THE
Chief
Justice:—I
agree
with
my
brother
Maclean
that
Section
149
of
the
Insurance
Act,
R.S.B.C.
1960,
ce.
160,
which
was
added
in
1962
by
the
Statutes
of
that
year,
c.
29,
Section
3,
applies
to
the
policies
in
question,
but
with
deference
I
am
unable
to
agree
that
the
right
to
sue
in
the
Courts
of
this
Province,
conferred
by
Section
149
in
the
circumstances
of
this
case,
located
the
monies
payable
under
the
policies
in
this
Province.
Travelers
Insurance
Company
Policy
No.
1076929
for
the
sum
of
$5,000,
dated
December
20,
1924,
was
issued
while
the
insured
was
temporarily
resident
in
Port
Arthur,
Ontario.
It
and
Travelers
Policies
Nos.
1298753-4
and
5,
dated
February
1,
1927,
were
issued
in
conversion
of
earlier
term
contracts
of
which
we
know
only
the
number,
so
it
is
impossible
to
say
whether
the
Ontario
Insurance
Act
of
the
day
had
any
application
to
the
first
mentioned
policy.
The
other
policies
were
issued
while
the
insured
was
resident
in
the
United
States.
The
New
York
and
the
Travelers
policies
expressly
provided
that
the.
amount
insured
should
be
paid
at
the
home
offices
of
the
companies
respectively
in
New
York
and
Connecticut.
By
construction
they
were
payable
in
United
States
funds
and
actually
were
so
paid.
The
United
States
premium
on
the
insurance
money
was
declared
in
the
succession
duty
affidavit
and
duty
calculated
upon
it.
Each
msurance
company
was
authorized
under
the
British
Columbia
Insurance
Act
to
transact
business
in
this
Province
when
each
policy
was
issued.
On
the
other
hand
Section
149
was
added
to
the
Insurance.
Act
after
all
policies
had
been
issued
and
while
the
insured
resided
in
this
Province.
It
seems
clear
that
each
insurance
company
had
a
residence
within
this
Province
when
each
policy
was
issued,
as
well
as
within
the
state
where
its
head
office
was
located,
and
so,
if
it
were
not
for
Section
149,
the
situs
of
the
‘insurance
monies
(except
Travelers
Policy
1076929
which
might
be
situated
in
Ontario)
would
be
at
the
home
office
where
the
policies
required
the
insurance
monies
to
be
paid
and
where
the
monies
would
be
recoverable:
New
York
Life
Insurance
Company
v.
Public
Trustee,
[1924]
2
Ch.
101.
Counsel
for
the
appellant
relies
upon
the
general
rule
that
a
simple
contract
debt
is
deemed
to
be
situated
in
the
state
where
action
may
be
brought
to
recover
it,
and
cites
New
York
Life
Insurance
Company
v.
Public
Trustee,
supra,
to
show
that
because
Section
149
permits
action
on
the
policies
to
be
brought
in
British
Columbia
the
monies
insured
are
situated
in
this
Province.
I
am
unable
to
accept
that
interpretation
of
that
authority.
It
only
went
so
far
as
to
hold
that
where
the
debtor
insurance
company
might
be
regarded
as
having
two
places
of
residence,
the
monies
were
situated
in
the
state
where
by
the
terms
of
the
policy
the
monies
were
payable,
that
is
England.
It
is
no
authority
for
the
proposition
that
the
legislature
of
one
state
by
subsequent
legislation
giving
a
right
to
sue
in
its
Courts
for
money
due
under
a
simple
contract
can
change
the
situs
of
the
money
from
the
state
where
it
would
otherwise
be
located
;
that
is
so
notwithstanding
the
creditor
and
debtor
may
both
be
bound
by
the
legislation
when
the
debt
becomes
payable.
I
regard
the
right
to
sue
under
Section
149
as
a
non-contractual
power
conferred
upon
the
insured
or
his
personal
representative
for
their
convenience
and
protection,
and
having
no
effect
on
the
situs
of
the
debt,
which
must
be
determined
on
common
law
principles.
Counsel
for
the
appellant
has
cited
no
case
which
supports
his
proposition
;
I
have
already
mentioned
New
York
Life
Insurance
Company
v.
Public
Trustee,
supra.
