DUMOULIN,
J.:—This
is
an
appeal
from
the
respondent’s
confirmation
of
a
re-assessment,
on
August
25,
1965,
levying
an
estate
tax
in
the
net
amount
of
$250,390.60,
in
respect
of
the
estate
of
the
late
Agnes
Henry
Wilson,
in
her
lifetime
of
the
City
of
Montreal,
wife
of
Robert
George
Sare
of
the
same
place.
Mrs.
Agnes
Henry
Wilson-Sare
(hereinafter
called
‘‘the
deceased”)
died
on
January
26,
1963,
leaving
a
last
will
and
testament
dated
June
15,
1945,
executed,
in
authentic
form,
before
Dakers
Cameron
and
colleague,
Notaries
(Ex.
C).
By
said
will,
the
deceased
appointed
the
appellants
and
her
husband,
Robert
George
Sare,
as
her
testamentary
executors.
Mr.
Sare
died
on
September
24,
1965,
and
has
not
been
replaced
as
an
executor.
The
instant
litigation
concerns,
(1)
the
property
valued,
when
the
deceased
died,
at
$986,593.11,
being
her
share
in
the
estate
of
her
father,
the
late
James
Reid
Wilson,
a
wealthy
metal
merchant
of
the
City
of
Montreal,
and
(2)
certain
other
property
valued,
at
date
of
death,
at
$113,054.03,
given
(inter
vivos)
by
Deed
of
Donation
to
the
Royal
Trust
Company
in
trust
for
the
deceased;
said
Deed
executed
before
J.
A.
Cameron,
Notary,
on
December
17,
1912.
Paragraph
3
of
the
Notice
of
Appeal
imparts
the
material
information
as
follows:
“3.
The
deceased’s
father,
the
late
James
Reid
Wilson
.
.
.
who
died
on
11th
May,
1914,
left
a
Last
Will
and
Testament
dated
11th
December,
1912,
executed
before
John
Fair
and
colleague,
Notaries,
by
which,
after
bequeathing
certain
particular
legacies,
he
bequeathed
the
residue
of
his
property
to
his
children,
in
equal
shares,
thereby
instituting
them
his
universal
residuary
legatees,
adding,
however,
that
the
share
of
each
of
his
daughters
should
be
retained
in
the
hands
of
his
Executors,
(i.e.,
his
wife,
their
son,
John
Wilson,
Mr.
James
M.
Robertson
and
the
Royal
Trust
Company;
cf.
exhibit
A,
thirteenth
clause)
during
her
lifetime
and
only
the
revenue
thereof
paid
to
her
and,
with
respect
to
the
share
of
his
daughter
the
deceased,
he
provided
as
follows:
(The
eighth
paragraph
of
the
tenth
clause,
exhibit
A.)
The
capital
of
the
share
of
my
daughter
AGNES
HENRY
WILSON
(Mrs.
R.
G.
SARE),
shall
be
disposed
of
after
her
death
in
the
following
manner:
Should
she
die
without
issue
surviving
her,
one
fourth
of
her
share
shall
belong
to
her
husband,
if
living,
and
the
remaining
three-fourths
shall
belong
to
her
brothers
and
sisters,
in
equal
shares.
Should
she
die
leaving
issue
surviving
her
which
live
to
be
six
months
old,
the
capital
of
her
share
shall
be
disposed
of
after
her
death
in
such
manner
as
she
may
direct
by
will,
or
should
she
die
intestate
it
shall
belong
to
her
heirs-at-
law.
The
donation
to
be
made
by
me
to
THE
ROYAL
TRUST
COMPANY
for
the
benefit
of
my
said
daughter,
AGNES
HENRY
WILSON,
shall
be
considered
as
a
payment
to
my
daughter
in
advance
on
account
of
her
share
in
my
estate
and
in
the
division
of
my
estate
the
TRUST
PROPERTY
mentioned
in
the
said
Deed,
or
the
securities
representing
the
same
at
the
time
of
my
death,
shall
be
considered
as
of
the
value
of
FIFTY
THOUSAND
DOLLARS?
