KERWIN,
J.:—The
appellant,
Mrs.
Phyllis
Bouck,
was
assessed
to
income
tax
for
the
year
1944
in
an
amount
that
she
considers
unauthorized
by
the
provisions
of
the
Income
War
Tax
Act.
She
is
the
widow
of
Dr.
Charles
Bouck,
who
died
at
Calgary,
July
19,
1944,
leaving
an
estate
of
the
aggregate
value
of
$867,111.72
and
the
net
value
of
$845,940.72.
Probate
of
Dr.
Bouck’s
last
will
and
two
codicils
thereto
was
duly
granted
to
the
executors
named
therein,
viz.,
the
Royal
Trust
Company
and
the
appellant.
While
this
is
not
a
proceeding
commenced
in
the
Courts
of
Alberta
to
construe
these
documents,
it
is
necessary
to
come
to
a
conclusion
as
to
the
position
thereunder
of
Mrs.
Bouck
in
connection
with
the
income
of
the
estate
since
it
is
the
assessment
on
that
income,
paid
to
her
in
the
year
1944,
that
is
in
question.
By
the
testamentary
documents,
she
was
devised
and
bequeathed
the
testator’s
interest
in
their
city
and
summer
residences,
together
with
such
of
their
contents
as
already
did
not
belong
to
her,
and
all
personal
property,
including
automobiles,
and
the
sum
of
$5,000.00.
While
the
Royal
Trust
Company
was
by
the
will
appointed
executor,
the
second
codicil
appointed
the
appellant
an
executrix
to
act
with
it.
No
such
change
was
made
in
the
designation
of
the
Trust
Company
as
trustee
to
which
the
testator
devised
and
bequeathed
all
the
rest
and
residue
of
his
assets
and
property
upon
trust
for
realization
and
investment
and
to
pay
out
of
the
capital
of
the
trust
during
the
lifetime
of
the
appellant,
and
so
long
as
she
should
occupy
their
family
residence
and
summer
residence,
and
so
long
as
she
should
not
remarry,
all
taxes
that
might
be
assessed
against
the
two
residences,
and
the
premiums
on
all
policies
against
loss
or
damage
thereto
by
fire.
By
clause
4
of
the
will
the
trustee
was
to
pay
all
taxes
upon
income
assessed
or
levied
in
each
year
against
each
of
the
beneficiaries
of
the
trust,
but
not
including
the
appellant
in
the
event
of
her
remarrying.
Then
comes
clause
5,
the
first
paragraph
of
which
is
the
important
one
:—
‘‘o.
To
pay
to
the
credit
of
an
‘income
account’
all
the
net
revenue
of
the
trust
hereby
created
(after
payment
of
the
cost
of
administration
and
the
said
income
taxes)
in
every
year
until
all
of
my
children
shall
have
attained
the
age
of
twenty-five
(25)
years.
The
moneys
to
the
credit
of
the
said
account
shall
be
under
the
sole
control
of
my
wife
to
be
used
by
her
to
maintain
a
home
for
herself
and
my
children,
for
the
maintenance
of
my
wife
and
children,
for
the
proper
education
of
my
children
and
otherwise
for
the
benefit
of
my
wife
and
my
children
as
my
wife
in
her
sole
discretion
may
from
time
to
time
determine.
In
every
such
year
in
which
the
said
net
revenue
is
less
than
the
sum
of
TEN
THOUSAND
($10,000)
DOLLARS,
my
Trustee
shall
pay
to
the
credit
of
the
said
income
account
out
of
the
capital
of
the
trust
an
additional
sum
which
with
the
revenue
for
such
year
will
equal
the
said
sum.
If
through
any
unforeseen
cause
the
sum
above
mentioned
should
in
any
such
year
or
years
prove
insufficient
for
the
said
purposes,
then
my
Trustee
may
in
its
discretion
pay
in
to
the
said
income
account
such
additional
moneys
out
of
the
capital
of
the
trust
as
may
be
reasonably
required
for
the
said
purposes.
Any
moneys
from
time
to
time
to
the
credit
of
the
said
income
account
and
not
required
by
my
wife
for
the
purposes
aforesaid,
may
be
taken
by
my
Trustee
and
shall
become
part
of
the
capital
of
the
trust
hereby
created.”
Provision
is
made
in
case
the
widow
remarried
and
for
various
other
contingencies.
The
case
was
heard
in
the
Exchequer
Court
on
an
agreed
statement
of
facts.
There
were
two
children,
a
girl
and
boy,
issue
of
the
marriage
of
Dr.
