THURLOW,
J.:—This
is
an
appeal
by
the
administrators
with
will
annexed
of
the
estate
of
Nathan
Adilman,
deceased,
from
an
assessment
of
duties
in
respect
of
successions
arising
upon
his
death.
In
making
the
assessment,
the
Minister
included
in
the
aggregate
net
value
of
the
property
of
the
deceased
and
in
the
dutiable
value
of
a
succession
to
Edison
Wholesale
Limited,
a
corporation,
a
sum
of
$344,400,
representing
the
value
of
certain
property
which
had
been
the
subject
matter
of
an
agreement
made
between
the
deceased
and
the
corporation
some
20
days
before
his
death
and
assessed
duty
accordingly,
and
the
issue
in
the
appeal
is
whether
the
Minister
was
right
in
including
the
whole
of
this
sum.
As
to
$196,400
of
it,
there
is
no
dispute.
The
matter
comes
before
the
Court
on
an
agreed
statement
of
facts
which,
together
with
the
documents
transmitted
by
the
Minister
pursuant
to
Section
42
of
the
Act
and
certain
admissions
contained
in
the
pleadings,
constitute
the
whole
of
the
material
upon
which
the
issue
is
to
be
decided.
The
deceased
died
on
June
20,
1956
at
the
age
of
67
years,
leaving
a
son
and
daughter
who
are
the
administrators
with
will
annexed
of
his
estate.
By
his
will
made
on
January
3,
1956
he
made
specific
bequests
to
a
number
of
charitable
organizations,
to
a
brother
and
to
several
grandchildren,
as
well
as
to
his
son
and
daughter
and
also
gave
to
his
son
and
daughter
the
residue
which
comprised
the
great
bulk
of
his
estate.
On
June
1,
1956,
by
the
agreement
above
mentioned,
the
deceased
transferred
to
Edison
Wholesale
Limited
72
shares
of
a
corporation
known
as
Adilman’s
Limited
and
a
parcel
of
land
with
the
building
thereon,
in
which
Adilman’s
Limited
carried
on
a
department
store
business:
in
consideration
of
a
monthly
sum
of
$1,666.66
for
as
long
as
he
should
live,
payable
on
the
first
day
of
each
month,
beginning
on
July
1,
1956,
provided
that
the
payments
should
in
any
event
cease
when
their
total
reached
$200,000.
At
the
time
of
the
making
of
this
agreement,
the
appellant’s
son
and
daughter
were
already
the
owners
of
88
of
the
160
issued
common
shares
of
Adilman’s
Limited,
and
they
were
also
the
only
beneficial
shareholders
of
Edison
Wholesale
Limited.
In
paragraph
8
of
the
agreed
statement
of
facts,
it
is
stated
that
:
8.
The
said
agreement
was
entered
into
by
the
deceased
and
Edison
Wholesale
Ltd.
in
good
faith,
for
legitimate
family
reasons
and
in
view
of
the
intended
re-marriage
of
the
deceased,
and
not
in
attempt
to
avoid
the
payment
of
any
Succession
Duty.’’
Paragraph
2
of
the
agreed
statement
of
facts
also
refers
to
the
deceased’s
death
as
sudden,
which
I
take
it
means
unexpected.
The
fair
market
value
of
the
property
so
transferred
to
Edison
Wholesale
Limited
at
the
time
of
the
death
of
the
deceased
was
$344,440,
and
the
annual
value
or
profit
from
it
as
in
June,
1956
was
$28,000.
The
present
value
on
June
1,
1956
of
the
annuity
payable
to
Nathan
Adilman
was
$148,000.
The
succession
duty
return
filed
by
the
appellants
indicates
that,
apart
from
the
properties
in
question,
the
deceased
had
assets
with
an
aggregate
net
value
of
$353,311.75.
The
Minister’s
case
for
including
the
$344,400,
representing
the
value
of
the
property
in
question,
is
that
the
transaction
in
question,
though
couched
in
the
form
of
a
contract,
was
in
substance
a
‘‘gift’’
within
the
meaning
of
Section
3(1)
(d)
of
the
Dominion
Succession
Duty
Act,
R.S.C.
1952,
c.
89.
The
appellants,
on
the
other
hand,
take
the
position
that
the
property
was
‘‘transferred
for
partial
consideration’’
within
the
meaning
of
Section
3(1)
(k)
and
that,
accordingly,
the
only
amount
which
could
properly
be
included
was
$196,400,
that
is
to
say,
the
differ-
ence
between
the
$344,400
and
$148,000,
the
value
of
the
annuity
which
Edison
Wholesale
Limited
had
agreed
to
pay.
