MIGNAULT,
J.:—John
Curry,
in
his
lifetime
of
the
city
of
Windsor,
province
of
Ontario,
banker,
died
on
the
11th
of
May,
1912,
leaving
a
large
estate
comprising,
inter
alia,
land
in
and
about
Windsor
and
in
and
about
the
city
of
Detroit,
U.S.
His
wife,
Frances
Arabella
Curry,
and
his
three
children,
one
son,
Charles
Francis
Curry,
and
two
daughters,
Verene
May
McLeod,
the
wife
of
the
appellant,
and
Gladys
Alma
Curry,
survived
him.
By
his
last
will,
after
payment
of
his
debts
and
testamentary
and
funeral
expenses,
he
devised
and
bequeathed
all
his
real
and
personal
property
wherever
situate
to
his
wife,
Frances
Arabella
Curry,
his
son,
Charles
F.
Curry,
and
his
son-in-law,
James
Barber
McLeod,
whom
he
appointed
executors
and
trustees
of
his
will,
their
heirs,
exexcutors
and
administrators,
in
trust
for
sale
and
to
convert
into
money.
The
time
at
which
the
prop-
orties
would
be
sold
and
the
conditions
of
the
sale,
either
for
cash
or
on
credit,
were
left
to
the
discretion
of
the
trustees,
who
were
empowered
to
lease
the
real
estate
for
a
terms
not
exceeding
ten
years,
with
right
to
renew
the
leases
for
a
like
term.
And
out
of
the
fund
so
formed,
he
directed
his
trustees
to
pay,
free
from
legacy
or
succession
duties,
certain
legacies
and
annuities,
inter
alia,
during
twenty-one
years,
$2,000,
per
year
to
Verene
May
McLeod,
$1,000
per
year
to
Gladys
Alma
Curry,
with
power
to
increase
the
annuity
to
$2,000
in
the
event
of
her
marriage,
and
$2,000
to
Charles
Francis
Curry.
The
will
also
left
an
annuity
and
certain
bequests
to
the
testator’s
widow,
with
the
free
use
of
his
house
during
her
lifetime.
By
the
terms
of
the
will,
any*
surplus
revenue
not
required
for
the
payment
of
the
legacies,
annuities
and
expenses
was
to
be
invested
and
accumulated
during
twenty-one
years
from
the
testator’s
death,
and
as
to
the
disposal
of
the
accumulated
fund
at
the
end
of
that
period,
the
testator
ordered
as
follows:
"‘At
the
expiration
of
the
said
period
of
twenty-one
years
from
my
death,
I
direct
my
Trustees
after
setting
apart
an
amount
sufficient
to
produce
at
three
and
one-half
per
cent
per
annum
the
annual
payments
hereinbefore
directed
to
my
beloved
wife
and
the
rates
and
charges
on
said
house,
to
divide
the
balance
of
my
estate
in
three
parts
and
I
direct
that
each
of
the
said
shares
shall
be
conveyed
or
transferred
to
my
children,
Charles
Francis
Curry,
Verene
May
Curry
McLeod
and
Gladys
Alma
Curry.
I
further
direct
that
as
and
when
the
capital
which
shall
have
been
set
apart
at
three
and
one-half
per
cent
to
produce
the
yearly
sum
to
be
paid
to
my
beloved
wife
shall.
fall
in
and
not
be
further
required
by
reason
of
the
death
of
my
said
wife,
it
shall
be
included
in
the
division
of
the
fund
into
three
shares,
or
if
it
fall
in
after
such
division,
it
shall
be
divided
in
the
same
manner
and
amongst
the
same
persons.
"‘At
the
expiration
of
twenty-one
years
after
my
death
and
at
the
time
of
the
division
of
my
estate,
I
direct
that
in
case
any
of
my
children
shall
have
died
in
the
meantime,
that
the
one-third
share
of
each
or
any
of
my
children
that
shall
die
before
the
expiration
of
said
twenty-one
years,
shall
vest
in
my
Trustees
to
divide
the
same
amongst
my
grandchildren,
if
any,
as
they
may
think
best.”
The
testator’s
wife
survived
him
only
a
few
months
and
died
on
the
31st
of
October,
1912.
Charles
Francis
Curry,
his
son,
also
died
on
the
24th
of
March,
1920,
and
left
no
children.
Verene
May
McLeod
has
three
children,
John
C.
McLeod,
Frances
V.
