Keighley v Commissioner of Stamp Duties (NSW) [1971] HCA 51; (1971) 125 CLR 432 (11 November 1971)

HIGH COURT OF AUSTRALIA

KEIGHLEY v. COMMISSIONER OF STAMP DUTIES (N.S.W.) [1971] HCA 51; (1971) 125 CLR 432

Death Duties (N.S.W.)

High Court of Australia
McTiernan(1), Menzies(2), Windeyer(3), Owen(4) and Gibbs(5) JJ.

CATCHWORDS

Death Duties (N.S.W.) - Settlement - Trust to take effect after death - Disposition to take effect on cessation of employment - Employment terminated by death of settlor - Stamp Duties Act, 1920-1970 (N.S.W.), s. 102 (1) (a).

HEARING

Sydney, 1971, October 28; November 11. 11:11:1971
APPEAL from the Supreme Court of New South Wales.

DECISION

November 11.
The following written judgments were delivered: -
McTIERNAN J. In my opinion the appeal should be allowed. I agree in the out in the stated case. (at p434)

MENZIES J. The respondent Commissioner has assessed the appellants, the executors of the will of F. M. Keighley deceased, to stamp duty upon the estate of the deceased on the basis that the deceased had, during his lifetime, disposed of assets by a settlement containing a trust in respect of those assets, to take effect after his death so that the assets subject to the trust are to be included in the dutiable estate of the deceased: Stamp Duties Act, 1920 (N.S.W.) s. 102 (2) (a). The appellants have contended that the assets, subject to the trust of the settlement at the date of the death of the deceased, are not liable to be included in his dutiable estate. The Commissioner thereupon stated a case for the opinion of the Court of Appeal of the Supreme Court of New South Wales to have the issue determined. By a majority the Court of Appeal has upheld the assessment and the executors have appealed from that decision to this Court. (at p434)

2. By a deed of settlement made on 5th June 1956, the deceased settled certain shares in Minster Ltd. in order to make provision for three of his employees. According to the trust deed, the trustees, to whom the shares were transferred by the deceased, were to pay the income of the trust property to the three employees in the proportion of three-eighths, three-eighths and two-eighths "as long as, in each case, the employee shall remain employed by the Settlor or the Settlor's wife Mabel Keighley". Clause 3 was in these terms:

"On any of the said employees ceasing to be employed by
the Settlor or the Settlor's said wife except by dismissal or by
quitting service without his employer's consent or on the
death of any of the said employees whilst in the employment of
the Settlor or the Settlor's said wife the Trustee shall transfer
and pay to the said employee or to his legal personal
representatives for his own or his estate's absolute benefit the same
proportion of the said investments and of any money for the
time being awaiting investment as the proportion of income to
which the said employee is entitled under clause 2 hereof." (at p435)

3. One of the employees, the one entitled to two-eighths of the trust property, was dismissed by the deceased from his employment and his share was forfeited to the settlor in accordance with cl. 4 of the settlement. (at p435)

4. It is common ground that the other two employees remained in the employment of the settlor until he died on 27th August 1965. It is also common ground that, upon and by reason of the death of the settlor, those employees ceased to be employed by the settlor and were, at no time, employed by his wife. Furthermore, it is accepted by both parties, for the purposes of these proceedings, that, upon the two employees "ceasing to be employed by the settlor" as aforesaid, the trusts of cl. 3 of the settlement came into operation and entitled each of them to receive his proportion of the trust property. (at p435)

5. The question is whether the trust created by cl. 3 was a trust to take effect after the death of the settlor. (at p435)

6. What I have already stated shows that the trust deed did, in the circumstances narrated, take effect after the death of the settlor. Was it, however, a trust to do so? This has to be determined as at the time of the making of the settlement. (at p435)

