O
’Connor,
J.:—These
are
appeals
from
assessments
made
under
the
Domimion
Succession
Duty
Act
1940-41
(Can.)
c.
14.
in
the
estate
of
George
V.
Steed,
deceased,
and
the
estate
of
James
Kenneth
Raeburn,
deceased.
The
same
question
arises
in
the
two
appeals
and
in
the
proceedings
in
which
W.
W.
Walsh
is
the
claimant,
His
Majesty
the
King
respondent,
and
W.
T.
Fitzgerald
as
intervenant
and
all
proceedings
were
consolidated.
The
question
is
whether,
in
the
George
Steed
estate,
the
succession
of
James
Kenneth
Raeburn
deceased,
under
the
will
of
George
V.
Steed
is
dutiable
under
the
Dominion
Act
and
in
the
James
Kenneth
Raeburn
estate,
whether
the
successions
of
Nan
Raeburn,
Thomas
W.
Raeburn,
Elizabeth
Ellen
and
William
Raeburn,
under
the
will
of
James
Kenneth
Raeburn,
are
dutiable
under
the
Dominion
Act.
The
Dominion
Act
came
into
force
on
the
14th
June,
1941.
The
determination
of
the
question
depends
on
whether
there
was
a
succession
of
property.
within
the
Dominion
of
Canada
under
sec.
6(b)
of
the
Dominion
Act.
It
was
agreed
by
counsel
that
if
there
was
a
liability
for
duty
the
question
as
to
the
amount
would
be
determined
later.
The
facts
are
not
in
dispute
and
are
set
out
in
the
first
forty
pages
of
the
record
of
trial.
They
are
summarized
as
follows
:—
Adolphus
Williams
was
domiciled
in
British
Columbia.
His
will
was
dated
15th
January,
1919,
and
he
made
two
codicils,
one
12th
May,
1919,
and
one
on
the
18th
March,
1920.
He
appointed
his
wife,
Katherine
Wylie
Williams,
and
Walter
William
Walsh
the
executors
and
trustees
of
his
will
and
directed
payment
of
debts.
He
bequeathed
to
his
wife
his
personal
goods,
house,
life
insurance
policies
and,
in
addition
:—
"‘I
further
bequeath
to
my
wife
the
sum
of
one
hundred
and
fifty
thousand
dollars,
or
one-half
of
my
estate,
whichever
may
be
the
larger
sum,
to
be
paid
to
her
by
my
trustees
as
hereinafter
mentioned,
free
of
succession
duty:
and
I
direct
that
the
bequest
to
my
wife
shall
be
the
first
and
prior
charge
on
my
estate
and
shall
not
be
subject
to
any
abatement
whatsoever.
‘
‘
Then
follow
two
pecuniary
bequests.
All
real
and
personal
estate
not
otherwise
disposed
of
is
devised
to
his
trustees.
He
directs
that
the
trustees
shall
sell
and
convert
into
money,
and
out
of
the
money
to
pay
the
debts,
the
bequests
under
the
will
and
codicils
and
the
amount
to
his
wife.
And
the
sale
fund,
which
became
a
trust
fund,
was
to
be
divided
into
ten
equal
parts
to
be
given
to
different
relatives.
He
postponed
conversion
and
authorized
them,
the
executors,
if
they
agreed,
to
convey
to
his
wife
real
estate
in
satisfaction
of
his
bequest,
if
she
so
requested
and,
if
it
was
desirable
in
her
interest
so
to
do,
as
a
desirable
investment
for
her.
By
the
first
codicil
he
added
another
executor
and
by
the
second
he
directed
his
trustees
"‘to
pay
to
my
said
wife,
in
equal
consecutive
monthly
instalments’’
to
commence
immediately
after
his
death,
interest
at
5%
per
annum
on
the
above
mentioned
legacy,
or
such
portion
thereof
as
shall
from
time
to
time
remain
unpaid.
He
directs
that
the
interest
payable
to
his
wife,
as
well
as
the
legacy,
shall
be
a
first
charge
on
his
estate
and
shall
not
be
subject
to
any
abatement
whatsoever.
Mr.
Williams
died
in
Vancouver
on
the
3rd
September,
1921.
Letters
probate
were
issued
on
the
25th
October,
1921
and
according
to
the
inventory,
the
estate
included
part
of
the
Castle
Hotel
situated
on
Lots
11
and
12,
Block
53
D.D.
541
in
the
city
of
Vancouver,
valued
at
$267,508.46
and
the
liabilities
totalled
$141,701.09:
leaving
a
net
estate
of
$125,807.37.
Katherine
Wylie
Williams
was
domiciled
in
British
Columbia.
She
died
on
the
9th
April,
1924.
She
executed
a
will
on
15th
July,
1922,
which
was
proved
on
27th
June,
1924.
By
her
will
she
directed
payment
of
her
debts
and
made
a
bequest
of
$5000.00
to
John
Walter
Walsh,
and
the
"‘rest
and
residue
of
my
property,
both
real
and
personal’’
was
given
to
her
sister,
Isabella
Steed,
known
as
Bonnie
Steed.
By
a
codicil
dated
the
2nd
November,
1923
she
revoked
the
legacy
to
John
Walter
Walsh.
The
inventory
sworn
on
the
19th
June,
1924
includes
the
following
item
:—
"Legacy
$150,000.00
with
accrued
interest
amounting
to
$7,577.16
and
life
insurance
moneys
used
by
the
executors
of
Adolphus
Williams
Estate
amounting
to
$6,250.00,
plus
share
of
executor’s
fees
owed
by
Adolphus
Williams
Estate
$201.35.
All
dependent
for
payment
upon
the
value
of
the
assets
of
the
Adolphus
Williams
Estate.
(For
details
of
accounts
of
Adolphus
Williams
Estate
as
at
9th
April,
1924,
see
attached
schedules.
)
$129,763.25
‘
‘
Then
on
the
list
attached
the
assets
are
valued
as
at
9th
April,
1924,
at
$256,415.97,
and
liabilities
of
$126,652.72,
leaving
the
net
at
$129,763.25.
That
figure
of
$129,763.25
is
not
the
value
of
the
legacy
but
merely
the
net
value
of
the
estate
of
Adolphus
Williams.
The
value
of
the
legacy
could
not
be
ascertained
until
the
hotel
had
been
sold
because
until
then
it
could
not
be
determined
whether
Katherine
Wylie
Williams’
estate
would
get
$150,000.00
or
half
the
value
of
the
estate.
Mr.
Walsh
is
the
survivor
of
the
two
executors
named
in
the
will.
Bonnie
Steed
was
domiciled
in
California
and
died
at
Los
Angeles
on
the
10th
January,
1941.
She
made
a
will
on
the
8th
December,
1924,
leaving
her
property
to
her
husband,
George
V.
Steed,
and
naming
him
executor.
Letters
probate
(ex.
7)
were
granted
in
British
Columbia
to
the
executor
limited
to
the
estate
in
British
Columbia.
