Rosenthal v Rosenthal [1910] HCA 47

Rosenthal v Rosenthal [1910] HCA 47

A settlement with trusts set to take effect after the death of the settlor is within the scope of sec. 112 of the Administration and Probate Act 1890 (Vic) and is liable to duty, regardless of whether the settlor or their spouse dies first. The determination turns on the terms of the instrument and not retrospective facts. The word 'after' is clear and unambiguous, encompassing any time subsequent to the settlor's death.

Parties
Appellants / Plaintiffs: Rosenthal and another; Respondents / Defendants: Rosenthal and another
Jurisdiction
Australia
Judgment Date
16 September 1910
Procedural Posture
Appeal / High Court of Australia, on Appeal From the Supreme Court of Victoria
Outcome
Appeal dismissed with costs.
Legal Topics
Settlement Duty, Trusts Taking Effect After Death, Interpretation of Statutory Terms in Probate Law
Trusts and Estates Succession Law Taxation Settlement Duty Trusts Taking Effect After Death Interpretation of Statutory Terms in Probate Law

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Parties

Rosenthal and another

Appellants / Plaintiffs

Rosenthal and another

Respondents / Defendants

Procedural Posture

Appeal / High Court of Australia, on Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether a settlement containing trusts directed to come into operation on the death of the survivor of the settlor or his wife is a 'settlement to take effect after the death of the settlor' within the meaning of sec. 112 of the Administration and Probate Act 1890 (Vic).
  2. 2 Whether trustees who unsuccessfully appeal should have their costs of appeal out of the trust estate under special circumstances.

Ratio Decidendi

A settlement with trusts set to take effect after the death of the settlor is within the scope of sec. 112 of the Administration and Probate Act 1890 (Vic) and is liable to duty, regardless of whether the settlor or their spouse dies first. The determination turns on the terms of the instrument and not retrospective facts. The word 'after' is clear and unambiguous, encompassing any time subsequent to the settlor's death.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs to the Master-in-Equity, to be paid by the appellants, who may recoup themselves from the estate.
  • Costs of application and respondent Rosenthal as between solicitor and client to be paid out of the estate.