JACKETT,
P.:—This
is
an
appeal
by
the
Minister
of
National
Revenue
under
the
Estate
Tax
Act
from
a
judgment
of
the
Tax
Appeal
Board
allowing
an
appeal
by
the
respondent
as
executor
of
the
estate
of
Mary
Viola
Maine
from
the
assessment
of
the
respondent
by
the
Minister
in
respect
of
that
estate.
The
sole
question
raised.
by
this
appeal
is
whether
the
Minister
of
National
Revenue
was
correct
in
including,
in
his
computation
of
the
aggregate
net
value
of
the
property
passing
on
the
death
of
Mary
Viola
Maine,
the
value
of
the
property
held
by
trustees
pursuant
to
the
will
of
her
husband,
Jonathan
Francis
Maine,
who
had
predeceased
her.
The
expression
‘‘aggregate
net
value”
is
an
expression
used
in
the
Estate
Tax
Act
to
describe
the
result
of
the
first
of
three
main
stages
in
the
computation
of
estate
tax.
I
refer
to
subsection
(2)
of
Section
2
and
subsection
(1)
of
Section
8
of
that
Act.
Mrs.
Maine
died
in
1962
and
it
is
common
ground
that
tax
is
payable
under
the
Estate
Tax
Act
in
respect
of
her
death.
The
provisions
of
the
Estate
Tax
Act
that
require
to
be
considered
are
paragraph
(a)
of
subsection
(1)
of
Section
3,
subsection
(2)
of
Section
3,
and
paragraph
(i)
of
subsection
(1)
of
Section
58.
Section
3(1),
insofar
as
relevant,
reads
as
follows:
“3.
(1)
There
shall
be
included
in
computing
the
aggregate
net
value
of
the
property
passing
on
the
death
of
a
person
the
value
of
all
property,
wherever
situated,
passing
on
the
death
of
such
person,
including,
without
restricting
the
generality
of
the
foregoing,
(a)
all
property
of
which
the
deceased
was,
immediately
prior
to
his
death,
competent
to
dispose
;’’
The
particular
words
in
paragraph
(a)
that
are
of
significance
in
this
appeal
are
the
words
‘‘property
of
which
the
deceased
was
.
.
.
competent
to
dispose’’.
Subsection
(2)
of
Section
3,
insofar
as
applicable,
reads
as
follows:
“3.
(2)
For
the
purposes
of
this
section,
(a)
a
person
shall
be
deemed
to
have
been
competent
to
dispose
of
any
property
if
he
had
such
an
estate
or
interest
therein
or
such
general
power
as
would,
if
he
were
sui
juris,
have
enabled
him
to
dispose
of
that
property;”
Paragraph
(1)
of
subsection
(1)
of
Section
58
is
a
definition
of
the
expression
‘‘general
power’’
and
reads,
in
part,
as
follows:
66
©
general
power’
includes
any
power
or
authority
enabling
the
donee
or
other
holder
thereof
to
appoint,
appropriate
or
dispose
of
property
as
he
sees
fit,
whether
exercisable
by
instrument
inter
vivos
or
by
will,
or
both,
.
.
.”
The
effect
for
present.
purposes
of
the
provisions
that
I
have
read
is
that,
even
though
certain
property
did
not
in
fact
pass
on
the
death
of
Mrs.
Maine,
its
value
must
be
included
in
the
aggregate
net
value
of
the
property
passing
on
her
death
if,
immediately
prior
to
her
death,
she
had
such
an
estate
or
interest
therein
as
would
have
enabled
her
to
dispose
of
such
property
or
if,
immediately
prior
to
her
death,
she
had
any
power
or
authority
enabling
her
to
appropriate
or
dispose
of
such
property
as
she
saw
fit.
Counsel
for
the
Minister
has
reduced
the
matter
to
a
somewhat
simpler
formula,
which
is
sufficiently
accurate
and
comprehensive
for
the
determination
of
the
present
appeal.
He
puts
the
question:
could
Mrs.
Maine
on
the
day
after
her
husband’s
death
have
said,
*
1
1
want
all
of
that
property
”
?
As
I
understand
counsel
for
the
Minister,
if
the
Court
would
have
enforced
such
a
demand,
the
appeal
should
succeed,
and,
if
the
Court
would
not
have
enforced
such
a
demand,
the
appeal
must
fail.
The
answer
to
the
question
raised
by
the
appeal
must
therefore
depend
upon
the
meaning
of
the
will
of
Jonathan
Francis
Maine,
Mrs.
Maine’s
husband,
who
as
I
have
already
said
had
predeceased
her,
That
will
is
Exhibit
R-1.
By
that
will
the
husband
appointed
one
of
his
sons
and
the
respondent
trust
company
as
the
executors
and
trustees
of
his
will
and
he
left
to
them,
as
his
executors
and
trustees,
his
entire
estate.
upon
certain
trusts.
Those
trusts
are
set
out
in
five
paragraphs
lettered
from
A
to
D
inclusive.
