POTTER,
J.:—This
is
an
appeal
from
a
decision
of
the
Minister
of
National
Revenue
under
Section
38
of
the
Dominion
Succession
Duty
Act,
R.S.C.
1952,
c.
89,
whereby
he,
following
a
notice
of
appeal
from
his
assessment
of
the
amounts
of
duties
upon
or
in
respect
to
successions
to
property
under
the
last
will
and
testament
of
James
Francis
Weston,
deceased,
affirmed
the
said
assessment.
James
Francis
Weston,
late
of
the
City
of
Toronto,
in
the
County
of
York
and
Province
of
Ontario,
died
on
or
about
the
3rd
day
of
August,
1950,
having
duly
made
his
last
will
and:
testament,
of
which
letters
probate
were
issued
to
the
executors
therein:
named,
out
of
the
Surrogate
Court
of
the
said
County
of
York
on
the
4th
day
of
October,
1950.
At
the
date
of
his
death
the
aggregate
net
value
of
the
estate,
of
the
deceased,
as
determined
by.
the
respondent,
was
$302,521.57.
The
will
of
the
deceased
contained
the
following
relevant
provisions
:.
.
“II.
I
appoint
National
Trust
Company,
Limited
to
be
the
executor
of
my
will
and
trustee
of
my
estate,
and
I
hereinafter
refer
to
them
as
my
trustees.’’
“IV.
I
give,
devise
and
bequeath
all
my
property,
both
real
and
personal
and
wheresoever
situate,
including
any
property
over
which
I
may
have
any
power
of
appointment,
to
my
trustees
to
hold
upon
the
following
trusts:
(a)
To
deliver
to
my
wife,
Bessie
P.
D.
Weston,
for
her
own
use
absolutely
all
articles
of
personal,
domestic
and
household
use
or
ornament
belonging
to
me,
all
my
furniture,
books,
plate,
pictures,
provisions,
consumable
stores
and
household
effects
of
every
kind,
and
any
or
all
automobiles
and
accessories
thereto
which
at
the
time
of
my
death
shall
belong
to
me
and
be
in
or
about
or
belonging
to
or
used
in
connection
with
my
home.”
Then
followed
directions
with
reference
to
the
provision
of
a
home
for
his
wife
as
in
their
absolute
and
uncontrolled
discretion
his
trustees
might
consider
advisable
from
time
to
time
and
directions
with
reference
to
the
realization
of
his
estate,
with
power
to
his
trustees
to
sell,
call
in,
and
convert
into
money
in
their
discretion
any
part
or
parts
thereof,
or
to
postpone
such
conversion,
etc.,
and
clauses
IV
(d)
and
(e)
were
as
follows
:
“(d)
Out
of
my
general
estate
to
pay
all
my
just
debts,
funeral
and
testamentary
expenses,
and
all
succession
duties
and
inheritance
and
death
taxes
that
may
be
payable
in
connection
with
any
insurance
or
any
gift
or
benefit
given
by
me
to
any
person
either
in
my
lifetime
or
by
survivorship,
or
by
this
my
will
or
any
codicil
thereto,
to
the
intent
that
the
respective
beneficiaries
of
any
such
gift
or
benefit
shall
receive,
hold
and
enjoy
the
same
free
from
payment
of
any
succession
duties
or
death
taxes,
except
to
the
extent
that
payment
of
succession
duties
or
inheritance
or
death
taxes
as
aforesaid
will
reduce
the
residue
of
my
estate
to
be
dealt
with
as
hereinafter
set
forth.
I
authorize
and
empower
my
trustees
to
commute
any
duties
or
taxes
which
may
be
payable
in
respect
of
any
interest
in
expectancy.
“(e)
To
pay
to
Helen
Smith
the
sum
of
tw
enty-five
hundred
dollars
($2500.00)
if
at
the
time
of
my
death
she
is
employed
as
a
member
of
my
household
staff.”
Clause
IV(f)
directed
his
trustees
to
invest
the
residue
of
his
estate
in
investments
permitted
for
trust
funds
and
to
pay
the
income
from
all
of
the
said
residue
to
his
wife
during
hér
natural
life
with
power
to
apply
in
their
discretion
such
part
of
the
capital
of
the
estate
as
they
might
deem
advisable
for
the
maintenance
or
general
benefit
of
his
wife.
