CAMPBELL,
J.:—The
court
is
moved
by
originating
notice
for
opinion,
advice
and
direction
in
the
form
of
four
questions
directed
to
the
proper
construction
or
interpretation
of
the
holograph
will
of
the
late
Albert
Ernest
Garbut
of
Winnipeg,
Manitoba,
who
died
on
November
30,
1949.
On
November
15,
1949,
he
made
his
last
will,
which
was
duly
admitted
to
probate
on
January
23,
1950.
The
four
questions
are
as
follows:
"‘1.
Is
the
bequest
to
Mrs.
E.
H.
McGee
of
‘all
money
remaining
after
the
above
bequests
have
been
paid’
a
bequest
of
the
residue
of
the
estate?
“2.
If
the
said
bequest
is
not
a
bequest
of
the
residue,
which
of
the
assets
of
the
estate
are
included
in
the
said
bequest?
“3.
Does
the
bequest
of
‘my
personal
effects
such
as
jewellery
to
be
given
one
to
each
W.
H.
Bower
and
William
Hamilton
(now
in
bank)
’
include
all
personal
effects
and
jewellery
and
if
not,
which
of
the
effects
and
jewellery
are
included
in
the
said
bequest?
“4.
Do
the
succession
duties
payable
to
the
Provinces
of
Quebec
and
Ontario
form
part
of
the
general
costs
of
administration
and
are
payable
as
such,
and,
if
not,
by
whom
and
in
what
proportion
should
the
said
duties
be
borne
?’?
Among
the
assets
of
the
testator
were
shares
in
a
number
of
companies
situate
in
Ontario
and
Quebec
and,
by
an
implied
direction
contained
in
the
will,
the
executors
were
required
to
sell
them
and
from
the
proceeds
to
pay,
inter
alia,
the
following
pecuniary
legacies:
$3,000
to
Edith
Hamilton;
$2,000
to
Wm.
Hamilton;
$2,000
to
Dorothy
Jackson;
$2,000
to
Lilian
Samsen.
The
residuary
legatee
is
Mrs.
E.
H.
McGee,
who
is
also
the
principal
legatee.
The
testator
directed
that
his
1938
Plymouth
automobile
‘‘be
sold
for
estate;’’
that
his
hunting
equipment,
including
his
shooting
lodge,
be
sold
and
I
Proceeds
to
be
applied
in
executors’
fees.
‛
‛
He
also
gave
certain
specific
bequests,
among
which
were
the
following:
‘‘
My
personal
effects
such
as
jewellery
to
be
given
one
to
each,
W.
H.
Bower
&
Wm.
Hamilton.’’
The
will
also
contained
the
following
:
"‘All
money
remaining
after
the
above
bequests
have
been
paid,
I
bequeath
[sic]
to
Mrs.
E.
H.
McGee.”
The
answer
to
the
first
question
is
‘‘
Yes’’
following
Perrin
v.
Morgan,
[1943]
A.C.
399
;
112
L.J.
Ch.
81
;
[1943]
1
All
E.R.
187;
In
re
Trustee
Act;
In
re
Hutchinson
Estate,
[1943]
2
W.W.R.
714;
51
Man.
R.
180.
The
answer
to
the
second
question
is
answered
by
No.
I.
In
regard
to
the
third
question,
I
find
that
the
bequest
does
not
include
all
personal
effects.
It
is
a
gift
of
jewellery
only:
In
re
Abbott;
Public
Trustee
v.
St.
Dunstan
9
s
etc.
Trustees,
[1944]
2
All
E.R.
457.
It
is
also
evident
that
in
the
direction
‘‘to
be
given
one
to
each,
W.
H.
Bower
&
Wm.
Hamilton’’
there
is
an
obvious
omission
of
the
word
‘‘half,’’
for
the
inventory
of
the
estate
shows
that
there
are
more
than
two
articles
of
jewellery.