Ex.
7
is
described
as
ancillary
letters
probate,
but
this
appears
to
be
the
first
grant
of
probate
of
the
will
and
limited
to
the
assets
in
British
Columbia.
In
the
inventory
of
the
Bonnie
Steed
estate
(Ex.
8)
there
is
this
memorandum
:—
"‘Re
legacy
from
Adolphus
Williams,
deceased,
to
Katherine
Wylie
Williams,
see
Adolphus
Williams
Will
Probate
issued
9th
November,
1921.
Said
legacy
bequeathed
to
Isabella
Steed
by
Will
of
Katherine
Wylie
Williams.
See
Katherine
Wylie
Williams
Will
Probate
issued
10th
of
February,
1925.
(Should
be
27th
June,
1924)
The
unpaid
balance
of
the
said
legacy
at
the
10th
of
January,
1941,
the
date
of
the
death
of
Isabella
Steed,
was
$141,717.03.
The
value
of
this
legacy
at
the
10th
of
January,
1941,
as
far
as
can
reasonably
be
calculated
is
$75,000.
My
calculation
is
based
on
the
following
facts
:
1.
The
present
asests
of
the
estate,
all
real
estate
are
assessed
by
the
City
of
Vancouver
Assessor
at
$180,160.
4
"
2.
There
is
a
mortgage
on
the
Castle
Hotel
one
of
the
assets,
in
favour
of
the
North
British
and
Mercantile
Insurance
Com
|
pany
Limited
(Royal
Trust
Co.
agents)
for
|
$46,000.00
|
|
Leaving
a
balance
of
|
$134,160.00
|
It
is
obvious
that
the
present
balance
of
the
legacy,
namely
$141,717.03,
cannot
be
paid
in
full
and
further
that
I
am
informed
and
verily
believe
that
owing
to
the
War
and
present
real
estate
conditions
in
British
Columbia
it
would
be
impossible
to
find
cash
purchasers
for
the
real
estate.
3.
Even
if
purchasers
could
be
found
on
terms
of
small
cash
payments
and
long
deferred
yearly
instalments
which
is
doubtful,
the
payments
would
be
so
long
deferred
that
sales
of
these
deferred
payments
would
have
to
be
made
at
heavy
discounts,
if
sales
could
be
made
at
all.
4.
The
legacy
is
subject
to
the
mortgage
for
$46,000.00
in
favour
of
the
North
British
&
Mercantile
Insurance
Company
and
consequently
is
a
second
charge
on
the
estate,
and
securities
by
way
of
second
charges
such
as
this
legacy
are
subject
to
heavy
discounts
in
all
markets
even
under
normal
conditions
and
in
normal
times.
5.
The
fact
that
I
live
in
the
United
States
compels
me
to
accept
heavy
exchange
deductions
on
all
payments
to
be
received
by
me
and
the
further
fact
of
severe
War-time
Canadian
currency
regulations
and
restrictions
seriously
limits
the
transmission
of
funds
to
me.
(Sgd.)
George
V.
Steed.”
This
memorandum
shows
that
the
value
of
the
legacy
as
at
the
10th
of
January,
1941,
"‘so
far
as
can
reasonably
be
calculated
is
$75,000.’’
The
legacy
is,
of
course,
from
Katherine
Wylie
Williams,
and
the
executor
George
V.
Steed,
placed
a
value
on
something
that
was
coming
to
Bonnie
Steed
from
the
Katherine
Wylie
Williams
estate,
but
which
had
not
yet
come.
The
executor,
George
V.
Steed,
who
was
domiciled
in
California,
died
in
California
on
the
16th
August,
1944.
The
Castle
Hotel
in
Vancouver
was
sold
for
$250,000.00
on
the
5th
November,
1945.
On
the
11th
January,
1946,
letters
of
administration,
with
the
will
annexed
of
Bonnie
Steed,
were
granted
by
an
Order
of
the
Superior
Court
of
California,
appointing
W.
T.
Fitzgerald
as
administrator.
The
Order
(part
of
Ex.
7)
recites
in
part:—
"
"
Isabella
Steed,
who
was
also
known
as
Bonnie
I.
R.
Steed,
died
on
January
10,
1941,
and,
at
the
time
of
her
death,
was
a
resident
of
the
City
and
County
of
San
Francisco,
State
of
California,
and
left
certain
property
therein,
to
wit
:
Personal
property
of
a
value
in
excess
of
Ten
Thousand
Dollars
($10,000.00).
Said
decedent
left
a
will
in
writing
dated
December
8,
1924.
After
the
death
of
said
decedent,
such
proceedings
were
had
and
taken
in
and
by
the
Supreme
Court
of
British
Columbia
in
probate
that
on
April
1,
1941
said
will
was
admitted
to
probate
in
said
Court
as
and
fôr
the
last
will
and
testament
of
said
decedent,
and
George
V.
Steed,
who
was
named
in
said
will
to
be
executor
thereof,
was
appointed
as
executor
thereof
by
said
Court
in
British
Columbia.
Said
petitioner
has
filed
herein
a
copy
of
said
will
and
of
the
order
or
decree
admitting
it
to
probate
as
aforesaid,
duly
authenticated.
Under
the
said
last
will
and
testament
of
said
Isabella
Steed
all
of
her
personal
property,
of
whatsoever
kind
and
wherever
situated,
was
given,
devised
and
bequeathed
to
said
George
V.
Steed,
and
under
the
will
of
said
George
V.
Steed
all
of
his
property,
including
all
the
property
belonging
to
said
Isabella
Steed
in
her
estate,
are
given,
devised
and
bequeathed
to
one
James
Kenneth
Raeburn.
Said
Kenneth
Raeburn
died
during
the
month
of
December,
1944,
from
wounds
received
in
battle
against
the
Japanese.
Said
James
Kenneth
Raeburn
left
a
last
will
and
testament,
dated
October
11,
1944,
which
said
will
has
heretofore
been
admitted
to
probate
in
and
by
the
above
styled
Court,
and
petitioner
herein
has
been
appointed
to
be
administrator
with
the
will
annexed
of
the
estate
of
said
James
Kenneth
Raeburn,
deceased.
Wherefore,
by
reason
of
the
law
and
findings
aforesaid,
it
is
Ordered,
Adjudged
and
Decreed:
,
1.
.
.
.
2.
That
the
document
dated
December
8,
1924,
heretofore
admitted
to
probate
by
the
Supreme
Court
of
British
Columbia
as
the
last
will
of
said
decedent,
a
duly
authenticated
copy
of
which
has
heretofore
been
filed
herein,
be
and
the
same
is
hereby
admitted
to
probate
herein
as
and
for
the
last
will
and
testament
of
said
decedent.
3.
That
said
petitioner
W.
T.
Fitzgerald,
whose
full
legal
name
is
Wendell
Thomas
Fitzgerald,
be
and
he
is
hereby
appointed
Administrator
with
the
will
annexed
of
the
estate
of
said
decedent.