7. The trust does not refer to the death of the settlor and, according to its terms, it could have taken effect before the death of the settlor. Its taking effect was neither expressly nor impliedly conditional upon the settlor's death. Had an employee died while the settlor was alive the trust would have taken effect as to his proportion. Had an employee retired from his service with the settlor's consent the trust would have taken effect as to his proportion. Moreover, the death of the settlor may not have brought the trust into effect. The employees, or one of them, may, before the death of the settlor, have been employed by the settlor on terms which continued the employment after his death. Another possibility was that the employees, or one of them, may, while the settlor was alive, have become employed by the settlor's wife. Indeed, the point needs no labouring that the death of the settlor was not expressed to be the, or an, occasion for the trust taking effect. It could have taken effect earlier. (at p436)

8. It is established, however, that if a trust is expressed to take effect upon the death of the settlor, or upon some other circumstance, e.g. the death of his wife, and the trust does, in fact, take effect upon the settlor's death, the trust is one to take effect after the settlor's death. Thomson v. Commissioner of Stamp Duties (N.S.W.) in the High Court [1927] HCA 57; (1927) 40 CLR 394, and in the Privy Council [1929] UKPCHCA 2; (1929) AC 450; (1929) 42 CLR 139 , so decided, in relation to s. 58 of the Stamp Duties Act 1898-1914, which brought to duty assets settled by a settlor upon a trust to take effect after his death. Lord Shaw, speaking for the Privy Council said (1929) AC, at p 450; (1930) 42 CLR, at p 143:

". . . it" (i.e. the settlement made by Archibald Currie)
"comes into operation expressly 'after the death of either of
them the said Archibald Currie or Jessie Currie' at which
period 'the trustees or the trustee for the time being shall pay.'
Accordingly the Board is of opinion that it is to that state of
facts and no other that s. 58 plainly applies. It appears to
their Lordships clear that within six months after Mr. Currie's
death the duty lay upon his trustees to conform to the provisions
of s. 58 and to make a declaration specifying the property
settled by the indenture and the value thereof . . . . For the
reason already stated it is desirable to avoid any further
pronouncement as the section so clearly and quite completely
covers the situation which has arisen in fact. For the same
reason the Board sets aside the argument that one could
conjecture a different set of facts; in particular that the wife
should have predeceased the husband and that in that event
no duty would then be exigible, the destination having taken
effect not after but before the disposer's death. It may quite
conceivably be so, but no pronouncement is made on that in
the present case which is decided, as the Act was meant to be
applied, namely, not on facts reversed but on facts as they
stand. Here, as is seen, Act fits fact like hand and glove." (at p436)

9. In the High Court Higgins J. said (1927) 40 CLR, at p 426:

"If the settlor die before his wife (as has actually happened
in this case), it is clear that the daughters take upon and after
his death. This satisfies the words 'settlement containing
any trust to take effect after his death.' The words used are
not 'settlement to take effect after his death.' But it is
objected for the respondents that if the wife had happened to
die before the settlor, the trust for the daughters would not
take effect after his death but before his death. One answer to
this objection is surely that though there is in the settlement a
trust if the wife die first for the income to go to the daughters
at once, yet there is also a trust if the settlor die first for the
payment of the income to the daughters from the time of his
death. The words of the section are not 'settlement containing
trusts all of which must take effect after his death,' or
'settlement containing trusts which in fact under all circumstances
take effect after his death'; it is enough, for the purpose of
the section, that the settlement contain any trust intended to
take effect after his death." (at p437)

10. The majority of the Court of Appeal founded themselves upon Thomson's Case [1927] HCA 57; (1927) 40 CLR 394; (1929) AC 450; (1930) 42 CLR 139, as did the learned Solicitor-General, in supporting their judgment in this Court. In my opinion that decision does not govern this case. In the settlement there under consideration there was, in express terms, a trust to take effect upon the death of the settlor if he should pre-decease his wife, and when he did so the trust took effect, and, as Lord Shaw said, "Act fits fact like hand and glove". That there was another trust which did not take effect, namely a trust to take effect upon the death of the settlor's wife should she pre-decease him, was not a circumstance to take the settlement outside the Act. The question here, however, is whether there is in cl. 3 of the settlement a trust to take effect after the death of the settlor. (at p437)

