CAMERON,
J.:—This
is
an
appeal
by
the
executors
of
the
estate
of
Dr.
George
Alexander
Fleet,
late
of
the
City
of
Montreal,
physician,
from
an
assessment
dated
April
22,
1944,
made
under
the
Dominion
Succession
Duty
Act,
c.
14,
Statutes
of
Canada,
1940-41.
The
facts
are
not
in
dispute
and
may
briefly
be
summarized
as
follows:
On
may
25,
1916,
the
late
Dr.
Fleet
and
Helena
Ada
Dawes,
both
of
the
City
of
Montreal,
in
the
Province
of
Quebec,
executed
an
antenuptial
contract
duly
passed
before
a
Notary
Public
for
that
province.
By
the
contract,
after
reciting
that
the
parties
declared
that
they
were
about
to
be
united
in
marriage,
it
was
agreed
that
in
view
thereof
the
parties
covenanted
as
follows
:
"FIRST.
No
community
of
property
shall
at
any
time
hereafter
exist
between
said
parties
by
reason
of
their
said
intended
marriage.
SECOND.
The
said
parties
shall
be
separate
as
to
property,
as
permitted
by
the
Civil
Code
of
Lower
Canada.
THIRD.
The
property
of
the
said
party
of
the
second
part
consists
at
present
of
certain
personal
effects
and
jewellery.
And
it
is
agreed
in
consideration
of
the
premises
that
all
goods,
chattels,
household
furniture,
moveables
and
effects
at
any
time
found
in
and
garnishing
the
common
domicile
of
the
parties
hereto,
whatever
may
or
shall
be
the
value
thereof,
and
however
acquired,
shall
be
held
and
considered
as
belonging
to
the
said
party
of
the
second
part
exclusively,
the
said
party
of
the
first
part
hereby
abandoning
in
her
favor,
she
accepting
thereof
all
right,
title,
interest
and
claim
he
may
have
thereto
or
therein.
AND
the
said
party
of
the
first
part
doth
hereby
furthermore
agree
and
bind
himself
to
pay
unto
the
said
party
of
the
second
part,
during
the
existence
of
said
intended
Marriage,
the
sum
of
Ten
Tousand
dollars,
to
be
employed
and
expended
by
her
the
said
party
of
the
second
part,
for
the
purpose
of
purchasing
Household
furniture,
and
moveable
effects,
in
her
own
name,
and
on
her
own
behalf,
as
her
absolute
property,
which
shall
be
employed
in
furnishing
and
garnishing
their
common
domicile
or
dwelling.
FOURTH.
There
shall
be
no
dower,
the
said
party
of
the
second
part
as
well
for
herself
as
for
the
child
or
children
which
may
be
born
of
said
intended
marriage
hereby
expressly
renouncing
thereto.
FIFTH.
In
consideration
of
the
stipulation
that
no
community
of
property
is
to
exist
between
said
parties
and
further
in
consideration
of
the
renunciation
to
dower
hereinabove
made
by
the
said
party
of
the
second
part,
the
said
party
of
the
first
part
doth
hereby
promise
and
oblige
himself
to
pay
to
the
said
party
of
the
second
part
during
the
existence
of
said
intended
marriage,
the
sum
of
Twenty
thousand
dollars,
but
as
an
obligation
on
the
part
of
the
said
party
of
the
first
part
purely
and
solely
in
favor
of
the
said
Miss
Helena
Ada
Dawes
said
party
of
the
second
part.
AND
PROVIDED
that
in
the
event
of
the
said
obligation
not
being
paid
or
satisfied
during
the
existence
of
said
marriage
and
that
the
said
party
of
the
second
part
should
survive
the
said
party
of
the
first
part,
she,
the
said
party
of
the
second
part,
shall
immediately
upon
the
decease
of
the
said
party
of
the
first
part
have
the
right
to
demand,
collect
and
receive
from
the
Estate
of
the
said
party
of
the
first
part
payment
of
the
said
sum
of
Twenty
thousand
dollars,
which,
in
such
case,
shall
bear
interest
from
the
date
of
the
decease
of
the
said
party
of
the
first
part
at
the
rate
of
six
per
centum
per
annum.