McLeod
and
Gladys
E.
McLeod,
all
minors.
Gladys
Alma
Curry
is,
since
1915,
a
resident
of
the
city
of
New
York,
U.S.
She
is
unmarried.
Both
daughters
of
the
testator
now
receive
as
annuities
under
the
will
$8,000
per
year,
to
which
sum
the
annuities
were
increased
by
order
of
the
Supreme
Court
of
Ontario.
The
litigation
has
arisen
over
the
return
of
income
for
1921
made
by
the
sole
surviving
trustee,
James
B.
McLeod,
the
appellant,
under
the
provisions
of
The
Income
War
Tax
Act,
1917,
and
amendments.
This
return
shewed
a
gross
income
of
$161,-
378.02,
from
which
Mr.
McLeod
deducted
$84,298.85
for
interest
on
borrowed
money,
real
estate
expenses,
payment
of
annuities
and
other
costs,
leaving
as
net
income
$77,179.17.
The
appellant
also
caused
a
return
to
be
made
for
Verene
May
McLeod
of
one-
third
of
the
net
revenue,
and
for
each
of
her
three
children
of
one-ninth
of
the
net
revenue
(being
a
third
of
the
third
share
bequeathed
to
Charles
Francis
Curry).
The
trustee
in
his
own
return
claimed
as
a
deduction
$1,650
included
in
the
net
revenue,
being
the
interest
on
Dominion
of
Canada
Bonds
(referred
to
hereafter
as
tax-free
bonds)
issued
exempt
from
income
tax,
and
also
claimed
as
a
deduction
from
income
subject
to
the
normal
tax
$68,531.25
received
as
dividends
from
Canadian
companies
liable
to
income
tax.
The
trustee
paid
income
tax
on
the
basis
of
his
returns,
but
in
May,
1924,
the
Commissioner
of
Taxation
claimed
from
him
$16,285.15,
after
crediting
the
payments
made.
The
trustee
having
appealed
from
this
assessment,
it
was
affirmed
by
the
Minister
of
Finance,
and
the
appellant
then
served
a
notice
of
dissatisfaction
under
sec.
15
of
the
Act,
thus
bringing
the
matter
of
the
assessment
before
the
Exchequer
Court.
In
the
latter
court,
three
questions
were
submitted
as
stated
by
the
formal
judgment
:—
"1.
Whether
the
fund
accumulating
in
the
hands
of
the
trustee
under
the
will
is
‘income
accumulating
in
trust
for
the
benefit
of
unascertained
persons
or
persons
with
contingent
interests’
within
the
meaning
of
section
3,
subsection
6,
of
The
Income
War
Tax
Act,
1917,
as
enacted
by
10-11
Geo.
V,
c.
49,
s.
4
(1920),
and
as
such
liable
to
taxation
?
"2.
Whether
the
estate
as
such
was
carrying
on
a
business
within
the
meaning
of
the
Act,
resulting
in
taxable
profit
?
ff‘3.
Whether
the
income
accumulating
in
trust
should
be
deemed
to
contain
the
whole
of
the
tax-free
bond
income
or
only
a
portion
thereof,
the
balance
being
passed
on
as
tax-free
income
to
the
annuitants?’’
The
learned
President
of
the
Exchequer
Court,
Mr.
Justice
MacLean,
answered
the
first
question
in
the
affirmative
and
the
second
in
the
negative.
The
answer
to
the
third
question
was
that
the
appellant’
was
entitled
to
retain
for
the
benefit
of
the
trust
fund
the
full
amount
of
the
income
received
from
the
tax-free
bonds.
And
in
the
event
of
the
parties
being
unable
to
agree
upon
the
remaining
points
raised
in
the
appeal,
right
was
reserved
to
apply
for
further
directions
in
regard
thereto.
The
decision
of
the
Exchequer
Court
on
the
second
question
is
not
ompugned
by
either
party
on
this
appeal.
The
appellant
appeals
against
the
answer
of
the
Exchequer
Court
to
the
first
question,
and
by
a
cross-appeal
the
respondent
asks
that
the
judgment
be
set
aside
with
respect
to
the
determination
it
gave
to
the
third
question.
Both
parties
take
the
position
that
what
is
decided
as
to
the
income
derived
from
the
tax-free
bonds
applies
to
the
dividends
received
from
Canadian
companies
liable
to
income
tax.
