KELLOCK,
J.:—Section
6
of
the
Dominion
Succession
Duty
Act,
as
it
stood
at
the
time
of
the
matters
here
in
question,
provides
for
liability
to
duty
subject
to
the
exemptions
in
section
7.
Section
7,
so
far
as
material,
is
as
follows:
"17.
(1)
From
the
dutiable
value
of
any
property
included
in
a
succession
the
following
exemptions
shall
be
deducted
and
no
duty
shall
be
leviable
in
respect
thereof
:
(g)
in
respect
of
any
gift
made
by
the
deceased
prior
to
the
twenty-ninth
day
of
April,
one
thousand
nine
hundred
and
forty-one,
where
actual
and
bona
fide
possession
and
enjoyment
of
the
property,
the
subject
matter
of
the
gift,
has
been
assumed
by
the
donee
or
by
a
trustee
for
the
donee
immediately
upon
the
making
of
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor,
or
of
any
benefit
to
him,
whether
voluntary
or
by
contract
or
otherwise.’’
By
section
2(e)
"‘dutiable
value’’
means,
in
the
case
of
the
death
of
a
person
domiciled
in
Canada,
the
fair
market
value,
as
at
the
date
of
death,
of
all
property
‘included
in
a
succession
to
a
successor’’.
"‘Property’’
by
section
2(k)
includes
property,
real
or
personal,
movable
or
immovable,
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
any
right
of
benefit
mentioned
in
section
3.
‘
Succession
”
by
section
2(m)
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
substitutive
limitation,
and
every
devolution
by
law
of
any
beneficial
interest
in
property,
or
the
income
thereof,
upon
the
death
of
any
such
deceased
person,
to
any
other
person
in
possession
or
expectancy,
and
also
includes
any
disposition
of
property
deemed
by
the
Act
to
be
included
in
a
succession.
"‘Successor’’
is
defined
by
clause
(n)
of
section
2
as
the
person
entitled
under
a
succession.
The
"‘dispositions’’
of
property
deemed
by
the
Act
to
be
included
in
a
suecession
are
set
forth
in
section
3.
Paragraph
(d)
of
subsection
1
of
that
section
reads
as
follows:
"‘(d)
property
taken
under
a
gift
whenever
made
of
which
actual
and
bona
fide
possession
and
enjoyment
shall
not
have
been
assumed
by
the
donee
or
by
a
trustee
for
the
donee
immediately
upon
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor
or
of
any
benefit
to
him,
whether
voluntary
or
by
contract
or
otherwise
;
‘
‘
Under
the
trust
instrument
here
in
question
it
is
recited
that
the
settlor,
the
late
Edward
Rogers
Wood,
‘‘being
the
absolute
owner
of
the
securities
specified
in
Schedule
"
A
‘
hereto
has
transferred
the
same
to
the
Trustees
to
hold
as
a
trust
fund
upon
the
Trusts
hereinafter
expressed’’.
Paragraph
1
is
as
follows:
"1.
The
Trustees
shall
hold
the
securities
transferred
to
them
and
set
forth
in
Schedule
"
A’
hereto,
hereinafter
called
the
‘Trust
Fund’,
on
trust
to
pay
the
annual
income
arising
therefrom
after
the
1st
day
of
January
1931
to
the
Beneficiary
in
quarterly
instalments
on
the
1st
days
of
January,
April,
July
and
October
in
each
year,
commencing
on
the
1st
day
of
April
1931,
for
and
during
the
lifetime
of
the
Settlor
and
upon
his
death
shall
transfer
the
securities
then
representing
the
Trust
Fund
and
the
accumulated
income
therefrom
to
the
Beneficiary
for
her
own
absolute
use
and
benefit;
provided
that
in
the
event
of
the
Beneficiary
dying
in
the
lifetime
of
the
Settlor
the
Trustees
shall
transfer
such
securities
then
representing
the
Trust
Fund
and
the
accumulated
income
therefrom
to
the
Settlor
for
his
own
absolute
use
and
benefit.”