4.
.
.
.
”
On
the
21st
January,
1946,
W.
T.
Fitzgerald
executed
a
Power
of
Attorney
authorizing
the
appointment
of
Walter
William
Walsh
as
ancillary
administrator
in
British
Columbia
of
the
estate
of
Bonnie
Steed.
On
6th
February,
1936,
letters
of
administration
with
the
will
annexed
were
granted
Walter
William
Walsh
of
all
the
unadministered
estate
within
British
Columbia.
Under
the
will
of
George
V.
Steed,
dated
4th
February,
1941,
he
appointed
J.
Kenneth
Raeburn,
a
nephew
of
his
wife,
Bonnie
Steed,
to
be
the
executor
of
his
will
with
power
to
sell
the
property.
The
will
provided
:
‘
"
All
my
property
of
whatsoever
kind
and
wherever
situated
I
give,
devise
and
bequeath
to
the
said
J.
Kenneth
Raeburn,
nephew
of
my
late
wife,
Bonnie
I.
R.
Steed.
I
make
this
disposition
of
my
property
for
the
reason
that
all
my
property
has
come
to
me
by
inheritance
from
my
said
wife,
and
I
feel
it
to
be
fitting
and
proper
that
this
property
be
left
to
a
member
of
my
wife
‘s
family.
In
addition,
said
J.
Kenneth
Raeburn
has
for
many
years
last
past
been
a
loyal
friend
to
me
and
to
my
late
wife
and
at
all
times
has
enjoyed
our
greatest
respect
and
affection.
I
make
no
provision
for
any
member
of
my
own
family,
feeling
as
I
do
that
my
property
should
revert
to
my
wife’s
family,
but
I
wish
to
assure
my
kindred
that
my
failure
to
make
provision
for
them
does
not
indicate
a
lack
of
affection
for
them.
’
’
By
an
Order
of
the
Court
in
California,
dated
22nd
December,
1944
(Ex.
12)
the
will
of
George
V.
Steed
was
admitted
to
probate
and
Letters
Testamentary
were
granted
to
the
executor,
J.
Kenneth
Raeburn.
This
was
done
without
knowledge
that
J.
Kenneth
Raeburn
had
been
killed
in
action
in
the
Pacific
on
the
14th
December,
1944.
By
an
Order
of
the
Court
in
California,
dated
12th
March,
1945,
in
the
George
V.
Steed
estate,
Letters
of
Administration
with
will
annexed
were
granted
and
W.
T.
Fitzgerald
appointed
administrator.
James
Kenneth
Raeburn
was
domiciled
in
California.
The
Court
of
California
on
the
28th
November,
1945,
granted
Letters
of
Administration
with
will
annexed
and
appointed
W.
T.
Fitzgerald
administrator.
The
will
of
James
Kenneth
Raeburn
is
dated
October
11,
1944,
and
takes
the
form
of
a
letter
addressed
to
his
sister,
Nan
Raeburn,
and
includes
a
letter
written
by
George
V.
Steed
to
him
dated
4th
February,
1941,
and
is
as
follows
:—
"‘My
dear
Kenneth:
I
have
today
made
my
Will,
leaving
all
my
property
to
you.
It
is
my
desire,
however,
that
after
you
have
received
the
net
sum
of
$50,000
(exclusive
of
any
interest
received
by
you
from
the
estate
of
Adolphus
Williams
(deceased)
and
after
the
payment
of
all
expenses
of
administration
and
death
taxes,
you
should
distribute
the
balance
of
my
property,
if
any,
in
the
following
proportions
to
the
following
named
persons:”
....
Then
follows
a
list
of
the
names
in
proportions
which
added
up
to
94/100.
The
letter
from
J.
Kenneth
Raeburn
to
his
sister
is
as
follows
:—
""Dear
Nan:
Since
inheriting
Uncle
George’s
estate,
I
have
been
giving
quite
a
bit
of
thought
to
the
possibilities
of
the
days
ahead
and
decided
to
write
to
you
on
the
subject
of
my
Will.
To
you,
Nan
Raeburn,
I
leave
one-half
of
the
afore-mentioned
estate
inherited
by
me
from
the
late
George
V.
Steed,
my
insurance
policy
and
any
cash
left
in
my
account
with
the
California
Bank,
North
Hollywood,
California.
To
my
father,
Thomas
W.
Raeburn,
I
leave
one-sixth
of
the
said
Estate
left
to
me
by
my
Uncle
George
V.
Steed.
To
my
sister,
Elizabeth
W.
R.
Allan,
I
leave
one-sixth
of
the
said
Estate
left
to
me
by
my
Uncle
George
V.
Steed.
To
my
brother,
William
J.
M.
Raeburn,
I
leave
one-sixth
of
the
said
Estate
left
to
me
by
Uncle
George
V.
Steed.
These
three-sixths
mentioned
above
comprise
one-half
of
the
estate
left
to
me
by
my
Uncle
George
V.
Steed.
In
addition
to
this,
I
bequest
that
the
instructions
left
to
me
in
a.letter
now
in
the
hands
of
the
law
firm
of
Morrison,
Hohfield,
Foerster,
Shuman
and
Clark
of
San
Francisco,
California,
by
the
late
George
V.
Steed
be
carried
out
as
he
desired.
Correspondence
exchanged
between
the
solicitors
(Ex.
14)
disclosed
in
part
:—
4
"
Following
the
death
of
Adolphus
Williams
the
Executors
proceeded
to
administer
the
estate
which
consisted,
for
the
main
part,
of
real
estate
and
as
the
latter
was
being
held
by
the
Executors
to
obtain
a
more
satisfactory
price
there
were
insufficient
liquid
assets
to
pay
the
pecuniary
legatees
provided
for
in
the
Will.
It
was
not,
therefore,
until
1928
that
the
consent
of
the
main
pecuniary
legatee
having
been
obtained,
the
three
minor
pecuniary
legatees
were
paid.
‘
‘
"
"
On
the
10th
of
August
in
that
year,
the
legacy
to
the
testator’s
niece,
Mattie
Martindale,
was
paid
in
the
sum
of
$3,247.85,
representing
principal
of
$2,500.00
and
accrued
interest.
The
same
facts
apply
in
the
case
of
the
legacy
to
the
testator’s
god-daughter,
Hoddie
Jackson,
being
a
legacy
of
a
similar
amount.
The
sum
of
$1,295.00
was
paid
to
the
testator’s
god-son,
Eddie
Godfrey,
being
principal
of
$1,000.00
and
accrued
interest.
Mrs.
Williams,
the
pecuniary
legatee
mentioned
in
the
Will
for
$150,000.00,
received
no
payment
of
principal
during
her
lifetime
but
was
paid
various
payments
on
account
of
interest
accruing
on
the
said
legacy.
After
her
death,
in
1924,
payments
were
continued
to
be
made
into
her
estate,
and
thence
from
time
to
time
distributed
to
her
sister,
Mrs.
