Pratte, J (concurred in by Le Dain and Hyde, JJ):—The Minister of National Revenue is appealing the decision of the Trial Division which allowed the appeal brought by respondent against an assessment made under the Dominion Succession Duty Act, RSC 1952, c 89, amended by RSC 1952, c 317, following the death of Mr Félix Goyer. The appeal raises only one question: In the calculation of estate duty payable as the result of Mr Goyer’s death, must Mrs Goyer, his widow, be considered to have acquired by the terms of her husband’s will what subsection 2(5) of the Act calls “a general power to appoint” by instrument inter vivos over the residue of the estate?
Mr Goyer died at Outremont on May 16, 1956 leaving a notarized will, done on December 2, 1948, the provisions of which were modified by a codicil dated December 22, 1949.
In his will Mr Goyer made a number of special bequests and disposed of the residue of his estate as follows:
7. Further, I give and bequeath to my beloved wife, DAME DOLORES DAGENAIS, during her lifetime and as long as she shall remain a widow, the enjoyment and usufruct of the whole residue of my other property, movable and immovable, money, insurance, credits and claims of whatever nature which shall make up my estate, and I relieve her of the obligation to provide security and to draw up an inventory;
8. I give and bequeath ownership of the residue of my property, both movable and immovable, subject to the aforementioned usufruct, to be divided, after expiry of the usufruct bequeathed to my said wife, in the following way:
(a) One half to the National Research Council of the Federal Government in Ottawa . . .
(b) The other half of the property in my estate I give and bequeath, subject to the aforementioned usufruct, to all my grandnephews and grandnieces, that is to the children of all my nephews and nieces, with the proviso, however, that my grandniece MARGUERITE PEPIN take as a particular bequest from this half of the property in my estate, before sharing with my other grandnephews and grandnieces, her coparceners, the sum of TEN THOUSAND DOLLARS ($10,000.00) to have and to dispose of as she sees fit.
12. If one or more of my legatees causes any annoyance to my wife after my death, I direct and order that my bequest shall become null and void, with the understanding that my wife, as long as she shall remain a widow, may withdraw from my estate without hindrance any revenue from adminis- tration of the capital, without having to render an account to any of my legatees as long as she shall live;
13. I name and constitute my said wife, DAME DOLORES DAGENAIS, as my executrix and administrator of my estate . ..
If the income which my wife shall enjoy is not sufficient, she shall take some of the capital and she alone shall be the judge thereof.
The codicil which I have already mentioned replaced paragraphs (a) and (b) of article 8 of the will with the following provisions:
. . » I name my wife the administrative and usufructuary trustee of all my property.
On her death, this property shall be distributed according to her wishes among the grandchildren of my sister Victoria and charitable works, study and research scholarships and hospital endowments bearing my name.
The Minister assessed the estate duties payable following the death of Mr Goyer as though Mrs Goyer were regarded under subsection 2(5) of the Act as having inherited the whole residue of her husband’s estate. This subsection 2(5) read as follows:
2. (5) Notwithstanding anything in this Act, where
(a) a general power to appoint property, either by instrument inter vivos or by will, or both, is given to any person, and
(b) that property is, by virtue of some other provision of this Act, included in a succession,
the succession in respect of that property shall be deemed to be to the person to whom the power was given, and that person and the deceased shall be deemed to be the “successor” and the “predecessor” respectively.
The Minister claims that Mr Goyer gave his wife in his will “a general power of appointment” by instrument inter vivos over the residue of his estate. This claim was dismissed by the trial judge whose decision is here being appealed.
Appellant’s principal argument, and in my opinion the only one requiring discussion, is that according to the common law a will like that of Mr Goyer is considered as conferring on the widow a general power of appointment by instrument inter vivos. In support of this argument counsel for the appellant cited several decisions, inter alia those delivered by the Chancery Division in In re Richards-, Uglow v Richards, [1902] 1 Ch 76, In re Ryder; Burton v Kearsley, [1914] 1 Ch 865, and Re Shuker’s Estate; Bromley v Reed, [1937] 3 All ER 25.
This argument is, in my opinion, not conclusive. What must be determined here is not the effect which a will like that of Mr Goyer would have according to the common law. It is established that Mr Goyer’s will must be interpreted according to the civil law of Quebec: therefore it is to this law that reference must be made to define the rights and prerogatives conferred by this will on Mrs Goyer. The only question to be decided seems to me to be the following: Are the rights which, according to the civil law of Quebec, Mrs Goyer should enjoy as the result of her husband’s will equivalent to what is known in common law as a “general power of appointment”?
A “power of appointment” is the power granted to a person to dispose of property which does not belong to him. A general power of appointment enables its holder to designate anyone, including himself, as the owner of the property affected by the power. Waters, in his text Law of Trusts in Canada (Carswell, 1974, p 66) has the following to say on this point:
. . . another dispositive power, which is normally given to an adult beneficiary rather than to the trustees, is the power of appointment. This is an authority, normally conferred by will, by which the donee of the power may determine who are to be the recipients of specified property owned by the donor of the power, normally the testator. Traditionally powers of appointment are Said to be of two kinds, general and special. A general power enables the donee to appoint the property to anyone, including himself, and is therefore tantamount to ownership. On the other hand a power is special when the persons who may be appointed are marked out, for example, the children of the donee of the power. There are also so-called hybrid powers; where, for instance, the donee may appoint to anyone save enumerated persons, of whom he may be one.* [1]
If Mrs Goyer had enjoyed a general power of appointment, she could have appropriated the whole residue of the estate on the day of her husband’s death. The assets making up this residue would then immediately have become her sole property, so that if she herself had died at that time, she would have transferred them to her own heirs rather than to the residuary legatees of her husband. If Mrs Goyer had enjoyed a general power of appointment, she could also have thwarted the hopes of the residuary legatees as soon as her husband died by appointing a third person as owner of the whole residue of the estate. It seems clear to me that Mrs Goyer did not possess such powers, which are, if I understand correctly, those normally enjoyed by the holder of a general power of appointment. lt must therefore be concluded that Mr Goyer’s will conferred different powers on his widow than those which she would have enjoyed if she had been granted a general power of appointment. In other words, contrary to the appellant’s claim, Mrs Goyer did not hold a general power of appointment by instrument inter vivos.
For these reasons I would dismiss the appeal with costs.
*See on this subject Halsbury, 3rd ed, Vol 30, vbo “Powers”, and Farwell on Powers, 3rd ed, 1916, Nos 1 and 6.