In
re
Lawton
Estate,
[1945]
2
W.W.R.
529;
Weiss
v.
The
State
Life
Insurance
Co.,
[1935]
S.C.R.
461;
and
Rudolph
v.
Continental
Life
Insurance
Co.,
[1915]
9
O.W.N.
327
are
clearly
distinguishable.
In
each
case
the
provincial
Act
which
made
the
policy
subject
to
provincial
law
and
payable
in
the
province
was
in
effect
when
the
policy
was
written,
and
the
insured
was
resident
and
made
his
application
in
that.
province,
so
that.
the
provisions
of
the
Act
became
part
of
the
policy
and
overrode
any
term
of
the
policy
to
the
contrary.
As
a
result
the
policies
by
their
very
terms,
contractual
and
statutory,
were
payable
and
recoverable
in
the
respective
province
in
which
they
were
applied
for.
In
re
Corbett
Estate,
[1939]
2
W.W.R.
478,
and
Re
McGregor,
[1909]
10
W.L.R.
435,
judgments
of
single
judges,
the
same
observations
apply,
except
that
in
the
first
ease
the
first
of
the
insurance
policies
in
question
was
issued
before
the
year
of
the
statutes
containing
the
Insurance
Act
cited
by
the
learned
judge,
and
in
the
second
case
the
policy
was
issued
a
year
before
the
year
of
the
Revised
Statutes
which
contained
the
Insurance
Act
relied
upon
by
the
learned
judge.
Time
has
not
permitted
me
to
trace
the
legislative
history
to
see
if
substantially
similar
legislation
was
in
effect
when
the
policies
were
written.
In
The
King
v.
National
Trust
Co.,
[1933]
S.C.R.
670,
Duff,
C.J.C.
made
several
observations
concerning
the
situs
of
intangible
property
:
.
(1)
That
movable
and
immovable
property
can
have
only
one
situs
among
the
different
provinces
in
relation
to
the
imposition
of
provincial
taxes
upon
the
property
1
i
consequence
of
death.
(2)
That
the
situs
of
intangible
property
must
be
determined
by
reference
to
some
coherent
system
of
principles,
and
that
the
authority
of
a
province
to
tax
such
property
must
be
derived
from
the
principles
of
or
deductible
from
those
of
the
common
law.
(3)
That
in
the
evolution
of
the
legal
principles
derived
from
earlier
practice
and
their
application
to
new
states
of
fact
novel
questions
will
arise.
(4)
That
the
circumstances
of
a
particular
case
may
be
such
that,
to
them,
none
of
the
rules
is
strictly
appropriate,
and
then
one
must
have
recourse
to
analogy,
and
to
the
principles
underlying
the
decisions
or
the
rules
as
formulated
or
deducible
therefrom.
Keeping
those
observations
in
mind
and
particularly
that
the
situs
of
intangible
property
must
be
determined
by
some
coherent
system
of
principles
derived
from
the
common
law,
it
seems
to
me
that
the
result
of
our
inquiry
on
the
facts
of
this
case
must
be
the
same
whether
the
foreign
state
(qua
British
Columbia)
be
the
Province
of
Ontario
or
the
States
of
New
York
and
Connecticut.
If
in
the
present
circumstances
Ontario
be
substituted
for
New
York
and
Connecticut,
I
think
it
clear
that
the
monies
would
be
deemed
to
be
located
in
Ontario,
and
so
taxable
there.
Since
there
is
no
British
Columbia
legislation
that
overrides
the
provisions
of
the
policies
to
the
effect
that
they
are
to
be
paid
at
the
respective
home
offices
in
American
funds
they
must
be
deemed
to
be
situated
in
the
States
of
New
York
and
Connecticut.
because
under
their
terms
action
should
be
brought
in
those
states.
The
subsequent
conferment
of
concurrent:
jurisdiction
on
the
British
Columbia
courts:
by
Section
149
cannot
change
the
situs
of
the
insurance
monies
as
determined
by
common
law:
principles.
They
remain
in
the
states
where
they
would
be
if
Section
149
had
not
been
subsequently
enacted,
or
did
not
apply,
that
is
in
New
York
and:
Connecticut,
and,
perhaps
as
to
Travelers
Policy
No.
1076929,
in
Ontario.
I
would
dismiss
the
appeal.