It
will
therefore
not
be
necessary
to
deal
separately
with
these
dividends,
the
exemption
as
to
which
is
only
in
respect
to
the
normal
tax.
The
parties
also
agree
that
any
income
to
which
Miss
Gladys
A.
Curry
is
entitled
or
which
is
vested
in
her
is
not
taxable
under
the
Act,
inasmuch
as
she
does
not
reside
in
Canada.
Taking
up
first
the
main
appeal,
which
involves
the
answer
given
in
the
court
below
to
the
first
question,
although
the
question
as
framed
would
not
appear
to
involve
more
than
measuring
the
facts
of
this
case
by
the
rule
contained
in
the
second
part
of
subsec.
6,
the
learned
President,
in
his
reasons
for
judgment,
considered
himself
free
to
refer
to
any
other
provision
of
the
Act
which
could
help
in
solving
the
problem
submitted
to
him.
In
the
argument
before
us,
the
parties
also
discussed
other
sections
of
the
Act,
and
it
may
be
well
to
do
likewise
in
so
far
as
these
other
provisions
can
be
of
any
assistance.
It
is
obvious
however
that
the
whole
of
subsec.
6
must
be
considered,
and
not
merely
its
second
part.
This
subsection,
as
first
enacted
by
chapter
55
of
the
statutes
of
1919,
stated
that
the
"‘income
of
a
beneficiary
of
an
estate
shall
be
deemed
to
include
the
amount
accruing
during
each
taxation
year
to
which
he,
his
heirs
or
assigns
are
entitled
from
the
income
of
an
estate
whether
distributed
or
not.
‘
‘
The
1920
amendment
changed
this
language,
and
added
the
provision
concerning
income
accumulating
in
trust
for
the
benefit
of
unascertained
persons,
or
of
persons
with
contingent
interests.
As
the
subsection
now
stands,
it
reads
as
follows:
"‘6.
The
income,
for
any
taxation
period,
of
a
beneficiary
of
any
estate
or
trust
of
whatsoever
nature
shall
be
deemed
to
include
all
income
accruing
to
the
credit
of
the
taxpayer
whether
received
by
him
or
not
during
such
taxation
period.
Income
accumulating
in
trust
for
the
benefict
of
unascertained
persons,
or
of
persons
with
contingent
interests
shall
be
taxable
in
the
hands
of
the
trustees
‘or
other
like
persons
acting
in
a
fiduciary
capacity,
as
if
such
income
were
the
income
of
an
unmarried
person.”
Taken
as
a
whole,
subsec.
6
seems
designed
to
cover
every
case
of
income
derived
from
an
estate
or
trust.
The
first
sentence
provides
for
the
taxation
of
the
beneficiary
on
"‘all
income
accruing
to
the
credit
of
the
tax-payer
(in
the
French
version,
‘l’intégralité
du
revenu
accumulé
au
credit
du
contribuable’)
whether
received
by
him
or
not
during
such
taxation
period.”
This
of
course
supposes
that
there
is
an
ascertained
beneficiary
presently
or
ultimately
entitlted
to
the
income,
even
though
this
income
may
be
accumulated
and
not
paid
over
to
him
during
the
taxation
period.
The
second
sentence
of
subsec.:
6
deals
with
another
situation,
namely
where
it
cannot
be
said
that
the
income
is
presently
appropriated
to
any
certain
beneficiary,
for
this
income
is
“accumulated
in
trust
for
the
benefit
of
unascertained
persons,
or
of
persons
with
contingent
interests
(in
the
French
text,
‘s’accumulant
au
bénéfice
de
personnes
inconnues
ou
de
personnes
ayant
des
intérêts
éventuels’),’’
and
then
the
income
is
taxable
in
the
hands
of
the
trustees
or
other
like
persons
acting
in
a
fiduciary
capacity,
as
if
such
income
were
the
income
of
an
unmarried
person.
All
this
is
in
accord
with
the
general
policy
of
the
Act
which
imposes
the
income
tax
on
the
person
and
not
on
the
property.
In
other
words,
it
is
the
person
who
is
assessed
in
respect
of
his
income.
We
were
referred
to
the
definition
of
‘‘income’’
in
subsec.
1
of
sec.
3.
In
so
far
as
this
definition
can
be
of
any
help,
it
considers
as
income
annual
gains
or
profits
‘‘
whether
such
gains
or
profits
are
divided
or
distributed
or
not”;
but
here
we
are
dealing
with
something
which,
as
received
and
accumulated
by
the
trustee,
is
undoubtedly
income.
