Robins J.A. — # The principal question in this appeal is whether the terms of a scholarship trust established in 1923 by the late Reuben Wells Leonard are now contrary to public policy.
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The Facts # A. The Trust Document # By Indenture dated December 28, 1923, (the “Indenture” or “trust document”) Reuben Wells Leonard (the “settlor”) created a trust to be known as “The Leonard Foundation” (the “trust” or the “scholarship trust” or the “Foundation”).
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Fisher, J. - # The plaintiffs, who are beneficiaries under the will of William Duthie, deceased, complain, inter alia, of a breach of trust on the part of the defendants as executors and trustees under the will in omitting to sell the testamentary property when it might have been sold at a good price and retaining it and paying taxes thereon for a while until part of it (some eleven acres) was finally lost at a tax sale and the rest or the portion thereof unsold has become so depreciated in value that the estate, which was estimated to have had a net value of approximately, $21,000 at the time of the death of the testator in September, 1911, is now apparently at best little more than solvent.
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Sheppard, D.J. — # The suppliant, Torazo Iwasaki, alleges by petition that the Custodian as trustee for the suppliant as evacuee committed a breach of trust in selling land of the suppliant without any power of sale, or by selling to the specific grantee, Salt Spring Lands Limited, and for such acts of the Custodian the Crown is liable by respondeat superior. The Crown in defence says: (1) That there was no trust; (2) That there was no breach of trust in selling; (3) That the suppliant’s claim is barred by limitation of action and by laches; (4) That the suppliant’s claim is barred by release.
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While interning Japanese Canadians, the federal government seized control of all of their real and personal property within the “protected area in British Columbia.” In the spring of 1943, federal officials began to sell virtually everything that the government had taken, often below market value. Families lost heirlooms, vibrant businesses, and everyday possessions. They lost cars, boats, books, toys, furniture, and cameras. They lost homes and farms. Beyond the tangible, Canadians of Japanese descent lost opportunities, neighbourhoods, and communities.
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The origin of the trust lies in medieval tax estate planning and tax evasion. (Arguably, nothing has changed in the last six hundred years.) Imagine Osbert, a minor lord in the 15th century, who holds Greenacre as a tenant of Leonard, a slightly less minor lord. Osbert is getting on in years and has started to worry about the future of his family. His elder son, Aylwin, is not showing promising signs of maturity, and Osbert has come to think that Aylwin may be better suited to religious orders than the duties of managing a great estate.
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