Collier,
J:—This
is
an
appeal
by
the
plaintiff
from
a
judgment
of
the
Tax
Review
Board
in
respect
of
estate
tax.
The
Minister
of
National
Revenue
included
in
the
aggregate
value
of
all
taxable
property
under
subsection
34(1)
of
the
Estate
Tax
Act,
SC
1958,
c
29,
as
amended,
an
amount
of
$36,564.86.
Tax
in
the
amount
of
$5,484.73
and
interest
of
$712.30
was
assessed
on
this
amount.
The
defendant
successfully
appealed
that
assessment
to
the
Tax
Review
Board.
An
agreed
statement
of
facts
was
filed
on
this
appeal.
Elias
Andersen
Dalsoren
died
intestate
on
December
19,
1965,
domiciled
in
British
Columbia.
He
left
a
gross
estate
of
$44,552.78.
W
N
Poole,
an
Official
Administrator,
was
appointed
administrator
of
the
Dalsoren
estate
on
January
14,
1966.
Severine
Dalsoren
Eide
was
the
aunt
and
only
heir-at-law.
She
was
domiciled
in
Norway.
She
died
there
on
October
15,
1967.*
At
her
death,
the
administrator
of
the
Dalsoren
estate
had:
(a)
converted
all
property
of
the
estate
into
cash;
(b)
paid
the
outstanding
debts
of
the
estate;
(c)
ascertained
that
Severine
Dalsoren
Eide
was
at
all
material
times
the
sole
person
beneficially
entitled
to
share
in
the
distribution
of
the
property
of
the
estate;
and
(d)
paid
on
March
16,
1966
the
succession
duties
and
probate
fees
which
were
payable
in
respect
of
the
estate
pursuant
to
the
Succession
Duty
Act
and
Probate
Fees
Act
of
the
Province
of
British
Columbia
in
accordance
with
their
respective
provisions,
leaving
available
to
him
$36,564.86
for
distribution
to
the
lawful
heir,
Severine
Dalsoren
Eide.
At
the
date
of
death
of
Mrs
Eide,
no
distribution
had
been
made
by
Dalsoren’s
administrator.
In
the
case
of
the
death,
after
December
31,
1958,
of
a
person
domiciled
outside
of
Canada,
section
34
of
the
Estate
Tax
Act
imposed
a
tax
on
the
aggregate
value
of
all
taxable
property,
“being
property
situated
in
Canada
at
the
time
of
his
death,
the
value
of
which
would,
if
that
person
had
been
domiciled
in
Canada
at
the
time
of
his
death,
be
required
by
this
Act
to
be
included
in
computing
the
aggregate
net
value
of
the
property
passing
on
his
death”.
It
seems
to
me
there
are
two
essentials
before
tax
is
attracted
by
virtue
of
this
section,
and
for
clarity,
I
relate
them
to
the
facts
here:
(a)
the
taxable
property
(Mrs
Eide’s
interest
in
the
Dalsoren
estate)
be
situated
in
Canada
at
the
time
of
her
death;
and
(b)
assuming
Mrs
Eide
to
have
been
domiciled
in
Canada
at
the
date
of
her
death,
the
value
of
her
interest
in
the
Dalsoren
estate
would
have
been
required
to
be
included
in
computing
the
aggregate
net
value
of
property
passing
on
her
death.
The
problem
in
this
assessment
is
in
respect
of
(a),
the
situs
of
whatever
interest
Mrs
Eide
had
in
the
Dalsoren
estate
in
the
state
or
form
that
estate
was
in
at
the
time
of
her
death.
Certain
other
provisions
of
the
statute
are
relevant:
58.
(1)
In
this
Act,
(o)
"property”
means
property
of
every
description
whatever,
whether
real
or
personal,
movable
or
immovable,
or
corporeal
or
incorporeal,
and
without
restricting
the
generality
of
the
foregoing,
includes
any
estate
or
interest
in
any
such
property,
a
right
of
any
kind
whatever
and
a
chose
in
action;
38.