Our
attention
was
also
called
to
the
definition
of
“person”
in
sec.
2.
And
as
‘‘person’’
means
any
‘‘trust’’,
it
was
argued
that
any
“trust”
receiving
income
was
taxable
as
a
person.
Still
the
Act
having
specifically
provided
by
subsec.
6
of
sec.
3
for
the
case
where
income
is
derived
from
any
estate
or
trust,
we
must,
in
the
last
analysis,
come
back
to
that
subsection
to
determine
the
liability
of
the
appellant
under
the
Act.
We
were
also
referred
to
subsec.
11
of
sec.
7,
which
requires
any
trustee
receiving
income
on
behalf
of
a
person
who
is
resident
outside
of
Canada
to
make
a
return
of
such
income.
But
this
subsection
evidently
contemplates
the
case
where
a
non-resident
is
liable
for
income
tax,
and
Miss
Gladys
A.
Curry,
the
parties
agree,
does
not
come
within
the
class
of
non-residents
so
liable
(subsec.
1
of
sec.
4),
and
consequently
subsec.
11
of
see.
7
is
of
no
assistance.
Subsec.
6
of
sec.
3
therefore
governs
the
matter
under
controversy.
Mr.
McMaster
contended
on
behalf
of
the
appellant
that
the
beneficiaries
under
the
Curry
will
are
not
unascertained
persons
or
persons
with
contingent
interests,
that
their
interests
in
the
legacy
are
vested
subject
to
being
divested
in
a
certain
contingency,
and
that
consequently
the
accumulating
revenue
is
not
taxable
against
the
trustee,
but
can
only
be
taxed
against
the
beneficiary
if
the
latter
is
subject
to
taxation
under
the
Act.
This
of
course
involves
consideration
of
the
terms
of
the
will,
and
in
this
connection
we
were
referred
to
a
large
number
of
decided
cases,
some
of
them
dealing
with
devises
of
real
estate
or
of
money
charged
on
real
estate,
others
with
legacies
of
personal
property,
but
obviously
each
decision
depended
on
the
language
of
the
devise
of
legacy
under
consideration.
The
Curry
will
ordered
the
formation
of
a
fund
by
the
sale
of
the
testator’s
property
real
and
personal
and
its
conversion
into
money,
and
after
payment
out
of
the
income
of
the
fund
of
the
special
legacies,
annuities
and
expenses,
the
surplus
revenue
was
to
be
accumulated
in
the
hands
of
the
trustees,
and
at
the
expiration
of
twenty-one
years
from
the
testator’s
death
the
trustees
were
directed
to
divide
the
estate
into
three
parts
and
to
convey
and
transfer
each
of
such
shares
to
the
testator’s
children,
Charles
Francis
Curry,
Verene
May
Curry
McLeod
and
Gladys
Alma
Curry.
So
far,
there
would
appear
to
be
nothing
of
a
contingent
character,
and
it
certainly
cannot
be
claimed
that
these
children
are
unascertained
persons.
It
sufficiently
appears
from
the
provisions
of
the
will,
and
especially
from
articles
3,
4
and
5—which
give
the
trustees
a
discretion
as
to
the
time
when
they
shall
sell
the
properties
of
the
estate,
and
authorize
them
to
sell
for
cash
or
on
credit
and
to
make
leases
of
the
real
estate—that
the
setting
apart
as
well
as
the
payment
and
distribution
of
the
shares
of
the
fund
belonging
to
the
children
was
postponed
for
the
convenience
of
the
fund,
and
for
no
reason
personal
to
the
legatees.
Under
these
circumstances,
and
although
the
gift
here
is
contained
in
the
direction
to
pay
or
distribute
the
shares
at
a
future
time,
I
think
that
the
vesting
of
the
shares
in
the
children
is
not
deferred
to
the
time
of
payment
or
distribution
of
the
shares,
but
took
place
at
the
death
of
the
testator
(Jarman
on
Wills,
6th
ed.,
vol.
2,
p.
1404.
See
also
Theobald
on
Wills,
7th
ed.,
p.
585).
The
time
when
the
legacy
must
be
paid
is
certain,
and
the
rule
dies
incertus
conditionem
in
testamento
facit
is
thus
excluded.
