MACLEAN
J.:—This
is
an
appeal
from
the
decision
of
the
Minister
of
National
Revenue
affirming
an
assessment,
made
under
the
Income
War
Tax
Act,
R.S.C.
1927,
c.
97,
in
respect
of
certain
income
received
and
accumulated
by
certain
trustees
pursuant
to
the
terms
of
the
last
will
and
testament
of
James
Cosman,
late
of
Meteghan
in
the
County
of
Digby
in
the
Province
of
Nova
Scotia.
The
said
income
was
assessed
on
the
ground
that
the
same
was
accumulating
in
trust
for
the
benefit
of
unascertained
persons,
or
of
persons
with
contingent
interests,
within
the
meaning
of
s.
11
(2)
of
the
Income
War
Tax
Act.
By
his
will
dated
November
7,
1910,
and
a
codicil
thereto
dated
June
29,
1911,
the
said
Cosman
made
provision
for
certain
bequests
and
legacies.
He
then
provided
that
his
executors,
after
settling
the
estate,
should
hand
over
the
residue
thereof
to
three
trustees
to
be
appointed
by
the
Roman
Catholic
Archbishop
of
Halifax,
Nova
Scotia,
to
be
held
by
them
in
trust
and
invested
in
such
securities
as
may
from
time
to
time
be
authorized
by
law
for
trust
investments.
From
the
income
of
these
investments
the
trustees
were
to
pay
certain
terminable
annuities
and
certain
perpetual
annuities
to
certain
specified
persons
and
institutions.
Upon
the
termination
of
the
personal
annuities
the
accumulated
funds
of
the
estate
were
to
be
divided
into
two
equal
parts,
one
of
which
was
to
be
paid
over
by
the
trustees
to
three
other
trustees
to
be
appointed
by
the
Roman
Catholic
Bishop
of
Raphoe,
County
Donegal,
Ireland,
‘
"
to
hold
and
manage
the
fund
so
paid
over
to
them.’’
The
remaining
half
of
the
funds
was
to
be
retained
in
Nova
Scotia,
to
be
kept
invested
by
the
Nova
Scotia
trustees
and
one
half
of
the
income
arising
therefrom
was
to
be
used
by
them
"‘for
the
benefit
of
the
poor
and
needy
in
Nova
Scotia,
at
such
times
and
in
such
manner
as
the
said
Nova
Scotia
trustees
may
deem
best.
‘
‘
The
other
half
of
the
income
arising
from
such
funds
was
to
be
invested
by
the
said
Nova
Scotia
trustees
in
trust
securities
and
allowed
to
accumulate
for
the
term
of
one
hundred
years,
or
longer
if
necessary,
to
provide
an
amount
sufficient
in
the
opinion
of
such
trustees
"‘to
establish
hospitals
or
homes
in
Nova
Scotia
for
the
needy
where
they
may
end
their
days
in
comfort.’’
The
Archbishop
of
Halifax,
Nova
Scotia,
and
his
successors
in
office,
was
to
determine
the
number
and
location
of
such
hospitals
and
homes
to
be
established
in
Nova
Scotia,
and
he
was
to
appoint
a
committee
of
three
men
to
erect
and
manage
such
institutions.
The
funds
paid
over
to
the
Irish
trustees
by
the
Nova
Scotia
trustees
were
to
be
invested
by
the
former
trustees
in
trust
securities
and
"‘one
half
the
income
arising
therefrom
shall
be
used
by
the
said
Irish
trustees
for
the
benefit
of
the
poor
and
needy
in
Ireland
at
such
times
and
in
such
manner
as
the
said
Irish
trustees
may
deem
best,’’
and
the
other
half
of
the
income
was
to
be
invested
in
trust
securities
and
allowed
to
accumulate
for
one
hundred
years,
or
longer
if
necessary,
to
provide
an
amount
sufficient
in
the
opinion
of
such
trustees
‘‘to
establish
hospitals
or
homes
in
Ireland
for
the
needy
where
they
may
end
their
days
in
comfort.