PROVIDED
ALSO,
that
in
the
event
of
the
said
party
of
the
second
part
dying
before
the
said
party
of
the
first
part,
and
said
sum
of
Twenty
thousand
dollars
not
having
been
paid
or
satisfied
during
the
existence
of
said
marriage
the
heirs
or
representatives
of
the
said
party
of
the
second
part
shall
have
no
right
to
claim
whatever
in
respect
thereto,
or
in
respect
to
any
part
of
the
same
against
the
said
party
of
the
first
part.
The
obligation
on
the
part
of
the
said
party
of
the
first
part
to
pay
said
sum
of
Twenty
thousand
dollars,
being
as
above
stated
and
agreed
to,
purely
personal
to
and
exclusively
in
favour
of
the
said
party
of
the
second
part,
the
same
shall
not
be
or
become
transmissable
in
the
event
of
her
dying
before
the
said
party
of
the
first
part
to
her
heirs
or
assigns,
and
the
exigibility
thereof
shall
not
in
such
case
pass
to
or
in
any
way
become
vested
in
the
heirs
or
legal
representatives
of
the
said
party
of
the
second
part.’’
The
said
parties
were
married
on
June
1,
1916,
and
thereafter
resided
in
Montreal
until
Dr.
Fleet
met
his
death
by
drowning
on
April
23,
1943.
Clause
2
of
Dr.
Fleet’s
Will,
dated
December
31,
1934,
provides
as
follows:
"‘I
hereby
direct
my
executors
hereinafter
named
to
pay
out
of
the
capital
of
my
estate
all
my
just
debts,
including
such
indebtedness,
if
any,
as
may
remain
unpaid
to
my
wife
under
the
terms
of
our
marriage
contract,
passed
on
the
25th
May,
1916,
before
John
F.
Reddy,
Notary,
funeral
expenses
and
succession
duties,
without
the
intervention
or
consent
of
the
beneficiaries
hereinafter
named
or
their
representatives.’’
Dr.
Fleet
left
an
estate
of
a
gross
value
of
$129,985.97.
In
their
return
to
the
Dominion
Succession
Duties
Department,
the
executors
claimed
as
a
deduction
from
the
gross
estate
the
sum
of
$20,000
which,
by
the
antenuptial
contract,
Dr.
Fleet
had
agreed
to
pay
to
his
wife,
and
no
part
of
which
had
been
paid
to
her
during
his
lifetime..
The
Department,
in
its
assessment,
disallowed
that
item
as
a
deduction;
an
appeal
was
taken
and,
so
far
as
that
item
was
concerned,
was
disallowed
and
the
assessment
affirmed.
Following
notice
of
dissatisfaction
and
the
Minister’s
reply
affirming
the
assessment,
the
matter
came
before
this
Court.
It
is
admitted
that
at
the
time
of
the
marriage
the
parties
were
without
any
substantial
assets
and
that
the
assets
of
Dr.
Fleet’s
estate
were
all
accumulated
by
his
own
efforts
since
his
marriage.
No
evidence
was
taken
as
the
hearing,
the
parties
relying
on
those
facts
admitted
in
the
pleadings.
Counsel
for
the
appellant
argues
that
the
claim
of
$20,000
is
a
debt
which,
by
the
provisions
of
sec.
8(1),
is
deductible
as
an
allowance
from
the
gross
estate.
Counsel
for
the
respondent,
while
agreeing
that
it
is
a
debt
payable
out
of
the
estate,
contends
that
inasmuch
as
it
was
not
a
debt
created
for
full
consideration
in
money
or
money’s
worth,
wholly
for
the
deceased’s
own
use
and
benefit,
it-is
barred
as
a
deduction
by
the
provisions
of
sec.
8(2)
(a).
The
relevant
parts
of
sec.
8
are
as
follows:
"(1)
In
determining
the
aggregate
net
value
and
dutiable
value
respectively,
an
allowance
shall
be
made
for
debts
and
encumbrances
.
.
.