This
is
also
indicated
by
the
direction
in
the
will
that
at
the
expiration
of
the
twenty-one
years,
and
at
the
time
of
the
division
of
the
estate,
in
case
any
of
the
children
shall
have
died
in
the
meantime,
the
one-third
share
of
each
or
any
of
the
children
that
shall
die
before
the
expiration
of
the
twenty-one
years
shall
vest
in
the
trustees
to
divide
the
same
amongst
the
grandchildren,
if
any,
as
they
may
think
best.
This
language
shews
that
the
children
were
vested
with
their
shares
in
the
fund
to
be
formed
after
the
death
of
the
testator,
and
on
the
death
of
one
of
them
before
the
expiration
of
the
twenty-one
years
his
share
was
divested
and
became
vested
in
the
trustees
for
distribution
among
the
grandchildren
at
the
time
of
the
division
of
the
estate.
as
they
may
think
best.
In
construing
subsec.
6,
the
terms
"contingent
interests’’
should
be
given
their
legal
meaning.
It
is
argued
that
a
construction
should
be
placed
on
this
expression
that
can
be
applied
in
all
the
provinces,
including
the
civil
law
province
of
Quebec,
and
for
this
reason
it
is
urged
that
the
popular
rather
than
the
technical
meaning
should
be
given
to
the
terms.
In
the
province
of
Quebec,
there
can
be
no
doubt
as
to
the
interpretation
of
the
words
‘‘contingent
interests’’
or
their
equivalent
in
the
French
version
of
the
Act
intérêts
éventuels.’’
They
mean
there
what
I
find
they
mean
in
the
language
of
the
common
law.
Were
this
not
so,
in
construing
these
terms,
effect
should
be
given
to
the
rule
of
construction
laid
down
in
Commissioners
for
Income
Tax
v.
Pensel
[1891]
A.C.
581
at
p.
580.
See
also
Chesterman
v.
Federal
Commissioners
of
Taxation
[1926]
A.C.
128
at
p.
131.
The
appellant’s
contention
that
the
second
part
of
subsec.
6
only
applies
when
the
income
is
accumulated
wholly
for
persons
with
contingent
interests
or
wholly
for
unascertained
beneficiaries
cannot
be
supported.
It
may
be
accumulated
partly
for
one
class
and
partly
for
the
other,
and
the
trustee
may
administer
a
fund
as
to
a
portion
of
which
ascertained
beneficiaries
have
vested
interests,
while
another
portion
of
the
fund
may
be
left
to
persons
with
contingent
interests,
or
to
persons
who
are
aS
yet
unascertained.
The
subsection
as
a
whole
covers
all
these
cases,
and
its
first
part
may
be
well
applied
to
one
class
and
the
second
part
to
another
under
the
same
will.
My
opinion
therefore
is
that
each
of
the
testator’s
children
had
a
vested
interest
in
the
gift
of
a
third
share
of
the
fund.
There
is
however
more
difficulty
as
to
the
vesting
of
the
gift
over
in
favour
of
the
grandchildren.
Charles
Francis
Curry
died
in
1920
and
by
his
death
was
divested
of
the
share
that
had
vested
in
him.
The
title
of
the
grandchildren
to
any
portion
of
the
fund
was
contingent
on
the
death
of
one
or
more
of
the
children
before
the
expiration
of
the
twenty-one
years.
By
virtue
of
the
will,
on
the
death
of
Charles
Francis
Curry,
his
share
became
vested
in
the
trustees
to
divide
it
among
the
grandchildren
as
they
may
think
best.
This
division
is
to
take
place
at
the
expiration
of
the
twenty-one
years,
that
is
to
say
in
1933.
There
are
now
three
grandchildren
and
there
may
be
others,
or
none
at
all,
at
the
latter
date.
Moreover,
the
share
which
any
surviving
grandchild
may
receive,
should
there
be
more
than
one,
rests
wholly
in
the
discretion
of
the
trustees.
It
seems
at
least
doubtful,
under
all
the
circumstances,
whether
the
grandchildren
were
vested
in
1921
with
any
interest
in
Charles
Francis
Curry’s
share
of
the
fund,
but
it
is
not
necessary
to
decide
the
point
because
the
grandchildren,
during
the
period
of
assessment
in
question,
were
unascertained
persons
within
the
meaning
of
subsec.
6.
It
is
said
that
the
class
was
ascertained,
but
the
statute
refers
to
the
persons
and
not
to
the
class,
and
no
persons
of
the
class
were
ascertained
as
beneficiaries
when
the
assessment
was
made.