For
the
purposes
of
this
Part,
(the
Part
dealing
with
estate
of
persons
domiciled
outside
Canada)
the
situs
of
any
property,
including
any
right
or
interest
therein
of
any
kind
whatever,
shall,
where
that
property
comes
within
any
of
the
classes
of
property
mentioned
in
this
section,
be
determined
in
accordance
with
the
following
rules:
(b)
tangible
movable
property
(except
any
right
or
interest
therein
by
way
of
security
and
except
any
tangible
movable
property
for
which
specific
provision
is
made
in
any
subsequent
paragraph
of
this
section),
and,
in
any
case,
bank
or
currency
notes
and
other
forms
of
currency
recognized
as
legal
tender
in
the
place
of
issue,
shall
be
deemed
to
be
situated
in
the
place
where
such
property
was
located
at
the
time
of
death,
or,
if
in
course
of
transit
at
that
time,
in
the
place
of
intended
destination;
(n)
rights
or
causes
of
action
ex
delicto
surviving
to
the
benefit
of
the
estate
of
any
deceased
or
his
legal
representative
shall
be
deemed
to
be
situated
in
the
place
where
such
rights
or
causes
of
action
arose,
and
other
rights
or
causes
of
action
so
surviving
shall
be
deemed
to
be
situated
in
the
place
where,
at
the
time
of
the
death
of
the
deceased,
the
person
against
whom
the
right
or
cause
of
action
is
enforceable
was
ordinarily
resident;
The
plaintiff
submits
it
is
unnecessary
to
go
beyond
paragraph
(b)
of
section
38.
It
is
urged
that
the
Dalsoren
estate,
at
the
key
time,
was
for
practical
and
legal
purposes,
an
administered
estate.
The
fact
that
the
net
balance
of
the
estate
had
not
physically
been
turned
over
to
the
heir-at-law
is
said
to
be
not
essential.
This
was
tangible
moveable
property
held
in
trust
for
Mrs
Eide
by
Dalsoren’s
administrator.
Its
situs
was
in
Canada.
Mrs
Eide
had
a
beneficial
interest
in
that
trust
property.
I
think
the
position
advanced
on
behalf
of
the
plaintiff
is
correct.
The
leading
decision
cited,
Commissioner
of
Stamp
Duties
(Queensland)
v
Livingston,
[1965]
AC
694
(HL)
and
the
cases
therein
referred
to,
are
not
on
all
fours
with
the
facts
here.
The
estates
under
consideration
there
were
unadministered
estates.
The
Privy
Council
in
the
Livingston
case
considered
the
rights
of
persons
having
an
interest
in
an
administered
estate
and
an
unadministered
estate.
In
so
doing,
the
Committee,
in
my
view,
supplied
guidelines
as
to
when,
in
law,
an
estate
might
be
considered
to
be
“administered”
(p
704):
The
testator’s
assets
consisted
of
real
and
personal
estate
in
New
South
Wales
and
real
and
personal
estate
in
Queensland.
Mrs
Coulson
died
on
July
8,
1950,
intestate,
having
married
her
second
husband
on
June
22,
1950.
She
thus
survived
her
first
husband
by
less
than
two
years,
and
at
the
date
of
her
death
his
estate
was
still
in
the
course
of
administration,
no
clear
residue
had
been
ascertained,
and,
consequently,
no
final
balance
payable
or
attributable
to
the
shares
of
residuary
beneficiaries
had
been
determined.
It
is
essential
to
the
decision
of
this
case
that
Mrs
Coulson’s
rights
at
her
death
were
the
rights
of
a
person
Interested
in
a
dead
man’s
unadministered
estate.
And
at
pages
706-8:
What,
then,
could
be
the
“beneficial
interest
in
property”
that
was
charged
by
this
Act
as
the
subject
of
a
succession
on
Mrs
Coulson’s
death?
..
.
.
One
way
or
the
other
then,
if
there
Is
to
be
a
taxable
succession,
it
must
be
because
she
died
owning
a
beneficial
interest
in
real
property
In
Queensland
or
had
beneficial
personal
property
interests
locally
situate
in
Queensland.
This
is
the
way
in
which
the
issue
has
been
posted
in
the
judgments
of
the
High
Court
of
Australia,
and
in
their
Lordships’
view
it
is
the
correct
formulation
of
the
problem.