Steed,
who
is
the
sole
beneficiary
of
her
estate.
This
practice
continued
until
September
1930
and
thereafter
payments
were
made
direct
to
Mrs.
Steed
by
the
executors
of
the
Adolphus
Williams
estate.
Mr.
Walsh,
one
of
the
executors,
has
informed
the
writer
that
the
reason
that
the
practice
was
changed
was
to
save
expense
and
costs
of
remuneration
by
paying
the
money
through
one
estate
instead
of
two.
On
Mrs.
Steed’s
death,
in
1941,
payments
were
made
into
her
estate
until
September
1943
when
the
payments
were
made
direct
to
George
V.
Steed,
the
sole
beneficiary
of
his
wife’s
estate,
the
same
reason
applying,
namely,
the
payment
through
one
estate
instead
of
through
three.
No
payments
whatsoever
have
been
made
since
the
death
of
George
V.
Steed
as
a
personal
representative
was
not
appointed
until
some
time
after
his
death
and
there
were
still
insufficient
liquid
assets
in
the
Adolphus
Williams.
estate
to
pay
the
amount
of
the
pecuniary
legatee.”
“We
are
now
in
the
process
of
winding
up
the
estate
of
Adolphus
Williams
by
distributing
the
residuary
estate
to
the
legatees
entitled.
Two
interim
distributions
have
already
been
made
to
these
legatees
on
account,
as
shown
on
the
enclosed
excerpt
from
the
final
accounts
which
we
are
preparing.
There
are
certain
minor
adjustments
to
be
made
in
the
estate
as
between
the
pecuniary
legatee
and
the
residuary
legatees
but
we
hope
to
distribute
shortly
to
the
latter
a
further
$36,000.00
in
the
same
proportions
as
set
out
in
the
excerpt.
As
soon
as
the
pending
litigation
over
the
Succession
Duties
has
been
Settled,
the
executor
of
the
Katherine
Wylie
Williams
estate
will
distribute
the
residue
of
that
estate.
With
regard
to
the
question
of
distribution
of
the
Katherine
Wylie
Williams
estate,
the
whole
of
her
estate
was
left
to
her
sister,
Isabella
Steed,
and
as
mentioned
above,
payments
were
made
into
her
estate
from
time
to
time
on
account
of
principal
and
interest
on
the
legacy
and
was
distributed
thereout
to
Mrs.
Steed
until
September
1930.
At
that
time
the
account
was
closed
in
her
estate
and
payments
made
direct
to
Mrs.
Steed
from
the
Adolphus
Williams
estate.
On
the
5th
of
November,
1945,
however,
when
funds
became
available
for
the
payment
of
the
pecuniary
legacy
and
interest,
the
full
amount
was
paid
in
to
the
estate
of
Katherine
Wylie
Williams
and
a
special
trust
account
was
opened
in
the
Royal
Bank
of
Canada,
Vancouver
Branch,
in
Mr.
Walsh’s
name
in
trust
and
the
funds
deposited
therein
where
they
still
remain.”
It
was
agreed
by
counsel
that
the
statement,
"‘the
full
amount
was
paid
in
to
the
estate
of
Katherine
Wylie
Williams’’,
meant
that
in
the
books
of
Walsh,
Houser
&
Company
this
amount
had
been
credited
to
the
Katherine
Wylie
Williams
estate
and
charged
to
the
Adolphus
Williams
estate.
The
correspondence
states
that
no
payments
have
been
made
since
the
death
of
George
Steed
and
that
:—
"
4
With
reference
to
the
distribution
in
the
Bonnie
I.
R.
Steed
estate,
payments
of
principal
and
interest
on
the
pecuniary
legacy
were
made
directly
from
the
Adolphus
Williams
estate
into
her
estate
and
from
time
to
time
distributions
were
made
therefrom
to
Mr.
George
V.
Steed,
her
sole
executor
and
beneficiary.
As
mentioned
above,
from
and
after
September
1943
payments
were
made
direct
to
George
V.
Steed
by
the
Adolphus
Williams
estate.
It
should
be
noted
in
this
regard,
however,
that
Mr.
Steed
had
taken
out
an
Ancillary
Grant
of
Letters
Probate
to
his
wife’s
estate
in
British
Columbia.”
Enclosed
with
the
correspondence
and
forming
part
of.
Ex.
14
is
an
excerpt
from
a
letter
from
the
appellant,
Fitzgerald,
as
follows
:—
"
"
In
the
Raeburn
estate
I
have
not
attempted
to
file
an
inventory
and
appraisement
as
is
our
usual
procedure
because
of
the
fact
that
it
has
heretofore
been
impossible
to
determine
the
value
of
the
Raeburn
estate’s
interest
in
the
estate
of
George
V.
Steed.
Apart
from
that
interest
the
only
asset
which
he
had
was
a
small
bank
account
amounting
to
$351.96
with
the
North
Hollywood
Branch
of
the
California
Bank.
You
will
note
that
in
the
Steed
inventory
on
page
4
mention
is
made
of
the
Adolphus
Williams
legacy,
but
when
the
inventory
was
made
and
filed
it
was
not
yet
known
by
me
that
Mr.
Walsh
had
distributed
the
Williams
property
and
was
in
a
position
to
pay
the
legacy.
The
letter
from
Mr.
Walsh
conveying
this
news
to
me
was
dated
November
20,
1945,
which
was
some
days
after
the
inventory
had
been
filed.
Needless
to
say,
the
statement
in
the
inventory
that
I
did
not
expect
that
payment
to
me
in
these
proceedings
was
based
upon
the
assumption
that
the
Williams
property
would
not
be
sold,
and
that
consequently
there
would
be
no
payment
to
me,
however
after
I
was
apprised
of
the
availability
of
the
money
it
became
my
legal
duty
to
attempt
to
reduce
it
to
my
possession,
if
that
is
possible.
With
regard
to
the
statement
of
distribution,
here
again
I
can
furnish
no
court
document
for
the
simple
reason
that
no
distribution
has
been
made
either
in
the
estate
of
George
V.
Steed
or
in
the
estate
of
James
Kenneth
Raeburn.
When
distribution
takes
place
the
estate
of
Isabella
Steed
will
be
distributed
to
the
estate
of
George
V.
Steed
which
in
turn
will
be
distributed
to
the
estate
of
James
Kenneth
Raeburn,
and
that
estate
in
turn
will
be
distributed
to
the
legatees
and
devisees
named
in
the
will
of
James
Kenneth
Raeburn
and
the
letter
which
was
admitted
to
probate
as
a
part
of
the
will
from
George
V.
Steed
to
James
Kenneth
Raeburn.
In
short
the
proceedings
looking
toward
the
distribution
of
the
three
estates
here
have
come
to
a
halt
until
I
know
what
assets
will
be
available
from
Canada
to
the
estate
of
Isabella
Steed.”
After
the
hotel
was
sold
Mr.