On
the
main
appeal
therefore
the
judgment
should
be
varied
so
as
to
declare
that
the
share
in
the
accumulating
fund
of
Mrs.
McLeod
and
Miss
Curry
is
not
taxable
against
the
appellant.
Mrs.
McLeod’s
share
is
taxable
against
herself.
The
share
of
the
fund,
however,
which
would
have
gone
to
Charles
Francis
Curry,
had
he
lived,
should
be
declared
taxable,
for
the
1921
period
of
taxation,
against
the
appellant
as
trustee.
As
the
appellant’s
appeal
is
successful
in
respect
of
a
material
part
of
the
assessment,
he
should
have
his
costs
here
and
in
the
court
below.
With
respect
to
the
cross-appeal
of
the
respondent,
there
appears
to
be
no
reason
for
disturbing
the
judgment.
The
income
derived
from
the
tax-free
bonds
was
part
of
the
income
received
by
the
appellant
as
trustee,
and
he
is
entitled
to
deduct
it
from
the
net
amount
of
income
in
respect
of
which
he
is
taxable.
The
reasons
given
by
the
learned
President
for
so
deciding
are
satisfactory.
The
cross-appeal
should
be
dismissed
with
costs.
The
case
should
be
remitted
to
the
Exchequer
Court
as
some
questions,
which
may
be
involved
in
the
appeal
from
the
assessment,
and
as
to
which
the
parties
were
to
be
at
liberty
to
apply
for
further
directions,
were
not
determined.
NEWCOMBE,
J.:—The
question
in
controversy
depends
upon
the
interpretation,
in
its
application
to
the
facts
of
the
ease,
of
sec.
3,
subsec.
6,
of
the
Income
War
Tax
Act,
1917,
as
amended.
This
subsection
provides
that:
""
(6)
The
income,
for
any
taxation
period,
of
a
beneficiary
of
any
estate
or
trust
of
whatsoever
nature
shall
be
deemed
to
include
all
income
accruing
to
the
credit
of
the
taxpayer
whether
received
by
him
or
not
during
such
taxation
period.
Income
accumulating
in
trust
for
the
benefit
of
unascertained
persons,
or
of
persons
with
contingent
interests
shall
be
taxable
in
the
hands
of
the
trustees
or
other
like
,
persons
acting
in
a
fiduciary
capacity,
as
if
such
income
were
the
income
of
an
unmarried
person.’
The
testator.
died
on
11th
May,
1912,
leaving
his
wife
and
three
children
surviving,
one
son
and
two
daughters.
By
his
will,
he.
left
his
property
to
his
wife,
his
son,
and
his
son-in-law,
James
B.
McLeod,
the
appellant
"‘in
trust
for
sale
and
to
convert
into
money
and
to
hold,
invest,
accumulate
and
dispose
of
the
same,
trust
and
subject
to
the
provisions
hereinafter
set
out.’’
He
directed
that
the
proceeds
should
be
invested
by
his
trustees
in
securities
of
the
various
descriptions
which
he
mentioned;
that
the
income
of
the
fund
should
be
added
to
the
principal
and
follow
its
destination,
and
that
the
accumulations
should
be
made
for
and
during
the
period
of
twenty-one
years
from
his
death.
He
directed
that
out
of
the
income
of
the
fund
certain
annuities
and
legacies
should
be
paid,
including
a
specified
annuity
to
each
of
his
children,
to
be
paid
quarterly
during
the
period;
also
an
annuity
to
his
wife
of
$3,000,
to
be
paid
quarterly
during
her
natural
life,
and
that
she
should
have
the
free
use
of
his
house.
Then
followed
two
clauses
providing
that:
‘_‘At
the
expiration
of
the
said
period
of
twenty-one
years
from
my
death,
I
direct
my
trustees
after
setting
apart
an
amount
sufficient
to
produce
at
three
and
one-half
per
cent
per
annum
the
annual
payments
hereinbefore
directed
to
my
beloved
wife
and
the
rates
and
charges
on
said
house,
to
divide
the
balance
of
my
estate
in
three
parts
and
I
direct
that
each
of
the
said
shares
shall
be
conveyed
or
transferred
to
my
children,
Charles
Francis
Curry,
Verene
May
Curry
McLeod
and
Gladys
Alma
Curry.