”’
The
fifth
clause
of
the
Deed
of
Donation,
for
all
purposes
an
appendix
to
the
late
James
Reid
Wilson’s
last
will
and
testament,
provides
that:
‘‘In
the
event
of
the
said
Dame
Agnes
Henry
Wilson
(Mrs.
R.
G.
Sare)
surviving
said
Donor,
she
shall
have
the
absolute
right
to
dispose
of
the
said
Trust
Property
by
her
Will
in
such
manner
as
she
may
deem
advisable,
and,
failing
so
doing,
the
same
shall
at
her
death
pass
to
her
heirs-at-law.’’
(Italicized
words
throughout
these
notes
not
in
original
text.
)
On
appellant’s
behalf,
it
is
contended
that
the
deceased
never
was
competent
to
dispose
of
her
property
mentioned
in
paragraphs
5
and
8'
of
the
Notice
of
Appeal,
within
the
meaning
of
the
Estate
Tax
Act,
and,
also,
‘‘that
in
any
event,
the
deceased
was
not,
immediately
prior
to
her
death,
competent
to
dispose
of
said
property’’.
As
could
be
expected,
the
respondent
takes
a
categorically
opposite
view
of
the
matter,
assuming
that
(cf.
Reply
to
Notice
of
Appeal)
:
“9.
.
.
.
(a)
Agnes
Henry
Wilson
was,
immediately
prior
to
her
death,
competent
to
dispose
of
her
share
of
the
capital
mentioned
in
Clause
10
of
the
Will
made
by
her
father,
dated
December
11,
1912;
(b)
Agnes
Henry
Wilson
was,
immediately
prior
to
her
death,
competent
to
dispose
of
the
trust
property
referred
to
in
Clause
5
of
the
Deed
of
Donation
made
by
her
father
and
dated
December
17,
1912.”
Both
parties
rest
their
case
on
the
differing
interpretation
each
attaches
to
Sections
3(1)
(a),
3(2)
(a)
and
58(1)
(i)
of
the
Estate
Tax
Act,
1958,
7
Elizabeth
IT,
c.
29,
enacting
that:
“3.
(1)
There
shall
be
included
in
computing
the
aggregate
net
value
of
the
property
passing
on
the
death
of
a
person
the
value
of
all
property,
wherever
situated,
passing
on
the
death
of
such
person,
including,
without
restricting
the
generality
of
the
foregoing,
(a)
all
property
of
which
the
deceased
was,
immediately
prior
to
his
death,
competent
to
dispose;
3.
(2)
For
the
purposes
of
this
section,
(a)
a
person
shall
be
deemed
to
have
been
competent
to
dispose
of
any
property
if
he
had
such
an
estate
or
interest
therein
or
such
general
power
as
would
if
he
were
sui
juris,
have
enable
him
to
dispose
of
that
property.
58.
(1)
In
this
Act,
(i)
‘general
power’
includes
any
power
or
authority
enabling
the
donee
or
other
holder
thereof
to
appoint,
appropriate
or
dispose
of
property
as
he
sees
fit,
whether
exercisable
by
instrument
‘inter
vivos
or
by
will
or
both,
but
does
not
include
any
power
exercisable
in
a
fiduciary
capacity
under
a
disposition
not
made
by
him,
or
exercisable
as
a
mortgagee.’’
Obviously,
the
undersigned’s
sole
research
consists
in
determining
whether
or
not
the
means
of
disposal,
bestowed
upon
the
deceased
by
her
father’s
will
and
deed
of
donation,
vested
Agnes
Henry
Wilson
with
that
general
power
of
disposition
defined
in
the
Act.
Since
the
deceased
survived
her
father
by
no
less
than
49
years
and,
at
her
death,
left
three
children,
respectively
52,
50
and
48
years
old,
my
investigation
narrows
down
to
the
appraisal
of
the
latitude
or
freedom
of
action
extended
to
Mrs.