When
Mrs
Coulson
died
she
had
the
interest
of
a
residuary
legatee
in
the
testator’s
unadministered
estate.
The
nature
of
that
interest
has
been
conclusively
defined
by
decisions
of
long-established
authority,
and
its
definition
no
doubt
depends
upon
the
peculiar
status
which
the
law
accorded
to
an
executor
for
the
purposes
of
carrying
out
his
duties
of
administration.
There
were
special
rules
which
long
prevailed
about
the
devolution
of
freehold
land
and
its
liability
for
the
debts
of
a
deceased,
but
subject
to
the
working
of
these
rules
whatever
property
came
to
the
executor
virtute
officii
came
to
him
in
full
ownership,
without
distinction
between
legal
and
equitable
interests.
The
whole
property
was
his.
He
held
it
for
the
purpose
of
carrying
out
the
functions
and
duties
of
administration,
not
for
his
own
benefit;
and
these
duties
would
be
enforced
upon
him
by
the
Court
of
Chancery,
if
application
had
to
be
made
for
that
purpose
by
a
creditor
or
beneficiary
interested
in
the
estate.
Certainly,
therefore,
he
was
in
a
fiduciary
position
with
regard
to
the
assets
that
came
to
him
in
the
right
of
his
office,
and
for
certain
purposes
and
in
some
aspects
he
was
treated
by
the
court
as
a
trustee.
“An
executor,”
said
Kay
J
in
In
re
Marsden,
“is
personally
liable
in
equity
for
all
breaches
of
the
ordinary
trusts
which
in
Courts
of
Equity
are
considered
to
arise
from
his
office.”
He
is
a
trustee
“in
this
sense.”
lt
may
not
be
possible
to
state
exhaustively
what
those
trusts
are
at
any
one
moment.
Essentially,
they
are
trusts
to
preserve
the
assets,
to
deal
properly
with
them,
and
to
apply
them
in
a
due
course
of
administration
for
the
benefit
of
those
interested
according
to
that
course,
creditors,
the
death
duty
authorities,
legatees
of
various
sorts,
and
the
residuary
beneficiaries.
They
might
just
as
well
have
been
termed
“duties
in
respect
of
the
assets”
as
trusts.
What
equity
did
not
do
was
to
recognise
or
create
for
residuary
legatees
a
beneficial
interest
in
the
assets
in
the
executor’s
hands
during
the
course
of
administration.
Conceivably,
this
could
have
been
done,
in
the
sense
that
the
assets,
whatever
they
might
be
from
time
to
time,
could
have
been
treated
as
a
present,
though
fluctuating,
trust
fund
held
for
the
benefit
of
all
those
interested
in
the
estate
according
to
the
measure
of
their
respective
interests.
But
It
never
was
done.
It
would
have
been
a
clumsy
and
unsatisfactory
device
from
a
practical
point
of
view;
and,
indeed,
it
would
have
been
in
plain
conflict
with
the
basic
conception
of
equity
that
to
impose
the
fetters
of
a
trust
upon
property,
with
the
resulting
creation
of
equitable
interests
in
that
property,
there
had
to
be
specific
subjects
identifiable
as
the
trust
fund.
An
unadministered
estate
was
incapable
of
satisfying
this
requirement.
The
assets
as
a
whole
were
in
the
hands
of
the
executor,
his
property;
and
until
administration
was
complete
no
one
was
in
a
position
to
say
what
items
of
property
would
need
to
be
realised
for
the
purposes
of
that
administration
or
of
what
the
residue,
when
ascertained,
would
consist
or
what
its
value
would
be.
Even
in
modern
economies,
when
the
ready
marketability
of
many
forms
of
property
can
almost
be
assumed,
valuation
and
realisation
are
very
far
from
being
interchangeable
terms.
At
the
date
of
Mrs
Coulson’s
death,
therefore,
there
was
no
trust
fund
consisting
of
Mr
Livingston’s
residuary
estate
in
which
she
could
be
said
to
have
any
beneficial
interest,
because
no
trust
had
as
yet
come
Into
existence
to
affect
the
assets
of
his
estate.
.
.
.
Page
711:
.
.
.