(2)
Notwithstanding
anything
contained
in
the
last
preceding
subsection,
allowance
shall
not
be
made
(a)
for
any
debt
incurred
by
the
deceased,
or
encumbrance
created
by
a
disposition
made
by
him,
unless
such
debt
or
encumbrance
was
created
bona
file
for
full
consideration
in
money
or
money’s
worth
wholly
for
the
deceased’s
own
use
and
benefit
and
to
be
paid
out
of
his
estate.’’
For
the
appellant
it
is
urged
that
the
consideration
for.
the
agreement
to
pay
the
sum
of
$20,000
was:
(a)
the
surrender
by
Mrs.
Fleet
to
Dr.
Fleet
of
her
interest
in
the
community
property
which
her
husband
might
have
at
marriage,
or
later
acquire;
(b)
her
‘surrender
of
her
dower
rights.
It
is
pointed
out
that
had
no
antenuptial
contract
been
entered
into
then
the
widow’s
rights
in
the
community
of
property
would
have
been
one-half
of
the
aggregate
value
of
an
estate
of
$115,562.81,
or
$57,781.40,
instead
of
the
sum
of
$20,000
which
by
the
marriage
contract
she
was
to
receive.
It
is
further
pointed
out
that
dower,
although
not
an
important
factor
here,
is
in
some
cases
very
important
and
that
the
surrender
of
dower
rights
was
an
added
consideration
which,
coupled
with
the
surrender
of
the
wife’s
community
rights,
constituted
more
than
full
value
in
money
or
money’s
worth
for
the
agreement
by
the
deceased
to
pay
the
sum
of
$20,000.
My
opinion,
however,
is
that
if
this
item
is
a
debt
of
the
estate
it
was
not
created
by
the
deceased
for
full
consideration
in
money
or
money’s
worth.
In
the
first
place,
it
must
be
remembered
that
at
the
time
of
the
contract
neither
contracting
party
possessed
any
assets
of
any
real
value;
and
I
think
that
in
determining
whether
the
deceased
received
full
consideration
in
money
or
money’s
worth
in
return
for
the
creation
of
an
obligation
to
pay
$20,000,
reference
must
be
made
to
the
facts
existing
at
the
time
of
the
contract
and
not
to
the
facts
existing
twenty-seven
years
later.
Mrs
Fleet,
therefore,
in
surrendering
her
rights
to
community
property
and
to
dower,
did
not
give
to
Dr.
Fleet,
nor
did
he
receive,
full
consideration
in
money
or
money’s
worth
in
return
for
his
obligation
to
pay
the
sum
of
$20,000.
The
obligation
to
pay
on
the
part
of
Dr.
Fleet
remained
whether
or
not
he
later
acquired
substantial
assets.
The
bare
possibility
of
future
rights
to
community
property,
and
to
dower,
in
non-existing
estates,
would
not
have
been
a
subject
of
value
at
the
time
of
the
antenuptial
contract;
and
the
release
of
such
a
possibility
would
not,
I
think,
satisfy
the
words,
"‘for
full
consideration
in
money
or
money’s
worth’’.
See
Floy
er
v.
Bankes
(1863)
Vol.
3,
De
Gex,
Jones
&
Smith’s
Reports,
306.
Under
the
English
Act
it
has
been
held
that
an
obligation
by
a
husband
in
a
marriage
contract
to
make
certain
payments
to
his
marriage
contract
trustees
for
the
benefit
of
his
wife
and
children,
as
the
counterpart
of
similar
obligations
by
his
wife,
could
not
be
regarded
on
his
death
as
a
debt
incurred
by
him
for
full
consideration
in
money
or
money’s
worth
wholly
for
the
deceased’s
own
use
and
benefit.
Sec.
7(1)
(a)
of
the
Finance
Act,
1894,
57-58
Vict.
