SAINT-PIERRE,
Acting
Judge:—This
is
an
appeal
from
a
decision
of
the
Minister
of
National
Revenue
who,
on
September
17,
1946,
fixed
the
amount
of
duties
owed
by
Dr.
Chipman
on
the
estate
of
his
wife,
Maud
Mary
Angus,
at
$188,165.20.
On
August
9,
1946,
the
sum
of
$113,917.30
was
paid
but
the
amount
claimed
by
the
Minister
is
$74,247.90
plus
interst,
at
the
date
of
the
account,
of
$1,249.92
making
a
total
of
$75,497.82.
The
question
submitted
is
whether
clause
3(f)
of
the
will
of
Maud
Mary
Angus
Chipman
comes
under
the
provisions
of
Section
31
of
the
Act
to
authorize
the
levying
of
duties
in
respect
of
successions.
Clause
3
of
the
will
reads
as
follows
:
First
the
testator
appoints
her
husband,
Dr.
Chipman,
her
brother,
D,
Forbes
Angus,
and
The
Royal
Trust
Company
as
trustees
to
administer
and
dispose
of
the
trust
in
the
following
manner
:
(a)
to
pay
all
debts,
funeral
expenses
and
succession
duties,
(b)
to
deliver
a
special
bequest
of
jewellery
to
her
niece
Mrs.
Vanklynn,
(c)
to
give
her
husband
the
use
of
her
home
so
long
as
he
may
desire,
(d)
to
give
her
husband
the
use
of
her
furniture
and
effects
during
his
lifetime.
(e)
to
divide
the
sum
of
$5,000.00
amongst
her
employees,
(f)
to
pay
to
my
husband,
the
said
Walter
William
Chipman,
during
the
remainder
of
his
lifetime,
the
net
interest
and
revenues
from
the
residues
of
my
estate
and
in
addition
thereto
to
pay
to
my
said
husband
from
time
to
time
and
at
any
time
such
portion
of
the
capital
of
my
estate
as
he
may
wish
or
require
and
upon
his
simple
demand,
my
said
husband
to
be
the
sole
judge
as
to
the
amount
of
capital
to
be
withdrawn
by
him
and
the
times
and
manner
of
withdrawing
the
same,
and
neither
my
said
husband
nor
my
executors
and
trustee
shall
be
obliged
to
account
further
for
any
capital
sums
so
paid
to
my
said
husband.
(g)
upon
her
husband’s
death
to
dispose
of
the
estate
‘‘as
it
may
then
exist
’
’
as
follows
:
1.
My
jewellery,
pictures,
household
furniture
and
household
effects
shall
be
disposed
of
in
accordance
with
any
memorandum
I
may
leave
with
respect
to
the
same
and
failing
any
such
memorandum
then
the
same
shall
be
divided
among
my
residuary
legatees
hereinafter
named
in
the
same
manner
as
the
residue
of
my
Estate.
2.
To
pay
to
The
Royal
Institution
for
the
Advancement
of
Learning
(McGill
University),
of
Montreal,
the
sum
of
fifty
thousand
dollars
as
a
special
legacy.
3.
To
pay
to
the
Royal
Victoria
Hospital,
Montreal,
the
sum
of
fifty
thousand
dollars
as
a
special
legacy.
4.
To
pay
to
The
Art
Gallery,
presently
situate
at
the
corner
of
Ontario
Avenue
and
Sherbrooke
Street
West,
Montreal,
the
sum
of
fifty
thousand
dollars
as
a
special
legacy.
9.
To
pay
to
The
Church
of
St.
Andrew
and
St
Paul,
presently
on
Sherbrooke
Street
West,
Montreal,
the
sum
of
twenty-five
thousand
dollars.
The
receipt
of
the
treasurer
for
the
time
being
of
each
of
the
foregoing
institutions
shall
be
a
good
and
valid
discharge
to
my
Executors
and
Trustees.
6.
To
divide
the
capital
of
the
residue
of
my
Estate
between
my
brothers,
sisters,
niece
and
nephews
as
follows
:—One-sixth
thereto
to
my
brother,
D.
Forbes
Angus,
of
the
City
of
Montreal;
one-sixth
thereof
to
my
brother
William
Forrest
Angus
of
the
City
of
Montreal;
one-sixth
thereof
to
my
brother,
David
James
Angus,
presently
of
Victoria,
British
Columbia;
one-sixth
thereof
to
my
sister,
Margaret
Angus
wife
of
Dr.