The
law
as
they
there
stated
It
was
reaffirmed
by
the
House
In
the
same
terms
In
Dr
Bernardo's
Homes
v
Special
Income
Tax
Commissioners.
It
is
sufficient
to
quote
two
short
passages
from
speeches
in
that
case.
Viscount
Finlay
said:
“.
.
.
the
legatee
of
a
share
in
the
residue
has
no
interest
in
any
of
the
property
of
the
testator
until
the
residue
has
been
ascertained.
His
right
is
to
have
the
estate
properly
administered
and
applied
for
his
benefit
when
the
administration
is
complete”;
while
Viscount
Cave
says:
“When
the
personal
estate
of
a
testator
has
been
fully
administered
by
his
executors
and
the
net
residue
ascertained
the
residuary
legatee
is
entitled
to
have
the
residue,
as
so
ascertained,
with
any
accrued
Income,
transferred
and
paid
to
him;
but
until
that
time
he
has
no
property
in
any
specific
investment
forming
part
of
the
estate
or
in
the
income
from
any
such
investment,
and
both
corpus
and
income
are
the
property
of
the
executors
and
are
applicable
by
them
as
a
mixed
fund
for
the
purposes
of
administration.”
Page
717:
.
.
.
.
It
is
idle
to
use
such
phrases
as
.
.
.
that
she
had
an
‘interest’
-.
in
this
estate.”
If
the
present
appeal
is
tried
by
this
test,
which
they
accept
as
the
correct
one,
their
Lordships
regard
it
as
clearly
established
that
Mrs
Coulson
was
not
entitled
to
any
beneficial
interest
in
any
property
in
Queensland
at
the
date
of
her
death.
What
she
was
entitled
to
in
respect
of
her
rights
under
her
deceased
husband’s
will
was
a
chose
in
action,
capable
of
being
invoked
for
any
purpose
connected
with
the
proper
administration
of
his
estate;
and
the
local
situation
of
this
asset,
as
much
under
Queensland
law
as
any
other
law,
was
in
New
South
Wales,
where
the
testator
had
been
domiciled
and
his
executors
resided
and
which
constituted
the
proper
forum
of
administration
of
his
estate.
For
these
reasons
their
Lordships
agree
with
the
view
of
the
law
that
Is
expressed
in
the
opinions
of
those
members
of
the
High
Court,
Fullagar,
Kitto
and
Menzies
JJ,
who
formed
the
majority
on
this
appeal.
They
have
studied,
too,
the
reasoning.
of
the
Supreme
Court
of
Canada
on
a
similar
issue
in
In
re
Steed
and
Raeburn
Estates;
Minister
of
National
Revenue
v
Fitzgerald,
and
they
note
that
the
views
that
they
have
expressed
in
this
opinion
coincide
with
the
judgments
delivered
by
four
out
of
five
of
the
members
of
that
court.
In
the
present
case,
I
conclude
the
Dalsoren
estate
was
administered
at
Mrs
Eide’s
death.
Her
beneficial
interest
in
it-was
tangible
moveable
property
located
in
Canada
(paragraph
(b)
of
section
38).
It
was
therefore
taxable
under
section
34
of
the
statute.
Even
if
the
Dalsoren
estate
were
considered
to
be
an
unadministered
estate,
I
am
of
the
view
Mrs
Eide’s
right
in
it,
at
the
time
of
her
death,
fell
within
paragraph
(n)
of
section
38.
As
was
said
by
the
Judicial
Committee
in
one
of
the
passages
quoted
from
the
Livingston
case
(supra),
dealing
with
the
widow’s
rights
in
her
husband’s
unadministered
estate:
“What
she
was
entitled
to
in
respect
of
his
rights
under
her
deceased
husband’s
will
was
a
chose
in
action,
capable
of
being
invoked
for
any
purpose
connected
with
the
proper
administration
of
his
estate;
and
the
local
situation
of
this
asset
.
.
.
was
in
New
South
Wales
where
the
testator
had
been
domiciled
and
his
executors
resided
and
which
constituted
the
proper
forum
of
administration
of
his
estate.”
Counsel
for
the
defendant
contends
the
right
or
chose
in
action
here
was
one
properly
enforceable
or
exercisable
in
Norway.
