'Porson v para

'Porson v para - [1910] HCA 47 - HCA 1910 case summary — Zoe

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the purposes of this Act or Part V. of the Principal Act " - and then follows what is to be law for those purposes. It is not for one purpose but for all the purposes specified which are relevant to settlements, that is for everything including registration, pay- ment, and execution, and also, under the later Act, deduction. The operative words effect two objects: first, the word "settle- ment" had not been interpreted in sec. 112, and as its dominant notion, where not artificially detined or controlled by the context, is the creation of a succession of interests - the marriage settle- ment being the most prominent example - it might easily have been contended that with reference to a taxing Act the strict construction should be applied. By this means great opportunity might have been afforded to steer between wills and settlements properly so called, largely affecting the revenue. No doubt one of the objects of Parliament was to end this uncertainty or else to add to the class of instruments to be regarded as taxable. But this was perfectly achieved by a part of the new enactment. I mean that, if you stop at a certain point in it, you attain fully the mere object of definition. The words I refer to are - ' Every conveyance, transfer appointment under power declaration of trust or other document or non-testamentary disposition of property made by any person." And if that had been the only object of the legislature, or, in other words, if its intention had been simply to enlarge the class of documents which should henceforth be within the purposes of the enactments, without altering the conditions, the definition would have ended there. But it did not. It went on to add these words - * containing trusts or dispositions to take effect or which shall or may take effect upon the death of such person." These are new conditions and stand side by side with the old. The description of the documents which are to be embraced within the purposes of the enactments is as perfect and complete in every way as that of the original class mentioned in sec. 112. Reading the words of the two Statutes so as to get their natural construction as applied to the subject matter, it is impossible to insert the whole of the new provision of sec. 8 into sec. 112 as a mere enlarging defini- tion of documents with identical trusts, because that would be

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sacrificing sense and incurring the objections of contradiction an futility. j Welding the new provision to the old, the combined constr tion I place upon them is this: that by separate enactments distinct classes of instruments are now declared to be subject sec. 112 - the first is a settlement properly so called containin trusts or dispositions which are necessarily to take effect q the settlor's death ; and the second is any instrument of the kind described in sec. 8 containing trusts or dispositions to take effe or which shall or may take eftect wpon the death of the person making it. Probably the second class would include the fi but the first is not abrogated, and some documents would fall within both. The first is satisfied by a settlement properly so called containing a disposition of property which cannot take effect in the settlor's lifetime, and which in this respect resemb) a will. If his death is an essential factor in the effectuation o the disposition, it is quite immaterial whether or not some int vening event or condition must arise or be satisfied. The section says "after his death," not immediately after ; and not after his death "per se." So long as the gift is so made that it is legal y impossible of enjoyment until the settlor's death, it sufficiently approaches the analogy of a testamentary disposition to satisfy both the words and the manifest object of the legislation. The second is self-evident. If the instrument, though not distributing successive interests, deals with the property so that its enjoyment must in any event, or may in some event, depend upon the fact of the death of the person making it, it is struck by the enactment. I do not assent to the view that the character of the ins' ment is determined by the state of facts at the settlor's death. That state of facts may, according to the terms of the ins ment, entitle the intended beneticiaries to immediate enjoyme or to postponed enjoyment, or to no enjoyment at all; but nature of the instrument must be the same from the moment of its execution. f Events may affect its operation so that the person who might have taken the property under it does not take any interest virtue of the settlement. In that case the consequence is that

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Hicerns J. I have to dissent as to the order for costs of the appeal. I do not know how this question, which is not a ques- tion of construction of the settlement, and which is not between parties interested under the settlement, comes to be debated on originating summons (see Rules of the Supreme Court 1906, Order LY.,r.3; Order LIV. a,r. 1). But even taking the question as having been properly submitted, there is a rule of very long standing that, although trustees are entitled to their costs out of the estate of getting the guidance of the Court in cases of diffi- culty, they appeal at their own risk, and must take the usual consequences. If this were not the rule, experience shows that estates would very frequently be frittered away in costs. The trustees' right to come to the Court is based on the principle that they ought not to be expected to take any risk as to the law, and are entitled to the Court's protection ; and in this case the order of Hodges J. gave them unimpeachable protection. In this case, also, there were five children beneficially interested, all over age ; and it was for them to appeal if they chose; but they have not appealed or taken any step to qualify themselves to appeal. The trustees selected one of the children as defendant, "on behalf of himself and all other persons" interested, and he, through his counsel, consents to this order. But there is nothing to show why he was selected ; and as he has not got an order authorizing him to defend on behalf of the others, he cannot give away their rights in this fashion. Even if he were authorized to defend, it would appear that this does not authorize such a consent: Rees y. Richmond (1). This beneficiary offers no explanation why he did not appeal himself. In my opinion, the appeal should be dismissed with costs; and when the trustees seek to include the expenses of the appeal in their accounts, it would be for them to justify the inclusion, if the beneficiaries should object. We have no evidence of the facts which may have justified the trustees in appealing.

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