Then
followed:
“Upon
the
death
of
my
wife
or
upon
my
death
if
my
wife
shall
have
predeceased
me
to
divide
the
residue
of
my
estate
then
remaining
into
ten
(10)
equal
shares
and
to
deal
with
the
said
shares
as
follows:
(i)
Five
of
such
equal
shares
to
be
held
for
Claire
Weston
Clark,
daughter
of
his
deceased
niece
Marion
Clark.
(11)
One
of
such
equal
shares
to
be
held
for
Mary
Weston,
daughter
of
Lottie
and
the
late
J.
Francis
Weston.
(iii)
One
of
such
equal
shares
to
be
paid
to
his
nephew
Bruce
V.
Weston.
(iv)
One
of
such
equal
shares
to
be
paid
to
his
nephew
Charles
Weston.
(v)
One
of
such
equal
shares
to
be
paid
to
his
niece
Ethel
Hamilton.
(vi)
One
of
such
equal
shares
to
be
paid
to
Lottie
Weston,
widow
of
his
nephew
J.
Francis
Weston.’’
In
the
cases
of
Claire
Weston
Clark
and
Mary
Weston
provision
was
made
for
the
investment
of
their
shares
and
the
payment
of
the
income
therefrom
to
them
in
monthly
or
periodic
instalments
until
they
attain
the
age
of
thirty
years,
when
the
capital
of
such
shares
is
to
be
paid
over
to
them
with
power
to
make
advances
from
the
corpus
in
each
case.
Provisions
were
also
made
to
take
effect
in
the
event
of
the
deaths
of
the
beneficiaries
if
they
should
predecease
the
testator
or
his
wife,
leaving
issue,
etc.
On
October
3,
1950,
the
executors
filed
succession
duty
returns
as
follows:
(1)
Statement
of
Value
and
Relationship;
Form
SD
1
and
attached
schedules;
(2)
Statement
of
Debts;
Form
SD
14;
(3)
Last
Will
and
Testament
of
James
Francis
Weston,
dated
the
22nd
day
of
December,
A.D.
1949.
An
estimate
or
tentative
assessment,
form
SD
1-C,
mailed
by
the
respondent
September
19,1951,
was
marked
‘‘
Exhibit
2”
and
showed
in
its
heading
the
following
:
Aggregate
Net
Value—$302,521.57
District
of
Toronto.
Initial
Rate
9%
Ageregate
Net
Value
...
$297,349.01
Add:
Refund
on
Fishing
Licence
180.00
Value
of
Real
Estate
in
New
Brunswick
800.00
298,329.01
Less*.
Cost
of
Monument
487.44
297,841.57
Add:
Gifts
inter
vivos
|
Bruce
V.
Weston
|
.-
$
400.00
|
|
|
Sadie
Weston
|
3,230.00
|
|
|
Mary
Weston
|
650.00
|
|
|
Lottie
Weston
|
200.00
|
|
|
C.
W.
Clark
|
200.00
|
4,680.00
|
|
Revised
Aggregate
Net
Value
|
.-
$302,521.57
|
Then
followed
the
values
of
the
successions
to
the
widow,
Bessie
P.
D.
Weston,
of
Class
‘‘A’’,
totalling
$164,754.53,
of
which
$20,000.00
was
exempt
from
duty,
leaving
a
dutiable
succession
to
her
of
$144,754.53,
to
which
an
additional
rate
of
14.4,
or
a
total
rate
of
23.4
per
cent
was
applied,
resulting
in
a
duty
of
$33,872.56.
In
the
case
of
the
legacy
of
$2,500.00
to
the
appellant
Miss
Helen
Smith,
a
stranger
in
blood
shown
as
Class
“
D
”,
an
additional
rate
of
5.2
per
cent
or
a
total
rate
of
4.2
per
cent
was
applied,
resulting
in
a
duty
of
$355.00.
Then
followed
statements
of
the
gifts
inter
vivos
and
the
shares
of
the
remainder
held
in
abeyance.
In
the
case
of
the
gift
inter
vivos
of
$3,230.00
to
the
appellant
Sadie
Weston,
sister-in-law,
Class
‘‘D’’,
an
additional
rate
of
5.4
per
cent
or
a
total
rate
of
14.4
per
cent
was
applied,
resulting
in
a
duty
of
$465.12.
The
total
duty
claimed
by
this
document,
as
an
estimate
only,
was
$34,692.68.
