Pratte,
J
(concurred
in
by
Le
Dain
and
Hyde,
JJ):—The
Minister
of
National
Revenue
is
appealing
the
decision
of
the
Trial
Division
which
allowed
the
appeal
brought
by
respondent
against
an
assessment
made
under
the
Dominion
Succession
Duty
Act,
RSC
1952,
c
89,
amended
by
RSC
1952,
c
317,
following
the
death
of
Mr
Félix
Goyer.
The
appeal
raises
only
one
question:
In
the
calculation
of
estate
duty
payable
as
the
result
of
Mr
Goyer’s
death,
must
Mrs
Goyer,
his
widow,
be
considered
to
have
acquired
by
the
terms
of
her
husband’s
will
what
subsection
2(5)
of
the
Act
calls
“a
general
power
to
appoint”
by
instrument
inter
vivos
over
the
residue
of
the
estate?
Mr
Goyer
died
at
Outremont
on
May
16,
1956
leaving
a
notarized
will,
done
on
December
2,
1948,
the
provisions
of
which
were
modified
by
a
codicil
dated
December
22,
1949.
In
his
will
Mr
Goyer
made
a
number
of
special
bequests
and
disposed
of
the
residue
of
his
estate
as
follows:
7.
Further,
I
give
and
bequeath
to
my
beloved
wife,
DAME
DOLORES
DAGENAIS,
during
her
lifetime
and
as
long
as
she
shall
remain
a
widow,
the
enjoyment
and
usufruct
of
the
whole
residue
of
my
other
property,
movable
and
immovable,
money,
insurance,
credits
and
claims
of
whatever
nature
which
shall
make
up
my
estate,
and
I
relieve
her
of
the
obligation
to
provide
security
and
to
draw
up
an
inventory;
8.
I
give
and
bequeath
ownership
of
the
residue
of
my
property,
both
movable
and
immovable,
subject
to
the
aforementioned
usufruct,
to
be
divided,
after
expiry
of
the
usufruct
bequeathed
to
my
said
wife,
in
the
following
way:
(a)
One
half
to
the
National
Research
Council
of
the
Federal
Government
in
Ottawa
.
.
.
(b)
The
other
half
of
the
property
in
my
estate
I
give
and
bequeath,
subject
to
the
aforementioned
usufruct,
to
all
my
grandnephews
and
grandnieces,
that
is
to
the
children
of
all
my
nephews
and
nieces,
with
the
proviso,
however,
that
my
grandniece
MARGUERITE
PEPIN
take
as
a
particular
bequest
from
this
half
of
the
property
in
my
estate,
before
sharing
with
my
other
grandnephews
and
grandnieces,
her
coparceners,
the
sum
of
TEN
THOUSAND
DOLLARS
($10,000.00)
to
have
and
to
dispose
of
as
she
sees
fit.
12.
If
one
or
more
of
my
legatees
causes
any
annoyance
to
my
wife
after
my
death,
I
direct
and
order
that
my
bequest
shall
become
null
and
void,
with
the
understanding
that
my
wife,
as
long
as
she
shall
remain
a
widow,
may
withdraw
from
my
estate
without
hindrance
any
revenue
from
adminis-
tration
of
the
capital,
without
having
to
render
an
account
to
any
of
my
legatees
as
long
as
she
shall
live;
13.
I
name
and
constitute
my
said
wife,
DAME
DOLORES
DAGENAIS,
as
my
executrix
and
administrator
of
my
estate
.
..
If
the
income
which
my
wife
shall
enjoy
is
not
sufficient,
she
shall
take
some
of
the
capital
and
she
alone
shall
be
the
judge
thereof.
The
codicil
which
I
have
already
mentioned
replaced
paragraphs
(a)
and
(b)
of
article
8
of
the
will
with
the
following
provisions:
.
.
»
I
name
my
wife
the
administrative
and
usufructuary
trustee
of
all
my
property.
On
her
death,
this
property
shall
be
distributed
according
to
her
wishes
among
the
grandchildren
of
my
sister
Victoria
and
charitable
works,
study
and
research
scholarships
and
hospital
endowments
bearing
my
name.
The
Minister
assessed
the
estate
duties
payable
following
the
death
of
Mr
Goyer
as
though
Mrs
Goyer
were
regarded
under
subsection
2(5)
of
the
Act
as
having
inherited
the
whole
residue
of
her
husband’s
estate.
This
subsection
2(5)
read
as
follows:
2.
(5)
Notwithstanding
anything
in
this
Act,
where
(a)
a
general
power
to
appoint
property,
either
by
instrument
inter
vivos
or
by
will,
or
both,
is
given
to
any
person,
and
(b)
that
property
is,
by
virtue
of
some
other
provision
of
this
Act,
included
in
a
succession,
the
succession
in
respect
of
that
property
shall
be
deemed
to
be
to
the
person
to
whom
the
power
was
given,
and
that
person
and
the
deceased
shall
be
deemed
to
be
the
“successor”
and
the
“predecessor”
respectively.