Cap
30,
is
as
follows
:
‘‘In
determining
the
value
of
an
estate
for
the
purpose
of
estate-duty
allowance
shall
be
made
for
reasonable
funeral
expenses,
and
debts,
and
encumbrances;
but
an
allowance
shall
not
be
made—(a)
for
debts
incurred
by
the
deceased
or
incumbrances
created
by
a
disposition
made
by
the
deceased,
unless
such
debts
or
incumbrances
were
incurred
or
created
bona
fide
for
full
consideration
in
money
or
money’s
worth
wholly
for
the
deceased’s
own
use
and
benefit,
and
take
effect
out
of
his
interest
.
.
.
;
and
any
debt
or
incumbrance
for
which
an
allowance
is
made
shall
be
deducted
from
the
value
of
the
land
or
other
subjects
of
property
liable
thereto.’’
In
considering
that
section
in
the
case
of
Inland
Revenue
v.
Alexander^
Trustee
(1905)
Vol.
7,
Court
of
Sessions
367,
The
Lord
Ordinary
said
at
p.
370:
“I
should
say
that,
to
make
a
debt
incurred
or
incumbrance
created
by
the
deceased
himself
deductible
in
determining
the
value
of
his
estate
for
the
purpose
of
estate-duty,
the
debt
or
incumbrance
must
be
shown
to
have
originated
in
something
of
the
nature
of
a
proper
purchase,
in
which
the
deceased
received,
for
his
own
use
and
benefit,
full
consideration
in
"
money
or
money’s
worth.
I
should
say
that
it
could
not,
therefore,
cover
any
stipulation
in
a
marriage
contract,
although
reciprocal
in
character
and
issuing
in
a
debt
incumbrance,
where
the
true
consideration
is
a
thing
incapable
of
being
expressed
in
money
or
money’s
worth—to
wit,
the
marriage
itself.
’
’
I
am
of
the
opinion,
therefore,
that
if
the
obligation
of
the
estate
of
Dr.
Fleet
to
pay
his
widow
the
sum
of
$20,000
can
be
considered
a
debt,
it
is
not
such
a
debt
as
was
created
for
full
consideration
in
money
or
money’s
worth
wholly
for
the
deceased’s
own
benefit.
Alternatively,
the
appellant
says
that
the
sum
of
$20,000
is
not
taxable
by
reason
of
the
provisions
of
see
3(1)
(j)
of
the
Act
which
is
as
follows:
"3(1)
A
‘succession’
shall
be
deemed
to
include
the
following
dispositions
of
property
and
the
beneficiary
and
the
deceased
shall
be
deemed
to
be
the
‘successor’
and
‘pre-decessor'
respectively
in
relation
to
such
property
:—
(j)
property
transferred
to
or
settled
on
or
agreed
to
be
transferred
to
or
settled
on
any
person
or
persons
whatsoever
on
or
after
the
29th
day
of
April,
1941,
and
within
three
years
of
the
death,
by
the
deceased
person,
in
consideration
of:
marriage.”
This
section
of
the
Act
is
not
referred
to
in
the
Statement
of
Claim
as
forming
part
of
the
grounds
of
appeal,
but
it
is
raised
in
the
Notice
of
Dissatisfaction,
and
in
the
argument
counsel
for
both
parties
referred
to
it.
Sec.
3(1)
as
a
whole
has
to
do
with
certain
dispositions
of
property
which
are
deemed
to
be
successions.
Subsee.
(j)
deals
particularly
with
transfers
or
settlements
of
property,
or
agreements
to
transfer
or
settle
property
in
consideration
of
marriage.
Counsel
for
the
respondent
contended
throughout
that
the
true
consideration
of
the
antenuptial
contract
was
the
marriage
itself
and
in
his
alternative
argument,
appellant’s
counsel
agreed.
I
think
that
the
true
consideration
was
the
marriage
itself.
Reference
may
be
made
to
Lord
Advocate
v.
Sidgwick
(1877)
Vol.
4,
Court
of
Sessions
821,
and
Inland
Revenue
v.
Alexander’s
Trustees
(1905)
Vol.
7,
Court
of
Sessions
367.
The
contract
here
having
been
made
in
consideration
of
marriage,
there
can
be
no
doubt
that
had
the
sum
of
$20,000
been
paid
by
Dr.