11. In a number of cases, which are in no way in conflict with Thomson's Case [1927] HCA 57; (1927) 40 CLR 394; (1929) AC 450; (1930) 42 CLR 139, it has been said that the subsection applies only if the death of the settlor has been made a condition precedent to the taking effect of a trust in the settlement. It is convenient, I think, to cite from Herring C.J. in In the Estate of Nicholas, deceased (1955) VLR 291, at p 294, where the learned Chief Justice refers to the earlier authorities which bear out his statement of the law. Speaking of the words "every settlement . . . containing trusts . . . take effect after his (i.e. the settlor's) death", his Honour said:

"Settlements were only caught by s. 177 if any trust
contained therein had to await the death of the settlor before it
could take effect; if, in other words, the death of the settlor
was made a condition precedent to the taking effect of any such
trust so that it was legally impossible of enjoyment until then:
Whiting v. McGinnis (1909) VLR 250; Rosenthal v Rosenthal
[1910] HCA 47; (1910) 11 CLR 87 In both
these cases, as in the case now before me, trusts were created to
come into operation upon the death of the survivor of the
settlor and his wife. These trusts were held to take effect after
the settlor's death within the meaning of the section, though
in each case the settlor predeceased his wife, so that such
trusts did not take effect upon his death. Whether a settlement
fell within the section was consequently a matter that
depended upon the nature of the instrument, and not upon
the state of facts at the death of the settlor. Whether a trust
was one to take effect after the settlor's death within the
meaning of the section was thus held to be ascertainable the
moment the settlement in which it appeared was executed
and the trust's character remained unchanged thereafter
however events turned out. See, too, Rabett v. Commissioner
of Stamp Duties (1929) AC 444,
and Thomson v. Commissioner of Stamp Duties (1929) AC 450" (at p438)

12. In Rosenthal v. Rosenthal [1910] HCA 47; (1910) 11 CLR 87 to which the Chief Justice referred, Griffith C.J. had said in relation to s. 102 (2) (a), "The death of the settlor must, of course, be made by the settlement a condition precedent to the taking effect of the trusts or dispositions" (1910) 11 CLR, at p 93 Isaacs J had spoken similarly (1910) 11 CLR, at p 96 Later, in Kent v Commissioner of Stamp Duties (N.S.W.) [1961] HCA 52; (1962) 106 C.L.R. 366 this Court, in referring to the words "to take effect after his death" in s. 102 (2) (a), said (1962) 106 CLR, at p 376:

"They furnish a description which is satisfied by any
trust so expressed that it cannot operate to give immediate
enjoyment until the specific event of the settlor's death has
occurred."

Although not so expressed, I think, in the light of Rosenthal v. Rosenthal [1910] HCA 47; (1910) 11 CLR 87 that these words should be regarded as exhaustive. (at p438)

13. Is, therefore, the trust created by cl. 3 of the settlement a trust in which the death of the settlor is made a condition precedent to its taking effect? I think not. The trust takes effect upon an employee ceasing to be employed by the settlor or his wife. No reference is made to his death and it could not, at the time of the making of the settlement, have been predicated that it would be his death that would bring the trust into effect. That it did so was an accident depending upon the existence of a particular state of affairs when the settlor died. The trust, when the settlement was made, was not one to take effect after his death any more than it was one to take effect upon the employment of one of the employees becoming unlawful or upon the happening of one of the many other events that might bring employment to an end. It is, in short, a trust to take effect upon a beneficiary ceasing to be employed, however this should occur otherwise than by dismissal or quitting service without the employer's consent. The mere possibility that this might happen upon the death of the settlor does not, in my opinion, make the trust one which, from its inception, was "to take effect after his death". (at p439)

