MCLENNAN,
J.:—This
is
an
appeal
under
the
provisions
of
Section
34
of
The
Succession
Duty
Act,
R.S.O.
1960,
c.
386.
The
appellant
National
Trust
Company
Limited
is
a
trustee
of
the
will
of
the
deceased
who
died
in
1942.
The
appellant
Harrison
is
a
daughter
of
the
deceased.
By
his
will
the
deceased
directed
that
the
income
from
the
residue
of
his
estate
be
paid
to
his
wife
for
life
and
then
the
income
be
paid
to
his
daughter,
the
appellant
Harrison,
for
her
life,
with
the
remainder
over.
The
widow
died
on
January
9,
1958,
and
as
of
that
date
the
appellant
Harrison
became
entitled
to
the
income
from
the
residue.
Both
life
incomes
were
subject
to
powers
of
encroachment.
The
appellant
National
Trust
Company
is
charged
under
the
will
with
the
payment
of
all
succession
duties
payable
on
any
gift
or
benefit
given
by
the
will.
At
the
death
of
the
deceased,
the
life
interest
of
the
widow
was
valued
and
duty
was
paid
thereon.
One
of
the
constituent
elements
used
in
arriving
at
a
valuation
of
the
life
income
was
the
value
of
the
residue
at
the
date
of
the
death
of
the
deceased.
Following
the
death
of
the
widow,
the
respondent
obtained
from
the
appellant
National
Trust
Company
Limited
the
market
value
of
the
residue
as
at
the
date
of
the
widow’s
death.
This
residue
had
increased
in
value
from
approximately
$141,000
to
approximately
$313,000
in
the
period
from
1942
to
1958.
The
respondent
valued
the
life
interest
of
the
appellant
using
this
larger
sum,
which
increased
the
amount
of
duty
by
$16,579
from
the
figure
payable
if
the
value
at
the
death
of
the
deceased'had
been
used
in
that
calculation.
The
question
is
whether,
on
a
true
construction
of
The
Succession
Duty
Act,
the
1958
valuation
should
be
used
or
the
value
at
the
date
of
death
of
the
deceased.
Other
points
as
to
whether
the
increased
rates
applied
in
calculating,
under
the
statute,
the
duty
on
the
life
interest
of
the
appellant
Harrison
and
on
past
encroachments
on
corpus
were
also
discussed
but,
in
view
of
the
conclusion
I
have
come
to,
it
is
unnecessary
to
deal
with
those
matters.
The
general
rule
is
that
the
dutiable
value,
defined
in
Section
1(g),
of
property
passing
upon
the
death
and
upon
which
succession
duty
is
levied,
is
determined
at
the
date
of
death
of
the
deceased
(Section
6(a)).
However,
in
Section
16,
which,
generally
speaking,
deals
with
the
time
when
payment
of
duty
is
due
and
to
be
made,
contains
an
exception
to
that
general
rule
and
a
time
is
fixed
for
calculation
of
value
other
than
the
testator’s
death
with
reference
to
interests
in
expectancy
in
the
circumstances
described
in
subsection
(5)
of
Section
16.
Section
16
reads
as
follows:
“16.
(1)
Unless
otherwise
provided,
duty
shall
be
due
at
the
death
of
the
deceased
and
paid
within
six
months
thereafter
and
if
the
duty
or
any
part
thereof
is
paid
within
such
period
no
interest
is
chargeable
or
payable
on
the
amount
so
paid.
(2)
Where
any
annuity,
term
of
years,
life
estate
or
income
is
created
by
the
will
of
the
deceased
or
by
any
disposition,
the
duty
for
which
any
person
who
benefits
by
such
annuity,
term
of
years,
life
estate
or
income
is
liable
with
respect
thereto
shall,
unless
otherwise
provided,
be
paid
in
a
number
of
equal
annual
instalments
equal
to,
(a)
the
number
of
years,
(i)
of
expectancy
of
life
of
such
person,
ascertained
as
provided
in
subsection
4
of
section
3,
or
(ii)
for
which
such
annuity,
term
of
years
or
income
is
to
run
as
the
case
may
be;
or
(b)
ten,
whichever
is
the
lesser,
and
such
instalments
shall
commence
one
year
after
the
death
of
the
deceased.