Bouck
and
the
appellant
and,
at
the
death
of
the
testator,
they
were
respectively
sixteen
and
thirteen
years
of
age.
The
appellant
has
not
remarried.
Since
the
death
of
her
husband
she
has
‘‘occupied
substantially
the
same
position
towards
the
said
children
as
the
late
Charles
Bouck
occupied
himself
in
his
lifetime
and
in
particular
:—
“(a)
She
has
maintained,
supported,
educated
and
borne
all
expenses
in
bringing
up
her
son,
the
said
John
Bouck,
from
the
date
of
her
husband’s
death
until
the
present
time;
(b)
She
has
maintained,
supported,
educated
and
borne
all
expenses
in
bringing
up
her
daughter,
Marilyn
(Bouck)
McDaniel,
from
the
date
of
her
husband’s
death
until
the
marriage
of
the
said
Marilyn
(Bouck)
McDaniel
in
the
month
of
October,
A.D.
1948.
Subsequent
to
the
said
marriage
she
has
contributed
varying
amounts
to
the
welfare
of
her
said
daughter
;
(c)
She
has
maintained
a
large
home
at
the
premises
municipally
known
in
the
City
of
Calgary,
in
the
Province
of
Alberta,
as
1014
Prospect
Avenue,
the
same
having
been
the
family
residence
for
a
number
of
years
prior
to
the
death
of
the
late
Charles
Bouck.
Further
she
maintained
a
summer
home
at
Sylvan
Lake,
in
the
Province
of
Alberta,
for
her
own
use
and
for
the
use
of
her
children,
John
and
Marilyn,
although
apart
from
occasional
visits
Marilyn
has
not
made
use
of
the
said
residences
since
the
date
of
her
said
marriage
;
’
’
Although
it
is
the
1944
income
that
is
in
question,
the
assessment
thereon
was
not
made
until
1948.
Included
into
the
total
income
upon
which
the
respondent
assessed
the
appellant
to
income
tax
for
1944
is
the
sum
of
$3,797.26,
being
moneys
received
by
the
appellant
pursuant
to
clause
5
of
the
will.
Paragraphs
6,
7,
8
and
9
of
the
agreed
statement
of
facts
are
as
follows
:—
“6.
That
the
Appellant
did
in
fact
receive
the
whole
of
the
said
sum
of
$3,797.26,
which
said
sum
was
under
her
sole
control,
and
was
expended
and
used
by
the
Appellant
in
her
sole
discretion,
and
pursuant
to
said
Clause
5
of
the
said
Last
Will
and
Testament
to
maintain
a
home
for
herself
and
the
said
children,
for
the
maintenance
of
herself
and
the
said
children,
for
the
proper
education
of
the
said
children,
and
otherwise
for
the
benefit
of
herself
and
her
children,
and
as
the
Appellant
in
her
sole
discretion
did
from
time
to
time
determine.
7.
The
appellant
has
not
kept
accounts
or
made
any
accounting
whatever
of
the
said
sum
of
$3,797.26,
nor
has
the
Appellant
furnished
nor
is
she
able
to
furnish
any
accounts
to
the
Minister
as
to
the
portions
thereof
:—
(a)
Expended
by
her
in
maintaining
a
home
for
herself
and
children
;
(b)
For
the
maintenance
of
herself
and
her
children;
(c)
For
the
proper
education
of
the
children;
(d)
Otherwise
for
the
benefit
of
herself
and
her
children;
(e)
For
her
separate
use;
(f)
For
the
direct
or
indirect
use
of
John
Bouck
and
Marilyn
Bouck,
or
either
of
them
;
8.
The
Appellant
pays
for
services
of
a
hired
man
in
the
maintenance
of
her
home
in
the
City
of
Calgary,
in
the
Province
of
Alberta.
9.
That
presently:
(a)
The
Appellant
maintains
two
automobiles
for
the
use
of
herself
and
her
son
John
Bouck
;
(b)
If
the
Appellant
had
not
the
responsibility
of
the
maintenance
and
control
of
her
children
she
would
not
require
to
maintain
the
large
home
now
maintained
by
her
;
(c)
She
estimates
that
as
a
minimum
her
expenses
would
have
been
reduced
annually
by
$5,000.00
had
she
not
supported
and
maintained
her
said
children.
It
is
understood
and
agreed
that
paragraph
(c),
supra,
is
merely
an
estimate
which
the
Appellant
would
make
of
the
position
at
the
present
time
if
she
were
called
to
give
evidence
on
her
own
behalf,
and
that
nothing
in
the
said
paragraph
9
is
to
prejudice
or
affect
the
Respondent’s
position
that
the
assertions
made
in
the
said
paragraph
are
inadmissible
in
evidence
and
irrelevant,
the
Respondent’s
position
being
that
the
appeal
solely
concerns
that
portion
of
the
year
1944
subsequent
to
the
19th
day
of
July,
A.D.