These
provisions
of
the
statute
are
as
follows:
“3.
(1)
A
‘succession’
shall
be
deemed
to
include
the
following
dispositions
of
property
and
the
beneficiary
and
the
deceased
shall
be
deemed
to
be
the
‘successor’
and
‘
predecessor’
respectively
in
relation
to
such
property:
(d)
property
taken
under
a
gift
whenever
made
of
which
actual
and
bona
fide
possession
and
enjoyment
has
not
been
assumed
by
the
donee
or
by
a
trustee
for
the
donee
at
least
three
years
before
the
death
of
the
deceased
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor
or
of
any
benefit
to
him,
whether
voluntary
or
by
contract
or
otherwise;
(k)
property
transferred
within
three
years
prior
to
the
death
of
the
deceased
for
partial
consideration
in
money
or
money’s
worth
paid
or
agreed
to
be
paid
to
the
deceased,
to
the
extent
to
which
the
value
of
the
property
when
transferred
exceeds
the
value
of
the
consideration
so
paid
or
agreed
to
be
paid;”
By
the
other
clauses
of
the
same
subsection,
there
are
included
in
what
are
deemed
to
be
successions
several
other
types
of
dispositions
of
property,
including
in
clause
(b)
donations
mortis
causa
and
in
clause
(c)
dispositions
operating
or
purporting
to
operate
as
immediate
gifts
inter
vivos.
It
will
be
observed
that,
if
clause
(d)
is
applicable,
the
property
to
be
included
is
greater
than
under
clause
(k)
and
that,
if
these
clauses
are
mutually
exclusive,
as
the
appellants
maintained
and
counsel
for
the
Minister
did
not
dispute,
some
line
of
demarcation
must
differentiate
a
transaction
by
which
property
is
“transferred
.
.
.
for
partial
consideration’’
from
a
gift
transaction
in
which
a
benefit
is
obtained
by
the
donor
‘‘by
contract’’.
Yet,
where
the
benefit
obtained
by
the
donor
is
less
than
the
value
of
the
property
given,
the
latter
type
of
transaction,
on
first
impression,
seems
to
be
readily
describable
as
or
likely
to
fall
within
the
meaning
of
the
expression
‘‘transferred
.
.
.
for
partial
consideration’’.
Nor
is
the
difference
between
the
two
rendered
any
less
difficult
to
define
by
reason
of
the
absence
of
a
statutory
definition
of
gift.
For
the
purposes
of
this
case,
however,
it
is
unnecessary
to
attempt
to
define
the
line
of
demarcation
if,
indeed,
any
definition
is
possible
for
it
is
not
difficult
to
conceive
of
cases
which
fall
within
clause
(k)
and
which
clearly
are
not
gifts
and
cases
can
also
be
conceived
which
are
more
readily
classified
as
gifts,
even
though
accompanied
by
a
contractual
benefit
to
the
donor,
than
as
transfers
for
partial
consideration.
Each
case
must
be
considered
on
its
own
facts
to
determine
under
which
clause
the
transaction
falls
and,
while
there
undoubtedly
may
be
cases
which
may
present
considerable
difficulty,
the
present
is,
in
my
opinion,
not
such
a
case,
the
circumstances
affording
a
fairly
clear
indication
of
the
side
on
which
the
transaction
falls.
The
wording
of
these
clauses
bears
considerable
similarity
to
that
of
provisions
in
the
Customs
and
Inland
Revenue
Act,
1881
(44
and
45
Vict.,
c.
12,
Imp.)
as
amended
by
the
Customs
and
Inland
Revenue
Act,
1889
(52
and
53
Vict.,
c.
7,
Imp.)
and
incorporated
by
reference,
with
certain
amendments,
by
the
Finance
Act,
1894
(57-58
Vict.,
c.
30,
Imp.).