It
is
argued
on
behalf
of
the
respondent
that
the
exemption
provided
for
by
section
7(1)(g)
is
applicable
and
that
that
being
so
the
case
does
not
fall
within
paragraph
(d)
of
section
3(1)
nor
within
any
other
taxing
provision
of
the
Act.
It
is
said
that
under
the
express
provision
of
the
first
three
lines
of
section
7(1)
it
is
immaterial
whether
or
not
but
for
clause
(g)
of
that
subsection
the
case
would
otherwise
have
fallen
within
either
section
2(m)
or
any
other
provision
of
section
3;
in
other
words,
that
the
exemption
specified
by
section
7(1)
(g)
is
an
overriding
exemption
and
it
is
sufficient
to
make
out
appellant
‘s
ease
if
it
falls
within
that
clause.
In
my
opinion
the
argument
is
well
founded
and
the
only
question
is
whether
or
not
the
present
case
falls
within
the
provisions
of
the
clause
mentioned.
In
Commissioner
for
Stamp
Duties
of
the
State
of
New
South
Wales
v.
Perpetual
Trustee
Co.
Ltd.,
[1943]
1
A.C.E.R.
525,
the
Privy
Council
had
to
consider
a
case
arising
under
certain
legislation
of
New
South
Wales.
Section
102
of
that
legislation
read,
in
part,
as
follows
:
"‘For
the
purpose
of
the
assessment
and
payment
of
death
duty
.
.
.
the
estate
of
a
deceased
person
shall
be
deemed
to
include
and
consist
of
the
following
classes
of
property
:
(2)
(d)
Any
property
comprised
in
any
gift
made
by
the
deceased
at
any
time,
whether
before
or
after
the
passing
of
this
Act,
of
which
bona
fide
possession
and
enjoyment
has
not
been
assumed
by
the
donee
immediately
upon
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
deceased,
or
of
any
benefit
to
him
of
whatsoever
kind
or
in
any
way
whatsoever.’’
In
that
case
the
question
was
as
to
whether
or
not
certain
shares
in
a
company
formed
part
of
the
dutiable
estate
there
in
question.
By
an
indenture
the
deceased
in
his
lifetime
had
settled
the
shares
and
they
had
been
transferred
into
and
were
registered
in
the
names
of
five
trustees,
of
whom
the
deceased
himself
was
one.
The
trustees
were
directed
to
hold
the
shares
upon
trust
to
apply
the
whole
or
such
part
or
parts
of
the
income
as
the
trustees
should
think
fit
for
the
benefit
of
the
infant
son
of
the
deceased
;
to
invest
any
surplus
income;
;
to
apply
the
income
and
any
accumulations
thereof
during
the
minority
of
the
son
and
the
proceeds
of
sale
of
any
of
the
said
shares,
or
any
sums
raised
by
way
of
mortgage,
for
the
maintenance,
education,
advancement
or
benefit
of
the
son
and
upon
the
said
son
attaining
his
majority
the
trustees
were
directed
to
transfer
to
him
as
his
absolute
property,
the
corpus
and
accumulations
of
income.
While
there
was
not,
as
in
the
trust
in
question
in
the
case
at
bar,
an
express
provision
for
the
transfer
of
the
securities
to
the
settlor
in
the
event
of
the
beneficiary
dying
in
his
lifetime,
there
was
a
resulting
trust
in
that
event.
The
judgment
of
the
Judicial
Committee
was
delivered
by
Lord
Russell
of
Killowen.
At
page
529
the
questions
to
be
determined
were
set
out
as
follows
:
"‘(i)
What
was
the
property
comprised
in
the
gift;
was
it
the
shares
themselves
or
only
a
particular
kind
of
interest
in
the
shares?
(ii)
Had
bona
fide
possession
and
enjoyment
been
assumed
by
the
donee
immediately
upon
the
gift?
(iii)
Had
bona
fide
possession
and
enjoyment
been
thenceforth
retained
by
the
donee
to
the
entire
exclusion
of
the
settlor,
and
to
the
entire
exclusion
of
any
benefit
to
him
in
whatsoever
kind
or
in
any
way
whatsoever
?