Reliance
was
placed
on
certain
portions
of
the
reasons
for
judgment
delivered
in
the
Supreme
Court
of
Canada
in
MNR
v
Fitzgerald,
[1949]
SCR
453;
[1949]
CTC
101;
49
DTC
580.
I
cannot
accept
the
defendant’s
interpretation
of
the
Fitzgerald
case.
When
properly
analysed,
it
seems
to
me
to
support
the
conclusion
that
Mrs
Eide’s
right
was
enforceable
only
in
Canada,
and
therefore
her
interest
was
properly
taxable.
It
is
necessary
to
set
out
the
facts
of
the
Fitzgerald
case
(supra).
One
Bonnie
Steed
was
entitled
under
the
will
of
her
sister
to
the
residue
of
her
estate.
It
consisted
largely
of
real
estate
in
Vancouver
which
was
not
realized
into
cash
until
1945.
Bonnie
Steed
died
in
1941
domiciled
in
California.
Her
will
bequeathed
all
her
property
to
her
husband
George
Steed
and
named
him
executor.
George
Steed
died
several
months
after
his
wife.
At
the
date
of
his
death
no
proceedings
to
prove
his
wife’s
will
had
been
taken
in
California,
although
probate
had
earlier
been
granted
to
him
in
British
Columbia,
limited
to
his
wife’s
estate
there.
George
Steed
at
his
death
was
domiciled
in
California,
leaving
all
his
property
by
will
to
a
nephew,
Raeburn.
Raeburn
was
killed
in
December
1944,
domiciled
also
in
California.
Raeburn
by
his
will
divided
among
various
people
what
he
had
inherited
from
his
uncle.
The
question
before
the
Supreme
Court
of
Canada
was
whether
there
was
“property
situated
in
Canada”
within
section
6
of
the
Succession
Duty
Act,
firstly
upon
the
death
of
George
Steed,
and
secondly
upon
the
death
of
Raeburn.
Kerwin,
J
said
at
page
457
[122-3]:
However,
the
important
date
so
far
as
George
Steed
is
concerned
Is
that
of
his
death,
August
16,
1944.
Upon
his
death,
all
that
any
one
claiming
under
him
was
entitled
to,
in
relation
to
the
Vancouver
real
estate
of
Adolphus
Williams,
was
a
right
to
have
the
estate
of
Bonnie
Steed
administered.
The
crux
of
the
matter
is
to
ascertain
where
that
right
was
naturally
and
properly:
enforceable,
per
Lopes
and
Kay
LJJ
in
the
Court
of
Appeal
in
Sudeley
v
Attorney
General,
[1896]
1
QB
354,
whose
judgments
were
explicitly
approved
in
the
House
of
Lords
[1897]
AC
11.
That
right
was
the
property
which
devolved
upon
the
death
of
George
Steed,
and
that
property
had
its
situs,
not
in
Canada,
but
in
Bonnie
Steed’s
domicile,
California.
.
.
.
Upon
George
Steed’s
death
there
was
no
personal
representative
of
Bonnie
Steed
in
Canada.
Neither,
it
is
true,
was
there
one
in
California
but
that
was
her
domicile,
and
the
right
of
any
one
claiming
under
George.
Steed
to
have
the
estate
of
the
latter’s
wife
administered
was
naturally
and
properly
enforceable
in
the
country
of
her
domicile.
.
.
.
and
at
page
460
[125]:
.
.
.
All
that
devolved
upon
.
.
.
[Steed’s]
death
was
a
right
to
have
the
estate
of
Bonnie
Steed
administered;
and
that
right
was
a
chose
in
action
properly
enforceable
and
therefore
situated
in
California
and
not
in
Canada.
Kellock,
J
said
at
pages
468-9
[110-12]:
There
is
a
further
consideration
which
confirms
the
view
to
which
I
have
come,
as
above
expressed.
In.
Lord
Sudeley
v
Attorney-General,
[1897]
AC,
a
case
dealing
with
probate
duty,
it
was
held
that
the
residuary
legatee
of
a
testator
who
died
domiciled
in
England
where
his
estate
was
undergoing
administration,
but
whose
property
included
mortgages
on
real
property
in
New
Zealand,
was
not
entitled
to
any
part
of
the
mortgages
In
specie
but
to
require
the
testator’s
executors
to
administer
his
personal
estate
and
to
receive
her
share
and
that
this
was
an
English
asset
of
the
estate
of
the
residuary
beneficiary.