By
the
Customs
and
Inland
Revenue
Act,
1881,
as
amended
in
1889,
it
was
provided
that
account
duty
should
be
paid
in
respect
of
property
which
included
‘‘any
property
taken
as
a
donatio
mortis
causa
made
by
a
person
dying
after
June
1,
1881,
or
taken
under
a
voluntary
disposition,
made
by
a
person
so
dying,
purporting
to
operate
as
an
immediate
gift
inter
vivos
whether
by
way
of
transfer,
delivery,
declaration
of
trust,
or
otherwise,
which
shall
not
have
been
bona
fide,
made
three
months
before
the
death
of
the
deceased,
and
property
taken
under
any
gift,
whenever
made,
of
which
property
bona
fide
possession
and
enjoyment
shall
not
have
been
assumed
by
the
donee
immediately
upon
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor
or
of
any
benefit
to
him
by
contract
or
otherwise.’’
By
the
Finance
Act,
1894,
it
was
enacted
that
property
passing
on
the
death
of
a
deceased
should
be
deemed
to
include
“property
which
would
be
required
on
the
death
of
the
deceased
to
be
included
in
an
account
under
Section
38
of
the
Customs
and
Inland
Revenue
Act,
1889,
as
if
those
sections
were
herein
enacted
and
extended
to
real
property
as
well
as
personal
property
and
the
words
‘voluntary’
and
‘voluntarily’
and
a
reference
to
a
‘volunteer’
were
omitted
therefrom.’’
By
Section
3
of
the
same
Act,
it
was
provided:
“3.
(1)
Estate
duty
shall
not
be
payable
in
respect
of
property
passing
on
the
death
of
the
deceased
by
reason
only
of
a
bona
fide
purchase
from
the
person
under
whose
disposition
the
property
passes,
nor
in
respect
of
the
falling
into
possession
of
the
reversion
on
any
lease
for
lives,
nor
in
respect
of
the
determination
of
any
annuity
for
lives,
where
such
purchase
was
made,
or
such
lease
or
annuity
granted,
for
full
considéra-
tion
in
money
or
money’s
worth
paid
to
the
vendor
or
grantor
for
his
own
use
or
benefit,
or
in
the
case
of
a
lease
for
the
use
or
benefit
of
any
person
for
whom
the
grantor
was
a
trustee.
(2)
Where
any
such
purchase
was
made,
or
lease
or
annuity
granted,
for
partial
consideration
in
money
or
money’s
worth
paid
to
the
vendor
or
grantor
for
his
own
use
or
benefit,
or
in
the
case
of
a
lease
for
the
use
or
benefit
of
any
person
for
whom
the
grantor
was
a
trustee,
the
value
of
the
consideration
shall
be
allowed
as
a
deduction
from
the
value
of
the
property
for
the
purposes
of
Estate
duty.”
The
evolution
of
these
provisions
and
its
effect
on
their
interpretation
is
discussed
in
A.-G.
Ontario
v.
Perry,
[1934]
A.C.
477,
where
the
lack
of
the
same
historical
background
in
similarly
worded
Ontario
legislation
was
considered
by
the
Privy
Council
to
be
an
important
difference
between
the
two
statutes.
Lord
Blanesburgh
said
at
page
483:
"To
pass
by,
for
the
moment,
one
other
to
which
reference
must
later
be
made,
it
may
be
taken
that
for
present
purposes
the
great
difference
between
the
two
sub-sections
consists
in
this—that
the
sub-section
appears
in
the
Ontario
statute
as
an
original
enactment
with
no
trace
of
its
origin
or
history
to
be
found
either
in
its
terms
or
in
any
other
Ontario
legislation,
whereas
the
British
sub-section
is,
on
its
face
an
amendment
of
an
existing
Act
of
Parliament,
which,
as
so
amended,
remains
the
substantive
operative
enactment.”
And
at
page
487
he
also
said
:
‘‘First,
then,
is
the
Ontario
sub-section,
unlike
the
corresponding
British
enactment,
an
‘original’
section?
In
their
Lordships’
judgment
it
undoubtedly
is,
and
must
be
so
con-
strued.
It
contains
on
its
face
no
reference
to
any
origin.
It
comes
into
Ontario
legislation
full
grown
and
without
ancestry.
It
would,
in
their
Lordships’
judgment,
be
contrary
to
all
principle,
for
the
purpose
of
construing
it,
to
look
at
the
evolution
even
of
the
same
enactment
under
some
other
system
of
law.”