‘
‘
The
Roman
Catholic
Bishop
of
Raphoe,
and
his
successors
in
office,
was
to
determine
the
number
and
location
of
the
hospitals
and
homes
to
be
established
in
Ireland
and
he
was
to
appoint
a
committee
of
three
men
to
erect
and
manage
each
of
such
institutions.
The
amount
of
money
required
for
the
establishment
and
maintenance
of
each
of
the
institutions
to
be
established
in
Nova
Scotia,
is
to
be
paid
by
the
Nova
Scotia
trustees
out
of
the
funds
under
their
control
to
the
committee
in
charge
of
each
institution
at
such
times
and
in
such
sums
as
the
Archbishop
of
Halifax
and
his
successors
in
office
may
direct,
and
the
similar
provision
was
made
in
respect
of
each
of
the
institutions
to
be
established
in
Ireland,
the
amount
required
therefore
is
directed
to
be
paid
by
the
Irish
trustees
to
the
committee
in
charge
of
each
institution,
at
such
times
and
in
such
sums
as
the
Roman
Catholic
Bishop
of
Raphoe
and
his
successors
in
office
may
direct.
The
Roman
Catholic
Archbishop
of
Halifax
exercised
the
power
vested
in
him
by
the
will
and
appointed
the
three
trustees
as
therein
directed.
One
of
these
trustees
died
and
another
was
appointed
in
his
stead.
These
trustees,
the
appellants
herein,
have
carried
out
the
duties
imposed
on
them
and
at
the
time
with
which
we
are
concerned
the
personal
terminable
annuities
have
not
all
ceased
and
consequently
the
total
accumulated
fund
is
still
in
the
hands
of
the
Nova
Scotia
trustees.
The
income
therefrom
has
at
all
times
been
greater
than
the
amount
required
for
the
payment
of
the
annuities
and
the
surplus
has
been
retained
and
invested
by
the
Nova
Scotia
trustees
in
accordance
with
the
provisions
of
the
will
and
codicil.
To
ensure
a
complete
and
accurate
presentation
of
the
facts
material
here
I
had
better
recite
the
following
clauses
of
the
will
:
“When
all
the
aforesaid
personal
terminable
annuities
shall
cease
through
the
death
of
the
beneficiaries
or
otherwise
the
sum
of
the
accumulated
funds
of
my
estate
shall
then
be
divided
into
two
equal
parts
and
one
of
such
parts
shall
be
paid
and
handed
over
by
my
said
‘trustees
to
three
other
trustees
who
shall
be
appointed
by
the
Roman
Catholic
Bishop
of
Raphoe,
in
the
County
of
Donegal,
Ireland,
to
hold
and
manage
the
)
fund
SO
to
be
paid
over
to
them.
“The
remaining
half
of
the
funds
then
forming
my
estate
shall
be
retained
in
Nova
Scotia,
and
kept
invested
as
aforesaid
by
the
said
Nova
Scotia
trustees
and
one
half
the
income
arising
therefrom
shall
be
used
by
said
Nova
Scotia
trustees
for
the
benefit
of
the
poor
and
needy
in
Nova
Scotia,
at
such
times
and
in
such
manner
as
the
said
Nova
Scotia
trustees
may
deem
best.
The
other
half
of
the
income
ar:sing
therefrom
shall
be
invested
by
the
said
Nova
Scotia
trustees
in
trust
securities
and
allowed
to
accumulate
for
the
term
of
one
hundred
years,
or
longer
if
necessary,
to
provide
an
amount
sufficient
in
the
opinion
of
such
trustees
to
establish
hospitals
or
homes
in
Nova
Scotia
for
the
needy
where
they
may
end
their
days
in
comfort.
In
establishing
such
institutions
in
Nova
Scotia,
the
County
of
Digby
shall
be
first
provided
for,
but
with
this
limitation
the
Archbishop
of
Halifax,
Nova
Scotia,
and
his
successors
in
office
shall
decide
the
number
and
location
of
such
hospitals
and
homes
to
be
established
in
Nova
Scotia,
and
he
shall
appoint
a
committee
of
three
men
to
erect
and
manage
each
of
such
institutions
.
.
.
.”’