1944,
and
that
period
alone.
’
’
It
should
be
noted
that
in
case
both
children
died,
or
either
of
them,
there
is
no
provision
whereby
the
appellant,
during
her
widowhood,
should
receive
less
than
the
moneys
to
the
credit
of
the
‘‘income
account”
so
long
as
they
are
‘‘required’’.
The
decisions
as
to
what
words
create
a
trust
are
legion
but,
in
each
case,
the
intention
is
to
be
gathered
from
the
document
as
a
whole.
In
Singer
v.
Singer
(1915),
33
O.L.R.
602,
the
will
of
the
late
Jacob
Singer
directed
:—
^my
said
trustees
to
pay
to
my
wife
Annie
Singer
during
the
term
of
her
natural
life
and
as
long
as
she
will
remain
my
widow
the
net
annual
income
arising
from
my
estate
for
the
maintenance
of
herself
and
our
children.
Should
however
my
wife
re-marry
then
such
annuity
shall
cease.’’
Middleton,
J.,
who
heard
the
originating
motion
for
the
construction
of
the
will
in
the
first
instance,
held
:—
4
The
said
Annie
Singer
is
not
entitled
to
the
net
annual
income
arising
from
the
said
estate
to
her
own
use
absolutely,
but
subject
to
the
obligation
to
use
the
same
not
only
for
her
maintenance,
but
also
for
the
maintenance
of
the
children
of
the
testator,
and
that
the
right
of
any
child
to
maintenance
does
not
cease
on
attaining
majority
or
marriage;”
and
he
directed
a
reference
to
determine
what
allowance,
if
any,
should
be
made
to
each
of
the
children
of
Jacob
Singer
out
of
the
income
of
the
estate.
The
Appellate
Division
varied
this
judgment
by
declaring
:—
4
‘The
said
Annie
Singer
is
entitled
to
the
net
annual
income
arising
from
the
said
estate
during
her
widowhood
for
her
own
use
absolutely,
but
subject
to
an
obligation
to
provide
thereout
for
the
maintenance
of
the
children
of
the
testator
or
such
of
them
as
in
her
discretion
to
be
exercised
in
good
faith
she
shall
deem
to
require
the
same,
but
such
obligation
does
not
extend
to
any
child
who
has
or
shall
be
married
or
otherwise
be
forisfamiliated.”
An
appeal
to
this
Court
(1916),
52
S.C.R.
447,
was
dismissed.
The
Chief
Justice
and
Duff,
J.,
expressed
no
views
upon
the
point
;
Sir
Louis
Davies
accepted
the
Appellate
Division’s
opinion
as
the
correct
one,
as
did
Idington,
J.,
Anglin,
J.,
and
Brodeur,
J.
As
Anglin,
J.,
points
out,
the
difference
between
the
orders
made
by
Middleton,
J.,
and
by
the
Appellate
Division
was
that
under
the
latter
the
discretion
of
the
mother
was
wider
and
enabled
her,
for
reasons
that
seemed
to
her
sufficient,
to
exclude
any
child
from
maintenance.
Here,
to
adopt
the
language
of
Sir
William
Meredith,
at
page
611
of
33
O.L.R.,
the
appellant
was
entitled
to
receive
the
income,
subject
to
an
obligation
on
her
part
to
maintain
and
educate
the
children
out
of
it
but
leaving
to
her
discretion
the
manner
in
and
the
extent
to
which
provision
should
be
made
for
any
child,
a
discretion
not
subject
to
control
or
interference
by
the
Court
so
long
as
it
should
be
exercised
in
good
faith.
We
are,
of
course,
dealing
with
the
position
in
1944
when
the
appellant
had
not
remarried
and
the
children
were
under
the
age
of
twenty-five
years.
As
has
been
pointed
out,
this
is
not
a
proceeding
to
construe
Dr.
Bouck’s
will
and
codicils
in
which
the
widow
and
children
are
represented.
Consequently
we
do
not
know
anything
about
such
things
as
medical
expenses
for
any
of
the
family,
charitable
donations
and
entertainment
expenses
of
the
appellant,
or
the
cost
of
help
in
and
around
the
Calgary
home
or
the
summer
home
although,
in
March,
1951,
when
the
agreed
statement
of
facts
was
signed,
we
know
that
the
appellant
was
paying
for
the
services
of
a
hired
man
in
the
maintenance
of
the
Calgary
house.