Save
for
certain
immaterial
amendments
which
have
since
been
made,
clauses
(b),
(c),
(d)
and
(k)
of
Section
3(1)
of
the
Dominion
Succession
Duty
Act
also
came
into
the
law
as
original
enactments,
full
grown
and
without
ancestry,
when
that
statute
was
enacted
in
1941,
and,
though
they
have
some
similarity
to
the
English
provisions,
the
principle
so
stated
must,
I
think,
be
applied
and,
in
considering
and
applying
decisions
on
the
Eng-
lish
statutes,
care
must
first
be
taken
to
see
how
far
they
are
based
on
the
historical
evolution
of
such
statutes.
It
was
submitted
that
there
is
a
further
distinction
between
the
English
statutes
and
the
Dominion
Succession
Duty
Act
in
that
Section
3
of
the
Finance
Act,
1894,
deals
only
with
bona
fide
purchases
for
full
or
partial
consideration,
while
clause
(k)
of
Section
3(1)
of
the
Canadian
statute
applies
to
all
transfers
for
partial
consideration.
It
was
urged
that
the
meaning
of
transfer
is
broader
than
purchase
or
sale
and
includes
gifts
as
well.
I
do
not
think,
however,
that
the
word
‘‘transferred’’
in
its
context
in
clause
(k)
necessarily
bears
so
wide
a
connotation
for
it
is
limited
by
the
words
‘‘for
partial
consideration
in
money
or
money’s
worth’’,
and
I
am
inclined
to
think
that
the
words
“for
partial
consideration
in
money
or
money’s
worth’’
connote
not
alone
what
the
transferor
is
to
receive
in
money
or
money’s
worth
but,
as
well,
his
object
in
making
the
transfer.
And
if,
as
I
think,
this
is
the
correct
interpretation
of
clause
(k),
there
is
not
much
difference
between
what
is
there
contemplated
and
what
is
contemplated
in
the
expression
‘‘bona
fide
purchase’’
in
the
Finance
Act,
1894.
It
should
be
observed,
however,
that,
unlike
Section
3(2)
of
the
Finance
Act,
1894,
which
is
an
excepting
provision,
clause
(k)
of
Section
3(1)
of
the
Dominion
Succession
Duty
Act
defines
a
type
of
transaction
which
gives
rise
to
a
succession
and
does
not
operate
as
an
exception
to
clauses
(c)
or
(d).
Both
(d)
and
(k)
are
thus
clauses
which
catch
and
require
to
be
brought
in
on
their
terms
transactions
of
the
kinds
therein
described,
and,
to
my
mind,
if
a
transaction
fairly
falls
within
one
of
them
it
makes
no
difference
to
the
application
of
that
clause
that
the
transaction
may
also
fall
within
another
clause,
the
application
of
which
might
be
either
more
or
less
burdensome
to
the
taxpayer.
Vide
Speyer
Brothers
v.
C.I.R.,
[1908]
A.C.
92.
Accordingly,
as
I
view
it,
the
problem
which
I
have
to
consider
is
whether
or
not
the
transaction
in
question
falls
within
the
wording
of
clause
(d)
of
Section
3(1)
for,
if
it
does,
the
appeal
cannot
succeed
and,
if
it
does
not
fall
within
that
clause,
there
is
no
dispute
as
to
the
application
of
clause
(k).
Turning
now
more
particularly
to
the
interpretation
of
clause
(d),
under
the
corresponding
enactments
it
has
been
consistently
held
in
England
that
it
is
the
substance
of
the
transaction
that
must
be
ascertained
and
I
see
no
reason
to
think
that
this
principle
is
not
applicable
in
interpreting
Section
3.
Secondly,
the
words
‘‘by
contract
or
otherwise,’’
which
on
first
impression
seem
repugnant
to
the
notion
of
gift,
appear
to
require
a
wider
interpretation
of
‘‘gift’’
in
clause
(d)
than
what
has
been
referred
to
as
“a
pure
and
simple”?
gift.
In
clause
(d),
this
is
made
even
more
manifest
than
in
the
corresponding
English
clause
for
the
Canadian
clause
uses
the
expression
‘‘whether
voluntary
or
by
contract
or
otherwise’’,
while
the
English
clause
has
never
had
the
word
‘‘voluntary’’
included
in
this
position
in
its
text.
The
English
decisions
on
the
meaning
of
‘‘gift’’
in
the
provision
corresponding
to
clause
(d),
insofar
as
they
are
not
based
on
the
historical
development
of
the
provision
can,
accordingly,
in
my
opinion,
be
of
some
assistance
so
far
as
they
go.
This,
I
think,
is
also
the
effect
of
what
Lord
Blanesburgh
said
at
page
486
in
A.-G.