Walsh
moved
for
the
advice
and
direction
of
the
Court
in
British
Columbia,
and
notice
was
given
to
the
Dominion
Succession
Duties
authorities
and
to
the
Provincial
Succession
Duties
authorities
and
they
both
appeared
on
the
motion.
Mr.
Justice
Manson
on
the
return
of
the
motion
made
an
Order
authorizing
the
administrator,
Mr.
Walsh,
to
pay
the
moneys
in
question
to
Mr.
Fitzgerald,
the
California
domiciliary
administrator
and
authorized
the
main
branch
of
the
Royal
Bank
of
Canada
holding
the
funds
to
permit
the
transfer.
The
respondent
applied
for
and
obtained
a
Writ
of
Extent
and
Mr.
Walsh
undertook
to
hold
the
moneys
until
the
matter
had
been
settled.
After
the
issue
of
the
Writ
of
Extent,
Mr.
Walsh
filed
a
Plea
claiming
in
his
capacity
as
sole
surviving
executor
of
the
Katherine
Wylie
Williams
estate
and
as
administrator
with
will
annexed
of
Bonnie
Steed
estate
for
a
declaration
that
the
sum
of
$159,347.33
forms
part
of
the
residue
of
the
estate
of
Katherine
Wylie
Williams,
deceased,
or
in
the
alternative
for
a
declaration
that
the
said
sum
forms
part
of
the
residue
of
the
estate
of
Bonnie
Steed,
deceased,
within
the
Province
of
British
Columbia,
and
that
it
is
held
by
the
claimant
in
trust
as
administrator
with
will
annexed
de
bonis
non
of
the
said
estate
limited
to
the
assets
thereof
within
the
Province
of
British
Columbia
and
for
a
declaration
that
this
sum
is
not
subject
to
taxation
under
the
Dominion
Act.
Notice
of
assessment
dated
the
28rd
March,
1946,
was
sent
to
W.
T.
Fitzgerald,
administrator
of
the
estate
of
George
V.
Steed
that
duty
of
$21,204.91
was
assessed
upon
the
succession
of
James
Kenneth
Raeburn
derived
from
George
V.
Steed,
valued
at
$155,347.33.
On
this
notice
is
this
statement
:—
“The
property
in
this
succession
consists
of
money
on
deposit
with
the
main
branch
of
the
Royal
Bank
of
Canada
at
Vancouver,
British
Columbia,
Canada,
standing
in
the
name
of
Walter
Williams
Walsh
in
trust.’’
Notice
of
assessment
dated
the
29th
March,
1946,
was
sent
to
W.
T.
Fitzgerald,
administrator
of
the
estate
of
James
Kenneth
Raeburn
that
duties
were
assessed
upon
the
succession
valued
at
$141,205.29
derived
from
James
Kenneth
Raeburn,
of
Nan
Raeburn,
Thomas
W.
Raeburn,
Elizabeth
W.
R.
Allan
and
William
J.
M.
Raeburn
in
the
various
amounts
set
out.
From
both
assessments
Mr.
Fitzgerald
appealed.
An
order
was
made
consolidating
the
proceedings
that
arose
on
the
issue
of
the
Writ
of
Extent
and
the
filing
of
the
Plea
by
Mr.
Walsh
with
the
appeals
from
the
assessments
in
the
George
V.
Steed
estate
and
in
the
James
Kenneth
Raeburn
estate.
Under
the
Dominion
Act
duties
on
successions
are
imposed
by
Section—
^6.
Subject
to
the
exemptions
mentioned
in
see.
7
of
this
Act,
there
shall
be
assessed,
levied
and
paid
at
the
rates
provided
for
in
this
the
First
Schedule
to
this
Act,
duties
upon
or
in
respect
of
the
following
successions,
that
is
to
say,—‘‘
Both
George
Steed
and
James
Kenneth
Raeburn
were
domiciled
in
California.
The
relevant
subsection
is,
therefore
:—
"(b)
Where
the
deceased
was
at
the
time
of
his
death
domiciled
outside
of
Canada,
upon
or
in
respect
of
the
succession
to
all
property
situated
in
Canada.’’
Succession
is
defined
by
Section—
"‘2(m).
‘Succession’
means
every
past
or
future
disposition
of
property,
by
reason
whereof
any
person
has
or
shall
become
beneficially
entitled
to
any
property
or
the
income
thereof
upon
the
death
of
any
deceased
person,
either
immediately
or
after
any
interval,
either
certainly
or
contingently,
and
either
originally
or
by
way
of
substitute
limitation,
and
every
devolution
.
.
.
“Deceased
person”
is
defined
by
sec.
2(d)
to
mean
a
person
dying
after
the
coming
into
force
of
the
Act.
Bonnie
Steed
died
before
the
Act
came
into
force
but
George
Steed
and
James
Kenneth
Raeburn
died
after
the
Act
came
into
force.
"‘Property’’
is
defined
by
Section—
"2(k).
"‘Property’’
includes
property,
real
or
personal,
movable
or
immoveable,
of
every
description,
and
every
estate
and
interest
therein
or
income
therefrom
capable
of
being
devised
or
bequeathed
by
will
or
of
passing
on
the
death
and
.
.
.
”
The
tax,
if
any,
accrued
at
the
death
of
George
Steed
so
that
all
matters
in
relation
to
the
taxation
are
to
be
determined
by
the
facts
then
existing:
Quigg
on
Succession
Duties,
2nd.
ed.,
p.
66.
The
character
and
local
situation
of
an
asset
in
George
Steed’s
estate,
is
not
as
to
duty
arising
on
his
death,
affected
by
the
realization
of
the
assets
in
the
Adolphus
Williams’
estate
made
subsequent
to
the
death
of
George
Steed.
At
the
death
of
George
Steed
the
facts
then
existing
were
:—
1.
Adolphus
Williams’
estate
was
not
in
the
process
of
administration,
the
Castle
Rock
Hotel
had
not
been
sold.
It
was
known
then
whether
the
executors
of
Katherine
Wylie
Williams
would
received
$150,000.00
or
a
larger
sum
or
a
lesser
sum.
Until
there
had
been
a
realization
of
the
assets
the
amount
could
not
be
determined.
Even
after
the
sale
there
remained
the
payment
of
the
balance
of
the
executors’
fees
which
had
been
fixed
and
then
the
payment
of
the
legacy
to
Katherine
Wylie
Williams.
2.
In
the
Katherine
Wylie
Williams
estate
the
administration
could
not
proceed
until
the
legacy
had
been
received
from
the
executors
of
Adolphus
Williams’
estate.
After
this
had
been
received
the
fees
of
the
executors
would
have
to
be
fixed
and
deducted
and
payment
of
the
balance
made
to
the
executor
of
Bonnie
Steed
estate.
3.
The
estate
of
Bonnie
Steed
was
not
capable
of
administration
until
her
executor
received
everything
coming
to
her
under
the
will
of
Katherine
Wyle
Williams.