14. I have, of course, had the great advantage of studying the full and careful judgments of the members of the Court of Appeal and, for the reasons which I have indicated, I prefer the dissenting judgment of Mason J.A. to the judgments of the other members of the court. (at p439)

15. I would therefore allow the appeal and answer the questions in the case stated as follows:

(a) $1,784,516.
(b) $382,832.71.
(c) By the Commissioner. (at p439)

WINDEYER J. In my opinion this appeal should be allowed. I have had the advantage of reading the judgments of Menzies J. and Gibbs J. I have nothing to add to the reasons that they give. I agree in the answers that they propose to the questions asked. (at p439)

OWEN J. For the reasons given by my brother Gibbs I agree that the appeal should be allowed and the questions asked in the stated case answered in the way proposed by him. (at p439)

GIBBS J. The appellants are the executors and trustees of the will of Frank Maurice Keighley ("the settlor") who died on 27th August 1965 domiciled in New South Wales. On 5th June 1956 a deed was executed by the settlor of the one part and two solicitors (in the deed called "the Trustees") of the other part, the material provisions of which are as follows:

"1. The Settlor shall transfer to the Trustees Four thousand
(4,000) shares in Minster Limited of Ten shillings (10/-) each
fully paid being the absolute property of the Settlor and the
Trustees shall hold the same upon the trusts herein declared.
2. The Trustees shall pay the income arising from such
shares and from such other investments (if any) as the Trustees
are by these presents authorised to purchase quarterly or at
such other intervals not longer than a year as the Trustees
shall determine to the following employees of the Settlor in
the proportions shown as long as, in each case, the employee
shall remain employed by the Settlor or the Settlor's wife
Mabel Keighley:
Horace Lindsay Nicholson - three eighths
Norman Arthur Gash - three eighths
John Roland Thorpe - two eighths
3. On any of the said employees ceasing to be employed by
the Settlor or the Settlor's said wife except by dismissal or by
quitting service without his employer's consent or on the
death of any of the said employees whilst in the employment of
the Settlor or the Settlor's said wife the Trustees shall transfer
and pay to the said employee or to his legal personal representatives
for his own or his estate's absolute benefit the same
proportion of the said investments and of any money for the
time being awaiting investment as the proportion of income to
which the said employee is entitled under clause 3 (sic) hereof.
4. On any of the said employees ceasing to be employed
by the Settlor or the Settlor's wife by dismissal or by quitting
service without his employer's consent he shall absolutely
forfeit and lose all benefits and rights hereunder and the
Trustees shall transfer and pay to the Settlor or his legal
personal representatives for his own or his estate's absolute
benefit the said proportion of the said investments and the
said money as is mentioned in clause 3 (sic) hereof." (at p440)

2. At the date of the execution of the deed the three persons mentioned in par. (2) thereof, Nicholson, Gash and Thorpe, were employed by the settlor in connexion with his grazing property at Sutton Forest. At no time between that date and the death of the settlor was any of them employed by the settlor's wife. During 1961 the settlor dismissed Thorpe from his employment and the trustees thereupon paid to the settlor the proceeds of sale of one-quarter of the shares subject to the trusts of the deed. Nicholson and Gash remained in the employment of the settlor until the latter's death, which, it was common ground, brought their contracts of service to an end. For some months thereafter they were employed by the appellants, one of whom was the settlor's widow, but it was not suggested that during this period they were "employed by . . . the settlor's said wife" within the meaning of the deed. (at p440)

3. The question for decision in this case is whether the assets subject to the trusts of the deed, which were valued at $64,050 at the date of the settlor's death, were deemed to be included in the dutiable estate of the settlor pursuant to the provisions of s. 102 (2) (a) of the Stamp Duties Act, 1920 (as amended) (N.S.W.). The majority of the Court of Appeal fo the Supreme Court of New South Wales were of the view that this question should be answered in the affirmative. (at p440)