We
also
know
that
at
that
time
the
appellant
maintained
two
automobiles
for
the
use
of
herself
and
John,—
the
daughter
having
by
that
time
been
married.
No
doubt
in
the
year
of
the
daughter’s
marriage,
the
appellant
would
have
incurred
considerable
expense
with
respect
to
the
preparation
therefor,
a
great
part
of
which
it
could
no
doubt
be
asserted
was
her
expense
as
head
of
the
family.
In
truth,
the
money
spent
by
the
appellant
for
the
maintenance,
education
and
benefit
of
either
child
might
be
very
slight
in
one
year
and
considerably
greater
in
another.
There
are
such
things
as
premiums
in
insurance
on
the
automobiles
and
many
other
expenses
which
Dr.
Bouck
would
presumably
have
in
mind
as
being
incurred
by
the
appellant
and
which
it
would
be
difficult
to
say
were
for
anyone’s
benefit
except
her
own.
In
a
proceeding
upon
the
construction
of
the
will,
these
are
matters
that
might
be
gone
into
but
we
know
practically
nothing
about
them
for
the
year
1944,
which
is
the
year
of
the
income
in
question.
In
the
first
income
tax
return
made
by
the
appellant
in
April,
1945,
although
it
was
a
mere
estimate
of
the
income
of
her
husband’s
estate
for
that
part
of
the
year
1944
remaining
after
his
death,
the
total
amount
of
such
estimated
income
was
returned
by
her
as
being
her
income.
It
was
only
in
January,
1946,
that
a
new
return
was
made
in
which
the
income
of
the
appellant
from
her
husband’s
estate
for
the
relevant
part
of
1944
was
arbitrarily
put
by
her
at
one-third
of
the
total
income.
She
had,
of
course,
received
the
total
amount
in
accordance
with
the
provisions
of
the
will
and
we
are
not
called
upon
to
deal
with
a
case
where
she
received
a
certain
amount
from
the
trustee
of
the
income
account
for
herself
and
other
specific
amounts
therefrom
for
each
child.
Nothing
is
said
as
to
whether
this
is
possible
under
the
will,
or
as
to
the
result
if
it
in
fact
occurs.
As
the
trial
judge
states,
the
appellant
may
find
some
comfort
in
the
fact
that
if
she
succeeded
in
these
proceedings,
she
would
be
taxed
as
a
single
person
without
a
deduction
for
each
child
;
to
which
might
be
added
that
in
the
possible
circumstances
envisaged
above,
each
child
might
be
subject
to
tax
upon
what
would
be
found
to
be
his
or
her
income.
While
clause
7
of
the
will
commences—“From
and
after
the
time
when
all
of
my
children
shall
have
attained
the
age
of
twenty-
five
years’’,
and
that
event
might
not
happen
because
one
might
die
before
attaining
that
age,
provision
is
subsequently
made
for
the
death
of
either
child
without
issue.
Then
finally
comes
clause
14
:—
“14.
In
the
event
of
the
death
of
both
of
my
children
without
issue
then
the
entire
income
shall
be
payable
to
my
wife
during
her
lifetime
and
after
her
death
the
capital
of
the
trust
hereby
created
shall
be
distributed
to
my
heirs
according
to
the
laws
of
the
Province
of
Alberta
then
in
force
with
respect
to
the
devolution
of
intestate
estates.
’
’
Reading
the
whole
of
the
will,
it
appears
that
if
both
children
died
before
the
ages
of
twenty-five,
clause
14
would
operate.
However,
the
appellant
points
to
clause
7
of
the
will,
dealing
with
the
situation
where
the
children
would
have
attained
the
age
of
25
years.
It
reads
:—
“7.
From
and
after
the
time
when
all
of
my
children
shall
have
attained
the
age
of
twenty-five
(25)
years.
To
pay
to
my
wife
during
her
lifetime
in
monthly
instalments
without
power
of
anticipation,
one-half
the
net
income
of
the
trust
hereby
created
(after
the
payment
of
the
cost
of
administration),
and
to
pay
to
each
of
my
children
during
their
respective
lifetimes,
in
monthly
instalments
without
power
of
anticipation,
one-
quarter
of
the
said
net
income.
Provided
that
in
the
event
of
my
wife
remarrying
the
said
net
income
shall
be
thereafter
divided
one-third
to
my
wife
and
one-third
to
each
of
my
children.
