DUMOULIN,
J.:—The
late
Kenneth
J.
McArdle,
an
employee
of
Public
and
Industrial
Relations
Limited,
died
on
February
7,
1957,
and
under
a
will
of
October
17,
1955,
had
bequeathed
the
usufruct
of
his
estate
to
his
wife,
during
her
lifetime,
and
the
capital
of
the
estate
to
his
three
daughters.
McArdle
was
a
participant
in
a
pension
plan
instituted
by
his
employer
firm
under
which
trustees
had
been
appointed
to
whom
premiums
were
payable
in
part
by
the
company
and
in
part
by
the
employees,
by
way
of
deductions
from
their
salaries.
Under
McArdle’s
will,
Crown
Trust
Company
and
his
former
legal
advisers
were
appointed
executors.
In
February
of
1958,
pursuant,
inter
alia,
to
Article
XI
of
the
pension
plan,
an
amount
of
$13,844.20
was
paid
over
by
the
fund’s
trustees
as
a
refund
of
premiums
to
the
deceased’s
executors,
McArdle
having
died
seven
years
before
pension
age.
The
appellant,
for
taxation
year
1959,
assessed
this
repayment
of
$13,844.20
as
‘‘income
of
the
estate’’,
accruing
at
the
time
it
was
paid,
whilst
the
respondent’s
contention
is
that
it
should
be
considered
as
income
due
to
the
deceased
personally.
The
pecuniary
figure,
let
it
be
said,
separating
one
viewpoint
from
the
other,
does
not
exceed
$390.75.
Some
confusion
seems
to
exist
in
the
respondent’s
interpretation
of
the
legal
nature
of
testamentary
executors,
the
scope
and
extent
of
their
powers
and
functions.
We
have
here,
initially,
a
matter
of
civil
rights
constitutionally
imparted
to
the
relevant
provincial
law.
This
law,
stated
by
Article
607
of
the
Civil
Code
of
Quebec,
enacts
that:
“607.
The
lawful
heirs
when
they
inherit,
are
seized
by
law
alone
of
the
property,
rights
and
actions
of
the
deceased,
subject
to
the
obligation
of
discharging
all
the
liabilities
of
the
succession.
’
’
An
old
maxim
inspiring
the
above
text
‘‘Le
mort
saisit
le
vif’’,
renders
the
heirs,
testamentary
or
legal,
the
living
‘
‘
continuers
’
’
of
the
dead
legator.
Therefore,
any
right
possessed
by
Mr.
McArdle
at
the
time
of
his
demise,
all
sums,
chattels,
all
property
real
or
personal
vesting
in
him,
instantly
passed
on
to
his
heirs
of
which
his
testamentary
executors
were
merely
the
representatives
for
administration
purposes.
Nothing
that
had
not
become
the
property
of
those
heirs
could
possibly
fall
within
the
ambit
of
the
executors’
powers.
Ample
evidence
of
this
transitory
stewardship
is
found
in
Articles
905
to
924
inclusive
of
the
Civil
Code,
Section
VI,
entitled
‘‘Of
Testamentary
Executors’’.
One
instance
is
conclusive,
that
found
in
the
third
paragraph
of
Article
918
of
the
Civil
Code:
‘When
duties
are
at
an
end,
the
testamentary
executor
must
render
an
account
to
the
heir
or
legatee,
who
receives
the
succession,
and
pay
him
over
the
balance
remaining
in
his
hands.
’
’
Now,
Article
XI
of
the
pension
plan,
intituled
“Death
Benefit’’,
provides
as
follows
:
“XI.
If
a
Participant
should
die
while
in
the
employ
of
the
Employer,
the
death
benefit
payable
under
any
contract
then
held
by
the
Trustees
(Pension
fund
trustees)
in
respect
of
the
Participant
shall,
subject
to
Section
4
of
Article
VII
hereof,
be
paid
to
the
Estate
of
the
Participant.”
Since
no
factual
difference
nor
legal
distinction
can
be
drawn
between
the
collective
expression
‘
‘
estate
’
’
and
its
physical
specifi-
cation,
the
heir
or
heirs,
it
does
appear
obvious
that
the
expression
‘‘estate’’
in
Article
XI
is
not
only
indicative
of
an
entity
authorized
to
receive
payment,
but
acknowledges
also
an
ownership
of
and
absolute
right
to
such
payment
in
the
heirs
of
the
late
participant.
For
the
reasons
above,
the
decision
of
the
Tax
Appeal
Board
in
this
case
is
annulled,
the
Court
holding
that
the
pension
refund
in
the
sum
of
$13,844.20
is
taxable
as
income
of
the
estate
and
the
Minister’s
assessment
right
in
fact
and
law.
The
appeal
is
allowed
with
all
taxable
costs
in
favour
of
appellant.
Judgment
accordingly.
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