MacKeigan,
CJNS:
(Cooper,
JA
and
Glube,
J
concurring):—This
appeal
was
heard
with
the
appeal
respecting
the
Estate
of
John
Crerar
MacKeen,
and
involves
the
same
issues,
varying
only
in
the
details
of
the
corporate
setup
used
to
try
to
avoid
Nova
Scotia
succession
duty.
For
the
reasons
more
extensively
discussed
in
the
MacKeen
case
I
conclude,
as
did
Mr
Justice
Hart
in
the
court
below,
that
the
Jodrey
attempt
to
avoid
the
duty
was
also
unsuccessful.
Roy
A
Jodrey
died
on
August
12,
1973,
resident
and
domiciled
in
Nova
Scotia.
The
residue
of
his
estate
consisted
mainly
of
a
promissory
note
for
$3,735,200
(less
$105,800
paid
in
July,
1973)
issued
by
White
Rock
Investments
Limited
and
payable
to
Mr
Jodrey
on
presentation
at
White
Rock’s
office
in
Alberta.
White
Rock’s
only
business
prior
to
his
death
had
been
to
buy
from
him
the
shares
of
R
A
Jodrey
Investments
Limited
in
exchange
for
the
note.
White
Rock,
incorporated
in
Alberta
in
1972
after
the
Succession
Duty
Act,
Stats
NS
1972,
c
17,
was
passed,
had
three
common
shares,
two
issued
to
Mr
Jodrey
and
one
to
Percy
L
Herring
of
Alberta.
All
were
physically
situate
in
Alberta
and
transferable
only
in
Alberta.
The
promissory
note
was
also
physically
in
Alberta
on
Mr
Jodrey’s
death.
Also
incorporated
in
Alberta
in
1972
were
JBH
Investments
Limited
and
its
wholly
owned
subsidiary,
JGC
Investments
Limited.
Both
companies
had
only
Alberta
officers
and
directors.
Their
shares
were
transferable
only
at
their
Alberta
registered
offices
and
all
share
certificates
were
physically
situate
in
Alberta.
JBH
beneficially
owned
all
JGC’s
issued
shares.
JBH
Investments
Limited
has
twelve
hundred
issued
common
shares
of
a
par
value
of
one
dollar
each.
One
hundred
of
these
shares
were
issued
to
each
of
the
twelve
grandchildren
of
the
deceased,
all
resident
in
Nova
Scotia.
By
a
codicil
to
his
will
Mr
Jodrey
left
the
residue
of
his
estate
to
JGC
Investments
Limited,
the
subsidiary
of
JGH
Investments
Limited.
In
due
course
each
of
the
twelve
grandchildren
was
assessed
succession
duty
on
one-twelfth
of
the
residue
of
the
estate.
The
estate
applied
to
the
Supreme
Court
to
set
the
assessments
aside.
The
Honourable
Mr
Justice
G
L
S
Hart
in
chambers,
contemporaneously
with
his
similar
decision
in
the
MacKeen
estate,
held
that
the
Jodrey
grandchildren
were
“successors”
within
the
meaning
of
the
Act
and
that
the
Act
was
intra
vires
the
province.
From
that
decision
the
appellants
have
appealed.
The
issue,
as
in
the
MacKeen
case,
is
whether
Nova
Scotia
residents
are
“successors”
to
property
situate
in
Alberta
bequeathed
to
an
Alberta
corporation,
which
is
a
subsidiary
of
another
Alberta
corporation
of
which
the
residents
are
shareholders.
Again,
in
my
view,
the
shareholders,
here
the
grandchildren,
are
“successors”
by
virtue
of
two
key
provisions
of
the
Act,
paragraph
1(ae)
and
subsection
2(5),
which
provide:
1.
(ae)
‘successor’
in
relation
to
any
property
of
the
deceased
includes
any
person
who,
at
any
time
before
or
on
or
after
the
death
of
the
deceased
became
or
becomes
beneficially
entitled
to
any
property
of
the
deceased
(i)
by
virtue
of,
or
conditionally
or
contingently
on,
the
death
of
the
deceased,
or
.
.
.
[Then
follow
alternative
clauses
as
to
property
passing
otherwise
than
by
will]
2.
(5)
Where
a
corporation
which
is
not
resident
in
the
province,
other
than
a
corporation
without
share
capital,
by
reason
of
the
death
of
a
deceased
acquires
or
becomes
beneficially
entitled
to
property
of
the
deceased,
(a)
the
corporation
shall
be
deemed
not
to
be
the
successor
of
the
property
except
to
the
extent
that
thé
value
of
the
shares
of
the
shareholders
of
the
corporation
is
not
increased
in
value
by
the
corporation
acquiring
or
becoming
beneficially
entitled
to
the
property;
and
(b)
each
of
the
shareholders
of
the
corporation
shall
be
deemed
to
be
a
successor
of
property
of
the
deceased
to
the
extent
of
the
amount
by
which
the
value
of
his
shares
in
the
corporation
is
increased
by
the
corporation
acquiring
or
becoming
beneficially
entitled
to
the
property.
The
reasons,
which
were
extensively
discussed
in
the
MacKeen
case,
lead
here
to
the
same
result.
The
gift
to
JGC
Investments
resulted
in
JBH
Investments
becoming
beneficially
entitled
on
Mr
Jodrey’s
death
to
an
interest
in
Mr
Jodrey’s
estate.
The
Nova
Scotia
residents,
the
twelve
grandchildren,
who
were
shareholders
of
JBH
Investments,
thus
by
subsection
2(5)
are
deemed
to
be
successors
to
the
property
of
the
deceased
under
the
Act.
I
must
agree
with
Mr
Justice
Hart
that
the
Jodrey
grandchildren
are
successors
to
the
residue
and
that
the
Act
is
intra
vires
the
province.
I
would
dismiss
the
appeal
with
costs.
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