Provided
further
that
if
the
aggregate
amount
of
the
net
income
payable
to
my
wife
and
my
children
in
any
year
is
less
than
the
sum
of
TEN
THOUSAND
($10,000.00)
DOLLARS,
my
Trustee
shall
in
every
such
year
pay
out
of
the
capital
of
the
trust
hereby
created
to
my
wife
and
my
said
children
a
further
sum
which
with
the
share
of
income
received
by
them
in
such
year
shall
amount
to
the
said
sum,
and
such
further
sum
shall
be
divided
among
them
in
the
same
proportion
as
the
income
is
divided.
Provided
further
that
if
through
any
unforeseen
cause
the
sum
mentioned
in
the
proviso
next
preceding
should
not
be
sufficient
for
the
proper
maintenance
of
my
wife
and
my
children,
my
Trustee
may
in
its
discretion
pay
to
my
wife
and
to
my
children
such
additional
moneys
out
of
the
capital
of
the
trust
as
may
be
reasonably
required
for
their
respective
maintenance.”
It
is
said
that
the
change
in
procedure
whereby
the
trustee
is
directed
to
make
payments
directly
to
the
appellant
and
no
longer
into
the
income
account
is
significant
and
that
in
clause
7,
as
compared
with
clause
5,
are
clear
words
of
absolute
gift.
However,
the
testator
was
dealing
with
an
entirely
different
situation
and
I
am
unable
to
perceive
that
the
manner
in
which
he
directed
the
trustee
to
deal
with
the
income
under
these
circumstances
can
affect
a
matter
arising
under
clause
5.
The
appellant
then
refers
to
clause
4,
reading
as
follows
:—
“4.
To
pay
in
each
and
every
year
out
of
the
income
of
the
trust
hereby
created
all
taxes
upon
income
assessed
or
levied
in
such
year
against
each
of
the
beneficiaries
of
the
said
trust
with
respect
to
the
share
of
the
income
of
the
said
trust
payable
in
such
year
to
each
respective
beneficiary,
but
not
including
my
wife
in
the
event
of
her
remarrying.
’
’
The
use
of
the
words
‘‘each
of
the
beneficiaries
of
the
said
trust’’
indicates
that
the
testator
had
in
mind
not
only
his
wife,
under
whose
sole
control
the
moneys
in
the
income
account
should
be
in
accordance
with
clause
5,
but
also
the
children
when
they
should
have
attained
the
age
of
twenty-five
years,
in
accordance
with
clause
7.
The
case
of
Drummond
v.
Collins,
[1915]
A.C.
1011,
has
no
application.
There,
the
trustees
of
a
deceased
United
States
man
were
required
to
exercise
their
discretion
as
to
providing
money
for
the
maintenance
of
the
testator’s
grandchildren
who
were,
at
the
time
in
question,
minors.
In
pursuance
of
this
authority
the
trustees
exercised
their
discretion
and
remitted
to
Mrs.
Drummond,
the
mother
of
these
children,
certain
sums
of
money
for
their
maintenance.
It
was
held
that,
within
the
meaning
of
the
British
Income
Tax
Act,
these
sums
were
derived
from
remittances
from
the
United
States
payable
in
Great
Britain,
or
from
money
or
value
received
in
Great
Britain
and
arising
from
property
that
had
not
been
imported
into
Great
Britain.
It
was
also
held
that
they
came
within
the
words
of
Schedule
D
as
profits
or
gains
accruing
from
property
to
a
person
residing
in
the
United
Kingdom.
There
it
was
the
income
of
the
children
that
was
in
question.
More
to
the
point
is
the
decision
of
Sir
Adrian
Knox,
Chief
Jus-
tice
of
the
High
Court
of
Australia,
in
Manning
v.
Federal
Commissioner
of
Taxation
(1928),
40
C.L.R.
506,
where
a
testator
devised
and
bequeathed
the
whole
of
his
property
to
his
wife
in
trust
for
his
children—the
wife
during
her
life
to
receive
the
income
thereof
for
the
support
and
maintenance
of
herself
and
the
children
and
after
her
death
the
proceeds
of
the
sale
of
such
property
to
be
equally
divided
between
the
children.
It
was
held
that
the
wife
was
entitled
to
receive
the
income
of
the
estate
subject
to
no
liability
to
account
for
its
application,
provided
she
discharged
the
duty
of
supporting
and
maintaining
the
children,
following
Browne
v.
Paull
(1850),
1
Sim.
(N.S.)
92
at
103,
104:
‘“Where
the
interest
of
the
children’s
legacies
is
given,
to
a
parent,
to
be
applied
for
or
towards
their
maintenance
and
education,
there,
in
the
absence
of
anything
indicating
a
contrary
intention,
the
parent
takes
the
interest
subject
to
no
account,
provided
only
that
he
discharges
the
duty
imposed
on
him
of
maintaining
and
educating
the
children.