(3)
Where
the
deceased
had
any
interest
in
expectancy,
the
duty
levied
on
such
interest
in
expectancy
or
on
the
person
to
whom
there
is
a
transmission
or
to
whom
a
disposition
is
made
of
such
interest
in
expectancy
may
be
paid
as
provided
by
subsection
1
or
in
the
manner
provided
by
subsection
5
or
7.
(4)
Where
any
interest
in
expectancy
is
created
by
the
will
of
the
deceased
or
by
any
disposition,
the
duty
for
which
any
person
who
benefits
by
such
interest
in
expectancy
is
liable
with
respect
thereto
may
be
paid
as
provided
by
subsection
1
or
in
the
manner
provided
by
subsection
5
or
7.
(5)
The
duty
mentioned
in
subsections
3
and
4,
if
not
paid
within
the
time
provided
by
subsection
1,
is
due
when
such
interest
in
expectancy
falls
into
possession
and
shall
be
paid
within
three
months
thereafter
on
the
basis
of
the
value
at
the
date
of
falling
into
possession
of
the
property
in
respect
to
which
such
interest
in
expectancy
existed,
and
no
deduction
shall
be
made
for
any
duty
paid
on
or
with
respect
to
any
prior
interest,
income
or
annuity
arising
out
of
the
property
in
respect
of
which
such
interest
in
expectancy
exists.
(6)
Notwithstanding
subsections
3,
4,
5
and
7,
the
duty
mentioned
in
subsections
3
and
4
may,
with
the
consent
of
&
the
Treasurer,
be
paid
after
the
time
provided
by
subsection
1
and
before
such
interest
in
expectancy
falls
into
possession
and
shall
be
on
the
basis
of
the
value
of
such
interest
in
expectancy
ascertained
as
provided
in
this
Act
as
at
the
date
when
such
consent
is
given
and
no
deduction
shall
be
made
for
any
duty
paid
on
or
with
respect
to
any
prior
interest,
income
or
annuity
arising
out
of
the
property
in
respect
of
which
such
interest
in
expectancy
exists.
(7)
Where
any
interest
in
expectancy
is
an
annuity,
term
of
years,
life
estate
or
income,
the
duty
for
which
any
person
who
benefits
by
such
interest
in
expectancy
is
liable
with
respect
thereto,
shall,
if
not
sooner
paid,
be
paid
in
a
number
of
equal
annual
instalments
equal
to,
(a)
the
number
of
years,
(i)
of
expectancy
of
life
of
such
person
ascertained
as
provided
in
subsection
4
of
section
3,
or
(11)
for
which
such
annuity,
term
of
years
or
income
is
to
run,
as
the
case
may
be;
or
(b)
ten,
whichever
is
the
lesser,
and
such
instalments
shall
commence
one
year
after
the
date
when
such
annuity,
term
of
years,
life
estate
or
income
commences
to
be
enjoyed.’’
It
is
common
ground
that
at
the
death
of
the
deceased
the
appellant
National
Trust
Company
could
have
paid
the
duty
on
the
life
interest
of
the
widow,
on
the
life
interest
of
the
daughter
and
of
the
interest
in
remainder
under
subsection
(1).
In
fact
the
duty
was
paid
only
upon
the
life
interest
of
the
widow.
The
appellant
National
Trust
Company
also
had
the
option
of
paying
duty
on
the
life
interest
of
the
widow
under
subsection
(2)
of
Section
16,
it
being
common
ground
that
the
mode
of
payment
set
out
in
that
subsection
applies
only
to
the
interests
therein
described
arising
directly
on
the
death
of
the
deceased
and
not
to
the
sort
of
interest
which
the
appellant
Harrison
or
those
who
benefited
in
the
remainder
received
under
the
will.