Dealing
now
with
the
fourth
question:
The
value
of
the
estate
is
less
than
the
minimum
which
would
make
it
dutiable
under
The
Dominion
Succession
Duty
Act,
1940-41,
c.
14;
but
by
reason
of
the
situs
of
some
of
the
shares
of
companies
in
Ontario
(duty
payable
$1,028.25)
and
Quebec
(duty
payable
$1,113.56)
the
executors
desire
to
know
whether
those
duties
should
be
paid
by
them
as
part
of
the
general
cost
of
administration
or,
if
not,
by
whom
should
they
be
paid
and
in
what
proportion?
Councel
advise
that
they
have
been
unable
to
find
a
case
in
which
similar
circumstances
existed;
nor
have
I
been
able
to
find
one.
Very
complete
argument
was
presented
by
counsel
for
the
pecuniary
legatees
that
the
succession
duties
payable
in
Ontario
and
Quebec
should
be
paid
by
the
residuary
legatee,
and
by
counsel
for
the
residuary
legatee
that
they
should
be
paid
by
the
pecuniary
legatees.
As
mentioned
above,
this
is
a
holograph
will
and
it
is
the
duty
of
the
court
to
interpret
what
meaning
should
be
attributed
to
the
will
as
a
whole.
That
is
the
fundamental
rule.
If
the
intentions
expressed
by
it
appear
obvious
and
clear,
then
there
is
no
difficulty
;
but
where,
as
here,
the
will
does
not
express
the
testator’s
intentions
as
lucidly
as
one
could
wish,
the
court
will
give
effect
to
his
intentions
if
they
can
be
ascertained
with
reasonable
certainty
from
perusal
of
the
will,
and
in
this
instance
I
think
they
can
be.
The
testator
makes
no
mention
of,
or
provision
for,
the
payment
of
succession
duties.
I
am
inclined
to
the
view
that
the
payment
of
succession
duties
outside
the
province
of
Manitoba
never
occurred
to
the
testator.
Three
important
clauses
appear
in
the
will.
Effect
must
be
given
to
the
words
of
these
three
clauses:
(1)
The
introductory
clause,
which
governs
other
clauses,
reads:
"The
following
assets
to
be
divided
as
follows:
11
Then
follow
a
number
of
general
bequests
above
referred
to.
(2)
Clause
4
provides:
‘‘$3,000.00
Three
thousand
dollars
which
I
owe
to
Mrs.
Elsie
Atkinson
to
be
paid
to
her
from
sale
of
stocks
bonds
etc.’’
It
is
to
be
noted
that
the
pecuniary
gifts
are
contained
in
clauses
5,
6,
7
and
8
immediately
following
clause
4,
and
I
am
inclined
to
the
view
they
are
governed
by
the
words
in
italics
in
clause
4,
and
by
the
introductory
clause
and
clause
11
as
well.
(3)
Clause
(11)
reads:
‘‘All
money
remaining
after
the
above
bequests
have
been
paid,
I
bequeth
[sic]
to
Mrs.
E.
H.
McGee.”
Under
the
implied
power
of
sale
in
the
will
it
was
necessary
for
the
executors
to
sell
the
stocks
and
bonds,
and
in
order
to
do
so
they
were
first
required
to
pay
the
succession
duties
in
Ontario
and
Quebec.
It
was
only
after
this
was
done
that
the
stocks
and
bonds
could
be
sold
and
then
the
pecuniary
legacies
became
payable.
The
succession
duties
were
therefore
part
of
the
administration
expenses
of
the
estate
and
payable
by
the
estate.
This
is
the
only
way
in
which
effect
can
be
given
to
the
words
in
italics,
supra.
Question
4.
is
therefore
answered
that
the
succession
duties
should
be
paid
by
the
executors
as
part
of
the
general
costs
of
administration.
Costs
to
be
paid
out
of
the
estate,
those
of
the
executor
on
a
solicitor-and-client
basis.