Ontario
v.
Perry
(supra),
a
case
which
arose
under
a
provision
of
the
Ontario
Succession
Duty
Act,
corresponding
with
Section
3(1)
(c)
of
the
Dominion
Succession
Duty
Act:
“Their
Lorships
cannot
leave
the
consideration
of
the
Finance
Acts
without
referring
to
a
series
of
decisions
under
what
may
be
regarded
as
the
third
limb
of
s.
38,
sub-s.
1(9),
of
the
Inland
Revenue
Act,
1881,
as
amended
by
s.
11
of
the
Act
of
1889.
A
reference
to
that
limb
of
the
sub-section
supra,
shows
that
the
gift
therein
being
dealt
with
need
not
be
preceded
by
a
“disposition”,
but
that
the
words
following
seem
to
contemplate
that
there
may
be
within
their
meaning
a
gift,
although
accompanied
by
some
benefit
to
the
donor
by
contract.
On
that
part
of
the
section
it
has
been
held
that
a
gift
does
not
cease
to
be
a
gift
although
there
is
some
consideration
for
it
received
by
the
donor:
a
gift,
it
has
been
said,
may
be
something
which
is
not
‘‘a
pure
and
simple
gift’’.
Attorney-General
v.
Worrall,
[1895]
1
Q.B.
99,
and
Attorney-General
v.
Johnson,
[1903]
1
K.B.
617,
may
be
cited
as
typical;
and
see
Attorney-
General
v.
Holden,
[1903]
1
K.B.
832,
837.
These
authorities
would
have
had
greater
significance
on
the
present
occasion
if
upon
construction
it
were
held
that
the
final
words
of
s.
7(b)
of
the
Succession
Duty
Act
applied
to
the
second
limb
of
the
sub-section
as
well
as
to
the
third.
But,
as
will
presently
be
seen,
this,
in
the
opinion
of
their
Lordships,
is
not
the
case.
’
’
Earlier,
at
page
485,
he
had
said
:
“It
was
always
held
in
Great
Britain,
under
s.
38,
sub-s.
1(9),
of
the
Inland
Revenue
Act,
1881,
amended
as
above
but
with
the
word
‘voluntary’
remaining
before
the
word
‘disposition’,
that
an
ante-nuptial
settlement
of
the
second
class
above
alluded
to,
not
being
in
law
a
voluntary
settlement,
did
not
fall
within
the
second
limb
of
the
section.
It
is
interesting
here
to
note,
as
will
be
seen
later,
that
something
which
was
not
a
‘pure
and
simple’
gift
might
however
have
come
under
the
third
limb.
In
other
words,
‘gift’
in
the
two
limbs
had
not
the
same
meaning.’’
In
A.-G.
v.
Worrall,
[1895]
1
Q.B.
99,
a
case
which
arose
before
the
enactment
of
the
Finance
Act,
1894,
Lopes,
L.J.,
said
at
page
105
:
“One
question
is
whether
there
was
a
‘gift’
of
property
at
all.
It
is
suggested
that
there
was
not,
because
there
was
a
collateral
covenant
by
the
son
to
pay
to
the
father
an
annuity.
It
appears
to
me
that
there
was
not
the
less
a
gift
within
the
meaning
of
the
Act
on
that
account.”
A.
L.
Smith,
L.J.,
said
at
page
107-8:
“The
next
point
is
this:
It
is
said
that
the
transaction
is
not
a
gift
within
the
meaning
of
the
statute
because
a
consideration
was
given.
On
reading
sec.
11,
sub-s.
1,
it
seems
clear
that
the
legislature
in
using
the
word
‘gift’
in
that
section
contemplated
cases
where
the
donee
enter
into
a
covenant
such
as
this.
’
9
In
A.-G.
v.
Johnson,
[1903]
1
K.B.
617,
Vaughan
Williams,
L.J.,
said
at
page
624:
“Having
regard
to
the
terms
of
s.
11
of
the
Customs
and
Inland
Revenue
Act,
1889,
which
speaks
of
a
benefit
to
the
donor
by
contract,
and
to
the
language
of
the
Finance
Act,
1894,
s.
2,
sub-s.
1(c),
which
incorporates
the
provisions
of
s.
11
of
the
Customs
and
Inland
Revenue
Act,
1889,
as
if
the
words
‘voluntary’
and
‘voluntarily’
and
‘volunteer’
were
omitted,
and
to
the
decisions
in
Crossman
v.