"‘The
funds
paid
over
by
the
Nova
Scotia
trustees
to
the
trustees
to
be
appointed
by
the
Bishop
of
Raphoe
aforesaid,
shall
be
invested
by
the
latter
trustees
in
trust
securities
and
one
half
the
income
arising
therefrom
shall
be
used
by
the
said
Irish
Trustees
for
the
benefit
of
the
poor
and
needy
in
Ireland
at
such
times
and
in
such
manner
as
the
said
Irish
trustees
may
deem
best.
The
other
half
of
the
income
arising
therefrom
shall
be
invested
by
said
Irish
trustees
in
trust
securities
and
allowed
to
accumulate
for
the
term
of
one
hundred
years,
or
longer
if
necessary,
to
provide
an
amount
sufficient
in
the
opinion
of
such
trustees
to
establish
hospitals
or
homes
in
Ireland
for
the
needy
where
they
may
end
their
days
in
comfort.
In
establshing
such
institutions
in
Ireland,
the
place
called
Greeneastle,
in
said
County
of
Donegal,
the
birthplace
of
my
mother,
Mary
Collins,
shall
be
first
provided
for
and
secondly
the
village
of
Carandonah
in
the
said
County
of
Donegal,
the
home
of
my
late
wife’s
parents,
John
Carlan
and
Ellen
Calaghan,
but
with
this
limitation
the
said
Roman
Catholic
Bishop
of
Raphoe
and
his
successors
in
office
shall
decide
the
number
and
location
of
the
hospitals
and
homes
to
be
established
in
Ireland
as
aforesaid,
and
he
shall
appoint
a
committee
of
three
men
to
erect
and
manage
each
of
such
institutions.
“The
amount
of
money
required
for
the
establishment
and
maintenance
of
each
of
the
institutions
to
be
established
in
Nova
Scotia
under
this
my
will
shall
be
paid
by
the
said
Nova
Scotia
trustees
out
of
the
funds
under
their
control
to
the
committee
in
charge
of
such
institution
at
such
times
and
in
such
sums
as
the
said
Roman
Catholic
Archbishop
of
Halifax
and
his
successors
in
office
may
direct,
and
the
amount
required
for
the
establishment
and
maintenance
of
each
of
the
said
institutions
in
Ireland
shall
be
paid
by
the
said
Irish
trustees
out
of
the
funds
under
their
control
to
the
committee
in
charge
of
such
institutions
at
such
times
and
in
such
sums
as
the
said
Roman
Catholic
Bishop
of
Raphoe
and
his
successors
in
office
may
direct.
"‘Any
trustee
or
member
of
a
committee
appointed
by
the
Roman
Catholic
Archbishop
of
Halifax,
Nova
Scotia,
and
his
successors
in
office
under
this
my
will
may
at
any
time
be
re-
.
moved
by
such
Archbishop
and
any
trustee
or
member
of
a
committee
appointed
by
the
aforesaid
Bishop
of
Raphoe
or
his
successors
in
office
may
be
removed
at
any
time
by
such
Bishop
for
cause
that
he
may
think
sufficient
and
such
Archbishop
or
Bishop
as
the
case
may
be
shall
appoint
others
in
the
place
of
those
so
removed.”
By
a
notice
of
assessment
dated
June
14,
1932,
a
tax
was
levied
in
the
amount
of
$1,479.53
in
respect
of
the
income
of
the
invested
fund
retained
and
accumulated
in
the
taxation
period
of
1931.
The
trustees
appealed
to
the
Minister
of
National
Revenue
who
rendered
a
decision
affirming
the
assessment,
on
the
ground
that
the
said
assessment
was
made
in
respect
of
income
accumulating
in
the
hands
of
the
appellants,
the
Nova
Scotia
trustees,
in
trust
for
the
benefit
of
unascertained
persons,
or
of
persons
with
contingent
interests,
within
the
meaning
of
s.
11(2)
of
the
Act.
From
that
decision
of
the
Minister
an
appeal
was
taken
by
the
trustees
to
this
Court.
In
their
notice
of
appeal
from
the
assessment
in
question
the
appellants
gave
as
reasons
therefor
:
(1)
that
no
income
has
been
accumulated
for
the
benefit
of
any
person
as
defined
by
s.
