A
W
Prociuk:—The
appellants,
as
executors
under
the
last
will
and
testament
of
the
late
Minnie
Green,
appeal
from
the
respondent’s
reassessment
dated
September
4,
1975,
wherein
the
exemption
in
respect
of
the
children
of
the
deceased
was
denied
on
the
ground
that
it
is
not
possible
to
ascertain
the
value
of
the
property
of
the
deceased
passing
to
each
child
as
required
by
subparagraph
7(1)(c)(i)
of
the
Estate
Tax
Act
in
order
to
apply
the
exempting
provisions
of
the
said
section
7.
The
deceased
died
on
or
about
November
5,
1971,
at
the
City
of
Winnipeg,
Manitoba,
testate,
leaving
her
surviving
husband,
Ernest
Green
(one
of
the
executors
herein)
and
five
children,
namely:
|
Sheal
Richard
Green
|
born
April
9,
1963
|
|
David
Zalman
Green
|
born
June
17,
1959
|
|
Charles
Leslie
Green
|
born
October
2,
1957
|
Cheryl
Adrienne
Green
born
July
13,
1954
Coleman
Oscar
Green
born
May
1,
1953.
Letters
probate
were
granted
by
His
Honour
Judge
W
A
Molloy
of
the
Surrogate
Court
of
the
Eastern
Judicial
District
of
the
Province
of
Manitoba
on
May
9,
1972.
The
pertinent
paragraphs
of
the
deceased’s
will
read
as
follows:
3.
I
GIVE,
DEVISE
and
BEQUEATH
all
my
property
of
every
nature
and
Kind
and
wheresoever
situate,
including
any
property
over
which
I
may
have
a
general
power
of
appointment
to
my
said
Trustees
upon
the
following
trusts,
namely:
(c)
To
keep
invested
the
residue
of
my
estate
and
to
use
the
income
therefrom
and
any
amount
or
amounts
out
of
capital
that
my
Trustees
may
deem
advisable,
for
the
advancement
and
education
of
my
children
or
some
one
or
more
of
them,
in
such
proportions
and
in
such
manner
as
my
Trustees
in
their
absolute
discretion
consider
advisable.
Any
income
not
so
used
in
any
year
shall
be
added
to
the
capital
of
the
said
residue
of
my
estate
and
dealt
with
as
part
thereof.
(e)
When
there
shall
no
longer
be
any
child
of
mine
living
and
under
the
age
of
twenty-one
years,
to
divide
the
said
residue
of
my
estate
of
the
amount
thereof
remaining
among
my
children
then
alive
in
equal
shares
per
stirpes.
It
was
agreed
by
both
parties
that
‘‘per
stirpes’’
should
be
read
as
“per
capita".
The
residue
of
the
estate
amounted
to
$81,027.74.
If
the
provisions
of
section
7
relating
to
exemptions
for
children
can
be
applied
herein,
the
total
of
such
exemption
amounts
to
$106,000
as
hereunder
set
out,
and
therefore
no
estate
tax
is
payable:
|
Sheal
Richard
Green
|
$10,000
|
+
|
$17,000
|
|
$27,000
|
|
David
Zalman
Green
|
$10,000
|
+
|
$13,000
|
|
$23,000
|
|
Charles
Leslie
Green
|
$10.000
|
+
|
$11,000
|
=
|
$21,000
|
|
Cheryl
|
Adrienne
Green
|
$10.000
|
+
|
$
8,000
|
|
$18,000
|
|
Coleman
|
Oscar
|
Green
|
$10.000
|
+
|
$
7,000
|
=
|
$17,000
|
|
Total
|
|
$106,000
|
The
pertinent
portion
of
section
7
of
the
Estate
Tax
Act,
RSC
1970,
c
E-9,
reads
as
follows:
7.
(1)
For
the
purpose
of
computing
the
aggregate
taxable
value
of
the
property
passing
on
the
death
of
a
person,
there
may
be
deducted
from
the
aggregate
net
value
of
that
property
computed
in
accordance
with
Division
B
such
of
the
following
amounts
as
are
applicable:
(c)
in
respect
of
each
child
of
the
deceased
who
survives
him,
the
lesser
of
(i)
the
value
of
any
property
passing
on
the
death
of
the
deceased
to
which
the
child
is
the
successor
that
can,
within
six
months
after
the
death
of
the
deceased
or
such
longer
period
as
may
be
reasonable
in
the
circumstances,
be
established
to
be
vested
in
the
child
for
his
benefit
indefeasibly,
or
subject
to
defeasance
only
in
the
event
of
his
death
before
attaining
such
age,
not
exceeding
forty
years,
as
is
specified
in
the
will
or
other
instrument
under
or
by
virtue
of
which
the
property
so
passing
became
vested
in
him,
except
any
such
property
comprising
a
gift
described
in
paragraph
(b)
or
(e)
or
consisting
of
a
pension
or
compensation
described
in
paragraph
(f)
or
(g),
and
(ii)
$10,000
plus
(A)
where
the
child
was,
at
the
time
of
the
death
of
the
deceased,
wholly
dependent
upon
the
deceased
or
his
spouse,
or
both,
for
support
by
reason
of
being
infirm,
an
amount
equal
to
the
product
obtained
when
$1,000
is
multiplied
by
the
number
of
full
years
in
the
period
commencing
on
the
day
of
the
death
of
the
deceased
and
ending
on
the
day
on
which
the
child
will,
if
ever,
become
71
years
of
age,
or
(B)
in
any
other
case,
the
amount,
if
any,
by
which
(I)
the
product
obtained
when
$1,000
is
multiplied
by
the
number
of
full
years
in
the
period
commencing
on
the
day
of
the
death
of
the
deceased
and
ending
on
the
day
on
which
the
child
will,
if
ever,
become
26
years
of
age,
exceeds
(11)
[not
applicable].