MACLEAN,
J.A.:—The
issue
here
is
whether
the
proceeds
of
certain
life
insurance
policies
are
“property
.
.
.
situate
within
the
Province”
within
the
meaning
of
that
expression
as
it
appears
in
Section
6
of
the
Succession
Duty
Act,
R.S.B.C.
1960,
e.
372.
The
policies
are
described
in
the
succession
duty
return
made
by
the
executors
of
the
deceased
as
follows
:
The
proceeds
from
the
first
five
of
the
policies
were
held
by
the
learned
judge
below
to
be
property
outside
the
Province
and
assessable
acordingly,
but
the
proceeds
from
the
last
policy
were
held
to
be
property
within
the
Province.
The
Assessor
has
appealed
against
the
finding
that
the
‘first
five
policies
are
not
property
within
the
Province,
but
the
executors
have
not
appealed
against
the
finding
that
the
last
policy
namely
the
Travelers
policy
No.
1,656,651
is
property
within
the
Province.
The
facts
are
not
in
dispute
and
I
refer
to
the
learned
trial
judge’s
recital
of
the
facts
as
follows:
In
respect
of
one
policy,
namely,
Northwestern
Mutual
Life
Insurance
Company
Policy
number
1036452,
counsel
agreed
that
its
proceeds
had
wrongly
been
treated
as
property
within
British
Columbia.
But
as
regards
the
others,
namely,
New
York
Life
Insurance
Company
Policy
number
8064616
dated
October
21,
1921
and
Travellers
Insurance
Company
Policies
numbered
1076929
dated
December
21,
1924,
1298753,
1298754
and
1298755
dated
February
1,
1927
and
1656651
dated
September
10,
1931,
counsel
for
the
Minister
contended
that
because
those
companies
had
at
all
relevant
times
been
licensed
and
authorized
to
transact
insurance
in
the
Province,
their
proceeds
had
been
properly
treated.
Counsel
for
the
executors,
on
the
other
hand,
argued
that
because
the
monies.
payable
under
the
policies
were
recoverable
only
outside
the
Province,
those
monies
were
not
properly
classifiable
as
property
within
British
Columbia.
The
evidence,
including
Mrs.
Youngman’s
affidavit,
established
that
the
deceased
resided
in
British
Columbia
from
March
1927
until
1932
and
from
1954
until
his
death
here
in
1968;
and
that
not
long
after
his
death
his
will
was
duly
admitted
to
probate
in
this
Court
and
administration
of
his
estate
in
it
granted
to
his
executors
who
had,
in
their
affidavit
of
value
and
relationship
as
filed,
properly
included
the
above
mentioned
policies
in
the
assets
of
the
estate.
It
was
also
established
that
although
both
of
the
last-mentioned
insurance
companies
have
since
1913
been
licensed
and
therefore
authorized
to
transact
insurance
in
the
Province
(Insurance
Act;
Section
38),
their
policies
were
executed
by
them
at
and
provide
for
payment
of
the
insurance
monies
at
their
respective
home
offices
both
of
which
are
clearly
and
admittedly
outside
the
Province.
To
the
facts
as
found
by
the
learned
judge
below
I
add
the
undisputed
facts
that:
1.
The
deceased
Youngman
was
domiciled
in
British
Columbia
as
well
as
being
resident
in
British
Columbia
immediately
prior
to
his
death,
and
'2.
That
both
insurance
companies
had
assets
in.
British
Columbia
together
with
deposits
at
Ottawa
(available
for
policy-holders
in
British
Columbia)
sufficient
to
satisfy
the
claims
of
the
executors
on
the
policies
in
question.
The
following
sections
of
the
Insurance
Act,
R.S.B.C.
1960,
c.
197
as
amended
by
1961,
c.
29;
1962,
c.
29
;
1963,
c.
19
;
1964,
c.
24;
1965,
c.
19
;
1966,
c.
45
;
1969,
c.
11,
were
referred
to
by
counsel:
4.
This
Act,
except
as
hereinafter
provided,
applies
to
every
insurer
that
carries
on
any
business
of
insurance
within
the
Province
and
to
every
contract
of
insurance
made
or
deemed
to
be
made
within
the
Province.
9.