2(h)
of
the
Income
War
Tax
Act,
whether
ascertained
or
unascertained,
and
that
at
no
time
can
there
be
any
person,
as
so
defined,
having
the
right
to
sue
for
payment
of
the
legacy
contained
in
the
will
or
entitled
to
enforce
the
trusts
thereof:
(2)
that
if
there
should
ever
be
such
a
person
it
could
be
none
other
than
a
charitable
institution
such
as
is
exempt
from
taxation
under
s.
4(e)
of
the
Act;
(3)
that
as
to
one
half
of
the
said
accumulated
income,
being
the
portion
which
is
to
be
paid
to
trustees
to
be
appointed
by
the
Bishop
of
Raphoe,
the
persons,
if
any,
to
benefit
therefrom
must
be
persons
resident
in
Ireland
and
outside
of
Canada;
and
(4)
that
the
whole
of
the
said
accumulated
income
is
by
the
said
will
impressed
with
a
trust
for
charitable
purposes
and
accordingly
upon
a
construction
of
the
said
Act
in
accordance
with
the
spirit
thereof
the
said
income
should
not
be
held
liable
to
taxation.
The
argument
of
Mr.
Walker
in
support
of
this
appeal
may
be
summarized
thus:
The
income
is
not
accumulating
for
the
benefit
of
any
person
or
persons,
ascertained
or
otherwise,
or
any
persons
having
a
claim
therein,
but,
as
to
one
half,
for
the
purpose
of
establishing
hospitals
and
homes,
charitable
institutions,
in
Ireland
and
Nova
Scotia
for
the
benefit
of
the
poor
and
needy,
and
that
the
whole
scheme
of
the
testator
contemplates
a
number
of
charitable
institutions;
that
the
income
is
in
part
accumulating
in
trust
to
provide
the
funds
necessary
for
the
establishment
and
maintenance
of
the
charitable
institutions
Just
mentioned,
and
the
same
will
never
be
distributed
to
persons
ascertained
or
unascertained
;
that
the
Nova
Scotia
trustees
constitute
a
charitable
institution,
and
are
presently
functioning
in
that
capacity,
and
that
both
bodies
of
trustees
will
be
functioning
in
that
capacity
when
the
income
from
the
other
half
of
the
accumulated
funds
becomes
available
for
distribution
for
the
benefit
of
the
poor
and
needy
in
Ireland
and
Nova
Scotia;
and
that
the
word
‘‘person’’
as
defined
by
s.
2(h)
of
the
Act,
does
not
include
trustees
and
that
therefore
the
income
is
accumulating
for
the
benefit
of
a
trust
or
trusts,
or
for
the
benefit
of
the
Irish
and
Nova
Scotia
trustees,
and
not
for
persons.
This
will
reveal
substantially,
though
perhaps
not
fully
or
precisely,
or
in
the
order
of
importance,
the
points
urged
by
Mr.
Walker
in
support
of
this
appeal.
The
case
is
not
without
its
difficulties.
However,
it
appears
to
me
fairly
clear
that
the
income
in
question
is
being
accumulated
in
trust
for
the
benefit
of
unascertained
persons,
and
that
it
is
not
the
income
of
any
charitable
institution
within
the
meaning
of
the
taxing
statute.
I
think
the
will
is
open
only
to
the
construction
that
from
the
time
the
residue
of
the
estate
is
handed
over
to
the
Nova
Scotia
trustees
the
income
here
assessed
for
the
tax
is
accumulating
in
trust
for
the
benefit
of
unascertained
persons.
The
will
of
Cosman
makes
it
clear
that
from
that
time
the
income
of
his
estate,
less
any
income
necessary
for
the
payment
of
the
terminable
and
perpetual
annuities,
was
to
accumulate
in
the
hands
of
the
Nova
Scotia
trustees,
in
trust,
until
the
terminable
annuities
ceased,
for
the
benefit
of
the
poor
and
needy
in
Nova
Scotia
and
Ireland.
Such
poor
and
needy
are
without
question
persons,
and
equally
without
question
they
are
unascertained.
Charitable
trusts
may
and
indeed
must
be
for
the
benefit
of
an
indefinite
number
of
unascertained
persons.