’
’
It
was
also
held
by
Macnaghten,
J.,
in
Waley
Cohen
v.
Commissioner
of
Inland
Revenue
(1945),
26
T.C.
472,
that
sums
payable
under
a
trust
to
a
father
(the
settlor)
towards
the
upkeep
of
a
joint
establishment
with
his
sons
(the
beneficiaries)
are
income
of
the
father.
The
decision
in
Singer
v.
Singer
prevents
a
holding
that
under
Dr.
Bouck’s
will
either
child
is
entitled
to
an
aliquot
part
of
the
income.
Even
if
that
be
not
so,
the
income
received
by
the
present
appellant
in
the
year
1944
from
the
‘‘income
account’’
is
her
income.
She
is
not
a
trustee
and
the
mere
fact
that
there
is
the
responsibility
upon
her
such
as
is
described
in
the
Singer
case
does
not
make
the
money
any
less
her
income
than
if
she
had
received
income
from
B
though
she
might
be
bound
by
bond
to
C
to
pay
the
latter
a
certain
annual
sum.
The
appeal
should
be
dismissed
with
costs.
KELLOCK,
J.:—Under
the
will
in
question,
the
testator,
by
Para.
5,
directed
his
trustee
to
pay
to
the
credit
of
an
‘
‘
income
account
’
’
the
annual
net
revenue
from
a
trust
fund
until
all
his
children
should
have
attained
the
age
of
twenty-five
years,
directing
that
these
monies
should
be
under
the
sole
“control
of
his
wife
“to
be
used
by
her
to
maintain
a
home
for
herself
and
my
children,
for
the
maintenance
of
my
wife
and
my
children,
for
the
proper
education
of
my
children,
and
otherwise
for
the
benefit
of
my
wife
and
my
children
as
my
wife
in
her
sole
discretion
may
from
time
to
time
determine.”
The
testator
further
provided
that
any
monies
to
the
credit
of
the
account
‘‘not
required
by
my
wife
for
the
purposes
aforesaid’’
should
be
returned
to
capital.
In
the
event
of
the
death
of
his
wife
before
all
the
children
should
have
attained
the
specified
age,
he
directed,
similarly,
that
the
guardian
whom
he
had
appointed
for
his
children
should
have
control
of
the
monies
to
the
credit
of
the
account
‘‘to
the
extent
required
to
provide
for
the
maintenance,
education
and
benefit
of
my
children
as
the
said
guardian
in
her
sole
discretion
may
from
time
to
time
determine
in
the
same
manner
as
my
wife
if
living."
By
Para.
7
he
further
provided
that
from
and
after
the
time
when
‘‘all’’
his
children
should
have
attained
twenty-five,
his
wife
was
to
be
paid
one
half
of
the
net
income
of
the
trust
fund
for
life,
and
each
of
the
children
one
quarter
during
their
respective
lives,
with
the
further
provision
that
in
the
event
of
the
net
income
being
less
than
$10,000
in
any
year,
the
deficiency
should
be
made
up
out
of
capital.
The
Trustee
was
also
given
a
discretion
to
make
further
payments
out
of
capital
should
even
this
sum
be
insufficient
to
provide
for
the
proper
maintenance
of
the
wife
and
children.
From
and
after
the
death
of
the
wife,
all
of
the
income
was
to
be
paid
to
the
children
equally.
By
Para.
9,
it
is
provided
that
upon
the
death
of
either
of
the
children
without
issue,
the
income
‘‘which
would
have
gone”
to
the
deceased
child
if
living,
should,
during
the
lifetime
of
the
testator’s
wife
and
the
surviving
child,
be
paid
to
the
surviving
child,
with
the
proviso
that
“In
the
event
of
the
death
of
my
son
without
issue
but
leaving
a
wife
surviving,
the
share
of
the
income
which
would
have
gone
to
him
if
living
shall
be
paid
.
.
.
to
his
wife
until
her
death
or
until
she
remarries,
whichever
shall
first
occur.”
Para.
10
provides
that
upon
the
death
of
his
daughter
leaving
issue,
then
until
the
death
of
the
testator’s
wife
and
son,
‘‘the
share
of
the
income
which
my
daughter
would
have
received
if
living”
should,
until
all
the
issue
should
have
attained
twenty-
five
years,
be
paid
to
his
widow
if
living,
or
if
not,
to
his
son,
to
be
used
for
the
maintenance
and
education
of
the
issue
of
the
daughter
until
all
should
have
attained
the
age
of
twenty-five,
and
should
thereafter
during
the
same
period
be
paid
to
the
issue.