Fleet
to
his
wife
at
any
time
prior
to
April
29,
1941,
it
would
not
have
been
subject
to
duty.
I
think
it
is
clear
that
at
least
completed
settlements
or
transfers
made
in
consideration
of
marriage
are
dutiable
only
if
the
following
conditions
exist:
(a)
the
settlement,
or
transfer,
was
made
within
three
years
prior
to
the
death
of
the
deceased;
and
(b)
it
was
made
on
or
after
April
29,
1941.
But
sec.
3(1)
(j)
refers
not
only
to
completed
settlements
or
transfers
of
property
made
in
consideration
of
marriage,
but
to
property
agreed
to
be
transferred
or
settled
in
consideration
of
marriage,
and
places
on
such
agreements
precisely
the
same
limitations
as
to
completed
settlements
or
transfers—namely,
those
agreements
to
transfer
or
settle
after
April
29,
1941,
and
within
three
years
prior
to
the
death
of
the
deceased.
If
it
is
admitted,
as
I
think
it
must
be,
that
completed
transfers
made
in
consideration
of
marriage,
and
made
prior
to
April
29,
1941,
are
excluded
from
duty,
I
think
that
it
must
follow
also
that
where
agreements
to
transfer
are
put
on
the
same
basis
as
completed
transfers,
then
such
agreements
to
transfer,
entered
into
prior
to
April
29,
1941,
are
also
excluded.
The
agreement
to
transfer
the
sum
of
$20,000
was
here
made
in
1916.
It
is
clear
from
the
terms
of
subsec.
3(1)
(j)
that,
if
an
agreement
to
settle
or
transfer
property
in
consideration
of
marriage
were
made
on
or
after
April
29,
1941,
and
the
person
who
had
agreed
to
settle
or
transfer
property
lived
more
than
three
years
after
the
date
of
the
agreement,
and
had
not,
prior
to
his
death,
completed
the
transfer
or
settlement,
such
disposition
of
property
would
not
be
deemed
to
be
a
succession.
I
do
not
think
that
if
Parliament
intended
to
exclude
such
a
disposition
from
those
deemed
to
be
successions,
that
it
could
be
inferred
that
a
similar
disposition,
made
twenty-five
years
before
the
Act
came
into
force
and
twenty-seven
years
before
the
death
of
the
testator,
could
be
deemed
to
be
a
succession.
I
am
of
the
opinion
that
Parliament
did
not
intend
that
any
property
transferred,
settled,
or
agreed
to
be
transferred
or
settled
in
consideration
of
marriage
prior
to
April
29,
1941,
should
be
deemed
a
succession.
It
follows,
I
think,
that
the
disposition
of
the
sum
of
$20,000
made
by
Dr.
Fleet
in
1916,
is
not
by
virtue
of
sec.
3(1)
(j)
deemed
to
be
a
succession.
For
the
respondent
it
is
further
contended
that
the
disposition
here
made
falls
within
the
definition
of
"‘succession’’
contained
in
sec.
2(m)
of
the
Act;
or,
alternatively,
within
the
dispositions
deemed
to
be
included
in
a
succession
by
subsecs.
(a),
(b)
or
(ad)
of
sec.
3.
Sec.
2(m)
is
as
follows:
“
‘Succession’
means
every
past
or
future
disposition
of
property,
by
reason
whereof
any
person
has
or
shall
become
beneficially
entitled
to
any
property
or
the
income
thereof
upon
the
death
of
any
deceased
person,
either
immediately
or
after
any
interval,
either
certainly
or
contingently,
and
either
originally
or
by
way
of
substitutive
limitation,
and
every
devolution
by
law
of
any
beneficial
interest
in
property,
or
the
income
thereof,
upon
the
death
of
any
such
deceased
person,
to
any
other
person
in
possession
or
expectancy,
and
also
includes
any
disposition
of
property
deemed
by
this
Act
to
be
included
in
a
succession
;”’
I
am
of
the
opinion
that
sec.
2(m)
does
not
here
apply.
It
is
clear
that
the
sum
of
$20,000
is
not
payable
to
Mrs.