Subsections
(3),
(4),
(5),
(6)
and
(7)
deal
with
‘‘interests
in
expectancy’’.
Such
an
interest
is
defined
in
Section
1(1)
and
reads
as
follows:
‘
“Interest
in
expectancy’
includes
an
estate,
income
or
interest,
in
remainder
or
reversion
and
any
other
future
interest
whether
vested
or
contingent,
but
does
not
include
a
reversion
expectant
upon
the
determination
of
a
lease.’’
I
do
not
think
it
is
disputed
that
an
interest
in
expectancy
may
be
of
two
kinds:
(a)
where
the
interest
is
an
interest
in
expectancy
in
a
corpus
or
capital;
and
(b)
where
such
interest
is
in
a
life
estate
or
income
for
life
or
for
a
term
of
years
where
revenue,
profits
or
income
is
received
and
the
corpus
or
capital
remains
for
future
disposition.
Subsection
(3)
of
Section
16
is
not
material
to
the
question
to
be
decided
but
the
important
subsections
are
(4),
(5),
(6)
and
(7).
Subsection
(4)
refers
to
any
interest
in
expectancy.
If
I
am
right
in
my
conclusion
that
there
are
two
kinds
of
interest
in
expectancy,
it
may
apply
to
an
interest
in
expectancy
in
either
income
or
capital.
That
subsection
provides
that
the
duty
may
be
paid
on
any
kind
of
interest
in
expectancy
under
subsection
(1),
subsection
(5)
or
subsection
(7).
I
have
had
the
benefit
of
a
very
able
argument
from
both
counsel
and
have
considered
the
provisions
of
the
section
and
the
other
relevant
provisions
of
the
statute
and,
in
my
opinion,
the
kind
of
interest
in
expectancy
which
is
described
in
subsection
(5)
is
different
from
the
kind
of
expectancy
in
subsection
(7).
In
subsection
(7)
it
is
obviously
an
income
interest
and
not
a
capital
interest
that
is
referred
to.
On
the
other
hand,
subsection
(5)
refers
to
an
interest
in
expectancy
which
‘‘falls
into
possession’’.
Subsection
(7)
refers
to
an
income
interest
which
is
or
“commences
to
be
enjoyed’’.
It
seems
to
me
it
is
not
income
but
corpus
which
‘‘falls
into
possession’’.
What
the
appellant
Harrison
received
on
her
mother’s
death
was
a
right
to
income.
One
does
not
ordinarily
speak
of
a
right
falling
into
possession.
No
doubt
either
income
or
corpus
may
be
enjoyed,
and
while
it
might
be
said
that
an
interest
in
expectancy
in
income
can
be
said
to
fall
into
possession,
I
think
that
where
the
descriptive
words
such
as
are
contained
in
subsections
(5)
and
(7)
are
used
by
the
Legislature,
some
difference
in
meaning
is
to
be
attributed
to
the
two
phrases.
It
does
no
violence
to
the
precise
language
of
subsection
(5)
if
it
be
read
in
this
way
:
The
duty
mentioned
in
subsection
4
is
due
when
such
interest
in
expectancy
falls
into
possession
and
shall
be
paid
on
the
basis
of
the
value
at
the
date
of
falling
into
possession
of
the
property
in
respect
to
which
such
interest
in
expectancy
existed.”
The
concluding
words
of
the
subsection,
which
provide
that
no
deduction
shall
be
made
for
any
duty
paid
with
respect
to
any
prior
interest
or
income
arising
out
of
the
property,
lead
me
to
the
conclusion
that
subsection
(5)
applies
only
to
an
interest
in
expectancy
in
capital
and
not
to
an
interest
in
expectancy
in
income
which
is
dealt
with
in
subsection
(7).
Counsel
for
the
respondent
relied
on
three
cases
in
the
United
Kingdom:
Re
O’Connor’s
Estate,
[1931]
Ir.
L.R.
98;
Fry
v.
Ireland,
[1958]
3
All
E.R.
90;
and
Re
Eyre,
[1907]
1
K.B.