Before
considering
in
detail
the
particular
paragraph
that
I
have
to
interpret
it
is
relevant
to
examine
in
a
general
way
the
trust
provisions
as
a
whole.
Paragraph
A
is
a
paragraph
that
falls
into
two
parts.
The
first
part
is
a
trust
to
pay
out
of
the
capital
of
the
estate
all
the
testator’s
just
debts,
et
cetera.
The
second
part
is
a
provision
with
reference
to
succession
duty
which
reads
in
part:
‘‘I
do
hereby
direct
that
all
gifts
...
in
this
my
will
.
.
shall
be
free
of
Succession
Duty’’.
I
emphasize
that
the
testator
here
used
the
word
“direct”.
Paragraph
B
also
falls
into
two
parts.
The
first
part
is
a
trust
“to
permit’’
the
testator’s
wife
the
use
of
a
certain
residence
and
the
second
part
is
an
instruction
with
reference
to
payment
of
certain
expenses
in
connection
with
that
residence.
The
second
part
reads
in
part:
“I
do
instruct
my
executors
and
trustees
to
pay
all
expenses
in
connection
with
the
carrying
on
and
maintenance
of
such
residence
out
of
the
capital
of
my
estate.’’
I
emphasize
that
the
testator
here
used
the
word
“instruct”.
Paragraph
C
is
the
paragraph
upon
which
the
Minister
relies
as
creating
a
power
or
authority
that
falls
within
Section
3(1)
(a)
and
I
therefore
quote
it
in
full:
‘“To
pay
unto
my
said
wife,
Mary
Viola
Maine,
the
income
out
of
the
capital
of
my
estate,
or,
if
in
her
absolute
discretion,
the
income
be
not
sufficient
to
adequately
maintain
my
said
wife
in
the
manner
in
which
she
is
accustomed
or
if
she
shall
desire
any
additional
amounts
from
time
to
time
then
I
do
hereby
authorise
my
said
executors
and
trustees
to
pay
such
amounts
to
her
as
she
may
request
or
desire.’’
I
will,
of
course,
return
to
an
examination
of
this
paragraph
when
I
complete
my
general
outline
of
the
will.
Paragraph
D
provides
for
the
conversion
of
all
the
assets
of
the
testator’s
estate
remaining
at
the
death
of
his
wife,
for
the
payment
of
certain
charitable
bequests
and
for
the
division
of
the
residue
among
two
sons
and
a
daughter.
I
have
reviewed
the
terms
of
this
brief
will
to
make
it
clear
that
I
am
considering
the
effect
of
paragraph
C
in
the
context
of
the
whole
will.
I
shall
now
examine
that
paragraph
in
more
detail.
Looking
at
paragraph
C
of
the
enumeration
of
trusts,
it
appears
that
it
also
falls
into
two
parts.
The
first
part
of
paragraph
C
is
a
trust
“to
pay
unto
my
said
wife
.
.
the
income
out
of
the
capital
of
my
estate’’.
That
part
of
the
will
is
a
clear
creation
of
a
trust
enforcible
by
Mrs.
Maine
by
appropriate
legal
action
if
the
trustees
had
failed,
at
any
time,
to
pay
such
income
to
her.
The
second
part
of
paragraph
C
is,
in
terms
at
least,
a
mere
authority
to
make
certain
payments
to
Mrs.
Maine.
The
operative
words
are
‘‘I
do
hereby
authorize
my
said
executors
and
trustees
to
pay
such
amounts
to
her
as
she
may
request
or
desire’’.
Now,
what
are
the
amounts
that
Mrs.
Maine
may
request
or
may
désire
?
Those
words
refer
back
to
the
earlier
words
in
paragraph
C,
reading
as
follows
:
“if
in
her
absolute
discretion,
the
income
be
not
sufficient
to
adequately
maintain
my
said
wife
in
the
manner
in
which
she
is
accustomed
or
if
she
shall
desire
any
additional
amounts
from
time
to
time
.
.
.”
Those
are
the
words
which
describe
the
circumstances
in:
which
additional
payments
may
be
desired
or
requested.
The
question
I
have
to
decide
is
whether
paragraph
C
enabled
Mrs:
Maine
to
dispose
of
the
capital
of
the
trust
set
up
by
her
husband’s
estate.
If
paragraph
C
enabled
Mrs.
Maine
to
require
the
trustees
to
pay
to
her
the
whole
of
the
capital
of
the
trust,
it,
in
effect,
enabled
her
to
dispose
of
it
within
the
meaning
of
the
statute.
See
The
Montreal
Trust
Company
v.
M.N.R.,
[1956]
S.C.R.
702;
[1956]
C.T.C.
146.
I
cannot,
however,
construe
paragraph
C,
the
operative
words
of
which
are
a
mere
authorization
to
the
trustees
to
make
certain
payments
to
Mrs.
Maine,
as
conferring
on
her
a
right
to
require
that
such
payments
be
made.