Agnes
Henry
Wilson-Sare
by
such
clauses,
as
in
her
author’s
will:
“!Should
she
die
leaving
issue
surviving
her
which
live
to
be
six
months
old,
the
capital
of
her
share
shall
be
disposed
of
after
her
death
in
such
manner
as
she
may
direct
by
mil
.
.
.”
and
in
the
Deed
of
Donation,
as:
‘‘In
the
event
of
the
said
Dame
Agnes
Henry
Wilson
surviving
said
Donor
(her
father,
James
Reid
Wilson)
she
shall
have
the
absolute
right
to
dispose
of
the
said
Trust
Property
by
her
Will
in
such
manner
as
she
may
deem
advisable."
It
would
seem
to
me
that
no
feat
of
imagination
is
required
to
read
into
those
plain,
unambiguous
directives
the
conference
on
the
donee
and
heir-to-be
of
an
untrammelled
liberty,
a
general
power,
under
the
conditions
prescribed,
of
bequeathing
such
property
by
will
and
testament
‘‘as
she
saw
fit’’.
And
we
have
just
seen
that
the
enabling
requirements:
survival
and
living
issue,
were
fully
realized.
Yet,
I
do
not
intend
disposing
of
the
case
in
this
summary
fashion,
especially
after
the
decision
of
the
Supreme
Court,
reversing
me,
in
Montreal
Trust
Company
et
al.
(Robert
New-
march
Hickson
Estate)
v.
M.N.R.,
[1964]
S.C.R.
647
at
648-
649-650-651-652
;
[1964]
C.T.C.
367.
Furthermore,
it
might
be
apposite
to
attentively
peruse
prior
decisions
of
the
courts,
and
also
some
of
the
text
writers’
views
of
the
qualifying
conditions
inherent
in
a
‘‘general
power’’.
In
the
case
above,
Robert
Newmarch
Hickson’s
mother,
Lady
Hickson,
predeceased
him
leaving
a
will
in
notarial
form,
article
IX
of
which
expressed
the
following
condition
:
“I
direct
that
one-half
of
the
share
of
my
son
Robert
New-
march
Hickson
in
the
residue
of
my
Estate,
less
the
sum
of
Forty
Thousand
Dollars
which
I
have
given
him
some
years
ago,
shall
belong
to
him
in
absolute
ownership,
and
the
other
half
of
his
share
I
give
and
bequeath
the
usufruct
thereof
during
his
lifetime
to
my
said
son
Robert
Newmarch
Hickson
and
the
ownership
to
the
children
of
my
said
son,
and
if
he
leaves
no
children,
to
his
heirs,
legal
or
testamentary.”’
Domiciled
in
the
Province
of
Quebec,
Robert
N.
Hickson
died
in
June,
1960,
survived
by
his
widow,
but
leaving
no
issue
as
the
marriage
had
remained
childless.
He
left
a
will
in
authentic
or
notarial
form,
executed
on
October
27,
1959,
appointing
the
Montreal
Trust
and
others
his
executors.
With
the
exception
of
a
few
particular
legacies,
Hickson
gave
the
residue
of
his
property
to
Dame
Orian
Hays,
his
widow.
The
pertinent
clause
was
drafted
in
these
words:
‘
And
all
the
rest,
residue
and
remainder
of
the
property
real
and
personal,
moveable
and
immoveable
of
every
sort,
nature
and
description
of
which
I
may
die
possessed
or
in
which
I
may
have
any
interest,
or
over
which
I
may
have
the
power
of
appointment
or
disposal
(including
any
lapsed
legacies)
I
give
and
bequeath
to
my
wife,
the
said
Dame
Orian
Hays
Hickson
as
her
absolute
property.’’
The
legal
consequences
of
those
successive
testamentary
dispositions
were,
by
the
Supreme
Court’s
decision,
held
to
be
that:
“.
.
.