That
is
one
of
their
characteristics.
The
trusts
here
declared
are
not
for
the
benefit
of
any
persons
who
exist
or
may
exist
as
individuals
in
the
regard
or
intention
of
the
testator.
He
designs
them
to
be
the
objects
of
his
bounty
for
no
reason
personal
to
them
or
himself.
The
income
here
assessed
was,
I
think,
plainly
intended
for
the
benefit
of
such
unascertained
persons,
and
it
is
now
accumulating
in
trust
for
that
purpose,
and
it
seems
to
me
that
it
was
just
this
class
of
income
that
s.
11(2)
of
the
Act
was
intended
to
make
liable
for
the
tax.
Its
ultimate
destination,
and
how
and
by
whom
it
shall
later
be
applied
or
used,
is
not,
I
think,
presently
of
any
consequence,
or
relevant
to
the
question
to
be
decided.
The
income
will
continue
to
accumulate
for
the
benefit
of
the
poor
and
needy
until
the
terminable
annuities
shall
cease,
and
when
that
time
arrives
the
accumulated
funds
of
the
estate
will
be
divided
between
the
Nova
Scotia
and
the
Irish
trustees,
and
the
portion
of
the
fund
that
goes
to
the
Irish
Trustees,
or
any
income
therefrom,
will
no
longer
be
of
concern
to
the
revenues
of
Canada.
Up
to
that
time
we
are
only
concerned
with
the
income
accumulating
in
Canada
in
trust,
in
the
hands
of
the
Nova
Scotia
trustees,
for
the
benefit
of
unascertained
persons.
Thereafter,
one
half
of
the
income
arising
from
the
balance
of
the
accumulated
funds
remaining
in
Nova
Scotia
is
directed
to
be
used
by
the
Nova
Scotia
trustees
for
the
benefit
of
the
poor
and
needy
in
that
Province,
and
it
may
be
assumed
that
this
portion
of
the
income
will
then
be
so
expended
and
will
no
longer
be
accumulating;
at
any
rate
it
does
not
now
enter
into
a
consideration
of
the
income
here
assessed
and
in
debate.
The
other
half
of
that
income
is
to
be
accumulated
for
one
hundred
years
or
more,
at
the
end
of
which
time
it
is
to
be
used
in
establishing
hospitals
or
homes
for
the
poor
and
needy
in
Nova
Scotia.
How
and
by
whom
that
income
shall
be
applied
is
not
presently,
I
think,
of
importance.
All
the
income
presently
accumulating
is
for
the
benefit
of
the
poor
and
needy
in
both
Ireland
and
Nova
Scotia.
Therefore,
at
the
time
material,
there
was
income
accumulating
in
trust
in
the
hands
of
the
Nova
Scotia
trustees
for
the
benefit
of
unascertained
persons
and
therefore,
I
think,
subject
to
the
tax.
That
income
seems
to
fall
within
the
very
words
of
s.
11(2)
of
the
Act.
The
ease
is
not,
I
think,
distinguishable
in
principle
from
the
Birtwistle
case
[Minister
of
Nat’l
Revenue
v.
Trusts
&
Guar.
Co.I
[1939]
4
D.L.R.
417,
[1940]
A.C.
138
revg
(sub
nom.
Birtwistle
Trust
v.
Minister
of
Nat
f
l
Revenue
[1939],
1
D.L.R.
365,
S.C.R.
125,
which
reversed
[1938]
Ex.
C.R.
95.
I
do
not
think
it
can
be
successfully
contended
that
the
Nova
Scotia
trustees
constitute
a
charitable
institution
within
the
meaning
of
the
Act.
The
Nova
Scotia
trustees
were
appointed
to
receive,
invest
and
manage,
the
residue
of
the
estate
handed
over
to
them
by
the
executors
of
Cosman,
and
to
carry
out
the
provisions
of
the
will
of
the
testator
in
pursuance
of
his
directions.
In
the
meantime
the
whole
of
such
funds
are
accumulating
in
trust,
and
almost
wholly
for
the
benefit
of
unascertained
persons,
and
it
is
a
part
of
the
income
of
such
funds
that
has
been
assessed
for
the
tax.
