The Minister of National Revenue (Appellant)
v.
Dame Lucie Simon, and the General Trust Com
pany of Canada, testamentary executors of the
will of François Faure (Respondents)
Trial Division, Walsh J.—Montreal, December
14, 1972; Ottawa, May 7, 1973.
Estate tax—Community property (Quebec)—Marriage
contract providing that community property pass in toto to
surviving spouse—Whether half share assessable to estate
tax—Estate Tax Act, R.S.C. 1970, c. E-9, s. 3(1)(a) and s.
3(2)(e).
F died domiciled in Quebec in 1966. The marriage con
tract between F and his wife under which community of
acquêsts was adopted, provided that the entire property of
the community should belong to the survivor whether or not
there were any children of the marriage.
Held, on a strict interpretation of section 3(2)(e) of the
Estate Tax Act, the entire community of acquêsts was
excluded in computing Fs estate.
APPEAL from Tax Appeal Board.
COUNSEL:
Louise Lamarre-Proulx and Alban Garon,
Q.C., for appellant.
J. Lambert Toupin for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Martineau, Walker, Allison, Beaulieu,
Phelan and MacKell, Montreal, for respond
ents.
WALsx J.—This is an appeal from a decision
of the Tax Appeal Board dated April 16, 1971
maintaining the appeal by respondents of an
assessment by the Minister of National Revenue
dated January 31, 1968 in which tax in the
amount of $59,485.84 was assessed against
assets transmitted by the late François Faure
who died on August 5, 1966. By last will and
testament in notarial form made on June 27,
1966 he named his wife, Dame Lucie Simon,
and the General Trust Company of Canada as
his testamentary executors. He and his wife had
entered into a marriage contract in notarial form
on July 4, 1911 in Belgium prior to their mar
riage by virtue of which they adopted the
matrimonial regime of community of acquêsts in
conformity with articles 1498 and 1499 of the
Civil Code of Belgium, which by an amendment
to the statement of defence made by the
respondents at the hearing, are now admitted to
be similar to articles 1389a and 1389b of the
Civil Code of the Province of Quebec', where,
as is also admitted, the deceased François Faure
and his wife were domiciled at the date of his
death and where the estate devolved.
Article 3 of the said marriage contract reads
as follows:
[TRANSLATION] The future consorts stipulate by way of
marriage covenant that the entire property of the community
shall belong in full ownership to the survivor of the con
sorts, and this whether or not there are children or descend
ants born of this marriage.
By virtue of this clause respondents excluded
the entire community of acquêsts from the cal
culation of the property transmitted by the
death of the deceased, whereas appellant in its
assessment included his one-half share in the
community of acquêsts. A Notice of Opposition
was taken and the assessment was in due course
confirmed by the Minister but on appeal to the
Tax Appeal Board respondents' appeal was
maintained.
Appellant contends that, under a matrimonial
regime of community of acquêsts, as in the case
of legal community, the consorts are co-proprie
tors of the community as long as it is not
dissolved by the death of one of them or for
other reason, and that clause 3 of the marriage
contract (supra) is not concerned with the divi
sion of the community during the lifetime of the
consorts, but if it had been divided during their
lifetime the community of acquêsts would have
been divided equally. According to appellant's
reasoning clause 3 attributing the entire commu
nity of acquêsts to the surviving consort only
takes effect at the death of one of them and that
immediately before his death the deceased was
capable of disposing of half the assets of the
community of acquêsts within the meaning of
sections 3(1)(a) and 3(2)(e) of the Estate Tax
Act, S.C. 1958, c. 29 [now R.S.C. 1970, c. E-9],
which sections read as follows:
3. (1) There shall be included in computing the aggregate
net value of the property passing on the death of a person
the value of all property, wherever situated, passing on the
death of such person, including, without restricting the
generality of the foregoing,
(a) all property of which the deceased was, immediately
prior to his death, competent to dispose;
(2) For the purposes of this section,
(e) notwithstanding anything in this section, the expres
sion in paragraph (a) of subsection (1) "property of which
the deceased was, immediately prior to his death, com
petent to dispose" does not include the share of the
spouse of the deceased in any community of property that
existed between the deceased and such spouse immediate
ly prior to his death.
As a result appellant contends that one-half of
the assets of the community of acquêsts was the
property of the deceased and was passed to his
widow on his death and this half should be
included in the list of assets transmitted. The
amount of the assets of the community of
acquêsts at the date of the deceased's death was
$638,620.50. Accordingly, appellant added
$319,310.25 to the valuation declared for the
estate. Other increases in valuation made by
appellant in its assessment are not in dispute
between the parties.
Respondents for their part point out that the
marriage contract, in addition to establishing a
community of acquêsts, contains a clause deal
ing with the attribution of the community which
is sanctioned by the Belgium Civil Code in
article 1525 and by the Quebec Civil Code in
article 1411, which are substantially similar.