Similarly,
it
is
provided
by
para.
11
that
upon
the
death
of
his
son
leaving
issue,
then
until
the
death
of
the
testator’s
wife
and
daughter,
the
share
of
the
income
‘‘
which
my
son
would
have
received
if
living’’
should,
until
the
issue
attained
twenty-five
years,
be
paid
to
his
son’s
widow
for
the
maintenance
of
herself
and
the
issue
and
the
education
of
the
issue
until
all
shall
have
attained
twenty-five
years,
and
thereafter
during
the
lifetime
of
his
daughter
and
the
testator’s
widow,
be
paid
to
the
wife
and
issue
of
his
son,
with
the
proviso
that
in
the
event
of
the
death
or
remarriage
of
his
son’s
widow,
then
‘‘her
interest
in
the
said
income’’
should
cease,
and
the
share
‘‘which
should
have
gone
to
her’’
shall
go
to
the
issue.
The
will
contains
an
ultimate
trust,
upon
the
death
of
the
testator’s
children
and
wife,
for
the
benefit
of
his
grandchildren
who
attain
twenty-one
years.
It
seems
plain
on
the
scheme
of
this
will,
that,
for
example,
should
the
son
marry
and
die
before
attaining
age
twenty-five,
his
widow
and
children,
if
any,
would
stand
in
his
stead
with
respect
to
the
income.
It
does
not
appear
that
it
was
the
intention
of
the
testator
that
all
benefit
in
respect
of
income
to
the
widow
of
the
son
and
the
son’s
issue
should
depend
upon
the
son
himself
having
attained
the
specified
age.
It
is
to
be
observed
that
the
term
of
existence
of
the
‘‘income
account’’
in
para.
5,
as
well
as
the
coming
into
operation
of
the
provision
with
respect
to
payment
of
specific
shares
of
income
to
the
wife
and
each
of
the
children;
depends
upon
all
the
testator’s
children
reaching
the
age
of
twenty-five
years,
an
event
which
would,
in
the
case
put,
never
happen.
The
testator
left
surviving
two
children
in
fact,
a
son
and
a
daughter,
neither
of
whom
has
as
yet
attained
the
age
of
twenty-
five
years.
In
the
existing
circumstances,
the
provisions
of
para.
0
are
the
operative
provisions,
and
although
the
income
is
under
the
sole
control
of
the
wife,
the
income
is
not,
in
my
view,
hers
absolutely,
but
is
impressed
with
the
obligation,
to
use
no
other
word,
that
it
be
devoted
to
the
objects
provided
for
in
that
paragraph.
I
think,
therefore,
it
cannot
be
said
that
the
entire
income
is
to
be
regarded
as
that
of
the
widow
for
the
purposes
of
the
Income
Tax
Act.
While
the
provisions
of
this
will
are
not
the
same
as
those
in
question
in
the
will
under
consideration
in
Singer
v.
Singer,
52
S.C.R.
447,
it
is
to
be
observed
that
even
on
the
terms
of
that
will,
it
was
held
that
while
the
mother
had
a
discretion,
she
was
subject
to
an
obligation.
The
court
approved
of
the
judgment
of
the
Chief
Justice
of
Ontario
in
the
Appellate
Division,
33
O.L.R.
602
at
610
ff.,
Meredith,
C.J.O.,
at
611,
said:
‘‘
Apart
from
the
authority,
I
should
have
no
doubt
as
to
what
the
testator
meant,
or
as
to
what
the
language
he
has
used
to
express
his
wish
imports,
and
that
is,
that
his
wife
should
be
entitled
during
her
widowhood
to
receive
the
income,
subject
to
an
obligation
on
her
part
to
maintain
the
children
out
of
it,
but
leaving
to
her
discretion
the
manner
in
and
extent
to
which
provisions
should
be
made
for
any
child,
a
discretion
not
subject
to
control
or
interference
by
the
court
so
long
as
it
should
be
exercised
in
good
faith
.
.
.”
The
learned
Chief
Justice
thus
viewed
the
decision
of
the
Court
of
Appeal
in
Allen
v.
Furness,
20
A.R.
34.
In
Allen’s
case,
the
gift
was
to
a
father
for
life
44
for
the
support
and
maintenance
of
himself
and
children.’’
The
defendant
had
been
appointed
receiver
of
the
interest
of
the
father,
the
plaintiff,
and
although
there
was
no
trust
constituted
in
favour
of
the
children,
the
court
would
not
permit
the
receiver
appointed
at
the
instance
of
creditors
to
take
the
whole,
but
allocated
three-quarters
of
the
income
for
the
support
of
the
children.
