Ritchie,
J.
(all
concur)
:—This
is
an
appeal
brought
by
the
Executors
of
the
Estate
of
Harry
M.
Schiller,
from
a
judgment
rendered
by
President
Jackett
of
the
Exchequer
Court
of
Canada,
whereby
he
confirmed
the
assessment
made
by
the
Minister
of
National
Revenue
under
the
Estate
Tax
Act
in
relation
to
the
shares
held
by
the
late
Mr.
Schiller
in
Schiller’s
Limited,
a
company
incorporated
under
The
Companies
Act,
of
Saskatchewan.
The
following
portions
of
The
Companies
Act,
R.S.S.
1955,
e.
124
as
amended
by
c.
18
of
the
Statutes
of
Saskatchewan
1956,
appear
to
me
to
be
particularly
relevant
:
76.
(1)
Every
company
shall
keep
in
one
or
more
books
a
register
of
its
members,
and
shall
enter
therein
the
names
of
the
subscribers
to
the
memorandum
and
the
name
of
every
other
person
who
agrees
to
become
a
member
of
the
company,
together
with
the
following
particulars:
(a)
the
full
name,
address
and
occupation
of
every
such
subscriber
and
person,
and
of
every
person
to
whom
section
91
or
92
applies,
and
who
requests
the
company
to
enter
his
name
in
a
representative
capacity;
(b)
the
date
at
which
each
person
was
entered
in
the
register
as
a
member;
(c)
the
date
at
which
any
person
ceased
to
be
a
member;
(d)
the
kind
and
class
of
the
shares
held
by
each
member,
their
nominal
amount
or
par
value,
if
any,
and
the
amount
paid
or
agreed
to
be
considered
as
paid
on
each
share;
(e)
particulars
of
the
transfer
by
any
member
of
his
shares;
(f)
in
the
case
of
a
person
to
whom
section
91
or
92
applies,
a
description
of
the
capacity
in
which
such
person
represents
any
share
in
the
company
so
held
by
him,
and
the
name
of
the
estate
or
person
so
represented.
77.
On
the
application
of
the
transferor
of
any
share
in
a
company,
the
company
shall
enter
in
its
register
of
members
the
name
of
the
transferee
in
the
same
manner
and
subject
to
the
same
conditions
as
if
the
application
for
the
entry
were
made
by
the
transferee.
Section
78a
78a.
The
register
of
members
shall
be
kept
at
the
registered
office
of
the
company;
provided
that
the
register
may
be
kept
at
an
office
in
the
province
of
a
trust
company
licensed
under
The
Companies
Inspection
and
Licensing
Act,
and
so
long
as
the
register
is
so
kept
the
trust
company
shall
be
subject
to
the
provisions
of
this
Act
respecting
the
register
in
the
same
manner
and
to
the
same
extent
as
if
the
register
were
kept
at
the
registered
office
of
the
company,
but
the
trust
company
shall
under
no
circumstances
be
entitled
to
a
lien
on
the
register,
The
Company
in
question
was
incorporated
on
May
26,
1927.
By
its
Memorandum
of
Association
it
was
provided
that
the
registered
office
was
to
be
situate
at
the
City
of
Regina
in
the
Province
of
Saskatchewan
and
no
provision
was
ever
made,
either
in
the
Company’s
Articles
of
Association
or
otherwise
for
any
other
registered
office
or
branch
registry.
From
the
time
of
its
incorporation
until
the
date
of
his
death,
the
late
Mr.
Schiller
owned
or
controlled
all
the
issued
common
shares
of
the
Company;
he
was
its
president
and
exercised
the
full
degree
of
control
and
management
consequent
upon
his
ownership
of
the
shares
and
his
office
as
president.
Until
March
1953,
Mr.
Schiller
resided
in
the
City
of
Regina
where
he
was
domiciled
and
where
the
business
of
the
Company
was
con-
ducted,
but
from
that
date
until
his
death
he
became
resident
and
domiciled
in
the
City
of
Toronto
to
which
City
he
removed
the
Minute
Book,
Share
Register
Book
and
Shareholders’
Register
of
the
Company,
and
where
he
conducted
all
its
affairs,
although
the
Company
continued
to
file
annual
returns
as
required
by
The
Compames
Act
of
Saskatchewan
wherein
it
reported
the
address
of
its
“Registered
Office’’
as
being
1702
Hamilton
Street
in
the
City
of
Regina,
which
was
a
building
owned
by
it.