On
January
15,
1952,
a
second
SD
1-C
was
made
and
sent
by
the
respondent
to
the
executors,
which
showed
adjustments
in
the
successions
to
the
widow
by
which
the
total
value
of
the
same
was
reduced
to
$154,850.39,
but
to
which
were
added
the
following
amounts
:
|
Ontario
Duties
|
$16,846.37
|
|
Dominion
Duties
|
17,454.75
|
|
$45,301.12
|
This
was
an
increase
of
$428.56
over
the
duty
shown
on
the
statement
of
September
19,
1951,
chargeable
on
the
succession
to
the
widow,
of
$33,872.56.
By
these
calculations
the
value
of
the
successions
to
the
widow
was
increased
from
$164,754.53
to
$189,151.51,
of
which
$20,000.00
was
exempt
from
duty,
leaving
a
dutiable
amount
of
$169,151.51,
to
which
was
applied
the
additional
rate
of
15.4
per
cent
or
a
total
rate
of
24.4
per
cent,
resulting
in
a
duty
on
the
widow’s
succession
of
$41,272.97.
To
the
succession
of
Miss
Helen
Smith,
Class
‘‘D’’,
were
added
Ontario
duties
of
$693.00
and
Dominion
duties
of
$182.94,
increasing
the
value
of
her
succession
to
$3,375.94,
to
which
an
additional
rate
of
5.4
per
cent
or
a
total
rate
of
14.
4
per
cent
was
applied,
resulting
in
a
duty
of
$486.14.
The
values
of
the
shares
in
the
remainder
held
in
abeyance
were
reduced
accordingly.
The
gift
to
Sadie
Weston,
Class
‘‘D’’,
of
$3,230.00
was
increased
by
the
addition
of
Dominion
duty
amounting
to
$239.67,
making
a
dutiable
succession
of
$3,469.67,
to
which
an
additional
rate
of
5.6
per
cent
or
a
total
rate
of
14.6
per
cent
was
applied,
resulting
in
a
duty
of
$506.57.
The
total
duty
claimed
by
this
document
was
$42,265.68,
which
is
the
amount
of
duty
claimed
by
the
Notice
of
Assessments
mailed
February
12,
1952.
It
was
submitted
on
behalf
of
the
appellants
that
the
amount
of
money
required
to
pay
succession
duty
on
a
gift
given
free
of
duty
18
not
a
succession
and
that,
therefore,
the
Act
does
not
authorize
the
respondent
to
add
to
a
duty-free
gift
the
amount
of
money
required
to
pay
that
duty
and
calculate,
at
an
increased
additional
rate,
duty
on
the
sum
of
the
two.
In
the
consolidated
appeals
of
Hospital
for
Sick
Children
of
the
City
of
Toronto
v.
Minister
of
National
Revenue
and
Executors
and
Trustees
under
the
Will
of
George
James
Arlow,
Deceased
v.
M.N.R.,
[1954]
C.T.C.
171,
in
which
judgment
was
filed
on
May
28,
1954,
it
was
held
that
a
gift
free
of
duty
is
two
gifts,
one,
the
subject
matter
of
the
gift
and
the
other,
a
legacy
of
the
sum
required
to
pay
the
duty
thereon,
and
that
duty
is
assessable
on
the
sum
of
the
two
as
one
succession,
but
that
the
Act
does
not
authorize
further
calculations
of
duty
upon
duty.
In
the
case
now
under
consideration
the
values
of
the
duty-free
gifts
were
determined
by
the
respondent,
the
amounts
of
money
required
to
pay
the
duty
thereon
calculated
and
added
to
the
determined
values
of
the
successions
and
duty
calculated
on
the
totals,
but
the
respondent
made
no
further
calculations
of
duty
on
duty.
The
assessment
is,
therefore,
in
accordance
with
the
judgment
in
the
appeals
arising
out
of
the
will
of
the
said
George
James
Arlow.
The
additional
cases
cited
and
the
distinctions
made
between
the
provisions
of
the
English
statutes
and
the
Dominion
Succession
Duty
Act
have
been
considered
and
the
authorities
reviewed
in
the
judgment
in
the
appeals
arising
out
of
the
will
of
George
James
Arlow
reconsidered
in
the
light
of
arguments
of
counsel,
but
I
have
been
unable
to
reach
different
conclusions.
The
appeal
must
therefore
be
dismissed
with
costs.
Judgment
accordingly.
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