I
further
direct
that
as
and
when
the
capital
which
shall
have
been
set
apart
at
three
and
one-half
per
cent
to
produce
the
yearly
sum
to
be
paid
to
my
beloved
wife
shall
fall
in
and
not
be
further
required
by
reason
of
the
death
of
my
said
wife,
it
shall
be
included
in
the
division
of
the
fund
into
three
shares,
or
if
it
fall
in
after
such
division,
it
shall
be
divided
in
the
same
manner
and
amongst
the
same
persons.
At
the
expiration
of
twenty-one
years
after
my
death
and
at
the
time
of
the
division
of
my
estate,
I
direct
that
in
case
any
of
my
children
shall
have
died
in
the
meantime
that
the
one-third
of
each
of
any
of
my
children
that
shall
die
before
the
expiration
of
said
twenty-one
years,
shall
vest
in
my
trustees
to
divide
the
same
amongst
my
grandchildren,
if
any,
as
they
may
think
best.’’
The
testator’s
widow
died
on
31st
October,
1912,
and
his
son
died
on
24th
March,
1920.
The
latter
left
no
children.
One
of
the
testator’s
daughters
is
married
to
the
appellant,
and
has
three
children;
the
other
is
unmarried.
It
is
held
that
the
income
accumulating
:
in
trust
for
the
benefit
of
those
who
will
be
entitled
to
receive
it
at
the
expiration
of
the
period
of
twenty-one
years
is
taxable
in
the
hands
of
the
trustees.
The
appellant
questions
this
decision,
and
principally
upon
the
eround
that,
according
to
his
contention,
the
respective
interests
of
the
testator’s
children
and
grandchildren,
as
defined
by
the
will,
are
vested
in
them
and
not
contingent.
I
shall
not
enter
upon
the
enquiry
as
to
whether
the
interests
of
the
children
and
grandchildren,
or
any
of
them,
are
vested
or
not.
In
my
view
of
the
case,
in
either
event,
the
beneficiaries
are
equally
ascertained
or
unascertained.
The
testator
gave
practically
his
whole
estate
to
his
trustees
to
convert
into
money
and
to
invest,
the
proceeds
to
be
accumulated
at
interest
for
twenty-one
years,
subject
to
the
payment
of
the
legacies
and
annuities.
There
has
been
no
severance
or
separation
into
parts.
At
the
expiry
of
the
twenty-one
years,
the
dispositions
were
made
subject
to
contingent
events
;
the
trustees
were
to
set
apart
an
amount
sufficient
to
produce
the
annual
payments
provided
for
the
testator’s
widow,
and
to
divide
the
balance
of
his
estate
into
three
parts;
one
of
these
shares
to
be
conveyed
or
transferred
to
each
of
his
children
who
survived;
and
he
directed
that
if,
as
the
event
happened,
his
widow
should
die
during
the
period,
the
fund
set
apart
to
produce
her
annuity
should
fall
into
and
become
part
of
the
residue,
and
be
divided
accordingly.
Now
I
think
it
could
have
added
nothing
to
the
solution
of
the
question
in
hand
if
the
will
had
expressly
declared,
what
is
said
to
be
its
effect,
that
the
testator’s
children
shall
each
take
a
vested
interest
in
the
accumulated
fund
in
the
interval,
subject
to
be
divested
as
to
any
of
them
who
shall
die
during
the
period;
the
persons
who
are
to
enjoy
the
income
would
nevertheless,
at
every
moment
of
the
period,
be
uncertain
and
unknown,
and
therefore
unascertained
in
the
only
sense
in
which
it
is
reasonable
to
suppose
that
the
word
is
used
in
the
statute.
If
the
income
be
accruing
to
the
credit
of
an
ascertained
person
who
is
the
beneficiary
of
an
estate
or
trust,
the
taxation
of
it
is
provided
for
by
the
first
sentence
of
the
section;
but,
whatever
may
be
the
meaning
of
"taxpayer”
in
the
context,
income
which
by
the
terms
of
the
trust
he
may
never
receive
cannot
be
said
to
be
accruing
to
his
credit,
and
therefore
such
income
is
not
that
of
the
testator’s
children
or
grandchildren
within
the
intent
of
that
clause.
Presumably
the
concluding
sentence
of
subsec.
6
was
intended
to
reach
income
accumulating
in
trust
which
is
not
accruing
to
the
credit
of
a
beneficiary
because
he
is
unascertained—unknown,
uncertain;
or
because
his
interest
is
contingent.