It
is
agreed
between
the
parties
that
the
Province
of
Ontario
is
a
“prescribed
Province’’
within
the
meaning
of
Section
9
of
the
Estate
Tax
Act,
whereas
Saskatchewan
is
not
such
a
Province.
Under
the
provisions
of
Section
9(1)
of
the
Estate
Tax
Act
provision
is
made
for
the
deduction
from
the
tax
otherwise
payable
upon
the
aggregate
taxable
value
of
property
passing
on
the
death
of
a
person
:
9.
(1)
(a)
in
the
case
of
a
person
who
was
domiciled
in
a
prescribed
province
at
the
time
of
his
death,
(i)
the
part
of
the
tax
otherwise
payable
that
is
applicable
to
(A)
such
of
the
property
passing
on
the
death
of
that
person
as
was
situated
in
that
or
any
other
prescribed
province,
and
.
.
.
multiplied
by
(ii)
one-half;
.
.
.
The
italics
are
my
own.
The
fact
that
this
deduction
would
be
properly
applicable
to
the
late
Mr.
Schiller’s
shares
in
the
company
if
they
had
a
situs
in
the
Province
of
Ontario
and
would
have
no
application
if
they
were
to
be
treated
as
having
a
situs
in
Saskatchewan,
gives
rise
to
the
objection
here
taken
by
the
Schiller
estate.
In
the
present
case
the
Minister
has
determined
that
the
shares
in
question
are
situate
in
Saskatchewan
and
that
the
estate
of
the
deceased
is
therefore
not
entitled
to
the
deduction
provided
under
Section
9(1)
;
whereas
the
appellants
contend
that
as
all
the
Company’s
documents,
including
its
Register
of
Shares,
were
physically
situate
in
Ontario
where
the
deceased
was
domiciled
at
the
time
of
his
death,
they
are
to
be
treated
as
having
a
situs
in
that
Province
and
that
the
estate
is
accordingly
entitled
to
a
deduction
under
Section
9(1)
(a)
(i)
(A)
or
in
the
alternative
that
if
their
situs
cannot
be
identified
with
reasonable
certainty,
that
the
shares
are
deemed
to
be
situate
in
Ontario
in
accordance
with
the
provisions
of
Section
9(8)(e)
of
the
Estate
Tax
Act.
Section
9(8)
of
the
Estate
Tax
Act
provides
statutory
rules
for
determining
the
situs
of
shares
passing
on
the
death
of
a
person,
and
the
relevant
portions
of
Section
9(8)
(d)
and
(e)
read
as
follows
:
(d)
shares,
stocks
and
debenture
stocks
of
a
corporation
and
rights
to
subscribe
for
or
purchase
shares
or
stocks
of
a
corporation
(including
any
such
property
held
by
a
nominee,
whether
the
beneficial
ownership
is
evidenced
by
scrip
certificates
or
otherwise)
shall
be
deemed
to
be
situated
(i)
in
the
province
where
the
deceased
was
domiciled
at
the
time
of
his
death
if
any
register
of
transfers
or
place
of
transfer
is
maintained
by
the
corporation
in
that
province
for
the
transfer
thereof,
and
(ii)
otherwise,
(A)
in
the
nearest
province,
relative
to
the
province
where
the
deceased
was
domiciled
at
the
time
of
his
death,
that
is
not
a
prescribed
province
and
in
which
any
register
of
transfers
or
place
of
transfer
is
maintained
by
the
corporation
for
the
transfer
thereof,
.
.
.
(e)
property
for
which
no
specific
provision
is
made
in
any
other
paragraph
of
this
subsection,
or
the
situs
of
which,
determined
as
provided
therein,
cannot
with
reasonable
certainty
be
identified,
shall
be
deemed
to
be
situated
in
the
place
where
the
deceased
was
domiciled
at
the
time
of
his
death;
.
.
.
It
is
agreed
between
the
parties
that
at
the
time
of
Mr.