When
the
funds
accumulated
are
divided
into
two
equal
parts
between
the
Irish
trustees
and
the
Nova
Scotia
trustees
a
new
situation
of
course
arises,
as
I
have
already
explained.
When
the
time
arrives
to
establish
and
maintain
hospitals
or
homes
for
the
benefit
of
the
poor
and
needy
in
Nova
Scotia,
the
number
and
location
of
such
institutions
is
to
be
determined
by
the
Archbishop
of
Halifax,
and
the
trustees
are
then
directed
to
pay
out
the
sums
required
for
such
purposes
to
committees
who
are
to
erect
and
manage
each
of
such
institutions,
in
such
sums
as
the
Archbishop
of
Halifax
may
direct.
It
would
seem
that
the
expenditure
of
that
portion
of
the
income
is
to
be
under
the
control
and
direction
of
persons
other
than
the
trustees,
but
the
unexpended
trust
funds
are
still
to
be
in
the
hands
of
the
trustees
to
invest
and
manage.
In
all
this
there
is
nothing
purporting
to
give
to
the
trustees
the
capacity
or
quality
of
a
charitable
institution.
The
testator
does
not
seem
to
have
contemplated
such
a
situation.
No
institution
of
any
kind
has
come
into
existence,
and
neither
the
corpus
of
the
estate
of
Cos-
man,
nor
the
revenue
thereof,
has
passed
or
is
accruing
due
to
any
institution;
in
fact
it
is
not
clear
that
this
can
ever
occur.
It
is
not
clear
in
whom
will
be
vested
the
title
to
the
hospitals
and
homes
to
be
erected,
and
in
any
event
it
would
not
seem
that
they
are
to
be
administered
or
managed
by
the
trustees.
I
see
nothing
in
the
will
which
indicates
that
the
Nova
Scotia
trustees
are
to
take
on
the
status
of
a
charitable
institution,
at
any
stage,
in
addition
to
their
powers
and
duties
as
trustees
under
the
will.
The
erection
of
hospitals
or
homes
is
but
one
form
directed
by
the
testator
for
applying
a
portion
of
the
income
of
his
charitable
trust
for
the
benefit
of
those
who
were
the
objects
of
his
bounty.
That
does
not,
I
think,
constitute
the
trustees,
or
the
hospitals
or
homes
to
be
established,
charitable
institutions
within
the
meaning
of
the
Act,
and
it
is
to
be
doubted
if
the
testator
ever
contemplated
such
a
thing
in
the
ordinary
and
practical
sense.
In
the
Birtwistle
case
their
Lordships
of
the
Privy
Council
used
the
following
language
which,
I
think,
is
quite
applicable
here.
They
said
[
[1939]
4
D.L.R.
at
p.
3
I
:
"
That
it
is
a
charitable
trust
no
one
can
doubt.
But
their
Lordships
are
unable
to
agree
that
it
is
a
charitable
institution
such
as
is
contemplated
by
s.
4(e)
of
the
Act.
It
is
by
no
means
easy
to
give
a
definition
of
the
word
"
institution
‘
that
will
cover
every
use
of
it.
Its
meaning
must
always
depend
upon
the
context
in
which
it
is
found.
It
seems
plain,
for
instance,
from
the
context
in
which
it
is
found
in
the
subsection
in
question
that
the
word
is
intended
to
connote
something
more
than
a
mere
trust.
Had
the
Dominion
Legislature
intended
to
exempt
from
taxation
the
income
of
every
charitable
trust,
nothing
would
have
been
easier
than
to
say
so.
In
view
of
the
language
that
has
in
fact
been
used
it
seems
to
their
Lordships
that
the
charitable
institutions
exempted
are
those
which
are
institutions
in
the
sense
in
which
boards
of
trade
and
chambers
of
commerce
are
institutions,
such,
for
example,
as
a
charity
organization
society
or
a
society
for
the
prevention
of
cruelty
to
children.
The
trust
with
which
the
present
appeal
is
concerned
is
an
ordinary
trust
for
charity.