Every
contract
insuring
a
person
domiciled
or
resident
in
the
Province
at
the
date
thereof,
or
the
subject-matter
of
which
is
property
or
any
interest
in
property
situate
within
the
Province,
shall
be
deemed
to
be
made
in
the
Province
and
shall
be
construed
accordingly.
115.
(1)
Notwithstanding
any
agreement,
condition,
or
stipulation
to
the
contrary,
this
Part
applies
to
contract
made
in
the
Province
on
or
after
the
day
on
which
this
section
comes
into
force,
and,
subject
to
subsections
(2)
and
(3),
applies
to
a
contract
made
in
the
Province
before
that
day.
(2)
The
rights
and
interests
of
a
beneficiary
for
value
under
a
contract
that
was
in
force
immediately
prior
to
the
day
on
which
this
section
comes
into
force
are
those
provided
in
Part
IV
of
the
Insurance
Act
then
in
force.
(3)
Where
the
person
who
would
have
been
entitled
to
the
payment
of
insurance
money
if
the
money
had
become
payable
immediately
prior
to
the
day
on
which
this
section
comes
into
force
was
a
preferred
beneficiary
within
the
meaning
of
Part
IV
of
the
Insurance
Act
then
in
force,
the
insured
may
not,
except
in
accordance
with
that
Part,
(a)
alter
or
revoke
the
designation
of
a
beneficiary;
or
(b)
assign,
exercise
rights
under
or
in
respect
of,
surrender,
or
otherwise
deal
with
the
contract;
but
this
subsection
does
not
apply
after
a
time
at
which
the
insurance
money,
if
it
were
then
payable,
would
be
payable
wholly
to
a
person
other
than
a
preferred
beneficiary
within
the
meaning
of
that
Part.
149.
Regardless
of
the
place
where
a
contract
was
made,
an
action
on
it
may
be
brought
in
a
Court
by
a
resident
of
the
Province
if
the
insurer
was
authorized
to
transact
insurance
in
the.
Province
at
the
time
the
contract
was
made:
or
at
the
time
the
action
is
brought.
It
should
be
noted
that
both
Section
115
and
Section
149
are
found
in
Part
IV
headed
‘‘Special
Provisions
Relating
to
Life
Insurance’
’.
Counsel
agree
that
the
first
question
to
be
determined
is
whether
Section
149
applies
to
the
policies
in
question:
I
find
no
conflict
between
Section
115
and
Section
149.
In
any
event,
Section
149
which
appears
later
in
the
statute,
deals
with
a
specific
matter,
and
if
there
is
any
conflict
between
the:
two
sections,
it
seems
to
me
that
Section
149,
couched
as
it
is
in
explicit
terms,
is
entitled
to
application
unfettered
by
anything
said
in
Section
115.
The
next
question
then
is:
assuming
that
Section
149
applies
to
these
policies,
does
it
have
the
effect
in
the
circumstances
of
this
case
of
making
the
proceeds
of
the
policies
“
property
.
.
.
situate
within
the
Province’?
within
the
meaning
of
Section
6
of
the
Succession
Duty
Act?
At
this
point
it
might
be
useful
to
refer
to
the
facts
again.
The
policies
(not
being
under
seal)
were
taken
out
in
the
United
States
and
are
expressed
to
be
payable
there
but
1.
The
deceased
had
resided
in
British
Columbia
for
some
14
years
immediately
prior
to
his
death.
2.
He
was
domiciled
in
British
Columbia
and
that
i
is
where
his
executors
elected
to
take
out
probate.
3.
Section
149
of
the
Insurance
Act
made
the
policy
actionable
in
the
courts
here
by
a
resident
‘‘if
the
insurer
was
authorized
to
transact
insurance
in
the
Province
.
.
.
at
the
time
the
action
is
brought’’.
Of
course
here
the
insured
was
a
resident
and
the
insurer,
having
a
notional
residence
here,
was
authorized
to
transact
insurance
and
did
transact
insurance
here.
4.
Then
finally,
there
were
exigible
assets
of
the
insurers
within
the
Province.
Professor
Dicey
deals
with
the
situs
of
simple
contract
debts
at
page
432
of
the
3rd
edition
of
his
work
Conflict
of
Laws.
Sir
Ernest
Pollock,
M.R.
refers
to
the
passage
in
Dicey
at
pages
457
and
458
in
the
case
of
New
York
Life
Insurance
Company
v.