4. Section 102 of the Stamp Duties Act provides (inter alia) as follows:

"For the purposes of the assessment and payment of death
duty but subject as hereinafter provided, the estate of a
deceased person shall be deemed to include and consist of the
following classes of property: -
. . . . . . . . . . . . .
(2) (a) All property which the deceased has disposed of,
whether before or after the passing of this Act, by
will or by a settlement containing any trust in
respect of that property to take effect after his death,
including a will or settlement made in the exercise
of any general power of appointment, whether
exercisable by the deceased alone or jointly with
another person:
Provided that the property deemed to be included
in the estate of the deceased shall be the property
which at the time of his death is subject to such
trust." (at p441)

5. This provision will require the property in question in the present case to be treated as part of the estate of the settlor for purposes of death duty if the deed was "a settlement containing any trust in respect of that property to take effect after his death" within the meaning of the subsection. (at p441)

6. It is not in doubt that the deed in the present case was a settlement within s. 102 (2) (a). The question is whether it contains a trust of the kind referred to in that subsection, that is, a trust in respect of the property sought to be treated as dutiable to take effect after the death of the settlor. The natural meaning of the expression "any trust . . . to take effect after his" (the settlor's) "death" is any trust which, on the proper construction of the settlement, cannot take effect in possession or in enjoyment until the death of the settlor and the authorities establish that this is the meaning to be given to the words of the subsection. In Rosenthal v. Rosenthal [1910] HCA 47; (1910) 11 CLR 87, Griffith C.J., speaking of a Victorian statute which contained the words, "Every settlement . . . made . . . by any person containing trusts or dispositions to take effect after his death", said (1910) 11 CLR, at p 93:

"The death of the settlor must, of course, be made by the
settlement a condition precedent to the taking effect of the
trusts or dispositions. The question whether they are to take
effect after his death depends upon the construction of the
instrument itself, which cannot be affected by any subsequent
event, although the actual operation of the instrument may be
so affected." (at p441)

7. In the same case Isaacs J. said (1910) 11 CLR, at p 96:

"So long as the gift is so made that it is legally 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." (at p441)

8. He added:

"I do not assent to the view that the character of the
instrument is determined by the state of facts at the settlor's
death. That state of facts may, according to the terms of the
instrument, entitle the intended beneficiaries to immediate
enjoyment, or to postponed enjoyment, or to no enjoyment at
all; but the nature of the instrument must be the same from
the moment of its execution."

These remarks are, in my opinion, equally appropriate to the provisions of s. 102 (2) (a). To the same effect is the decision of this Court in Kent v. Commissioner of Stamp Duties (N.S.W.) [1961] HCA 52; (1961) 106 CLR 366 In that case there was a trust of income of the settled property which could not take effect until after the death of the settlor but it was argued that that trust was, by reason of the contingencies to which it was subject, so very unlikely to take effect that it did not satisfy the notion expressed by the words "to take effect after his death" in s. 102 (2) (a). The Court rejected the contention that the words of s. 102 (2) (a) connote, in the case of a contingent trust, that it is probable that the trust will take effect and said (1961) 106 CLR, at p 376:

"This is to find in the words more than is really there.
They do not indicate anything about the probabilities of the
matter. Their concern is only with the nature of the trust.
They furnish a description which is satisfied by any trust so
expressed that it cannot operate to give immediate enjoyment
until the specific event of the settlor's death has occurred."