It
can
only
be
regarded
as
a
charitable
institution
within
the
meaning
of
the
subsection
if
every
such
trust
is
to
be
so
regarded,
and
this,
in
their
Lordships’
opinion,
is
impossible.
An
ordinary
trust
for
charity
is,
indeed,
only
a
charitable
institution
in
the
sense
that
a
farm
is
an
agricultural
institution.
It
is
not
in
that
sense
that
the
word
institution
is
used
in
the
subsection.’’
There
is
another
feature
of
the
case
which
I
have
considered,
and
which
I
should
mention.
It
might
be
argued
that
from
the
time
when
the
residue
of
the
estate
was
handed
over
by
the
executors
to
the
Nova
Scotia
trustees
and
until
the
time
when
the
terminable
annuities
cease,
the
income
is
not
specifically
accumulating
for
the
benefit
of
the
poor
and
needy
in
Ireland
and
Nova
Scotia,
but
for
the
purpose
of
creating
a
fund
for
the
time
when
the
terminable
annuities
cease,
when
the
sum
of
the
accumulated
funds
of
the
estate
are
to
be
divided
between
the
Nova
Scotia
trustees
and
the
Irish
trustees.
If
such
a
view
is
of
weight
then
it
might
be
said
that
no
income
is
presently
accumulating
in
trust
for
the
benefit
of
unascertained
persons.
But,
the
funds
received
from
the
executors
were
held
thereafter
by
the
trustees
in
trust.
They
were
to
be
held
in
trust
for
whom
?
First,
for
the
annuitants,
and
then
for
the
poor
and
needy
in
Nova
Scotia
and
Ireland,
unascertained
persons,
and
for
no
one
else.
The
vulnerable
point
in
such
a
view
of
the
case
is
that
in
point
of
fact
the
portion
of
the
income
accumulating
during
that
period
in
trust,
and
assessed,
was
for
the
benefit
of
unascertained
persons,
and
it
was
that
class
of
income
that
the
Act
intended
to
make
liable
for
the
tax.
It
does
not
follow,
I
think,
that
because
a
time
was
fixed
for
the
division
of
the
funds
accumulated,
when
the
terminable
annuities
ceased,
that
the
income
was
not
accumulating
in
the
interval,
in
trust,
for
the
benefit
of
unascertained
persons.
As
I
have
already
stated,
after
paying
the
annual
annuities
there
was
a
surplus
of
income
accumulating
and
there
was
no
one
for
whose
benefit
it
was
accumulating
except
the
poor
and
needy
in
Nova
Scotia
and
Ireland,
and,
I
think,
that
is
what
was
intended
by
the
testator.
Accordingly,
I
find
myself
obliged
to
conclude
that
this
view
of
the
case
cannot
be
sustained.
The
conclusion
I
have
reached
is
that
the
income
in
question
falls
within
the
very
words
s.
11(2)
of
the
Act,
and
is
liable.
for
the
tax.
That
income
is
presently
accumulating
in
trust,
in
Canada,
in
the
hands
of
the
appellant-trustees,
would
seem
an
undoubted
fact.
The
income,
that
is,
the
portion
with
which
we
are
here
concerned,
must
be
accumulating
for
the
benefit
of
unascertained
persons
because
it
is
not
for
persons
designated
or
ascertained,
and
clearly,
I
think,
it
is
not
the
income
of
a
charitable
institution,
within
the
meaning
of
s.
4(e)
of
the
Act.
It
is,
I
think,
income
of
the
precise
character
that
was
intended
by
the
statute
to
be
made
liable
for
the
tax.
I
do
not
think
that
liability
for
the
tax
under
s.
11(2)
of
the
Act
can
be
avoided
by
intervening
a
body
of
trustees
between
the
executor
of
a
testator
‘s
will
and
the
ultimate
beneficiaries
of
a
charitable
trust
created
under
that
will,
which
would
seem
to
be
the
result
of
the
argument,
if
valid,
advanced
in
support
of
the
appeal
against
the
assessment
here.
The
appeal
is
therefore
dismissed.
I
think
this
is
a
case
where
I
would
be
justified
in
declining
to
make
any
order
as
to
costs.
Appeal
dismissed.
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