Public
Trustee
(1924),
83
L.
J.
Ch.
449.
The
learned
Master
of
the
Rolls
said
:
But,
without
dwelling
on
that,
I
turn
at
once
to
the
passage
contained
in
Professor
Dicey’s
Conflict
of
Laws,
in
which
he
lays
down
the
proposition
(3rd
ed.,
at
p.
432):
“in
other
words,
debts
or
choses
in
action
are
generally
to
be
looked
upon
as
situate
in
the
country
where
they
are
properly
recoverable
or
can
be
enforced.”
and
I
attach
great
importance
to
those
words—“where
they
are
properly
recoverable
or
can
be
enforced”—because
I
think
they
have
been
carefully
chosen
in
order
to
indicate
the
effect
of
a
number
of
decisions,
some
of
which
it
may
be
necessary
to
refer
to.
Now,
in
the
case
of
Att.-Gen.
v.
Sudeley
(Lord),
the
rules
laid
down
in
Bouwen’s
Case
appear
to
be
accepted,
and,
more
than
that,
what
is
said
by
Lord
Esher
is
(65
L.J.Q.B.,
at
p.
285;
[1896]
1
Q.B.,
at
p.
360)
:
“As
to
debts
due
to
the
testator
at
the
time
of
his
death,
the
rule
to
be
deduced
from
the
cases
is
that
if
the
debtor
is,
at
the
date
of
the
death
of
the
testator,
abroad,
and
the
debt
is
payable
only
abroad,
and
could
only
be
got
from
him
abroad,
either
by
some
act
to
be
done
there
or
some
proceeding
taken
there,
the
debt
is
a
foreign
asset;
but
if,
although
the
debtor
is
abroad,
a
legal
proceeding
could
be
taken
here,
which
would,
in
law,
directly
order
and
enforce
the
payment
here
of
the
debt,
then
the
debt
is
an
asset
there
liable
to
the
probate
duty.”
The
distinction
taken
being
that
there
could
be
proceedings
taken
over
here
which
would
result
in
the
payment
of
the
debt.
In
Hilliard
v.
Cox,
Lord
Holt,
C.J.,
said
(1
Ld.
Raym.
562)
:
“If
the
debtor
has
two
houses
in
several
dioceses,
and
at
the
time
of
the
death
of
the
debtee
and
commission
of
administration
is
inhabitant
and
resident
at
one
of
the
houses,
that
would.
exclude
the
jurisdiction
of
the
Ordinary
of
the
diocese
in
which
the
other
house
stood.”
In
other
words,
his
residence
in
one,
whichever
it
be,
at
the
relevant
date,
will
determine
the
locality
of
the
debt.
(My
italics.)
IT
should
add
that
the
New
York
Life
Insurance
Co.
was
one
of
those
companies
with
more
than
one
residence.
At
page
459
the
Master
of
the
Rolls
completed
his
remarks
on
the
question
of
situs
when
he
said:
I
do
not
refer
to
the
income
tax
cases,
or
other
tax
cases,
which,
I
think,
must
be
considered
closely
in
relation
to
the
terms
of
the
statute
upon
which
the
circumstances
arose
for
the
decision.
I
base
my
judgment
upon
the
fact
that,
even
accepting
that
there
are
two
residences
of
the
plaintiff
company,
the
particular
residence
at
which
this
debt
arose,
and
at
which
it
is
proposed
it
is
to
be
paid,
is
localised,
and
therefore,
in
accordance
with
the
terms
stated
in
Professor
Dicey’s
book,
in
this
case
the
debt
or
chose
in
action
may
be
looked
upon
as
situate
in
this
country,
because
it
is
the
country
where
it
is
properly
recoverable
and
can
be
enforced.
In
the
same
case,
Warrington,
L.J.,
in
dealing
with
this
subject
at
pages
460
and
461
said:
The
real
problem,
I
think,
is
not
that
the
rule
of
law
is
altered;
the
rule
of
law
still
remains
the
same,
and
the
criterion
is
the
residence
of
the
debtor;
but
in
the
peculiar
case
to
which
I
am
referring
it
is
necessary
to
say
which
of
several
residences
is
for
this
purpose
to
be
treated
as
the
residence
of
the
debtor.