‘
‘
I
quote
the
following
excerpts
from
the
judgment
from
page
550
of
the
report
:
""In
their
Lordships’
opinion
there
is
no
ambiguity
in
this
settlement.
There
is
no
gift
of
corpus
to
the
son
except
in
the
direction
to
the
trustees
to
transfer
to
him
upon
his
attaining
21
years
of
age.
What
have
then
(and
only
then)
to
be
transferred
are
described
as
‘all
the
property
and
assets
whatsoever
including
the
accumulations
of
income
and
all
investments
held
by
the
trustees’
and
they
are
then
to
be
transferred
to
him
‘as
his
absolute
property’.
Until
that
event
had
happened
they
were
not,
in
their
Lordships’
opinion,
his
absolute
property
;
until
that
event
had
happened
he
had
only
a
contingent
interest.
He
was
only
to
be
absolutely
entitled
to
corpus
if
and
when
he
attained
his
age
of
21
years.
"‘For
the
reasons
hereinafter
appearing
their
Lordships
are
in
agreement
with
the
decision
of
the
High
Court
in
this
ease.
In
their
opinion
the
property
comprised
in
the
gift
was
the
equitable
interest
in
the
850
shares,
which
was
given
by
the
settlor
to
his
son.
The
disposition
of
the
interest
was
effected
by
the
creation
of
a
trust,
1.e.,
by
transferring
the
legal
ownership
of
the
shares
to
trustees
and
declaring
such
trusts
in
favour
of
the
son
as
were
co-extensive
with
the
gift
which
the
settlor
desired
to
give.
The
donee
was
the
recipient
of
the
gift;
whether
the
son
alone
was
the
donee
(as
their
Lordships
think)
or
whether
the
son
and
the
body
of
trustees
together
constituted
the
donee
seems
immaterial.
The
trustees
alone
were
not
the
donee.
They
were
in
no
sense
the
object
of
the
settlor’s
bounty.
"‘Did
the
donee
assume
bona
fide
possession
and
enjoyment
immediately
upon
the
gift?
The
linking
of
possession
with
enjoyment
as
a
composite
object
which
has
to
be
assumed
by
the
donee
indicates
that
the
possession
and
enjoyment
contemplated
is
beneficial
possession
and
enjoyment
by
the
object
of
the
donor’s
bounty.
This
question,
therefore,
must
be
answered
in
the
affirmative,
because
the
son
was
(through
the
medium
of
the
trustees)
immediately
put
in
such
bona
fide
beneficial
possession
and
enjoyment
of
the
property
comprised
in
the
gift
as
the
nature
of
the
gift
and
the
circumstances
permitted.
"‘Did
he
assume
it
and
thenceforth
retain
it
to
the
entire
exclusion
of
the
donor?
The
answer,
their
Lordships
think,
must
be
in
the
affirmative,
and
for
two
reasons:
viz.,
(i)
the
settlor
had
no
enjoyment
and
possession
such
as
is
contemplated
by
the
section;
and
(ii)
such
possession
and
enjoyment
as
he
had
from
the
fact
that
the
legal
ownership
of
the
shares
vested
in
him
and
his
co-trustees
as
joint
tenants
was
had
by
him
solely
on
behalf
of
the
donee.
In
this
capacity
as
donor
he
was
entirely
excluded
from
possession
and
enjoyment
of
what
he
had
given
to
his
son.
"‘Did
the
donee
retain
possession
and
enjoyment
to
the
entire
exclusion
of
any
benefit
to
the
settlor
of
whatsoever
kind
or
in
any
way
whatsoever?
Clearly,
yes.
In
the
interval
between
the
gift
and
his
death,
the
settlor
received
no
benefit
of
any
kind
or
in
any
way
from
the
shares,
nor
did
he
receive
any
benefit
whatsoever
which
was
in
any
way
attributable
to
the
gift.
Indeed
this
was
ultimately
conceded
by
the
appellant.
