Subject References:
Succession
Stamp duty
Transfer of trust property under will to beneficiary
Undertaking to hold property subject to trusts

Legislative References:
Stamps Act 1928 (Vic) No 3775 - Third Schedule, Heading IX

Hearing date: 18 February 1941
Judgment date: 28 February 1941

Melbourne

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Judgment by:
Starke J

This appeal, I agree, should be allowed.

The appellant, in the events which have happened, is entitled to the residuary estate of the testator, into which ultimately falls a house and land provided by the testator for the use of his wife until her death or remarriage.  But the appellant could not obtain a conveyance of the residuary estate until the death or remarriage of his mother without her consent.  So an arrangement was made and reduced to writing whereby the mother consented to the executor and trustee of the testator transferring the residuary estate to the appellant subject to the trusts in the testator's will for her benefit, and the appellant undertook to hold the same subject in every respect to such trusts.

In my opinion, the document does not resettle or create any new trusts in respect of the residuary estate but provides for the execution of the trusts of the will in favour of the appellant sooner than otherwise would have been possible under the will of the testator and for the observance of the trusts in the will of the testator in favour of the appellant's mother.  The learned judge from whom this appeal is brought would, I gather, have reached the same conclusion but for the reasoning of this court in Davidson v  Chirnside. ^[F6]   But in that case the trustees executed a document the legal effect of which was to settle or resettle the testator's estate in accordance with the directions of the testator, which is not, I think, the legal effect of the instrument in the present case.  This view is supported by the cases of Massereene v  Commissioners of Inland Revenue ^[F7] and Turnbull's Trustees v  Inland Revenue, ^[F8] and is not in conflict with the decision of this court in Davidson v  Chirnside. ^[F9]