Reg.,
18
Q.B.D.
256,
and
Attorney-General
v.
Worrall,
[1895]
1
Q.B.
99,
we
come
to
the
conclusion
that
the
Legislature
intends
that
property
shall
be
treated
as
taken
under
a
‘gift’,
although
such
gift
may
have
been
made
under
a
contract
by
which
the
donor
takes
a
benefit.”
On
the
question
whether
the
transaction
was
in
substance
one
of
gift,
Vaughan
Williams,
L.J.,
discussed
the
facts
as
follows
at
page
624:
“If,
then,
the
substance
of
the
transaction
between
Mr.
Burton
and
the
Missionary
Society
be
looked
at,
it
seems
to
us
that
it
was
intended
not
to
be
a
matter
of
pure
business,
but
one
of
bounty
on
the
part
of
Mr.
Burton.
The
facts
that
the
payment
was
made
‘in
lieu
of
a
legacy’,
and
that
the
amount
paid
largely
exceeded
the
market
value
of
the
annuities
agreed
to
be
paid
to
Mr.
and
Mrs.
Burton
are
sufficient
to
establish
this.
Consequently,
the
transaction
must,
in
our
opinion,
be
held
to
be
a
gift
within
the
meaning
of
s.
2,
sub-s.
1:
(e),
of
the
Finance
Act,
1894.”
Later,
at
page
627,
when
dealing
with
the
question
whether
the
transaction
could
be
regarded
as
a
purchase,
he
also
said
:
“Phillimore,
J.,
has
held
that
the
whole
5001.
is,
in
the
first
-.
instance,
taxable—a
conclusion
in
which
we
agree—but
has
r
further
held
that
in
this
case
210Z.,
the
value
of
an
annuity
of
25Z.
a
year
for
two
lives,
ought
to
be
deducted
from
the
500Z.,
and
that
therefore
only
290Z.
remains
to
be
taxed.
This
is
a
conclusion
in
which
we
cannot
agree,
because,
in
our
judgment,
this
is
not
a
case
of
a
bona
fide
purchase
of
an
annuity
at
all.
It
is
a
case
of
a
testamentary
gift
effected
by
the
machinery
of
a
present
donation,
subject
to
a
reservation
of
something
I
intended
to
be
the
equivalent
of
a
life
interest
in
the
subjectmatter
of
the
donation.’
In
Re
Baroness
Bateman,
[1925]
2
K.B.
429,
the
deceased
had
purported
to
sell
to
her
son
certain
furniture
at
a
price
below
its
value
and
the
question
before
the
court
was
whether
the
transaction
was
in
substance
a
purchase
for
partial
consideration
within
the
meaning
of
Section
3(2)
of
the
Finance
Act,
1894.
Rowlatt,
J.,
said
at
page
435
:_
‘
‘
The
transaction
here
was
induced
of
course
by
family
considerations,
but
that
does
not
conclude
the
matter.
My
attention
has
been
drawn
to
observations
in
Lethbridge
v.
Attorney-General,
[1907]
A.C.
24,
in
the
House
of
Lords,
where
it
is
pointed
out
that
there
might
be
a
family
arrangement
co-existent
with
a
purchase.
The
question
is
whether
the
object
of
the
transaction
was
really
on
the
one
side
to
get
money
for
goods
by
disposing
of
the
goods
in
the
future,
and
on
the
other
side
to
pay
money
and
obtain
goods.
In
Brown
v.
Attorney-General,
79
L.T.
572,
a
father
entered
into
a
partnership
deed
with
his
son,
one
of
the
provisions
being
that
on
his
death
the
son
should
take
over
the
father’s
share
in
consideration
of
a
payment
of
10,000Z.
to
the
estate.
There
the
motive
and
intention
were
clearly
not
to
turn
something
into
money
either
in
the
present
or
in
the
future,
but
to
provide
for
the
disposal
of
the
business
after
death,
and
to
prevent
the
business
going
to
the
eldest
son
without
his
making
some
corresponding
contribution
to
the
estate.
It
was
held
that
that
could
not
fairly
be
described
as
a
sale
and
purchase.
In
the
present
case
the
mother
was
in
want
of
money,
and
she
obtained
it
by
a
simple
sale
of
her
furniture
subject
to
her
life
interest.
The
sum
paid,
whether
it
was
the
full
amount
which
would
have
been
obtained
for
it
or
not,
was
certainly
not
so
inadaquate
as
to
be
an
unreality.