‘
‘
It
was
therefore
held
that
the
case
did
not
fall
within
the
taxing
provisions
above
set
forth.
I
find
it
impossible
to
distinguish
this
decision
in
its
application
to
the
proper
construction
of
section
3(1)
(d)
and
section
7(1)
(g)
of
the
Canadian
statute.
The
only
distinction
suggested
by
Mr.
Pickup
is
that
in
the
New
South
Wales
legislation
the
word
"
"
actual
‘
’
was
not
used
and
he
contended
that
the
presence
of
that
word
in
the
Dominion
statute
indicates
that
neither
section
3(1)
(d)
nor
7
(1)
(g)
can
be
applied
to
equitable
interests
but
only
to
corporeal
property
capable
of
manual
or
physical
possession.
I
find
it
impossible
to
accept
this
contention
in
view
of
the
definition
of
‘‘property’’
itself
in
section
2(k)
quoted
above.
In
the
language
of
Lord
Russell
in
the
New
South
Wales’
case,
already
quoted,
the
beneficiary
"‘was
(through
the
medium
of
the
trustees)
immediately
put
in
such
bona
fide
beneficial
possession
and
enjoyment
of
the
property
comprised
in
the
gift
as
the
nature
of
the
gift
and
the
circumstances
permitted’’.
In
my
opinion
this
language
is
as
apt
in
relation
to
actual
possession
of
property
included
in
the
wide
definition
of
the
Act
in
question
as
it
was
to
the
legislation
before
the
Judicial
Committee
in
that
case.
I
think
therefore
section
7(1)
(g)
applies
and
that
in
the
language
of
section
7
"‘no
duty
shall
be
leviable
in
respect’’
of
the
subject
matter
of
the
present
litigation;
In
re
Adams,
[1943]
New
Zealand
L.R.
741.
I
would
therefore
dismiss
the
appeal
with
costs.
KERWIN,
J.:—The
Minister
of
National
Revenue
appeals
from
a
decision
of
the
Exchequer
Court
allowing
an
appeal
by
National
Trust
Company,
Limited,
executors
of
E.
R.
Wood,
from
an
assessment
made
under
the
Dominion
Succession
Duty
Act,
chapter
14
of
the
Statutes
of
1940-1941,
as
amended
by
chapter
25
of
the
Statutes
of
1942.
The
original
Act
came
into
force
June
14th,
1941,
and
while
Mr.
Wood
died
June
16th
of
that
year
the
question
of
the
liability
to
assessment
depends
upon
the
effect
of
a
settlement
dated
December
8th,
1940,
as
amended.
By
this
settlement,
Mr.
Wood
as
settlor
transferred
certain
securities
to
two
trustees
for
the
benefit
of
his
daughter
Mildred,
therein
called
the
beneficiary.
Clauses
1,
2,
4
and
5
of
the
settlement
read:
"1.
The
trustees
shall
hold
the
securities
transferred
to
them
and
set
forth
in
Schedule
‘A’
hereto,
hereinafter
called
the
"Trust
Fund’,
on
trust
to
pay
the
annual
income
arising
therefrom
after
the
1st
day
of
January
1931
to
the
Beneficiary
in
quarterly
instalments
on
the
1st
days
of
January,
April,
July
and
October
in
each
year,
commencing
on
the
1st
day
of
April
1931,
for
and
during
the
lifetime
of
the
Settlor
and
upon
his
death
shall
transfer
the
securities
then
representing
the
Trust
Fund
and
the
accumulated
income
therefrom
to
the
Beneficiary
for
her
own
absolute
use
and
benefit;
provided
that
in
the
event
of
the
Beneficiary
dying
in
the
lifetime
of
the
Settlor
the
Trustees
shall
transfer
such
securities
then
representing
the
Trust
Fund
and
the
accumulated
income
therefrom
to
the
Settlor
for
his
own
absolute
use
and
benefit.
"2.