In
Re
Booth,
[1894]
2
Ch.
282,
a
similar
result
was
arrived
at
where
the
mother
had
become
bankrupt
and
her
trustee
in
bankruptcy
claimed
the
whole
of
the
income.
North,
J.,
directed
an
inquiry
as
to
the
amount
which
should
be
allocated
to
the
children.
Although
he
proceeded
on
the
basis
of
trust,
the
result
does
not
differ
in
a
case
of
this
character
whether
the
case
be
one
of
trust
or
obligation.
”
Where,
as
in
the
case
at
bar,
income
is
placed
under
the
control
of
a
wife
and
mother
for
the
benefit
of
herself
and
children,
she
being
under
obligation
so
to
apply
it,
it
would
appear
to
be
a
contradiction
in
terms
to
say
that
her
interest
is
absolute,
and
yet
that,
while
her
discretion
will
not
be
interfered
with
so
long
as
it
is
being
exercised
bona
fide,
the
court
will
interfere
where
she
is
not
acting
properly
in
the
application
of
the
income,
or
where
creditors
intervene
for
the
purpose
of
seizing
it.
The
fact
that
the
court
will
thus
intervene
indicates
that
the
obligation
in
favour
of
the
children
fastens
upon
the
res
itself.
In
Re
Coleman,
39
Ch.
D.
443,
a
testator
gave
his
residue
to
trustees,
directing
them
to
apply
the
income
‘‘towards
the
maintenance,
education
and
advancement
of
my
children
in
such
manner
as
they
shall
deem
most
expedient,”
until
the
youngest
should
attain
twenty-one,
with
a
gift
over
to
the
children
as
his
wife
should
appoint,
and
in
default
of
appointment,
then
equally
to
the
children
then
living.
One
of
the
children
had
assigned
his
interest
to
the
plaintiff,
and
it
was
held
that
the
latter
was
entitled
to
such
‘‘moneys
or
property,
if
any,
as
may
be
paid
or
delivered,
or
appropriated
for
payment
or
delivery”
by
the
trustees
to
the
assignor.
I
think
equally,
in
the
present
case,
that
the
wife,
being
obligated
to
apply
the
income
needed
for
the
benefit
not
only
of
herself
but
also
for
the
children,
although
her
discretion
is
absolute,
as
was
that
of
the
trustees
in
the
case
just
cited,
has
an
interest
limited
to
that
which
she
appropriates
for
herself,
and
the
children
become
entitled
to
the
remainder
in
the
proportions
she
from
time
to
time
determines.
The
appellant
in
the
returns
filed
claimed
on
the
basis
of
an
equal
apportionment
of
the
income
as
between
herself
and
the
children.
The
total
amount
in
question
is
$3,797.26
and
this
is
in
respect
of
the
period
from
the
date
of
the
death
of
the
testator
on
the
19th
of
July,
1944,
to
the
end
of
that
year.
Although
the
Minister
is
always
in
a
position,
under
section
41
of
the
statute,
to
obtain
additional
information
from
the
taxpayer,
no
request
was
made,
and
the
agreed
statement
of
facts
contains
a
statement
that
the
appellant
estimates
the
minimum
annual
expense
of
maintaining
the
children
was
$5,000.
For
the
period
under
review
this
is
approximately
$2,500.
When
the
maintenance
of
the
appellant
herself
is
taken
into
consideration,
the
total
maintenance
for
the
three
approximates
the
amount
of
income
here
in
question.
This
tends
to
support
the
basis
of
allocation
upon
which
the
income
tax
returns
were
made.
I
do
not
think
the
failure
of
the
appellant
to
keep
an
exact
account,
in
the
circumstances
here
present,
affects
the
matter.
It
is
obvious
that
the
expense
of
maintaining
the
two
children
as
well
as
the
widow
herself
was
substantial.
The
family
was
living
as
a
unit
in
the
home
maintained
for
them,
as
the
testator
directed,
and
a
very
substantial
part
of
the
account
would
consist
of
items
apportionable
only
by
dividing
into
three
parts.
Special
expenditures
for
the
benefit
of
any
one
of
the
objects
of
the
gift
of
income
would,
of
course,
stand
on
a
different
footing,
but
the
appellant
had
other
income
of
her
own,
and
if
there
were
such
special
expenditures,
she
was
entitled
to
use
her
own
income
for
the
purpose
if
she
saw
fit.
Accordingly,
I
think
the
appellant
has
sufficiently
met
the
onus
resting
upon
her.
I
would
allow
the
appeal
with
costs.
Appeal
allowed.