331.
Those
decisions
were
based
upon
the
Finance
Act
of
the
United
Kingdom.
It
is
to
be
observed
that
in
that
statute
no
provision
is
contained
similar
to
subsection
(7)
of
The
Succession
Duty
Act
which
separates
interests
in
expectancy
in
income
from
interests
in
expectancy
falling
into
possession.
All
three
cases
deal
not
with
an
expectancy
in
income
but
with
an
expectancy
in
capital.
In
my
opinion,
those
decisions
are
of
no
assistance
in
construing
the
Ontario
statute.
Counsel
for
the
respondent
also
relied
on
subsection
(6)
of
Section
16
as
indicating
that
subsection
(5)
was
a
section
of
general
application
applying
to
all
interests
in
expectancy,
whether
income
or
capital.
As
subsection
(6)
is
phrased,
in
that
it
refers
to
subsection
(7)
and
refers
to
interests
in
expectancy
falling
into
possession,
the
wording
of
subsection
(6)
does
support
his
argument.
However,
notwithstanding
that,
I
think
the
inference
to
be
drawn
from
a
comparison
of
the
words
of
subsection
(5)
and
those
of
subsection
(7)
leads
me
to
the
conclusion
that
if
there
is
any
error
the
error
is
in
including
subsection
(7)
in
the
words
of
subsection
(6)
or
in
omitting
the
words
‘‘commences
to
be
enjoyed’’
from
subsection
(6).
Another
matter
that
was
put
forward
by
counsel
for
the
respondent
in
support
of
his
case
was
the
legislative
history
of
Section
16.
The
present
Act
was
passed
in
1939.
The
statute
formerly
in
existence
was
The
Succession
Duty
Act,
1934,
being
e.
55,
and
the
particular
section
to
be
compared
with
Section
16
of
the
present
Act
is
Section
15(3).
The
wording
and
arrangement
of
the
latter
section
is
different,
but
a
perusal
of
it
does
not
lead
me
to
the
conclusion
that
had
the
present
case
arisen
under
the
former
Act
the
result
would
have
been
any
different
from
that
which
I
think
is
the
correct
one.
It
was
also
said
that
the
interpretation
put
forward
by
the
appellants
would
mean
that
there
would
be
some
unfairness
as
between
those
who
fell
into
possession
of
capital
interest
and
those
who
fell
into
possession
of
an
income
interest.
While
taxing
statutes
are
said
to
be
devoid
of
any
equity,
a
view
which
I
hesitate
to
adopt,
it
would
seem
that
there
is
ample
justification
for
treating
an
interest
in
income
in
a
different
way
from
an
interest
in
capital.
I
do
not
wish
to
be
taken,
in
what
I
have
said,
as
finding
that
the
words
of
Section
16
and
the
interpretation
I
have
put
on
subsections
(4)
to
(7)
inclusive
are
so
clear
as
to
be
beyond
reasonable
doubt.
They
are
not.
However,
I
think
it
is
a
reasonable
construction
;
and,
if
I
am
right
that
it
is
a
reasonable
construction,
where
there
are
two
constructions,
each
capable
of
conveying
two
different
meanings
and
both
being
reasonable,
then
the
principle
in
Re
Hennell,
[1933]
1
K.B.
415,
applies.
For
these
reasons
the
appeal
is
allowed.
It
was
stated
to
me
during
the
course
of
the
hearing
of
this
matter
that
it
was
necessary
for
some
express
finding
to
be
made
as
to
the
amount
of
duty
payable.
I
do
not
find
that
in
the
statute;
it
may
be
a
matter
of
practice.
But,
in
any
event,
there
is
no
dispute
about
it,
and
the
figure
supplied
by
the
respondent
of
$16,579
is
the
amount
which,
being
subtracted
from
the
figure
in
Exhibit
8,
is
the
true
amount
due
for
duty
on
the
life
interest
of
the
appellant
Harrison.
This
amount
is
$9,941.09.
The
appellants
are
entitled
to
their
costs.
Appeal
allowed.