The
Trustees
shall
have
power
to
hold
the
securities
set
forth
in
Schedule
"
A’
hereto
or
any
securities
substituted
therefor
or
hereinafter
provided,
notwithstanding
that
the
said
securities
may
not
be
securities
in
which
trustees
are
authorized
by
law
to
invest
trust
funds,
and
shall
from
time
to
time
upon
the
direction
in
writing
of
the
Settlor
during
his
lifetime
sell,
call
in
and
convert
into
money
the
said
securities
or
any
part
thereof,
and
invest
the
moneys
thereby
produced
in
such
securities
or
investments
as
the
Settlor
may
from
time
to
time
direct
and
notwithstanding
that
the
said
securities
or
investments
may
not
be
securities
or
investments
in
which
trustees
are
authorized
by
law
to
invest
trust
funds,
and
shall
have
power
upon
the
direction
in
writing
of
the
Settlor
during
his
lifetime
to
accept
from
the
Settlor
in
substitution
in
part
or
in
toto
of
the
said
securities
set
forth
in
Schedule
"
A’
hereto
other
securities
in
respect
of
which
the
Settlor
shall
certify
in
writing
that
the
securities
so
substituted
are
of
a
value
at
least
equal
to
the
value
of
the
securities
for
which
the
same
are
to
be
substituted,
and
the
securities
so
substituted
together
with
the
securities
to
be
retained
by
the
Trustees
and
constituting
the
Trust
Fund
shall
yield
at
the
date
of
such
substitution
a
net
income
of
at
least
Twenty-four
Thousand
Dollars
($24,000.00)
per
annum
after
allowing
from
the
gross
income
from
such
securities
for
the
payment
of
all
taxes
payable
by
the
Beneficiary
in
respect
of
the
income
from
such
securities
which
may
be
assessed
or
levied
by
the
Dominion
of
Canada
or
Province
of
Ontario,
or
any
other
taxing
authority.
“The
Trustees
shall
be
entitled
to
accept
the
hereinbefore
referred
to
certificate
of
the
Settlor
as
the
conclusive
evidence
of
the
truth
of
any
statement
of
facts
therein
contained,
and
the
Trustees
shall
be
completely
protected
in
relying
and
acting
upon
any
such
certificate.
‘‘The
Trustees
shall
incur
no
responsibility
whatsoever
to
the
Beneficiary
and
the
Beneficiary
shall
have
no
claim
whatsoever
against
the
Trustees
by
reason
of
the
Trustees
retaining
the
securities
set
forth
in
Schedule
‘A’
hereto
in
their
present
state
of
investment
or
selling
the
same
or
any
part
thereof
and
investing
the
proceeds
therefrom
in
securities
or
investments
which
may
not
be
securities
or
investments
in
which
Trustees
are
authorized
by
law
to
invest
trust
funds,
or
accepting
by
way
of
substitution
in
the
manner
hereinbefore
provided
other
securities
for
any
or
all
of
the
said
securities
set
forth
in
Schedule
"
A’
hereto.
“4.
The
Trustees
shall
have
power
to
appoint
the
Settlor
or
any
person
named
by
him
as
their
attorney
in
their
names,
places
and
stead
to
vote
at
all
meetings
and
otherwise
to
act
as
their
proxy
or
representative
in
respect
of
all
shares,
bonds
and
other
securities
which
may
at
any
time
be
held
by
the
Trustees
under
the
terms
hereof,
with
all
the
powers
the
Trustees
could
exercise
if
personally
present.
"15.
The
Settlor
may
from
time
to
time
and
at
any
time
reduce
or
increase
the
number
of
Trustees
or
substitute
any
one
or
more
Trustees
for
either
or
both
of
the
Trustees
and
may
appoint
a
new
‘Trustee
or
Trustees
in
the
event
of
the
death,
absence,
refusal
or
incapacity
to
act
of
any
Trustee
or
in
case
any
Trustee
desires
to
be
released
or
is
discharged
by
the
Settlor
from
the
trusts
hereof.”
