One S. B. was owner of a large tract of land and other assets and, being a bachelor and having no relatives in this country, brought out in 1888 from England his nephew, the respondent.
The latter lived with his uncle, assisted him in his business and eventually was allowed a very large measure of control over his affairs.
In 1906, S. B. made his will leaving the bulk of his estate to the respondent; and in 1907 he executed a power of attorney, under which the respondent was formally given powers to act for him in the management of his affairs. In 1908, S. B. went to a hospital, and shortly thereafter left for England where he died in 1913.
While there, in 1912, S. B. changed his will in favour of some of his English relatives, but still left a substantial part of his estate to the respondent.
In an action by the executor of the will of 1912 to compel the respondent as trustee for the estate of his uncle to account for rentals, profits and moneys received by him during the lifetime of his uncle, for, as alleged, the benefit of the latter, the defence was set up that the deceased evidenced his intention to permit the respondent to retain said moneys free from any condition that he should be regarded as a trustee with respect thereto. The language of the deceased, as reported by the respondent in ihis evidence, imports a declaration of a then present intention by the deceased to give all his real and personal property to the respondent; and that the respondent was to do as he pleased with it and was to be under no obligation to account for it. The trial judge held the respondent was not accountable on the ground that there had been a gift to 'him of these moneys, that the intention to give had remained unaltered down to the time of his death and that his judgment must be governed by the decision in Strong v. Bird (L.R. Eq. 315).
The judgment of the trial judge was affirmed, the Court of Appeal being equally divided.
Held, that the principle laid down in Strong v. Bird was not applicable to the circumstances of this case and that the respondent was accountable for all moneys of the deceased received by him since 1907, excepting those in respect of which the intended gift above mentioned was completed within the lifetime of the deceased.
Judgment of the Court of Appeal (36 B.C. Rep. 231) reversed. *PRESENT:-Anglin C.J.C. and Idington, Duff, Newcombe and Rinfret JJ.