On the other hand, the Court pointed out (1961) 106 CLR, at p 374, that if at the settlor's death the situation was such that the trust could never take effect the property would not be dutiable, because the proviso excludes the trust property from the dutiable estate in such a case or because "the expression 'containing any trust to take effect after his death' postulates a trust which at the death is still capable of taking effect". (at p442)

9. The principle that the nature of the trust is to be determined by the construction of the settlement rather than by reference to the facts which have actually occurred is not affected by the decision in Thomson v. Commissioner of Stamp Duties (N.S.W.) [1929] HCA 2; (1929) AC 450; (1930) 42 CLR 139 In that case a husband settled property by an indenture which provided that the income should be paid to his wife during their joint lives and that after the death of either of them it should be paid to their daughters equally for their respective lives, with remainder over as to the corpus. The settlor, in fact, predeceased his wife and it was held that the settlement contained a trust "to take effect after his death". It was argued by the unsuccessful party in that case that the trust for the daughters was not one that necessarily took effect after the death of the settlor because his wife might have predeceased him. Their Lordships dealt with this contention in words which are possibly liable to be misunderstood. Lord Shaw said (1929) AC, at pp 454-455:

"For the reason already stated it is desirable to avoid any
further pronouncement, as the section so clearly and quite
completely covers the situation which has arisen in fact. For
the same reason the Board sets aside the argument that one
could conjecture a different set of facts; in particular that the
wife should have predeceased the husband and that in that
event no duty would then be exigible, the destination having
taken effect not after but before the disposer's death. It may
quite conceivably be so, but no pronouncement is made on
that in the present case which is decided, as the Act was meant
to be applied - namely, not on facts reversed but on facts as
they stand. Here, as is seen, Act fits fact like hand and
glove."

In my opinion, these remarks, which do no more than leave open a question which had not arisen, are not authority for the proposition that it is the events that have occurred, rather than the proper construction of the provisions of the settlement, that govern the question whether a trust is one to take effect after the death of the settlor. In the courts below, although a division of opinion occurred, it was nowhere suggested that the subsection should be construed as if the words "to take effect after his death" were equivalent in meaning to "which in fact took effect after his death". In the Supreme Court of New South Wales the view was taken that on the true construction of the settlement the trusts could have taken effect in the lifetime of the settlor and that the subsection accordingly had no application to them: Thomson v. Commissioner of Stamp Duties (N.S.W.) (1927) 28 S.R. (N.S.W.) 195, at pp. 205-206. On appeal to this Court (Commissioner of Stamp Duties (N.S.W.) v. Thomson [1927] HCA 57; (1927) 40 CLR 394), the same view was taken by Knox C.J. and, apparently, by Gavan Duffy J. (1927) 40 CLR, at p 406 but the majority of the Court were of a different opinion. Isaacs J. considered, for reasons not material to the present case, that if the substance, rather than the form, of the settlement were regarded, the result was that the trust took effect after the death of the settlor. Higgins J., with whom Powers J. agreed on this point (1927) 40 CLR, at p 433, dealt with the question as follows (1927) 40 CLR at p 426:

"But it is objected for the respondents that if the wife had
happened to die before the settlor, the trust for the daughters
would not take effect after his death but before his death. One
answer to this objection is surely that though there is in the
settlement a trust if the wife die first for the income to go to
the daughters at once, yet there is also a trust if the settlor
die first for the payment of the income to the daughters from
the time of his death. The words of the section are not 'settlement
containing trusts all of which must take effect after his
death', or 'settlement containing trusts which in fact under all
circumstances take effect after his death'; it is enough, for
the purpose of the section, that the settlement contain any
trust intended to take effect after his death."

It does not seem to me possible that their Lordships intended to depart from the view that the nature of the trust was to be determined as a matter of construction, and I consider that when Lord Shaw spoke of the Act fitting the facts he meant that the terms of the trust instrument answered the description contained in the Act. It may be that, if the wife in that case had predeceased the settlor, the subsection would not have applied for the reason that at the settlor's death the trust intended to take effect if the settlor should predecease his wife was no longer capable of taking effect, and that this is the question upon which their Lordships expressed no opinion. (at p444)

10. The question in the present case is, therefore, whether upon the proper construction of the deed the trust of corpus that arises on any of the employees "ceasing to be employed by the settlor or the settlor's said wife except by dismissal or by quitting service without his employer's consent" was a trust that could not take effect in possession or enjoyment until after the death of the settlor. The deed is not altogether free from obscurity but it may be assumed that if an employee by reason of the settlor's death ceased to be employed by the settlor, and was not thereupon taken into employment by the settlor's widow, the trust would come into operation. (at p444)