By
a
document
dated
February
1st,
1937,
clause
2
of
the
original
settlement
was
amended
so
as
to
provide
that
the
power
of
the
trustees
to
accept
from
the
settlor
in
substitution
in
part
or
in
toto
of
the
securities
should
be
exercised
upon
the
direction
in
writing
of
the
settlor,
and
the
National
Trust
Company,
Limited,
or
any
chartered
bank
in
the
Dominion
of
Canada
instead
of
upon
the
direction
of
the
settlor
alone.
The
necessary
change
was
also
made
in
the
second
paragraph
of
that
clause.
Clause
4
was
stricken
out
and
clause
5
was
amended
by
adding
a
proviso
at
the
end
by
which
the
settlor
should
not
be
appointed
a
trustee.
Many
points
were
raised
before
the
learned
trial
judge
and
argued
before
us
but
I
find
it
necessary
to
deal
only
with
the
question
as
to
whether
the
respondent
is
entitled,
under
subsection
(1)
of
section
7
of
the
Act,
to
an
exemption
from
the
dutiable
value
of
any
property
that
might
otherwise
have
been
included
in
a
succession.
If
that
question
is
answered
in
the
affirmative,
it
disposes
of
the
matter
as
section
6
of
the
Act
(so
far
as
relevant)
provides
that
‘‘subject
to
the
exemptions
mentioned
in
section
7’’,
there
is
to
be
assessed,
levied
and
paid
at
the
rates
provided
for
in
the
First
Schedule,
duties
upon
or
in
respect
of
the
succession
to
all
real
or
immovable
property
situate
in
Canada
and
all
personal
property
wherever
situated,
when
the
deceased
was
at
the
time
of
his
death
domiciled
in
a
Provinee
of
Canada.
By
section
10,
there
is
to
be
assessed,
levied
and
paid
to
the
Receiver
General
of
Canada,
upon
or
in
respect
of
each
succession
mentioned
and
described
in
section
6,
and
initial
duty
at
the
rate
set
forth
under
the
heading
"‘Initial
rates
dependent
on
aggregate
net
value’’
in
the
First
Schedule,
which
corresponds
to
the
aggregate
net
value
in
the
Schedule,
and
the
duty
so
levied
is
payable
by
each
successor
in
respect
of
his
succession.
By
section
11,
an
additional
duty
is
to
be
assessed,
levied
and
paid
upon
or
in
respect
of
each
succession
mentioned
and
described
in
section
6
at
the
rate
set
forth
in
the
First
Schedule,
which
corresponds
to
the
dutiable
value
therein.
For
our
present
purpose,
we
need
not
refer
to
the
definitions
of
‘‘aggregate
net
value’’
and
‘‘dutiable
value’’
except
to
note
that
the
latter,
as
it
appeared
in
section
2
of
the
original
Act,
was
amended
by
the
1942
statute
so
that
while
the
original
Act
excluded
the
‘‘exemptions
and
allowances
as
authorized
by
sections
7
and
8’’,
the
latter
exempts
the
‘‘allowances
as
authorized
by
section
8’’.
However,
by
the
same
amendment,
the
opening
part
of
subsection
(1)
of
section
7,
‘‘In
determining
the
dutiable
value
of
any
property
included
in
a
succession,
the
following’
exemptions
shall
be
allowed
and
no
duty
shall
be
levied
in
respect
thereof’’,
was
repealed
and
the
following
substituted
therefor
:
“From
the
dutiable
value
of
any
property
included
in
a
succession,
the
following
exemptions
shall
be
deducted
and
no
duty
shall
be
leviable
in
respect
thereof’’.
It
is
clear
that
if
the
present
claim
falls
within
an
exemption
from
the
dutiable
value
of
any
property
included
in
a
succession,
any
initial
duty,
based
on
the
aggregate
net
value,
as
well
as
any
additional
duty,
must
disappear
whether
there
would
otherwise
be
a
‘‘succession’’
within
the
definition
of
that
term
in
section
2(m)
or
within
the
closing
words
thereof,
“and
also
includes
any
disposition
of
property
deemed
by
this
Act
to
be
included
in
a
succession”.