As
indicated
earlier,
the
respondent’s
position
is
that
the
residue
of
the
estate
did
not
vest
indefeasibly
in
each
child,
as
neither
the
amount
nor
the
number
of
children
living
at
the
time
the
youngest
of
them
reaches
the
age
of
21
years
could
be
ascertained
within
six
months
after
the
death
of
the
deceased,
or
such
longer
period
as
might
be
reasonable
in
the
circumstances.
Counsel
for
the
respondent
cited
the
following
cases
in
support
of
his
submission:
Brown
v
Moody,
[1936]
4
DLR
1
(PC);
Re
Ransome’s
Will
Trusts:
Moberly
and
Others
v
Ransome
and
Others,
[1957]
1
All
ER
690
(Chancery
Division);
In
re
Mellor:
Alvarez
v
Dodgeson,
[1922]
1
Ch
312;
Re
Carlson
Estate,
[1975]
5
WWR
745
(BC
Supreme
Court);
Re
Baird,
[1931]
2
DLR
1002
(Sask
CA);
Re
Waines,
[1947]
2
DLR
746
(Alta
Supreme
Court);
Fast
v
Van
Vliet
(1965),
51
WWR
65
(Man
CA).
There
appears
to
be
no
reported
case
dealing
specifically
with
an
issue
similar
to
the
one
in
the
instant
appeal.
With
respect
to
the
cases
cited,
they
are
of
some
limited
assistance
but
are
not
decisive
on
the
point
to
be
resolved
herein.
In
Re
Baird
(supra),
on
which
counsel
for
the
respondent
placed
some
weight,
Mr
Justice
Turgeon,
after
reciting
somewhat
different
facts
from
those
involved
here,
states
at
page
1003:
There
can
be
no
vesting
of
the
legacies
until
the
children,
or
the
survivor
of
the
children,
shall
have
reached
the
age
of
21.
In
the
meantime
the
legacies
are
merely
contingent
.
.
.
In
the
appeal
before
the
Board,
this
contingency
is
taken
care
of
by
the
Estate
Tax
Act
in
subparagraph
7(1)(c)(i):
.
.
subject
to
defeasance
only
in
the
event
of
his
death
before
attaining
such
age,
not
exceeding
forty
years,
.
.
In
my
humble
opinion
the
Baird
case
dealt
with
an
entirely
different
matter,
namely,
whether
the
legacies
could
be
turned
over
to
the
Official
Guardian
prior
to
the
attainment
by
the
children
of
the
required
age.
In
the
instant
case,
the
value
of
the
property
passing
to
the
children
was
ascertained
within
the
required
period
of
time.
It
is
agreed
that
only
the
five
children
hereinbefore
named,
and
no
one
else,
are
entitled
to
a
one-fifth
share
each
of
the
residue
of
the
estate.
At
the
date
of
hearing
of
this
appeal,
all
five
children
were
alive
and
healthy,
the
youngest
now
being
over
13
years
of
age.
The
executors
stated
in
evidence
that
no
amount
of
the
residue
was
used
to
date
for
the
advancement
and
education
of
any
of
the
said
children,
as
their
father
had
shouldered,
and
will
continue
to
shoulder,
that
responsibility
personally.
I
might
add
that
the
entire
residue
is
comprised
of
the
value
of
shares,
held
by
the
deceased
in
her
lifetime
in
a
private
company,
for
which
there
appears
to
be
no
market.
In
my
view,
the
legacy
to
each
child
being
one-fifth
of
the
ascertained
value
of
the
residue
vested
in
each
child
at
the
time
of
the
mother’s
decease.
It
is
subject
to
defeasance
only
in
the
event
of
the
death
of
any
child
before
he
or
she
attains
the
age
of
21,
as
provided
for
in
the
deceased’s
last
will
and
testament
and
as
expressly
permitted
by
the
Act.
Accordingly,
I
would
allow
the
appeal
and
refer
the
matter
to
the
respondent
for
reconsideration
and
reassessment.
Appeal
allowed.
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