JOHNSON,
J.A.:—This
is
an
appeal
from
an
order
made
upon
an
application
for
the
advice
and
direction
of
the
Court
concerning
the
estate
of
John
Budnyk,
deceased.
There
are
two
points
for
consideration:
(1)
whether
the
estate
tax
paid
under
the
Estate
Tax
Act,
S.C.
1958,
c.
29,
as
amended,
shall
be
charged
to
each
legatee’s
share
of
the
estate
or
whether
it
shall
be
borne
by
the
residuary
estate,
and
(2)
whether
the
devise
of
his
home
property
to
Mary
Misyk
‘together
with
all
the
furniture
and
equipment
of
any
kind
therein’’
passed
title
to
an
automobile
found
in
a
garage
located
on
the
property.
The
learned
Judge
ruled
that
the
tax
be
paid
out
of
each
beneficiary’s
share
‘‘in
the
ratio
that
each
such
share
bears
to
the
total
value
of
the
assets
available
for
distribution
among
all
the
beneficiaries’’.
On
the
second
question
he
ruled
that
Mary
Misyk
acquired
no
interest
in
the
automobile.
There
is
no
doubt
that
the
various
succession
duty
Acts—provincial
and
federal—are
what
they
purport
to
be—taxes
upon
the
succession
of
property,
and
unless
the
will
or
other
document
passing
the
property
otherwise
provides,
they
are
payable
by
the
persons
receiving
the
property.
Estate
taxes,
on
the
other
hand,
taxes
the
totality
of
the
property
left
by
the
deceased
and
is
paid
as
a
debt
of
the
estate.
Until
1958
taxes
were
collected
by
the
Government
of
Canada
under
the
Dominion
Succession
Duty
Act,
S.C.
1940-41,
c.
14.
In
that
year
that
Act
was
super-
seded
by
the
Estate
Tax
Act,
supra.
À
reading
of
this
Act
leaves
no
doubt
in
my
mind
that
the
tax,
unlike
that
under
the
former
Act,
is
not
a
tax
upon
the
succession,
but
is
a
tax
upon
the
estate.
This
is
made
clear
by
Sections
13
and
18
of
the
Act.
13.
(1)
The
executor
of
the
estate
of
a
deceased,
whether
or
not
any
notice
of
assessment
has
been
sent
to
him
by
the
Minister,
is,
from
and
after
the
death
of
the
deceased,
liable
to
pay
as
tax
under
this
Part,
and
shall,
within
the
time
specified
in
paragraph
(a)
of
subsection
(1)
of
section
11
for
filing
a
return
of
information
relating
to
the
deceased,
pay
to
the
Receiver
General
of
Canada
as
tax
under
this
Part,
the
part
of
the
tax
payable
under
this
Part
in
respect
of
the
death
of
the
deceased
that
is
applicable
to
the
property
under
his
control.
18.
(1)
Where
any
amount
is
payable
as
tax
under
this
Part
pursuant
to
section
13
by
the
executor
of
the
estate
of
a
deceased,
that
amount
shall,
for
the
purposes
of
any
applicable
statute
or
law
relating
to
the
administration
of
estates,
be
deemed
to
be
a
debt
due
to
Her
Majesty
incurred
by
the
deceased
immediately
prior
to
his
death.
Any
doubts
which
might
linger
after
considering
these
sections
are
put
to
rest
by
Section
14.
By
that
section
each
successor
to
property
is
made
liable
for
the
tax
payable
on
the
property
he
receives
but
where
property
comes
to
him
through
the
executor
of
the
estate
the
tax
for
which
he
is
liable
is
payable
‘‘by
him
as
surety
only
for
the
payment
of
that
amount
by
the
executor
of
the
estate
of
the
deceased
as
and
when
required
by
or
pursuant
to
this
Act’’.
It
follows
that,
when
paid,
such
tax
can
be
recovered
from
the
executor.
The
tax,
being
a
debt
of
the
estate,
is
payable
out
of
the
part
of
the
estate
that
is
not
specifically
devised
or
bequeathed
if
that
part
of
the
estate
is
sufficient
to
pay
it.
There
is
no
doubt
that
a
testator
can,
by
his
will,
transfer
the
ultimate
liability
for
all
or
any
part
of
his
tax
to
the
specific
legatees.
