Duff, J.:—It is quite plain, I think, that a child does not take, under para. (9), subpara. (f), unless it attains the age of twenty-five years. It is true that the gift over is limited to the case where the child dies before the "period of distribution’’. But that cannot affect the plain language which makes the gift of the share contingent upon attaining the age of twenty-five years.
This, it seems to me, in itself leads to one necessary conclusion with regard to all points in controversy. Until a child has attained twenty-five years, the destination of the share is uncertain, and the beneficiary is unascertained and unascertain- able. That is sufficient to dispose of the main point. It is also sufficient to dispose of the subsidiary point, because up to that time the accumulated income accumulates as an integer ; and the result is that the appeal should be allowed, the judgment of the Court below reversed and the assessments confirmed, with costs throughout.
CANNON, J. [after setting out the facts agreed on by the parties, as set out ante, p. 116] :—The question of residence or non-residence in Canada does not and cannot arise when the ultimate beneficiary in the accumulating trust fund is not definitely known and determined during the taxation period. The probable beneficiaries could not be definitely ascertained before the contingency, i.e., their survival until they reached twenty-five years of age, actually took place.
We therefore have to deal exclusively with the 1920 amendment (c. 49, sec. 4) which covers the present case, and, in my view, is a complete taxing provision devised to tax in the hands of a trustee resident in Canada income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests, without, for obvious reasons, distinguishing between residents and non-residents. I feel bound by our decision in the Royal Trust case (Minister of National Revenue v. Royal Trust Co. [1928-34] C.T.C. 80) and would allow the appeal with costs.
Appeal allowed.