Schiller’s
death
the
Share
Register
of
the
Company
was
physically
situate
in
Toronto
where
entries
were
made
in
it
from
time
to
time
as
appears
therein,
but
neither
The
Companies
Act
of
Saskatchewan
nor
the
Articles
of
Association
of
the
Company
authorized
it
to
keep
a
Register
of
Members
or
a
branch
Register
of
Members
anywhere
except
in
the
Province
of
Saskatchewan,
and
the
whole
question
raised
by
this
appeal
is
whether,
notwithstanding
the
provisions
of
the
Saskatchewan
Companies
Act
requiring
the
Register
of
Members
of
a
company
to
be
kept
in
that
Province,
the
fact
that
such
Register
was
kept
in
the
Province
of
Ontario
at
the
time
of
Mr.
Schiller’s
death,
had
the
effect
of
giving
the
Company’s
shares
a
situs
in
the
Province
of
Ontario
withing
the
meaning
of
Section
9(8)
(d)
of
the
Estate
Tax
Act.
In
my
view
this
case
is
governed
by
the
direct
authority
of
the
decision
of
the
Privy
Council
in
Erie
Beach
Company,
Limited
v.
The
Attorney-General
for
Ontario,
[1930]
A.C.
161.
In
that
case
the
question
for
determination
was
whether
the
shares
of
a
company
incorporated
under
the
Ontario
Companies
Act
were
situate
in
the
Province
of
Ontario
or
the
State
of
New
York
for
succession
duty
purposes.
Under
the
Ontario
Companies
Act
(R.S.O.
1914,
c.
178)
companies
incorporated
under
that
statute
were
required
to
keep
a
Register
of
Shares
and
Shareholders
at
the
head
office
within
Ontario’’,
but
Mr.
Bardol,
who
owned
or
controlled
all
the
shares
in
the
company,
managed
his
business
from
his
office
in
Buffalo,
New
York,
where
the
books,
records
and
documents
of
the
company
were
kept,
and
such
transfers
as
took
place
were
made
and
recorded.
In
delivering
the
judgment.
on
behalf
of
the
Privy
Council,
Lord
Merrivale
said
:
In
Attorney-General
v.
Higgins,
[1914]
A.C.
176,
as
in
Brassard
v.
Smith,
[1925]
A.C.
371,
duty
upon
shares
was
in
question.
In
Attorney-General
v.
Higgins,
supra,
Baron
Martin
held
that
when
transfer
of
shares
in
a
company
must
be
effected
by
a
change
in
the
register,
the
place
where
the
register
is
required
by
law
to
be
kept
determines
the
locality
of
the
shares.
Lord
Dunedin,
in
delivering
the
judgment
of
this
Board
in
Brassard
v.
Smith,
epitomized
the
crucial
inquiry
in
a
sentence
—
“Where
could
the
shares
be
effectually
dealt
with?”
The
circumstances
relied
upon
by
the
appellants
which
show
the
predilection
of
the
members
of
the
plaintiff
company
for
transacting
its
business
in
Buffalo
—
so
far
as
they
might
—
have,
in
their
Lordships’
opinion,
no
material
weight.
The
shares
in
question
can
be
effectually
dealt
with
in
Ontario
only.
They
are
therefore
property
situate
in
Ontario
and
subject
to
succession
duty
there.
I
take
this
to
be
authority
for
the
proposition
that
the
situs
of
a
company’s
shares
is
at
the
place
where
its
share
register
is
required
to
be
kept
by
law
and
that
the
physical
presence
of
the
share
register
in
another
jurisdiction
has
no
effect
upon
the
matter.
I
am
accordingly
of
opinion
that
the
words
‘‘.
.
.
if
any
register
of
transfers
or
place
of
transfer
is
maintained
by
the
coporation
in
that
province
.
.
.’’
as
they
are
used
in
Section
9(8)(d)(i)
of
the
Estate
Tax
Act
must
be
construed
as
meaning
‘
‘
maintained
’
in
accordance
with
the
requirements
of
the
statute
under
which
the
company
in
question
was
incorporated
and
that
in
the
present
case
this
must
mean
in
the
Province
of
Saskatchewan.
The
learned
President
of
the
Exchequer
Court
has
written
careful
reasons
for
judgment
in
which
he
has
concluded
that
for
the
purpose
of
the
Estate
Tax
Act
the
shares
of
Schiller’s
Limited
are
deemed
to
be
situate
in
Saskatchewan
at
the
date
of
Mr.
Harry
Schiller’s
death
in
accordance
with
the
provisions
of
Section
9(8)
(d).
I
am
in
agreement
with
this
conclusion
and
would
dismiss
this
appeal
with
costs.
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