The
aggregate
net
value
is
of
importance
only
in
determining
the
rate
of
initial
duty
since
such
duty
is
to
be
assessed,
levied
and
paid
upon
or
in
respect
of
each
succession
mentioned
in
section
6
and,
as
we
have
seen,
section
6
is
subject
to
the
exemptions
mentioned
in
section
7.
The
same
result,
of
course,
follows
even
more
clearly
with
respect
to
additional
duty.
In
the
original
Act,
clause
(g)
of
subsection
(1)
of
section
7
read
:
‘‘in
respect
of
any
gift
made
by
the
deceased
prior
to
the
twenty-ninth
day
of
April,
one
thousand
nine
hundred
and
forty-
one’’
but
by
the
amending
Act
of
1942,
which
applies
restro-
spectively
to
successions
derived
from
persons
dying
on
or
after
June
14th,
1941,
there
was
added
to
these
words
the
following
:
“where
actual
and
bona
fide
possession
and
enjoyment
of
the
property,
the
subject
matter
of
the
gift,
has
been
assumed
by
the
donee
or
by
a
trustee
for
the
donee
immediately
upon
the
making
of
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor,
or
of
any
benefit
to
him,
whether
voluntary
or
by
contract
or
otherwise
;’’
and
it
is
these
additional
words
that
cause
any
difficulty
that
arises.
That
there
was
a
gift
by
E.
R.
Wood
to
his
daughter
is
indisputable,
and
the
gift,
in
addition
to
that
of
the
income
from
the
securities
to
be
paid
quarterly,
is
an
equitable
interest
in
the
corpus
and
accumulated
income
contingent
upon
the
daughter
surviving
her
father.
So
far
as
the
father
is
concerned
the
principle
is
well
understood
that
a
contingent
reversion
reserved
to
the
donor
of
the
property
is
not
reserved
out
of
the
gift
but
is
something
not
comprised
in
it.
"‘The
property,
the
subject
matter
of
the
gift’’,
to
use
the
phraseology
of
clause
(g),
is
the
daughter’s
equitable
interest
and
the
daughter
assumed
such
bona
fide
possession
and
enjoyment
of
the
property
immediately
upon
the
making
of
the
gift
as
the
nature
of
the
gift
and
the
circumstances
permitted.
In
similar
circumstances
it
has
been
held
to
be
so
by
the
Judicial
Committee
in
Commissioner
for
Stamp
Duties
of
New
South
Wales
v.
Perpetual
Trustee
Company,
Limited,
[1943]
A.C,
425,
and
that
decision
should
be
followed.
It
is
true
that
the
word
‘‘actual’’
does
not
appear
in
the
statute
there
under
review
but
I
am
satisfied
that,
here,
the
daughter,
through
the
trustees,
had
actual
as
well
as
bona
fide
possession
and
enjoyment
of
the
property.
In
view
of
the
reference
to
a
"‘trustee
for
the
donee’’
in
clause
(g),
the
argument
that
clause
(g)
applies
only
to
corporeal
property
capable
of
manual
or
physical
possession
falls
to
the
ground.
Furthermore,
this
reference
and
the
other
references
in
the
Act
to
equitable
interests
compel
me
to
disagree
with
the
view
presently
held
by
the
Supreme
Court
of
the
United
States
as
set
forth
in
its
decision
in
Jlelvering
v.
Hallock
(1940),
309
U.S.
106.
The
only
other
condition
to
be
met
under
clause
(g)
is
that
the
actual
possession
and
enjoyment
should
be
assumed
and
retained
by
the
daughter
‘‘to
the
entire
exclusion
of
the
donor
or
of
any
benefit
to
him’’.
It
logically
follows
from
the
principle
set
forth
above,
that
is,
that
the
reversion
of
the
father
is
something
not
comprised
in
the
gift
to
the
daughter,
that
the
former
was
excluded
from
any
benefit
in
the
subject
matter
of
the
gift.
This
was
decided
by
three
judges
in
the
King’s
Bench
Division
in
the
Irish
case
of
In
Re
Cochrane,
[1905]
2
I.R.
626,
and
by
the
three
judges
in
the
Court
of
Appeal
[1906]
2
I.R.