I
think
therefore
that
this
was
a
bona
tide
sale
and:
purchase
by
the
son,
and
that
no
succession
duty
is
payable.”
I
Now
what,
in
the
present
case,
is
the
substance
of.
the
transaction
in
question
?
In
form,
the
transaction
is
a
contract
for
substantial
consideration
and
not
a
gift
at
all,
but
that
is
merely
one
of
a
number
of
facts
that
must
be
taken
into
account
and
it
can
be
outweighed
by
the
other
circumstances.
The
deceased
was
a
man
67
years
of
age
with
a
son
and
a
daughter.
He
had
property
worth
somewhere
in
the
vicinity
of
$700,000.
His
will,
made
some
months
earlier,
shows
his
disposition
to
benefit
his.
son
and
daughter
in
the
event
of
his
death,
but
he
was
contemplating
re-
-marriage,
an
event
which
would
revoke
his
will
and,
at
the
same
time,
bring
into
his
family
another
person
who
might:
be
expected
to
be
an
object
of
his
bounty.
A
substantial
portion
of
his
property—amounting
to
nearly
half
of
it—was
made
up
of
the
land
and
building
in
which
Adilman’s
Limited
carried
on
its
business
and
in
common
shares
of
that
company.
His
son
and
daughter
owned
the
remaining
issued
common
shares
of
that
company.
The
real
estate
and
shares
which
he
held
were
producing
a
substantial
income.
In
this
setting,
‘‘for
legitimate
family
reasons’’,
which
I
would
infer
included
the
safeguarding
to
the
son
and
daughter
of
complete
ultimate
control
of
this
particular
portion
of
his
property,
the
deceased
made
an
agreement
to
transfer
that
portion
of
his
property
to
Edison
Wholesale
Limited,
a
company
whereof
his
son
and
daughter
were
the
only
beneficial
shareholders,
in
consideration
of
an
annuity
which
,
in
itself,
was
substantially
less
than
the
income
which
the
property
in
question
was
producing,
the
present
value
of
the
annuity
being
much
less
than
half
the
value
of
the
property
transferred.
It
seems
a
fair
assumption
that
the
transferee
would
not
expect
to
be
obliged
to
dip
into
its
own
resources
to
pay
any
portion
of
the
annuity
or
to
use
for
that
purpose
the
capital
of
the
property
transferred
but
that,
on
the
contrary,
the
transferee
would
enjoy
a
considerable
benefit
immediately
from:
the
income
of
the
property,
even
after
paying
the
annuity
therefrom.
That
this
transaction
was
not
dictated
by
commercial
considerations
is
perfectly
clear,
and
I
would
also
infer
that
the
object
of
the
deceased
in
entering
into
it
was
not
really
to
acquire
the
annuity
in
place
of
or
for
this
property
but
to
do
something
for
the
benefit
of
his
son
and
daughter.
The
circumstances
that
the
transaction
was
entered
into
with
a
corporation,
rather
than
with
the
son
and
daughter,
militates
to
some
extent
in
favour
of
the
transaction
being
in
substance
what
its
form
suggests,
but
there
is
no
reason
to
doubt
that,
in
law,
a
gift
may
be
made
to
a
corporation
and,
as
the
only
beneficial
shareholders
of
Edison
Wholesale
Limited
were
the
son
and
daughter
of
the
deceased,
for
the
purposes
of
the
present
problem
I
see
in
the
fact
that
the
transaction
was
made
with
the
corporation
little
reason
to
differentiate
it
in
substance
from
a
similar
transaction
made
with
the
son
and
daughter.
On
the
whole,
therefore,
I
am
of
the
Opinion
that
the
transaction
in
question
was
a
‘‘gift’’
with
a
benefit
to
the
donor
provided
‘‘by
contract’’,
within
the
meaning
of
Section
3(1)
(d)
of
the
Dominion
Succession
Duty
Act.
It
is
perhaps
unnecessary
that
I
should
go
any
further,
but
I
also
think
that
the
property
was
not
‘‘transferred
for
partial
consideration”
within
the
meaning
of
Section
3(1)
(k),
since
the
obtaining
of
the
consideration
was
not,
in
my
view,
the
real
object
of
the
transaction.
The
appeal,
accordingly,
fails,
and
it
will
be
dismissed
with
costs.
Judgment
accordingly.
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