11. On behalf of the Commissioner of Stamp Duties it was rightly contended that the phrase "on any of the said employees ceasing to be employed by the settlor or the settlor's said wife except by dismissal or by quitting service without his employer's consent" covers at least two situations. It refers to the case where the death of the settlor has had as its legal consequence the termination of the employment of an employee and also to that where the employee during the settlor's lifetime has left the settlor's service with the latter's consent. Then it was said that since the death of the settlor is one of the events that brings the trust into operation the settlement contains a trust that takes effect only after the death of the settlor. Other events also bring the trust into operation but as Thomson v. Commissioner of Stamp Duties (N.S.W.) (1927) 28 SR (NSW) 195, shows, if the settlement.contains any trust in respect of the property to take effect after the settlor's death the fact that it also contains other trusts which may take effect before the settlor's death does not exclude the application of the subsection. (at p445)

12. This argument can only succeed if it is right to treat the settlement as containing a number of trusts one of which answers the statutory description. No doubt, the settlement does contain more than one trust but the trust with which we are concerned is that expressed in the words "on any of the said employees ceasing to be employed by the settlor or the settlor's said wife except by dismissal or by quitting service without his employer's consent" and it seems to me essential to the Commissioner's argument that these words should be regarded as declaring not one but several trusts, namely, inter alia, a trust arising on the death of the settlor and a separate trust arising on the employee leaving the settlor's employment during the settlor's lifetime and with his consent. With all respect, I am unable to accept this view of the matter. The words with which we are concerned, in my opinion, create one trust only. It is a trust which takes effect, so far as an employee is concerned, on that employee ceasing to be employed for other than the specified reasons. Of course, different employees may cease to be employed at different times, but the trust in favour of any employee is not, either in form or substance, a trust that may take effect on the happening of different events. In that respect the deed is quite distinguishable from the instrument considered in Thomson v. Commissioner of Stamp Duties (N.S.W.) (1927) 28 SR (NSW) 195 by which the trusts were expressed to take effect after the death of either the settlor or his wife. The relevant words of the deed create only one condition precedent to the taking effect of the trust as to an employee's proportion of the investments, namely, that the employee ceased to be employed. That condition might be fulfilled before or at the death of the settlor but the deed does not contain separate trusts taking effect before and at his death. Upon the proper construction of the deed these words create in favour of each employee one trust taking effect on one specified event. Since that event could occur before the death of the settlor it is impossible to say that the death of the settlor is a condition precedent to the taking effect of that trust or that the trust cannot take effect in enjoyment until after the settlor's death. The trust in question is therefore not within the words of s. 102 (2) (a). It was not, and could not be, suggested that any of the other trusts to be found in the deed come within the subsection. The property in question is therefore not rendered dutiable by s. 102 (2) (a). (at p445)

13. I would therefore allow the appeal with costs and would set aside the order made by the Court of Appeal and in lieu thereof would order that the questions set out in the stated case should be answered as follows:

(a) Whether the final balance of the dutiable estate of the
deceased is
(i) $1,848,566, or
(ii) $1,784,516, or
(iii) some other and if so what amount?
Answer: $1,784,516.
(b) Whether the death duty properly assessable in respect of
such final balance after allowance is made for duty paid
outside New South Wales on assets situate outside the
State is
(i) $403,328.71 or
(ii) $382,832.71, or
(iii) some other and if so what amount?
Answer: $382,832.71.
(c) How should the costs of this case be borne and paid?
Answer: By the respondent. (at p446)

ORDER

Appeal allowed with costs. Order of the Court of Appeal set aside and in lieu thereof order that the questions set out in the stated case be answered as follows:
(a) $1,784,516. (b) $382,832.71. (c) By the respondent.