It
is
uncertain
at
present
who
is
to
have
or
enjoy
the
income,
and
it
is
for
that
very
state
of
uncertainty
that
I
think
the
clause,
in
its
application
to
this
case,
is
intended
and
apt
to
provide.
There
is
income
accumulating
in
trust
for
the
benefit
of
some
person.
Let
it
be
assumed
that
the
interests
of
the
children
are
vested;
nevertheless
there
are
or
may
be
other
persons
interested
who
may
be
solely
entitled
at
the
expiry
of
the
period,
and
who
do
not
derive
their
interests
from
the
children;
and
the
persons
for
whose
benefit
the
income
is
accumulating,
that
is,
those
who
will
ultimately
receive
it,
are
therefore
unascertained.
The
express
mention
of
‘‘persons
with
contingent
interests
‘‘
serves
to
indicate
that
"‘unascertained
persons’’
do
not
include
or
are
not
limited
to
these,
and
therefore,
if
or
in
so
far
as
an
interest
in
personality
must
be
either
vested
or
contingent,
persons
with
vested
interests
may,
within
the
intent
of
the
subsection,
be
unascertained.
The
truth
is
that
the
enquiry
as
to
the
character
of
an
interest—whether
vested
or
contingent—is
not
conclusive
for
the
determination
of
a
question
as
to
whether
the
persons
possessing
the
interest
are
ascertained
or
not.
In
a
sense.
of
course
all
beneficiaries
of
a
trust
are
ascertained
when
the
trust
is
created,
because
it
is
essential
that
they
shall
be
capable
of
ascertainment
from
the
provisions
of
the
trust;
but,
where
the
income
is
to
accumulate
and
become
payable
in
the
future,
and
the
ascertainment
of
the
beneficiaries
is
subject
to
events
which
may
happen
in
the
interval,
the
beneficiaries
are,
nevertheless
for
the
purposes
of
the
statute,
unascertained.
In
my
view,
the
statute,
having
regard
to
the
time
when
the
right
of
possession
or
enjoyment
shall
arrive,
intends
that
the
trustees
shall
pay
the
tax
so
lone
as
it
is
uncertain
who
the
persons
are,
or
may
be,
who
will
then
be
entitled
to
receive
the
accumulated
income.
I
should
imagine
that
if
the
trustees
were
asked
at
the
present
time
to
say
who
are
the
persons
for
whom
they
are,
in
the
administration
of
the
trust,
accumulating
the
income,
they
could,
if
disposed
to
answer,
only
truhtfully
say
that
it
is
for
the
two
daughters
of
the
testator,
if
they
survive
the
period;
and,
as
to
the
one-third
which
each
of
the
testator’s
children
who
has
died
or
may
die
during
the
period
would
otherwise
receive,
for
division
among
the
testator’s
grandchildren,
if
any,
as
the
trustees
in
charge
of
the
trust
at
the
time
of
distribution
may
think
best;
and,
if
there
be
no
grandchildren
at
the
end
of
the
period,
then
for
those
who
may
be
entitled
by
law
according
to
the
happening
of
the
uncertain
events.
This
answer
would,
I
should
think,
be
truly
descriptive
of
persons
who
are
unascertained,
or
who
have
contingent
interests,
within
the
meaning
of
the
statute.
But
it
is
said
that
at
least,
the
testator’s
grandchildren
now
living
are
ascertained,
that
they
have
a
vested
interest
under
the
will
in
that
part
of
the
fund
which
would
have
gone
to
the
testator’s
son
had
be
survived,
and
that
they
must
receive
that
share
at
the
expiry
of
the
period;
that
therefore
there
are
ascertained
persons
for
whom
the
income
is
accumulating
in
trust,
and
consequently
that
the
persons
for
whom
the
income
is
so
accumulating
are
not
unascertained.
I
am
not
however
willing
to
accept
either
the
premises
or
conclusion
of
this
argument.
If
I
be
right
in
the
view
which
I
have
expressed
that
the
testamentary
disposition
of
the
income
accumulating
in
trust
as
an
undivided
whole
is
for
the
benefit
of
persons
who
at
present
are
not,
and
cannot
be,
ascertained,
that
condition
would
not
I
think
be
affected
by
the
fact,
if
it
be
a
fact,
that
there
are
some
individuals
ascertained
who,
if
they
survive
the
period,
will
be
entitled
to
an
uncertain
share
in
one-third
of
the
entire
fund.
Email this Content