200,
where
there
was
an
express
reversion,
and
that
decision
was
approved
by
the
Judicial
Committee
in
the
Perpetual
Trustee
case,
although
in
the
latter
there
was
no
express
reversion.
The
judgment
of
Lord
Russell
of
Killowen
on
behalf
of
the
Judicial
Committee,
after
referring
to
the
argument
that
the
Cochrane
case
was
in
conflict
with
the
decision
of
the
House
of
Lords
in
Grey
(Karl)
v.
Attorney-General,
[1900]
A.C.
124,
proceeds
at
pages
445-6
:
“There
is
nothing
laid
down
as
law
in
that
case
which
conflicts
with
the
view
that
the
entire
exclusion
of
the
donor
from
possession
and
enjoyment,
which
is
contemplated
by
s.
11,
sub-s.
1,
of
the
Act
of
1889
is
entire
exclusion
from
possession
and
enjoyment
of
the
beneficial
interest
in
property
which
has
been
given
by
the
gift,
and
that:
possession
and
enjoyment
by
the
donor
of
some
beneficial
interest
therein
which
he
has
not
included
in
the
gift
is
not
inconsistent
with
the
entire
exclusion
from
possession
and
enjoyment
which
the
subsection
requires.
’”’
Finally,
on
this
branch
of
the
case
it
is
contended
that
there
was
no
entire
exclusion
of
Mr.
Wood
or
of
any
benefit
to
him
because
of
the
power
of
substitution
of
securities
in
the
trust
fund.
The
evidence
discloses
that
what
was
actually
done
in
this
respect
certainly
did
not
inure
to
Mr.
Wood’s
benefit
and
in
any
event
it
cannot
be
said
that
the
mere
power,
hedged
about
as
it
was,
in
itself
takes
the
matter
outside
the
provisions
of
clause
(g)
of
subsection
(1)
of
section
7.
The
argument
based
on
the
suggestion
that
the
trustees
might
be
under
the
control
of
the
settlor
since
they
were
either
his
employees
or
employees
of
a
company
dominated
by
him,
is
even
weaker
and
cannot
be
upheld.
Two
further
submissions
on
behalf
of
the
appellant
remain
to
be
noticed.
The
first
is
that
no
appeal
has
been
taken
by
the
daughter
and
the
only
appeal
being
that
of
the
executors,
the
assessment
in
question
has
become
final
and
binding.
Under
subsection
(1)
of
section
15
of
the
Act,
every,
heir,
legatee,
substitute,
institution
or
other
successor
is
to
file
an
inventory
of
all
the
property
included
in
the
suecession.
By
subsection
(2),
a
similar
inventory
is
to
be
filed
by
the
executor
but
by
subsection
(3),
if
one
of
these
has
complied
with
the
filing
requirement,
it
is
unnecessary
for
the
other
to
do
so.
In
this
case
a
statement
was
filed
by
the
executors
and
in
accordance
with
section
22,
the
Minister
assessed
the
duties
he
considered
to
be
payable
under
the
Act
(including
the
item
in
question)
and
sent
a
notice
of
such
assessment
to
the
executors.
The
latter,
as
a
"‘person
who
objects
to
the
amount
of
duty’’
mentioned
in
section
36,
appealed
as
provided
by
that
section.
They,
therefore,
are
the
proper
and
sufficient
parties
to
that
appeal,
to
the
notice
of
dissatisfaction,
and
to
the
appeal
to
the
Exchequer
Court.
The
second
submission
that
the
succession
duties
having
been
paid
by
the
executors,
no
refund
could
be
obtained
except
in
proceedings
by
way
of
petition
of
right
is
without
any
basis
or
merit.
If,
instead
of
appealing
from
the
assessment,
the
executors
had
taken
those
proceedings,
they
would
probably
have
been
met
by
the
contention
that
they
had
failed
to
avail
themselves
of
the
remedies
provided
by
the
Succession
Duty
Act.
The
appeal
should
be
dismissed
with
costs.
Appeal
dismissed.
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