Robert
Newmarch
Hickson
was
the
institute
of
the
substitution;
that
its
opening
took
place
at
his
death,
and
that
had
he
left
children
him
surviving
they
would
have
been
the
substitutes.
’
’
Cartwright,
J.,
speaking
for
the
Court,
next
pursued
:
‘With
respect,
I
am
unable
to
agree
with
the
learned
trial
judge
that
the
substitution
lapsed.
The
will
of
Lady
Hickson
provided
for
the
possibility
of
the
institute
dying
without
children
and
in
that
event,
which
happened,
named
as
substitutes
his
heirs
legal
or
testamentary’.
By
the
residuary
clause
of
his
will,
quoted
above,
his
widow
was
constituted
the
testamentary
heir
of
Robert
Newmarch
Hickson
;
the
character
of
the
gift
to
her
in
this
clause
is
that
of
a
universal
legacy
.
.
.
His
widow,
as
substitute,
took
the
fund
directly
from
the
grantor,
Lady
Hickson,
and
not
from
the
institute
her
husband.”
Accordingly,
Robert
N.
Hickson
having
constituted
his
wife
universal
legatee
and,
therefore,
his
testamentary
heir,
this
lady
took
the
fund
‘‘not
through
the
exercise
of
any
power
given
to
Robert
Newmarch
Hickson,
but
because
Lady
Hickson
has
designated
as
substitute
his
testamentary
heir’’.
Presently,
the
circumstances
are
at
complete
variance
with
those
above-stated.
There
is
not,
in
any
of
the
provisions
revealing
the
testatordonor’s
intentions,
the
faintest
trace
of
a
substitution,
nothing
else
than,
in
James
Reid
Wilson’s
testament,
‘‘.
.
.
the
capital
of
her
share
shall
be
disposed
of,
after
her
death,
in
such
manner
as
she
may
direct
by
will
;
and
in
the
deed
of
donation,
the
unlimited
grant
of
‘‘.
.
.
the
absolute
right
to
dispose
of
the
said
Trust
Property
by
her
will
in
such
manner
as
she
may
deem
advisable
.
.
.”.
Any
anticipation,
in
each
of
the
covenants,
of
the
possibility
of
Mrs.
Agnes
Henry
Wilson
dying
intestate,
in
which
event
the
property
would
belong
to
her
heirs-at-law,
merely
is
a
redundant
repetition
of
the
general
law,
formulated
by
Article
597
of
the
Civil
Code.
Although
such
empowering
terms
leave
but
little
room
for
doubting
that
they
were
intended
to
invest
the
deceased,
in
the
fullest
measure,
with
the
general
power
of
disposition
required
by
Section
3(2)
(a)
and
defined
by
Section
58(1)
(i)
of
the
Act,
I
will,
nevertheless,
add
to
these
obvious
reasons
the
comments
of
two
well-known
authors.
I
am
now
quoting
from
Loffmark:
Estate
Taxes,
1960,
pp.
163-164
:
“For
the
purposes
of
the
Estate
Tax
Act,
a
power
is
general
if
the
donee
can
make
the
subject-matter
his
own
or
if
he
is
competent
to
dispose
of
property
‘as
he
sees
fit’.
.
.
.
It
would
also
appear
that
the
words
in
section
58(1)
(i)
‘as
he
sees
fit’,
refer
to
the
disposal
of
the
property
and
not
to
the
form
of
disposal;
so
that
a
power
for
this
purpose,
would
not
be
the
less
a
general
power
because
some
special
reference
to
the
power
was
required,
or
because
the
date
on
which
the
appointment
was
to
take
effect
was
fixed
by
the
donor
of
the
power.
’
’
We
read
in
Jameson:
Canadian
Estate
Tax,
1960,
pp.
118,
120,
121:
“A
power
which
is
given
to
a
person
who
may
appoint
in
favour
of
anyone,
including
himself,
is
general.
A
special
power
is
one
in
which
the
donee
of
the
power
is
limited
in
the
exercise
of
the
power
to
appoint
only
in
favour
of
persons
in
a
limited
class
or
group
or
certain
specified
individuals.’’