When
this
happened
the
fee
of
the
executor
would
be
fixed
and
deducted
and
then
and
not
until
then,
could
the
administration
be
completed
and
the
amount
to
which
the
estate
of
George
Steed
was
entitled
be
ascertained.
While
there
was
a
charge
in
favour
of
Mrs.
Williams
on
all
the
assets
of
the
estate
of
Adolphus
Williams,
there
was,
however,
no
charge
on
the
assets
of
Bonnie
Steed’s
estate.
The
administration
of
the
George
Steed
estate
depended
on
all
these
things
and
so
did
the
estate
of
James
Kenneth
Raeburn
plus
the
administration
of
George
Steed’s
estate.
Bonnie
Steed,
George
Steed
and
James
Kenneth
Raeburn
were
all
domiciled
in
California
and
their
estates
are
being
administered
in
California.
The
question
then
is,
in
the
circumstances
here,
what
was
the
claim
of
George
Steed
in
the
estate
of
Bonnie
Steed
and
is
the
situs
of
that
claim
British
Columbia
or
California
?
Because
it
is
the
succession
of
that
claim
from
first,
George
Steed
to
James
Kenneth
Raeburn
and,
second
from
Raeburn
to
his
heirs,
that
the
respondent
contends
is
dutiable
under
the
Dominion
Act.
In
the
circumstances
here,
the
principle
applicable
to
the
case
of
a
specific
legacy
is
not
applicable
in
this
case;
namely
that
assent
of
an
executor
to
a
specific
legacy
when
once
given
relates
back
to
the
death
of
the
testator
and
vests
in
the
legatee
the
property
in
the
specific
legacy
from
that
date.
Neither
George
Steed
nor
his
administrator
could
claim
the
assets
in
the
estate
of
Adolphus
Williams
in
specie
or
for
that
matter
the
money
in
the
Royal
Bank
of
Canada.
Counsel
agree
that
the
4
‘property”
in
question
is
a
chose
in
action
and
that
the
situs
of
that
chose
in
action
was
where
it
can
be
enforeed.
But
they
do
not
agree
on
what
the
chose
in
action
is
or
where
it
can
be
enforced.
After
carefully
considering
the
argument
of
counsel
and
the
authorities
cited,
I
am
of
the
opinion
that
the
principles
applicable
here
were
those
first
laid
down
In
the
Goods
of
Ewing
(1881)
6
P.D.
19.
In
that
case
W.
Ewing
died
possessed
of
property
of
small
value
in
England
and
entitled
under
the
will
of
his
uncle,
J.
O.
Ewing,
to
large
assets
in
Scotland,
which
were
being
duly
administered
there.
The
executors
of
W.
Ewing
proved
his
will
in
Scotland
only.
G.
W.
Hope,
a
legatee
under
W.
Ewing’s
will,
applied
for
a
grant
of
administration
of
the
estate
of
W.
Ewing
in
England
and
the
Court
refused
the
application.
The
President,
Sir
James
Hannen,
said,
p.
22:
“It
is
not
disputed
that
the
deceased,
J.
0.
Ewing,
was
a
domiciled
Scotchman,
and
that
his
will
was
properly
proved
in
Scotland,
and
is
being
administered
there
in
accordance
with
Scotch
law.
The
claim
of
the
executors
of
W.
Ewing
in
respect
of
the
interest
of
their
testator
under
his
uncle’s
(J.
0.
Ewing)
will,
is
a
claim
on
the
executors
of
the
uncle
duly
to
administer
his
estate
and
to
pay
the
legacy
to
W.
Ewing
out
of
the
funds
which
may
be
applicable
to
that
purpose.
It
cannot
be
disputed
that
this
claim
or
interest
in
the
estate
of
the
uncle
constitutes
an
asset
of
the
estate
of
the
deceased
W.
Ewing,
because
it
is
recoverable
by
the
executor
of
W.
Ewing
virtute
officii,
but
it
appears
to
me
that
it
is
an
asset
in
Scotland
and
not
in
England
He
points
out
that
the
Scotch
confirmation
has
been
produced
in
the
principal
registry
in
England
and
sealed
with
the
seal
of
the
Court
so
that
it
then
has
the
like
effect
as
if
probate
had
been
granted
in
England
and
adds,
p.
25
:—
“
.
.
.
but
the
place
where
the
business
of
administering
and
winding
up
the
estate
of
J.
O.
Ewing
is
being
carried
on
is
Scotland
and
any
acts
done
in
England
by
the
executors
of
J.
0.
Ewing
are
only
ancillary
to
the
administration
which
is
taking
place
in
Scotland.”
After
pointing
out
that
the
analogies
that
lead
to
the
conclusion
that
Scotland
is
the
local
situation
of
this
asset
of
W.
Ewing
he
states,
p.
23
:—
"And
the
fact
that
some
of
the
assets
of
J.
O.
Ewing
were
situate
in
England
does
not
appear
to
make
any
difference.
And
if
I
were
to
constitute
the
applicant
administrator
with
the
will
annexed
of
W.
Ewing
he
could
not
in
that
character
take
possession
of
or
recover
the
outstanding
assets
of
the
uncle
‘s
estate,
he
could
not
claim
those
assets
themselves
virtute
officii,
his
only
remedy
would
still
be
through
and
by
means
of
his
claim
upon
the
executors
of
the
uncle
to
have
his
estate
duly
administered.’’
In
Attorney-General
v.
Sudeley
[1897]
A.C.
4,
the
testator
who
died
domiciled
in
England
bequeathed
his
estate
to
English
executors
directing
them
to
pay
legacies,
and
inter
alia,
a
onefourth
share
of
his
residuary
real
and
personal
estate
to
his
wife
absolutely.
His
estate
included
mortgages
on
real
estate
in
New
Zealand.
The
wife
died
before
the
testator’s
estate
had
been
fully
administered
or
the
clear
residue
ascertained
and
no
appropriation
had
been
made
to
any
share
of
the
residue.
It
was
held
that
she
died
possessed,
not
of
a
part
of
New
Zealand
mortgages
in
specie,
but
of
a
chose
in
action,
i.e.,
to
require
her
husband’s
executors
to
administer
his
estate
and
to
receive
from
them
onefourth
part
of
the
clear
residue
and
that
this
was
an
English
asset
of
the
wife’s
estate.
In
the
Sudeley
case
in
the
Divisional
Court
[1895]
2
Q.B.
526
(Lord
Russell
of
Killowen,
C.J.,
and
Charles,
J.),
gave
judgment
in
favour
of
Lord
Sudeley.
In
the
course
of
the
Judgment
Lord
Russell
said
that
the
claim
of
the
Crown
was
mainly
rested
upon
the
authority
of
the
case
In
re
Ewing.
In
the
Court
of
Appeal
[1896]
1
Q.B.
354,
the
appeal
was
allowed.