Article 1411 of the Quebec Civil Code reads as
follows:
When the consorts stipulate that the whole of the commu
nity shall belong to the survivor, or to one of them only, the
heirs of the other have a right to take back what had been
brought into the community by the person they represent.
Such a stipulation is but a simple marriage covenant, and
is not subject to the rules and formalities applicable to gifts.
This article was, in 1966, at the date of
deceased's death in Section II, subsection (6) of
the Civil Code which had the general heading:
SECTION II
OF CONVENTIONAL COMMUNITY AND OF THE MOST ORDINARY
CONDITIONS WHICH MAY MODIFY OR EVEN EXCLUDE LEGAL
COMMUNITY.
The heading of subsection (6) reads:
Of the clauses by which unequal shares in the community are
assigned to the consorts.
Because of this article respondents contend that
clause 3 of the marriage contract (supra) does
not constitute a gift from one consort to the
other but establishes that at the death of one
consort the other will always be presumed to
have been proprietor of all the assets in the
community of acquêsts. By virtue of this rea
soning section 3(2)(e) of the Estate Tax Act
(supra) has the effect of withdrawing from the
calculation of the assets of the estate all the
assets of the community of acquêsts since the
words "property of which the deceased was,
immediately prior to his death, competent to
dispose" does not include any part of these
community assets. The share of the surviving
consort in the community of acquêsts actually
comprises the total of these community assets,
none of which fall into the estate of the
deceased.
The husband had, during the existence of the
community, the right to administer same and in
1966, the date at which this estate opened, to
also alienate the movable property without the
concurrence of his wife although he could not
dispose of the immovable property without her
consent nor dispose by gratuitous title inter
vivos of the movable property without her con
currence except small sums of money and cus
tomary presents. 2 It is common ground, more
over, that the deceased in this case could not
bequeath by will any part of the community of
acquêsts in view of the terms of the marriage
contract. That both parties were well aware of
the significance of the fact that the whole com
munity of acquêsts in full ownership had been
given by the marriage contract to the surviving
consort appears clear from certain clauses in the
last will and testament of the deceased in which
the third and fourth clauses read in part as
follows:
[TRANSLATION] THIRDLY: I declare that I have been mar
ried only once, to wit, to DAME LUCIE SIMON, under the
regime of community of acquests, in accordance with the
provisions of our Marriage Contract passed before MR.
HILAIRE GROENSTEEN, Notary, at Laeken -Brussels, in Bel-
gium, on the fourth day of July, one thousand nine hundred
and eleven (1911), whereunder it is stipulated that the
contributions of the consorts shall be excluded from the
community, and that the whole of the community shall
belong with full right of ownership to the surviving spouse.
Whether or not there are children or descendants born of
the marriage.
FOURTHLY: In the event that my said spouse should sur
vive me, which would give effect in her favour to the
provisions of our said Marriage Contract assigning the
whole of the said community to the survivor as mentioned
above, I give and bequeath all the property, both movable
and immovable, of whatever nature and wherever situated,
belonging to me personally and not forming part of the said
community, to my said Executors and fiduciary heirs and
(or) to those who may replace them in that capacity, but
only in trust and on the condition that they pay and hand it
over in accordance with the following provisions, to wit:
It is evident that the deceased was clearly aware
of the distinction between his personal property
and the property in the community of acquêsts.
In commenting on article 1411 of the Civil
Code, Notary Roger Comtois, in his text Traité
théorique et pratique de la communauté de biens
at page 255 cites the French commentator Tro-
plong who, in discussing the similar article 1525
in the French Code Napoleon states in vol.
XXIII at page 2173:
[TRANSLATION] This agreement is not considered as a
donation,,it is a covenant authorized by "le droit commun"
... an aleatory covenant between partners.
Troplong adds that the surviving consort is
deemed to have been the proprietor ab initio
from the moment the assets are acquired.
Looked at this way the community is really
considered as a partnership. As a result of the
partition, the surviving consort as a partner is,
as a result of the declaratory effect of the
partition, deemed to have been the owner of the
assets in the community from the date of their
purchase. Comtois approves of this explanation.
He emphasizes, however, at page 257, that in
order to constitute a marriage covenant and not
a donation it must have an onerous character
and be aleatory, which is the case here where
each party makes the same stipulation in favour
of the other. He points out at page 258 that a
fiscal consequence of this is that these assets
will not be taxed, since matrimonial covenants
as such excluding donations, are not subject to
succession duty. As authority for this he quotes
Eugène Rivard, Les droits sur les successions
dans la Province de Québec at page 92.
Notary Sirois in an article in vol. 4, Revue
légale (N.S.) reached the same conclusion at
page 520 where he states:
[TRANSLATION] Thus when by their contract of marriage
made by virtue of articles 1406 and following of the Civil
Code the consorts stipulate that all or a greater portion than
one-half ... of the assets of the community shall go to the
survivor ... this is a simple marriage covenant which gives
rise to no duties.