It
should
be
noted
that
‘‘General
Power’’,
as
outlined
in
Section
58(1)
(i),
makes
no
specific
mention
of
the
donee’s
or
property
holder’s
right
of
appointing
to
himself,
which,
necessarily,
could
not
arise
in
connection
with
a
testament.
The
statute
decrees
that
a
‘‘general
power’’
includes
any
authority
to
dispose
of
property
as
the
donee
or
holder
sees
fit,
such
power
exercisable,
as
in
the
instant
case,
by
will.
The
aforesaid
treatise
next
goes
on
to
say
that:
“In
the
case
of
a
general
power
it
is
considered
by
the
legislature
that
such
a
power
in
the
hands
of
the
donee
(or
holder
of
property)
amounts
to
ownership
of
the
property
comprised
in
the
power.”
The
following
lines
apply
perfectly
to
the
matter
at
bar:
“A
donor
in
creating
a
power
may
state
that
the
power
may
be
exercised
by
will
or
by
deed
inter
vivos,
but
the
exercise
of
a
power
by
will
is
none
the
less
general
with
that
limitation,
for
although
the
donee
is
unable
to
bring
the
property
into
his
own
possession
during
his
lifetime,
he
has
complete
power
of
disposal
of
it
upon
his
death.
In
Prov.
Sec.-Treas.
of
N.B.
v.
Schofield,
a
testator
devised
property
to
his
sister
for
life,
and
after
her
death
to
such
person
or
persons
as
she
should
by
will
appoint.
It
was
held
that
the
sister
had
a
general
power
of
appointment
as
the
objects
of
the
power
derived
their
benefit
from
the
sister
and
not
from
the
testator,
and
consequently
they
were
taxable
in
the
sister’s
estate.”
What
precedes
offers
instances
of
the
current
application,
rather
self-evident
should
I
say,
of
a
general
power,
or,
better
still,
of
the
literal
exercise
of
Section
58(1)
(i).
The
interpretation
obtaining
extends,
however,
far
beyond
these
clear-cut
precedents,
according
to
the
writer’s
opinion
and
authorities
referred
to
in,
again,
Jameson’s
Canadian
Estate
Tax
(supra)
(pages
120-121)
:
“But
a
power
may
still
be
general
if
the
consent
of
some
person
is
required
to
the
act
of
exercising
it.
In
Re
Phillips
the
donee
had
a
power
to
appoint
trust
funds
to
such
persons
as
he
should
designate,
subject
to
the
consent
of
the
trustees,
the
appointment
to
take
effect
upon
his
death.
It
was
held
that
the
consent
of
the
trustees
did
not
fetter
the
donee’s
selection
of
objects
of
the
power,
and
it
was
a
general
power.
But
if
the
consent
required
relates
to
the
selection
of
the
objects
of
the
power,
then
it
is
a
special
power
and
not
within
the
terms
of
the
section.
In
Drake
v.
A.-G.,
a
case
under
s.
7
of
the
English
Legacy
Duty
Act,
1796,
it
was
held
that
the
exclusion
by
the
donor
of
certain
persons
from
the
benefit
of
the
exercise
of
an
otherwise
general
power
did
not
prevent
the
power
from
being
general.”
Sufficient
material
has
been
adduced,
I
humbly
believe,
to
conclude
that
the
deceased,
Mrs.
Agnes
Henry
Wilson-Sare,
“immediately
prior
to
her
death’’
(and
long
before)
had
‘‘such
general
power’’
and
authority
to
appoint
and
dispose
of
the
property
bequeathed
and
donated
to
her
by
James
Reid
Wilson,
her
father,
as
enabled
her
to
exercise,
in
a
will,
this
general
power
‘‘as
she
saw
fit”,
in
her
own
right
and
not
in
a
fiduciary
capacity.
For
the
reasons
above
this
appeal
is
dismissed
and
the
respondent
entitled
to
recover
all
legal
costs
after
taxation.
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