The
judgment
of
Lord
Hannen
in
the
Ewing
case
was
approved
by
Lopes,
L.J.
and
Kay,
L.J.
Lord
Esher,
M.R.
(dissenting),
did
not
place
the
same
interpretation
on
Lord
Hannen
‘s
judgment
and
said
that
if
that
was
the
proper
interpretation,
it
was
contrary
to
all
other
authority.
On
appeal
to
the
House
of
Lords
[1897]
A.C.
11,
the
decision
of
the
Court
of
Appeal
was
unanimously
affirmed
and
the
judgment
of
Lopes,
L.J.,
was
approved
and
adopted
by
Lord
Halsbury
and
Lord
Macnaghten.
Lopes,
L.J.,
said
at
p.
363
:—
"The
material
facts
are
as
follows:
Algernon
Gray
Tolle-
mache
by
his
will,
after
bequeathing
various
specific
legacies,
devised
and
bequeathed
the
residue
of
his
real
and
personal
estate
to
trustees
to
pay
the
income
thereof
in
the
events
that
have
happened
to
his
wife
Frances
Louisa
for
her
life,
and
by
a
codicil
he
gave
one-fourth
of
the
entire
residue
to
his
wife
absolutely.
The
husband
died
domiciled
in
England,
and
his
will
was
duly
proved
in
England.
At
the
time
of
his
death
he
was
possessed
of
personal
estate,
including
large
sums
invested
on
mortgage
of
real
estate
in
New
Zealand.
While
the
estate
under
the
will
was
in
course
of
administration,
and
before
the
amount
of
the
clear
residue
was
ascertained,
his
wife
Frances
died,
having
by
her
will
appointed
the
defendants
her
executors,
who
duly
proved
her
will
in
England.
At
the
date
of
her
death
the
New
Zealand
mortgage
securities
remained
unrealized,
and
no
portion
of
them
had
been
appropriated
to
any
particular
share
of
the
ultimate
residue.
It
is
to
be
observed
that
neither
Frances
nor
her
executors
could
claim
any
part
of
this
estate
in
specie:
the
executors
of
her
husband
were
not
trustees
of
the
estate
for
her—all
she
was
entitled
to
was
her
proportion
of
the
proceeds
of
her
husband’s
estate
after
realization.
Neither
Frances
nor
her
executors
had
any
claim
against
the
mortgages
to
recover
the
mortgage
debt
or
any
portion
of
it;
that
was
a
claim
enforceable
only
by
the
executors
of
Algernon.
The
right
of
the
executors
of
Frances
as
against
the
executors
of
her
husband
is
a
right
to
have
his
estate
administered.
Administered
where?
The
husband
was
domiciled
in
England,
his
will
was
proved
in
England,
his
executors
are
in
England,
and
his
estate
is
being
administered
in
England,
and
the
money
recoverable
will
be
brought
to
England.
The
executors
of
the
husband
ean
only
be
sued
in
the
English
Courts
by
the
executors
of
Frances.
It
is
an
English
chose
in
action,
recoverable
in
England,
and
is,
in
my
opinion,
an
English
and
not
a
foreign
asset,
and
as
such
is
subject
to
probate
duty
here.
In
the
Goods
of
Ewing,
6
P.D.
19
is
in
point—a
case
which
I
think
is
rightly
decided.”
The
principle
laid
down
in
the
Sudeley
case
(supra)
was
followed
by
Romer,
J.,
in
Re
Smyth
[1898]
1
Ch.
89,
and
affirmed
again
in
the
House
of
Lords
in
Barnardo
9
s
Homes
v.
Special
Income
Comers
[1921]
A.C.
1,
and
considered
in
Skinner
v.
Attorney-General
[1940]
A.C.
350.
In
the
Sudeley
case
[1897]
A.C.
4,
Lord
Herschell
said
that
while
it
was
unnecessary
to
say
what
would
have
been
the
case
if
the
estate
had
been
administered
he
certainly
was
very
far
from
thinking,
as
at
present
advised,
that
it
would
have
made
any
difference.
Lord
Shand
suggested,
p.
20,
that
the
case
might
have
been
different
if
the
whole
estate
had
been
held
for
one
beneficiary.
But
as
is
pointed
out
in
2nd.
ed.,
Green
on
Death
Duties,
p.
589,
this
suggestion
does
not
accord
with
the
principles
laid
down
in
the
majority
judgment
of
Lopes,
L.J.,
and
Kay,
L.J.,
adopted
in
the
House
of
Lords
by
Lord
Halsbury
and
Lord
Macnaghten.
In
Barnardo
9
s
Homes
v.
Special
Income
Tax
Com
f
rs
(supra),
Viscount
Finlay
said,
p.
8
:—
It
appears
to
me
that
the
present
case
is
really
decided
by
the
decision
of
this
House
in
Lord
Sudeley
‘s
case.
It
was
pointed
out
in
that
case
that
the
legatee
of
a
share
in
a
residue
has
no
interest
in
any
of
the
property
of
the
testator
until
the
residue
has
been
ascertained.
His
right
is
to
have
the
estate
properly
administered
and
applied
for
his
benefit
when
the
administration
is
complete.”
Lord
Atkinson
at
page
11
said
:
.
.
.
on
the
erroneous
assumption
that
a
certain
principle
applicable
to
the
case
of
a
specific
legacy
applied
to
a
bequest
of
the
residue
of
a
testator’s
estate—namely,
that
the
assent
of
an
executor
to
a
specific
legacy
when
once
given
relates
back
to
the
death
of
the
testator
and
vests
in
the
legatee
the
property
in
the
specific
legacy
from
that
date.
That
principle
has
no
application
whatever
and
could
not
in
the
nature
of
things
have
any
application
whatever,
to
a
legacy
of
the
residue.
which
is,
as
its
name
indicates,
only
the
property
or
fund
which
remains
after
all
claims
upon
the
testator’s
estate
have
been
satisfied.
The
case
of
Lord
Sudeley
v.
Attorney-General
[1897]
A.C.
11,
decided
in
this
House
conclusively
established
that
until
the
claims
against
the
testator’s
estate
for
debts,
legacies,
testamentary
expenses,
etc.,
have
been
satisfied,
the
residue
does
not
come
into
actual
existence.
It
is
a
non-existent
thing
until
that
event
has
occurred.
The
probability
that
there
will
be
a
residue
is
not
enough.
It
must
be
actually
ascertained.”
In
Skinner
v.
Attorney-General
(supra),
Lord
Russell
of
Killowen
in
considering
the
Sudeley
case
(supra),
said
at
p.
308
:—
""They
(the
executors
of
the
testator’s
widow)
sought
to
establish
that
the
widow,
had
a
proprietary
interest
in,
and
was
the
owner
of,
a
share
of
the
mortgages,
1.e.,
of
property
situate
in
New
Zealand.
They
failed
because
the
mortgages
did
not,
nor
did
any
share
in
them,
constitute
an
asset
of
the
widow’s
estate.