The
Province,
under
its
power
to
legislate
as
to
property
and
civil
rights,
could,
no
doubt,
accomplish
the
same
result
by
legislation.
There
is
no
such
legislation
so
far
as
I
can
find
in
this
Province.
If
the
Succession
Duty
Act
of
this
Province
had
still
been
in
force
and
its
provisions
could
be
interpreted
as
changing
the
ultimate
liability
for
this
tax
(which
I
do
not
think
was
the
case),
the
Act
has
been
repealed
for
some
time
(1962
(Alta.),
c.
86,
Section
2(1)
(c)).
Clause
5
of
the
will
reads:
After
payment
of
the
aforementioned
specific
legacies
which
total
the
sum
of
$26,000.00,
the
whole
residue
of
my
estate
(except
my
home
property
devised
to
Mary
Misyk
as
in
paragraph
3
herein
set
out)
I
give,
bequeath
and
devise
to
my
niece
Angela
Pawluk
for
her
use
and
benefit
and
ownership,
but
she
shall
pay
all
the
costs
of
my
funeral
and
administration
expenses
out
of
such
residue.
Unless
costs
of
administration
can
be
said
to
include
the
payment
of
these
taxes,
the
will
is
silent
as
to
any
direction
for
their
payment.
The
fact
that
real
property
is
devised
does
not,
I
suggest,
alter
the
incidence
of
the
tax.
By
the
Devolution
of
Real
Property
Act,
R.S.A.
1955,
c.
83,
Section
3,
it
is
provided
that
real
property
notwithstanding
any
testamentary
disposition
shall
devolve
upon
and
vest
in
the
personal
representative
and
shall
be
dealt
with
and
distributed
as
personal
estate.
English
decisions
prior
to
1949
were
under
Acts
which
in
part
at
least
taxed
the
succession.
For
instance,
the
Finance
Act,
1894
(U.K.),
c.
80,
did
not
make
an
executor
liable
for
the
duty
payable
on
real
estate.
This
was
payable
by
the
devisee
of
the
land
and
it
was
held
that
the
same
rule
applied
even
where
the
devise
was
to
the
executor
to
sell
the
land
and
distribute
the
proceeds
because
it
had
earlier
been
held
that
Every
person,
taking
an
interest
in
the
produce
of
land
directed
to
be
sold,
is
in
truth
a
devisee,
and
not
a
legatee”:
Re
Spencer
Cooper;
Poe
v.
Spencer
Cooper,
[1908]
1
Ch.
130
at
pp.
133-4.
When
the
Administration
of
Estates
Act,
1925
(U.K.),
c.
28,
enacted
a
provision
similar
to
the
section
of
the
Devolution
of
Real
Property
Act
referred
to
above,
a
provision
was
made
in
the
Law
of
Property
Act,
1925
(U.K.),
ce.
20,
that
the
personal
representative
should
be
accountable
for
all
death
duties
(Section
16(1)),
but
went
on
to
provide
(Section
16(5)),
that
‘‘nothing
in
this
Part
of
this
Act
shall
affect
the
liability
of
the
persons
beneficially
interested
or
their
respective
interests
in
respect
of
any
duty
and
they
shall
accordingly
account
for
or
repay
the
same
and
any
interest
and
costs
attributable
thereto
.
.
.”
There
is,
of
course,
no
similar
provision
in
any
Act
in
this
jurisdiction
so
that
cases
dealing
with
the
English
Act
will
have
no
application.
Problems
may
arise
in
provinces
which
still
tax
the
succession.
If
they
do
they
can
be
taken
care
of
by
appropriate
legislation.
The
possibility
of
such
problems
should
not
affect
the
interpretation
of
this
Act
if
its
intention
is
clear.
The
appeal
is
accordingly
allowed
as
to
the
first
question
and
it
is
directed
that
the
estate
tax
is
payable
as
a
debt
of
the
estate
and
will
accordingly
come
out
of
the
residue
going
to
Angela
Pawluk.
At
the
close
of
argument,
we
dismissed
the
appeal
as
to
the
second
point,
holding
that
the
devise
of
the
home
together
with
‘fall
the
furniture
and
equipment
of
any
kind
therein’’
did
not
convey
the
automobile
situate
in
the
garage
at
the
date
of
death.
Costs
of
the
appellant
and
respondent
will
be
paid
out
of
the
estate
to
be
taxed
on
col.
2
of
sch.
C.
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