Charles
Ferdinand
Martin,
of
the
City
of
Montreal
;
one-sixth
thereof
to
my
sister,
Dame
Bertha
Angus
widow
of
Robert
MacDougall
Paterson,
of
the
City
of
Montreal;
one-
eighteenth
thereof
to
my
niece,
Gyneth
Wanklyn,
widow
of
Durie
McLennan,
of
the
City
of
Montreal;
one-eighteenth
thereof
to
my
nephew,
David
A.
Wanklyn,
of
the
City
of
Montreal;
and
one-eighteenth
thereof
to
my
nephew,
Frederick
A.
Wanklyn,
presently
of
Nassau,
Bahamas;
and
I
hereby
constitute
my
said
brothers,
sisters,
niece
and
nephews
my
universal
residuary
legatees
in
the
aforesaid
proportions.
The
Share
of
any
of
my
brothers
or
sisters
who
may
have
predeceased
leaving
lawful
issue
shall
accrue
in
favour
of
such
issue
equally
by
roots
and
failing
issue
such
share
shall
be
divided
among
my
remaining
brothers
and
sisters
or
their
lawful
issue
by
roots.
The
Share
of
either
of
my
said
nephews
or
niece
who
may
have
predeceased
leaving
lawful
issue
shall
accrue
to
such
issue
equally
by
roots
and
failing
issue
such
share
shall
be
divided
between
my
remaining
nephews
or
niece
and
the
issue
of
any
predeceased
nephew
or
niece
by
roots.
Should
any
beneficiary
become
entitled
to
a
share
of
my
Estate
under
any
of
the
foregoing
provisions
while
a
minor
the
net
revenues
therefrom
shall
be
expended
for
his
or
her
maintenance,
education
and
support
by
my
Executors
and
Trustees
through
such
channels
as
they
may
think
advisable,
but
it
shall
not
be
necessary
to
spend
the
whole
of
such
net
revenue
unless
my
Executors
and
Trustees
so
decide
and
such
net
revenues
may
be
allowed
to
accumulate
in
whole
or
in
part
and
spent
later
as
may
be
decided,
the
whole
in
the
discretion
of
my
Executors
and
Trustees,
and
after
such
beneficiary
attains
the
age
of
majority
the
capital
of
his
or
her
share
or
so
much
thereof
as
then
remains
shall
be
made
over
to
him
or
her
in
absolute
ownership.
Hence,
under
clause
3(f)
Dr.
Chipman
had
the
power
to
apply
to
the
trustees
and,
upon
his
simple
demand,
be
paid
the
capital
he
wished
and
neither
Dr.
Chipman
nor
the
trustees
were
obliged
to
account
for
the
amounts
so
paid
to
Dr.
Chipman.
In
the
face
of
this
clause
Dr.
Chipman
had
two
alternatives,
namely
to
accept
it
and
be
paid
the
amounts
he
wished
or
to
refuse
it.
There
is
no
doubt
that
if
he
refused
the
clause
the
provisions
of
Section
31
could
not
apply
to
him.
On
the
other
hand,
having
accepted
clause
3(f)
of
the
will,
does
Section
31
of
the
Succession
Duty
Act
apply
?
This
Section
31
reads
as
follows
:
4
‘31.
Where
a
general
power
to
appoint
any
property
either
by
instrument
inter
vivos,
or
by
will,
or
both,
is
given
to
any
person,
the
duty
levied
in
respect
of
the
succession
thereto
shall
be
payable
in
the
same
manner
and
at
the
same
time
as
if
the
property
itself
had
been
given,
devised
or
bequeathed,
to
the
person
to
whom
such
power
is
given.
’
’
Section
31
is
complemented
by
Section
4(1)
which
reads
as
follows:
‘
‘A
person
shall
be
deemed
competent
to
dispose
of
property
if
he
has
such
an
estate
or
interest
therein
or
such
general
power
as
would,
if
he
were
sui
juris,
enable
him
to
dispose
of
the
property
and
the
expression
“general
power’’
includes
every
power
or
authority
enabling
the
donee
or
other
holder
thereof
to
appoint
or
dispose
of
property
as
he
thinks
fit,
whether
exercisable
by
instrument
inter
vivos
or
by
will,
or
both,
but
exclusive
of
any
power
exercisable
in
a
fiduciary
capacity
under
a
disposition
not
made
by
himself,
or
exercisable
as
mortgagee.”