Fleet
by
devolution
by
law
;
nor
did
she
become
beneficially
entitled
thereto
upon
the
death
of
Dr.
Fleet.
The
agreement
was
made
in
1916
and
she
became
beneficially
entitled
thereto
on
that
date
or,
in
any
event,
during
the
lifetime
of
Dr.
Fleet,
as
the
contract
provided.
It
was
not
by
reason
of
his
death
that
the
money
was
payable
to
her.
The
disposition
made
by
Dr.
Fleet
was
not,
therefore,
a
succession
"‘as
defined
by
Section
2(m)‘‘
unless
it
is
included
in
see.
3.
Sec.
3(1)
(a),
(b)
and
(d)
as
they
were
in
effect
at
the
death
of
Dr.
Fleet
are
as
follows:
"‘(3)(1)
A
‘succession’
shall
be
deemed
to
include
the
following
dispositions
of
property
and
the
beneficiary
and
the
deceased
shall
be
deemed
to
be
the
‘successor’
and
‘
predecessor’
respectively
in
relation
to
such
property
:—
(a)
property
and
income
therefrom
voluntarily
transferred
by
grant,
bargain
or
gift,
or
by
any
form
or
manner
of
transfer
made
in
general
contemplation
of
the
death
of
the
grantor,
bargainor
or
donor,
and
with
or
without
regard
to
the
imminence
of
such
death,
or
made
or
intended
to
take
effect
in
possessions
or
enjoyment
after
such
death
to
any
person
in
trust
or
otherwise,
or
the
effect
of
which
is
that
any
person
becomes
beneficially
entitled
in
possession
or
expectancy
to
such
property
or
income;
(b)
property
taken
as
a
donatio
mortis
causa;
(d)
property
taken
under
a
gift
whenever
made
of
which
actual
and
bona
fide
possession
and
enjoyment
shall
not
have
been
assumed
by
the
donee
or
by
a
trustee
for
the
donee
immediately
upon
the
gift
and
thenceforward
retained
to
the
entire
exclusion
of
the
donor
or
of
any
benefit
to
him,
whether
voluntary
or
by
contract
or
otherwise;”
Sec.
3(1)
(a)
has
here
no
application.
No
property
of
any
sort
was
transferred;
there
was
merely
an
agreement
to
pay.
Nor
can
it
be
said
that
the
agreement
was
entered
into
in
general
contemplation
of
death.
Specifically,
it
was
made
in
contemplation
of
marriage.
Nor
does
sec.
3(1)
(b)
apply
here.
To
constitute
an
effectual
donatio
mortis
causa
it
is
essential
that
(1)
the
gift
be
made
in
contemplation
of
death,
though
not
necessarily
in
expectation
of
death;
(2)
there
be
delivery
to
the
donee
of
the
subject
of
the
gift;
(3)
that
the
gift
be
made
in
circumstances
which
show
that
it
is
to
take
effect
only
if
the
death
of
the
donor
follows.
None
of
these
three
essentials
exists
here.
3(1)
(d)
deals
with
property
taken
under
gifts
with
reservation
of
benefits
to
the
donor.
It
has
here
no
application.
I
find,
therefore,
that
the
agreement
to
pay
the
sum
of
$20,000
is
not
a
succession
as
defined
by
sec.
2(m),
nor
is
it
deemed
to
be
a
succession
by
reason
of
the
provisions
of
sec.
3.
But
I
have
also
found
that
if
it
is
a
debt
of
the
estate
is
it
not
deductible
under
the
provisions
of
sec.
8(2).
These
conclusions
would
appear
to
be
conflicting,
for
on
my
finding
that
the
sum
of
$20,000,
due
Mrs.
Fleet,
is
not
a
succession
within
the
definition
of
sec.
2(m)
(which
includes
those
deemed
to
be
a
succession),
it
is
not
subject
to
duty,
which
by
sec.
6,
and
the
charging
provisions
of
secs.
10
and
11,
is
payable
only
on
successions.
On
the
other
hand,
if
it
is
not
such
a
debt
as
can
be
deducted
under
sec.