The
only
way
of
settling
that
question
that
I
can
see
is
to
take
the
contract
which
creates
the
debt
and
look
at
that
and
see
whether,
having
A
J
regard
to
its
terms,
the
parties
have
themselves
selected
for
this
purpose
one
of
the
several
residences
in
question;
and
if
you
can
find
that,
then,
I
think,
that
that
place
which
they
have
selected
will
be
the
residence
for
the
purpose
of
determining
the
locality
of
the
debt.
The
New
York
Life
Insurance:
Co.
case
was
discussed
at
some
length
in
the
case
of
In
re
Lawton
Estate,
[1945]
2
W.W.R.
529,
and
it
was
held
by.
Bergman,
J.A.
and
Richards,
J.A.
that
the
provisions
of
the
Manitoba
Act
as
to
place
of
payment
override
the
provisions
of
the
policy.
In
this
case
the
legislature,
by
enacting
Section
149
of:
the
Insurance
Act,
has
in
effect
inserted
a
clause
in
the
insurance
contract
giving
the
insured
or
his
executor
the
right
to
recover
the
face
value
of
the
policy
here
in
this
Province.
It
may
well
be
that
the
representatives
of
the
deceased
could
if
they
wished
go
to
the
head
offices
of
these
companies
in
the
United
States
and
receive
payment
there.
It
seems
to
me
that
notwithstanding
this
circumstance
the
policy
has
been
“localized”
here
when
all
the
relevant
facts
are
considered
along
with
Section
149
of
the
Insurance
Act.
The
expression
“localized”
was
used
by
Lord
Robson
in
Rex
v.
Lovitt,
[1912]
A.C.
212,
when
he
said:
In
each
of
these
cases
the
Courts,
having
regard
to
the
necessary
course
of
business
between
the
parties,
held
that
the
bank
had
in
some
measure
localized
its
obligation
to
its
customer
or
creditor,
so
as
to
confine
it,
primarily
at
all
events,
to
a
particular
branch.
In
Rudolph
v.
Continental
Life
Insurance
Co.,
[1915]
9
O.W.N.
327
at
328,
Middleton,
J.
held
that
a
provision
in
an
Alberta
statute
making
the
policy
monies
payable
in
Alberta
in
effect
became
part
of
the
policy.
The
decision
of
Ewing,
J.
in
the
Corlet
Estate
case,
[1939]
2
W.W.R.
478,
is
to
the
same
effect.
Atkin,
L.J.,
in
dealing
with
the
subject
of
situs
in
the
New
York
Life
Insurance
Co.
case
said
:
It
appears
to
me
that
the
true
view
is
that
the
corporation
resides
for
the
purposes
of
suit
in
as
many
places
as
it
carries
on
business,
and
it
is
to
be
noticed
that
in
ordinary
cases
where
an
obligation
is
entered
into
by
the
corporation
without
any
particular
limits
of
the
place
where
it
is
payable,
inasmuch
as
that
obligation
is
an
ordinary
personal
obligation
which
follows
the
person,
you
have
in
each
jurisdiction
a
right
to
sue
the
corporation
there;
the
corporation
is
resident
there,
and
the
obligation
is
enforceable
there.
Under
ordinary
circumstances
the
debt
would
be
situate
in
each
place
where
the
corporation
can
be
found.
There
are
cases
where
Courts
have
treated
as
significant
the
place
where
the
policy
was
taken
out.
In
the
case
at
bar,
however,
I
am
spared
the
necessity
of
discussing
these
cases
because
of
the
opening
words
of
Section
149
which
precede
the
déclara-
tion
that.
an
action
on
the
policy
may
be
brought
in
Court
here.
I
refer
of
course
to
the
words
:
Regardless
of
the
place
where
a
contract
was
made
.
.
.
The
legislature
has
declared
that
the
place
where
the
contract
was
made
is
irrelevant;
at
least
the
place
where
the
policy
was
taken
out
cannot
interfere
with
the
right
of
a
policy-holder
to
sue
in
the
Province.
In
my
view
the
proceeds
of
the
policies
are
property
within
the
Province.
I
would
allow
the
appeal
and
direct
that
the
Assessor’s
original
assessment
be
restored.
The
Assessor
is
entitled
to
his
costs
both
here
and
in
the
Court
below.
Email this Content