I
am
conscious
of
the
fact
that
the
words
‘‘in
her
absolute
discretion’’
in
paragraph
C
carry
a
strong
implication
that
the
testator
intended
that
her
views
in
relation
to
the
possible
additional
payments
were
to
prevail.
I
cannot,
however,
read
those
words,
where
they
appear
in
the
description
of
the
circumstances
that
may
give
rise
to
additional
payments,
as
overriding
the
clear
meaning
of
the
word
‘
1
authorize”
in
the
operative
words
of
the
provision.
My
conclusion
is
strengthened
by
the
use
by
the
testator
of
the
word
“direct”
in
the
corresponding
part
of
paragraph
A
and
by
the
use
of
the
word
‘‘instruct’’
in
the
corresponding
part
of
paragraph
B.
Those
words
clearly
impose
a
defined
duty
on
the
trustees.
In
contrast,
the
word
‘‘authorize’’
implies
an
authority
to
act
rather
than
a
duty
to
act
in
the
manner
desired
or
requested
by
Mrs.
Maine.
I
am
also
strengthened
in
my
conclusion
by
a
contrast
between
the
first
part
of
paragraph
C
and
the
second
part.
The
first
part
of
paragraph
C
is
a
trust
to
pay
the
income
out
of
capital
to
Mrs.
Maine.
Had
it
been
intended
that
the
second
part
was
to
create
a
right
in
Mrs.
Maine
to
appropriate
the
capital
as
she
saw
fit,
then,
in
my
view,
words
would
have
been
used
similar
to
the
words
used
in
the
will
which
was
before
the
Supreme
Court
of
Canada
in
The
Montreal
Trust
Company
v.
M.N.R.,
supra,
and
I
refer
particularly
to
the
judgment
of
the
then
Chief
Justice
of
Canada
at
page
704
where
he
states
that
“There
was
a
further
trust
‘to
pay
to
my
wife
.
.
.
the
whole
or
such
portion
of
the
corpus
thereof
as
she
may
from
time
to
time
and
at
any
time
during
her
life
request
or
desire’.’’
In
paragraph
©
we
find,
on
the
contrary,
that
while
the
first
part
is
a
trust
expressed
in
the
language
used
in
the
will
that
was
before
the
Court
in
the
Montreal
Trust
case,
the
second
part
is
couched
in
language
that
merely
authorizes
the
trustees
to
make
a
payment.
I
have
in
mind
that
there
is
a
doctrine
in
connection
with
the
interpretation
of
statutes
that
authorizing
words
may
in
certain
circumstances
carry
with
them
an
implied
duty
to
exercise
the
authority
when
the
conditions
precedent
to
its
exercise
have
arisen.
I
refer
to
the
authorities
of
which
the
leading
case
is
Julius
v.
Lord
Bishop
of
Oxford
(1880),
5
App.
Cas.
214.
These
authorities
were
not
discussed
during
the
course
of
argument
and
I
doubt
that
they
apply
to
the
interpretation
of
a
will.
In
any
event,
as
I
recall
these
authorities,
they
would
not,
even
if
applicable
here,
have
required
the
trustees
to
make
the
payments
requested
or
desired
by
Mrs.
Maine
but
would
merely
have
required
the
trustees
to
exercise
the
jurisdiction
conferred
on
them
of
deciding
whether
or
not
the
payments
desired
or
requested
should
be
made.
In
that
connection,
I
should
say
that
I
have
not
overlooked
the
argument
of
counsel
for
the
Minister
that
there
is
a
dominating
desire
by
the
testator,
appearing
in
his
will,
that
his
wife
should
not
suffer
from
want.
In
my
view,
however,
my
interpretation
of
paragraph
C
is
consistent
with
that
view
of
the
will.
The
reservation
of
a
final
decision
to
the
trustees
with
reference
to
any
desire
or
request
of
Mrs.
Maine
to
pay
out
all
or
some
substantial
part
of
the
capital
can
be
explained
by
the
testator’s
possible
apprehension
that
Mrs.
Maine,
as
she
became
older,
might
have
been
constrained
to
request
or
desire
money
for
some
benevolent
purpose
in
such
a
substantial
amount
that,
in
the
view
of
the
trustees,
the
capital
of
the
trust
would
have
been
so
impaired
as
to
have
left
her
without
adequate
means
for
her
own
needs
for
the
balance
of
her
life.
It
is
not
unreasonable
to
assume
that
the
trustees
were
being
given
an
ultimate
authority
to
protect
her
against
any
such
eventuality.
In
what
I
have
said
I
have
adopted
an
interpretation
of
paragraph
C
that
is
as
favourable
as
possible
to
the
contention
of
the
Minister.
In
doing
so,
I
must
not
be
taken
to
have
formed
an
opinion
with
reference
to
the
arguments
put
forward
by
counsel
for
the
respondent
for
a
more
restrictive
interpretation
of
paragraph
C.
The
appeal
is
dismissed
with
costs
Judgment
accordingly.
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