The
testator’s
estate
had
not
been
administered,
nor
had
any
appropriation
to
the
widow’s
share
been
made.
The
whole
point
of
the
decision
was
that
the
widow
did
not
own
any
part
of
the
mortgages.
As
Lord
Herschell
pointed
out
in
his
speech
(Ibid.
18),
the
whole
fallacy
of
the
argument
of
the
widow’s
executors
rested
on
the
assumption
that
she
or
they
were
entitled
to
any
part
of
the
mortgages
as
an
asset—she
in
her
own
right
or
they
as
executors.
"
I
do
not
think,
’
he
said,
‘that
they
have
any
estate,
right,
title
or
interest,
legal
or
equitable,
in
these
New
Zealand
mortgages
so
as
to
make
them
an
asset
of
her
estate’.
My
Lords,
I
emphasize
the
last
ten
words
of
that
sentence,
which
show
clearly
that
the
interest
which
was
being
repudiated
was
a
proprietary
interest.
The
case
is
not
in
any
way
a
decision
that
the
widow
or
her
executors
had
no
interest
in
the
mortgages,
and
it
is
certainly
no
authority
against
the
view
that
an
annuitant
whose
annuity
is
charged
on
the
estate
of
a
testator
‘has
an
interest’
in
the
different
items
of
which
that
estate
from
time
to
time
consists.
’
’
In
this
case,
the
estates
of
Adolphus
Williams,
Katherine
Wylie
Williams
and
Bonnie
Steed
were
all
in
the
course
of
administration
and
the
amount
that
the
estate
of
Bonnie
Steed
would
become
entitled
to
could
not
be
ascertained
until
the
other
estate
had
been
fully
administered.
In
those
circumstances,
the
statement
of
Lord
Herschell
is
applicable
here.
In
my
opinion
the
administrator
of
George
Steed
had
no
estate,
right,
title
or
interest,
legal
or
equitable
in
the
assets
of
the
estate
of
Adolphus
Williams
or
in
the
money
in
the
Royal
Bank
of
Canada,
that
constituted
an
asset
in
the
estate
of
George
Steed,
and
therefore
James
Kenneth
Raeburn
did
not
become
beneficially
entitled
to
such
an
asset
under
George
Steed’s
will
on
Steed’s
death.
While
Lord
Russell
of
Killowen
in
the
Skinner
case
(supra),
p.
358,
said
that
the
Sudeley
case
(supra)
was
not
in
any
way
a
decision
that
the
widow
or
her
executors
had
no
interest
in
the
mortgage,
he
points
out
that
the
interest
that
was
repudiated
was
a
proprietary
interest.
The
proprietary
interest
which
George
Steed
possessed
in
the
Bonnie
Steed
estate
is
described
in
the
9th
Ed.
(1946)
Hanson
9
s
Death
Duties,
p.
105
as
:—
"‘A
proprietary
interest
in
an
estate
not
fully
administered
is
a
chose
in
action
and
situate
where
the
claim
to
it
is
naturally
and
properly
enforcible
against
the
executors,
administrators
or
trustees
concerned.”
As
Lord
Halsbury
pointed
out
in
the
Sudeley
case
{supra),
p.
15,
that
it
is
idle
to
use
such
phrases
as
"‘that
this
was
what
the
person
was
‘entitled
to’—that
she
had
an
‘interest’
in
this
estate.”
And
that
while
those
phrases
are
perfectly
true
in
a
general
way
of
speaking,
they
are
not
applicable
to
the
particular
discussion.
What
the
executors
of
the
widow
in
that
case
had
was
a
right
as
against
the
executors
of
her
husband’s
estate
to
have
his
estate
administered.
What
the
administrator
of
George
Steed
had
in
this
case
was
a
right
as
against
the
executors
of
the
Bonnie
Steed
estate
to
have
her
estate
administered.
Both
George
Steed
and
Bonnie
Steed
were
domiciled
in
California
and
both
their
estates
are
being
administered
in
California.
The
executors
of
the
Bonnie
Steed
estate
can
only
be
sued
in
the
California
Courts
by
the
executors
of
George
Steed.
It
is,
in
my
opinion,
a
California
chose
in
action
recoverable
in
California
and
is
a
California
asset
and
not
a
British
Columbia
asset.
It
is
not,
therefore,
property
in
Canada.
Counsel
for
the
respondent
contends
that
administration
of
both
the
estates
of
George
Steed
and
James
Kenneth
Raeburn
must
be
taken
out
in
British
Columbia,
so
that
the
discharge
can
be
given
first
to
the
administrator
of
the
Bonnie
Steed
estate
and
then
to
a
British
Columbia
administrator
of
the
George
Steed
estate.
I
do
not
agree
with
that
contention.
The
duty
of
the
ancillary
administrator
is
to
administer
the
assets
under
his
control
and
he
may
safely,
and
in
fact,
be
compelled
to
transmit
the
residue
to
the
domiciliary
administrator.
De
la
Viesca
v.
Lubbock,
10
Sims
629,
approved
and
followed
in
Eames
v.
Hacon
(1881)
18
Ch.D.
347.
In
a
recent
decision
in
Re
Miller^s
Agreement.
Umacke
v.
Attorney-General
[1947]
W.N.
194,
Wynn-Parry,
J.,
said
that
beneficially
"‘entitled’’
in
see.
2
of
the
Succession
Duty
Act,
1853,
necessarily
implied
that
the
person
entitled
had
a
right
to
sue
for
and
recover
the
property
in
question.
It
is
clear
that
James
Kenneth
Reaburn
had
no
right
to
sue
for
and
recover
any
property
in
Canada.
If
James
Kenneth
Raeburn
had
been
appointed
administrator
with
the
will
annexed
of
George
Steed,
in
British
Columbia,
he
could
not
in
that
character
take
possession
of
or
recover
the
outstanding
assets
in
the
Bonnie
Steed
estate,
his
only
remedy
would
still
be
through
and
by
means
of
his
claim
upon
the
executors
of
the
Bonnie
Steed
estate
in
California.
Per
Lord
Hannen
in
the
Ewing
case
(supra).
In
my
opinion
the
succession
of
James
Kenneth
Raeburn
under
the
will
of
George
Steed
is
not
dutiable
under
the
Dominion
Act,
because
there
was
not
a
succession
of
property
in
Canada
within
the
meaning
of
sec.
6(b)
of
the
Dominion
Act.
For
the
same
reason
the
succession
of
Nan
Raeburn,
Thomas
W.
Raeburn,
Elizabeth
Ellen
and
William
Raeburn,
under
the
will
of
James
Kenneth
Raeburn
are
not
dutiable
under
the
Dominion
Act.
Both
appeals
will
be
allowed
and
the
claimant
is
entitled
to
a
declaration
that
the
sum
in
the
Royal
Bank
of
Canada
is
not
subject
to
taxation
under
the
Dominion
Act.
The
appellant
and
the
claimant
are
entitled
to
costs.
Appeals
allowed.
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