8,
it
would
appear
that
it
is
not
deductible.
I
have
had
some
difficulty
in
reaching
a
conclusion
on
the
matter.
My
decision
has
been
finally
reached
on
consideration
of
the
Act
as
a
whole.
I
need
not
repeat
what
I
have
said
in
regard
to
the
provisions
of
sec.
3(1)
(j).
I
think
it
is
clear
that
in
enacting
this
section
Parliament
intended
to
deal
with
the
particular
problem
of
dispositions
of
property
in
consideration
of
marriage.
Put
in
brief
form,
the
argument
of
counsel
for
the
respondent
amounts
to
this.
He
admits
that
there
was
an
agreement
in
1916
to
pay
the
sum
of
$20,000
in
consideration
of
marriage;
but
as
it
was
unpaid
at
the
time
of
Dr.
Fleet’s
death
it
was
a
debt
of
his
estate,
but
not
such
a
debt
as
is
deductible
by
reason
of
the
provisions
of
sec.
8(2)
as
not
being
one
for
full
consideration
in
money
or
money’s
worth,
wholly
for
the
deceased’s
own
use
and
benefit.
Therefore,
it
forms
part
of
his
dutiable
estate.
If
that
argument
is
followed,
precisely
the
same
argument
would
apply
to
all
agreements
whenever
made
to
settle
or
transfer
property
in
consideration
of
marriage,
unless
completed
by
actual
transfer
or
settlement
prior
to
death.
The
words
in
sec.
3(1)
(j),
"‘or
agreed
to
be
transferred
to
or
settled’’
would
therefore
become
quite
meaningless
and
of
no
effect,
but
they
form
part
of
the
section
and
cannot
be
treated
as
superfluous
or
meaningless.
They
must
have
been
inserted
with
a
purpose.
That
purpose,
in
my
view,
was
to
place
in
one
category
all
property
transferred
to
or
settled
on
any
person
in
consideration
of
marriage,
and
all
property
agreed
to
be
transferred
to
or
settled
on
any
person
in
consideration
of
marriage
;
and
to
declare
that
all
in
that
category
are
deemed
to
be
successions
if
the
transfer
of
agreement
to
transfer
was
made
after
April
29,
1941,
and
within
three
years
prior
to
death;
and
to
exclude
from
being
successions
all
other
such
transfers
or
agreements
to
transfer,
made
in
consideration
of
marriage.
Moreover,
the
inclusion
in
see.
3(1)
(j)
of
"‘property
agreed
to
be
transferred
to
or
settled
on’’
(following
as
they
do
‘‘
property
transferred
to
or
settled
on’’)
indicate
that
it
refers
to
agreements
not
completed
by
transfer
or
settlement
of
the
property
itself
and
which
property,
therefore,
remains
in
the
possession
of
the
‘‘donor’’
at
the
time
of
his
death.
There
could
be
no
purpose
in
using
these
words
at
all
of
it
followed
that,
as
they
were
in
the
estate
of
the
‘‘donor’’
at
his
death,
they
were
then
subject
to
the
provisions
of
sec.
8(2).
To
that
extent,
and
in
the
circumstances
here
disclosed,
the
two
sections
are
repugnant
and
I
prefer
to
follow
what
I
think
was
the
manifest
intention
of
the
Act
in
dealing
specifically
with
dispositions
in
consideration
of
marriage.
My
conclusion,
therefore,
is
that
if
effect
is
to
be
given
to
the
words
used
in
the
section
it
must
be
found
that
this
disposition
by
Dr.
Fleet,
made
in
1916,
is
not
a
succession.
Succession
duties
are
levied
only
on
successions,
and
therefore,
in
my
opinion,
the
sum
of
$20,000,
forming
no
part
of
the
succession,
and
forming
no
part
of
the
taxable
estate,
is
not
subject
to
duty.
It
does
not
need
to
be
deducted
as
a
debt
as
it
is
not
part
of
the
taxable
estate.
The
appeal
is
therefore
allowed,
with
costs
to
be
taxed;
and
the
assessment
appealed
from
is
set
aside.
Appeal
allowed.
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