The
Minister
claims
that
Mr
Goyer
gave
his
wife
in
his
will
“a
general
power
of
appointment”
by
instrument
inter
vivos
over
the
residue
of
his
estate.
This
claim
was
dismissed
by
the
trial
judge
whose
decision
is
here
being
appealed.
Appellant’s
principal
argument,
and
in
my
opinion
the
only
one
requiring
discussion,
is
that
according
to
the
common
law
a
will
like
that
of
Mr
Goyer
is
considered
as
conferring
on
the
widow
a
general
power
of
appointment
by
instrument
inter
vivos.
In
support
of
this
argument
counsel
for
the
appellant
cited
several
decisions,
inter
alia
those
delivered
by
the
Chancery
Division
in
In
re
Richards-,
Uglow
v
Richards,
[1902]
1
Ch
76,
In
re
Ryder;
Burton
v
Kearsley,
[1914]
1
Ch
865,
and
Re
Shuker’s
Estate;
Bromley
v
Reed,
[1937]
3
All
ER
25.
This
argument
is,
in
my
opinion,
not
conclusive.
What
must
be
determined
here
is
not
the
effect
which
a
will
like
that
of
Mr
Goyer
would
have
according
to
the
common
law.
It
is
established
that
Mr
Goyer’s
will
must
be
interpreted
according
to
the
civil
law
of
Quebec:
therefore
it
is
to
this
law
that
reference
must
be
made
to
define
the
rights
and
prerogatives
conferred
by
this
will
on
Mrs
Goyer.
The
only
question
to
be
decided
seems
to
me
to
be
the
following:
Are
the
rights
which,
according
to
the
civil
law
of
Quebec,
Mrs
Goyer
should
enjoy
as
the
result
of
her
husband’s
will
equivalent
to
what
is
known
in
common
law
as
a
“general
power
of
appointment”?
A
“power
of
appointment”
is
the
power
granted
to
a
person
to
dispose
of
property
which
does
not
belong
to
him.
A
general
power
of
appointment
enables
its
holder
to
designate
anyone,
including
himself,
as
the
owner
of
the
property
affected
by
the
power.
Waters,
in
his
text
Law
of
Trusts
in
Canada
(Carswell,
1974,
p
66)
has
the
following
to
say
on
this
point:
.
.
.
another
dispositive
power,
which
is
normally
given
to
an
adult
beneficiary
rather
than
to
the
trustees,
is
the
power
of
appointment.
This
is
an
authority,
normally
conferred
by
will,
by
which
the
donee
of
the
power
may
determine
who
are
to
be
the
recipients
of
specified
property
owned
by
the
donor
of
the
power,
normally
the
testator.
Traditionally
powers
of
appointment
are
Said
to
be
of
two
kinds,
general
and
special.
A
general
power
enables
the
donee
to
appoint
the
property
to
anyone,
including
himself,
and
is
therefore
tantamount
to
ownership.
On
the
other
hand
a
power
is
special
when
the
persons
who
may
be
appointed
are
marked
out,
for
example,
the
children
of
the
donee
of
the
power.
There
are
also
so-called
hybrid
powers;
where,
for
instance,
the
donee
may
appoint
to
anyone
save
enumerated
persons,
of
whom
he
may
be
one.*
If
Mrs
Goyer
had
enjoyed
a
general
power
of
appointment,
she
could
have
appropriated
the
whole
residue
of
the
estate
on
the
day
of
her
husband’s
death.
The
assets
making
up
this
residue
would
then
immediately
have
become
her
sole
property,
so
that
if
she
herself
had
died
at
that
time,
she
would
have
transferred
them
to
her
own
heirs
rather
than
to
the
residuary
legatees
of
her
husband.
If
Mrs
Goyer
had
enjoyed
a
general
power
of
appointment,
she
could
also
have
thwarted
the
hopes
of
the
residuary
legatees
as
soon
as
her
husband
died
by
appointing
a
third
person
as
owner
of
the
whole
residue
of
the
estate.
It
seems
clear
to
me
that
Mrs
Goyer
did
not
possess
such
powers,
which
are,
if
I
understand
correctly,
those
normally
enjoyed
by
the
holder
of
a
general
power
of
appointment.
lt
must
therefore
be
concluded
that
Mr
Goyer’s
will
conferred
different
powers
on
his
widow
than
those
which
she
would
have
enjoyed
if
she
had
been
granted
a
general
power
of
appointment.
In
other
words,
contrary
to
the
appellant’s
claim,
Mrs
Goyer
did
not
hold
a
general
power
of
appointment
by
instrument
inter
vivos.
For
these
reasons
I
would
dismiss
the
appeal
with
costs.
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