Therefore,
as
a
result
of
these
two
sections
the
general
power
to
appoint
property
includes
the
right
or
authority
enabling
the
donee
or
other
holder
to
appoint
or
alienate
property.
In
the
case
of
clause
3(f)
of
Mrs.
Chipman’s
will,
she
gives
her
husband
the
general
power
to
be
paid
the
capital
he
wishes
and
as
a
result
of
this
payment
of
capital
it
follows
that
by
this
very
fact
he
obtains
general
power
to
appoint
the
capital
he
has
received
either
by
donation
or
by
will.
Section
31
contains
two
parts,
the
first
establishing
the
fact
of
an
existing
circumstance
in
a
will
and
the
second
determining
how,
in
such
case,
the
succession
duty
is
to
be
levied.
If
a
circumstance
exists
as
determined
by
the
first
part,
that
is,
that
a
person
by
his
will
have
given
another
person
general
power
to
appoint
any
property
either
by
instrument
inter
vivos
or
by
will,
or
by
both,
then
the
second
part
is
applicable
and,
in
this
case,
the
duties
levied
in
respect
of
the
succession
of
a
person
who
has
given
such
general
power
are
payable
in
the
same
manner
and
at
the
same
time
as
if
the
property
itself
had
been
given,
devised
or
bequeathed
to
the
person
to
whom
such
power
is
given.
In
Mrs.
Chipman’s
will,
since
she
gave
her
husband
a
general
power
over
the
capital
of
her
estate,
Dr.
Chipman
who
obtained
this
power
must
pay
the
duties
levied
in
respect
of
Mrs.
Chipman’s
estate
in
the
same
manner
and
at
the
same
time
as
if
the
property
itself
had
been
given,
devised,
bequeathed
to
him.
The
purpose
of
Section
31
is
to
attain
the
person
who
has
a
general
power
to
appoint
and
to
determine
what
duty
he
is
to
pay
or
at
what
time.
In
my
opinion,
therefore,
the
provisions
of
Section
31
apply
to
the
will
of
Mrs.
Chipman.
Counsel
for
the
Crown
bases
his
argument
particularly
on
the
case
of
Cossitt
v.
Minister
of
National
Revenue,
[1949]
Ex.
C.R.
p.
339;
[1949]
C.T.C.
187.
A
testamentary
clause
similar
to
the
one
in
this
case
was
concerned
and
Mr.
Justice
O’Connor
ruled
that
Section
31
was
applicable
in
that
case.
The
clause
in
the
Cossitt
case
read
as
follows
:
‘‘3(f).
To
invest
and
keep
invested
the
residue
of
my
estate
and
to
pay
the
net
income
derived
therefrom
to
my
said
son
Edwin
Comstock
Cossitt
during
his
lifetime,
with
power
to
him
at
any
time
to
use
for
his
benefit
such
amount
or
amounts
out
of
the
capital
of
the
said
residue
as
he
may
wish.
(g)
Upon
the
death
of
my
said
son,
the
residue
of
my
estate
or
the
amount
thereof
remaining
shall
be
held
in
trust
for
the
issue
of
my
said
son
or
some
one
or
more
of
them
in
such
proportion
and
subject
to
such
terms
and
conditions
as
my
said
son
may
by
his
last
will
direct,
provided.”
Mr.
Justice
O’Connor
declared,
on
page
343
:
1
‘The
effect
of
Section
31,
in
my
opinion,
is
that
where
a
general
power
to
appoint
any
property
is
given
to
any
person,
such
person
shall
be
deemed
to
have
derived
a
succession
of
such
property
from
the
decease.
In
my
opinion,
there
was
not
a
succession
within
section
2(m)
but
there
was
a
succession
within
Section
31.
And
under
Section
31,
the
duty
levied
in
respect
of
such
succession
is
payable
in
the
same
manner
and
at
the
same
time
as
if
the
property
itself
had
been
given
to
the
appellant.”
I
share
the
views
expressed
by
Mr.
Justice
O’Connor
in
the
case
of
Cossitt
v.
Minister
of
National
Revenue.
Consequently,
for
the
above-mentioned
reasons
I
dismiss
the
appeal
with
costs.
I
have
examined
the
authorities
cited
by
counsel
for
both
parties
and
I
do
not
share
the
views
of
the
appellant’s
counsel
that
articles
of
the
Civil
Code
should
be
applied
to
this
case
where
it
is
a
matter
of
statute
law
as
regards
the
levying
of
Federal
taxes.
Appeal
dismissed.
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