The
judgment
of
Lopes,
LJ,
in
the
Court
of
Appeal,
[1896]
1
QB
354,
was
approved.
At
p
363
that
learned
judge
said:
“The
right
of
the
executors
of
Frances
(the
widow
and
residuary
legatee
of
the
testator)
as
against
the
executors
of
her
husband
is
a
right
to
have
his
estate
administered.
Administration
where?
The
husband
was
domiciled
in
England,
his
will
was
proved
in
England,
his
executors
are
in
England,
and
his
estate
is
being
administered
in
England,
and
the
money
recoverable
will
be
brought
to
England.
The
executors
of
the
husband
can
only
be
sued
in
the
English
Courts
by
the
executors
of
Frances.
It
is
an
English
chose
in
action,
recoverable
in
England,
and
is,
in
my
Opinion,
an
English
and
not
a
foreign
asset,
.
.
.”
With
respect
to
estate
duties
in
England
the
law
is
thus
stated
in
Dymond
on
Death
Duties,
10th
Edition,
at
page
93:
“In
tho
case
of
absolute
interests
in
an
unadministered
estate
the
right
of
a
residuary
legatee,
under
English
law
and
many
other
legal
systems,
is
not
to
the
specific
assets
of
the
testator.
He
is
entitled
merely
to
require
the
executors
to
administer
the
estate,
and
to
pay
him
the
clear
residue,
or
a
share
thereof,
as
the
case
may
be.
The
same
rule
applies
under
an
intestacy.
If,
therefore,
a
residuary
legatee
or
person
entitled
under
an
intestacy
dies
while
the
original
estate
is
still
under
administration,
the
locality
of
his
interest,
as
an
asset
in
his
estate,
is
determined
by
the
residence
of
the
debtors,
viz,
the
personal
representatives
of
the
original
testator
or
intestate
(Sudeley
v
A-G,
[1897]
AC
11;
Barnardo’s
Homes
v
Special
Commissioners
of
Income
Tax,
[1921]
2
AC
1;
Re
Steinkopff,
Favorke
v
Steinkopff,
[1922]
1
Ch
174),
and
by
the
forum
of
administration,
the
latter
being
determined
by
the
domicile
of
the
testator
or
intestate.
.
.
.
if
the
question
be
looked
at
therefore
in
accordance
with
the
view
of
the
text
writer,
the
locality
of
the
interest
of
George
Steed
in
the
estate
of
his
deceased
wife
was
situate
in
California,
where
the
executor
was
domiciled
and
where
the
main
administration
would
proceed.
.
.
.
On
the
facts
of
this
case,
the
right
or
cause
of
action
in
question
is
in
respect
of
the
Dalsoren
estate,
not
Mrs
Eide’s
estate.
Those
rights
arose
in
Canada
and
were
enforceable
only
in
Canada
where
the
administrator
was
ordinarily
resident
(see
paragraph
(n)
of
section
38)..
Counsel
for
the
defendant
urged
that
to
support
the
assessment
here
meant
supporting
the
imposition
of
a
tax
caused,
in
effect,
by
the
delay
of
an
administrator
in
turning
over
the
net
residue
of
Dal-
soren’s
estate
to
Mrs
Eide.
If
this
had
been
done,
as
apparently
it
could
have
before
the
date
of
her
death,
then
the
question
of
estate
tax
would,
of
course,
never
have
arisen.
It
is
said,
delay
situations
of
this
kind.
could
lead
to
numerous
or
successive
taxations.
While
one
may
sympathize
in
this
particular
case,
the
function
of
the
Court
is
to
apply
the
law,
where
as
I
see
it
in
this
case,
the
law
is
clear.
The
appeal
from
the
Tax
Review
Board
is
allowed.
The
assessment
of
the
Minister
is
restored.
The
tax
gatherer
here
has
received
what
I
might
term
a
small
windfall.
The
plaintiff
is
entitled,
if
she
insists,
to
recovery
of
the
costs
of
this
appeal.