The late Chief Justice P.B. Mignault also agreed
in his Droit civil canadien, vol. 6 at page 385,
that a clause of this sort in a marriage contract
is not a donation but an onerous contract. A
more recent commentator, Leon Faribault in his
Traité de droit civil du Québec, vol. 10, page
401, expresses the same view.
However, the French commentators, Planiol
and Ripert, commenting on article 1525 of the
Code Napoleon state at page 272 that since the
total attribution of the community is subordinat
ed to the condition of surviving in order for the
clause to benefit the surviving spouse, it
becomes what they refer to as a "gain de sur-
vie", i.e. a survival benefit. The authors go on to
explain that a covenant of this sort does not
produce any effects until the dissolution of the
community by the death of one of the parties,
and accordingly does not affect the powers of
the husband nor of the wife over the community
during their lifetime.
In the light of the foregoing doctrine it
appears indisputable that a clause such as that
in the present marriage contract conferring the
entire community of acquêsts on the survivor of
the consorts is not a gift but has the effect of
conferring the entire community on the survivor
retroactively to the date of the marriage con
tract, subject always, of course, to the right of
the heirs of the deceased consort to take back
what has been brought into the community by
the person they represent. During the existence
of the marriage, however, the parties remain
co-proprietors of this community of acquêsts
and it is not possible to state until one of them
dies that the other owns the entire community.
Dealing with legal community, Mignault has this
to say in volume 6 at page 337:
[TRANSLATION] The wife who renounces loses all her
rights in the property of the community. Loses: for she had
rights on this property of the community during the mar
riage. She was co-proprietor with the husband, not by virtue
of a suspensive condition depending on her acceptance, but
subject to a resolutory condition if she renounces. If she
accepts the resolutory condition which she had becomes
irrevocable; if she renounces it is resolved retroactively, and
the husband is deemed to have always been the sole proprie
tor of the assets of the community.
This theory was approved by the Supreme
Court of Canada in the case of Sura v. M.N.R.
[1962] C.T.C. 1 in which Taschereau J. stated at
page 8:
[TRANSLATION] If it were otherwise, and if the wife were
not the co-proprietor of the community, she would have had
to pay succession duties at the time of the dissolution of the
community for transmission of property coming to her from
her husband would then have been involved. But, this is not
the case because there is no transmission but merely a
partition from which she takes the share which comes to her
and which has belonged to her since the marriage. What she
receives does not come to her from the patrimony of her
husband.
While this was an income tax case dealing with
legal community in which the wife only had a
one-half interest, these comments would be ap
plicable with equal force to the present case
where on the death of one consort the survivor
became the proprietor retroactively of the entire
community of which he or she had only been
co-proprietor during the existence of the mar
riage. On this reasoning it is quite proper to
state that no succession duties would be payable
on the property composing this community of
acquêsts under the provisions of the Quebec
Succession Duty Act which imposes duties on
property transmitted owing to death, and in fact
no such duties were imposed in the present
case.
This does not necessarily settle the matter,
however. The Estate Tax Act adopts a different
approach, imposing tax on the aggregate value
of property passing on death and it is the word
ing of this Act which must be interpreted to
determine its application to the facts of the
present case.
It is clear that the deceased husband in this
case could only administer the community prop
erty and sell movable property but he was not
otherwise competent to dispose inter vivos of
the property of the said community of acquêsts
without the concurrence of his wife (save for
small sums of money and customary presents) 3 .
The wife would receive at his death whatever
was left of the community of acquêsts—that is
to say, what had not been disposed of during his
lifetime. In the usual case of legal community in
which the husband would have been subject to
the same restrictions with respect to the dispos
al of the property of the community during his
lifetime, all that was left might have been
included in computing the aggregate net value of
the property passing on his death by virtue of
section 3(1)(a) of the Act (supra) 4 . Section
3(2)(e) (supra) makes an exception, however, in
order to overcome what would otherwise have
been a serious difficulty with respect to estates
opening in the Province of Quebec where the
surviving wife would be deemed to have always
been the owner of one-half of the community
property but would nevertheless have been
obliged to pay tax on the entire community if it
was held that during the marriage the deceased
husband had been competent to dispose of it
under the provisions of the aforementioned sec
tion 3(1)(a). Section 3(2)(e) excludes from the
definition of "property of which the deceased
aw s, immediately prior to his death, competent
to dispose", "the share of the spouse of the
deceased in any community of property that
existed between the deceased and such spouse
immediately prior to his death". Respondents
argue that this does not only apply to legal
community but also to the community of
acquêsts as the term "any community" is used
and that in the present case the share of the
spouse of the deceased was the entire amount
of the community of acquêsts and therefore it
should be excluded in its entirety.
The Minister, for his part, directs attention to
the opening words of section 3(1) which include
in the aggregate net value of property passing
on death, the value of all such property includ
ing "without restricting the generality of the
foregoing" and then proceeds to list various
types of property including that provided for in
subsection (1)(a). He argues, therefore, that the
property to be taxed is not limited to property
of which the deceased was, immediately prior to
his death, competent to dispose within the
meaning of subsection (1)(a) as defined in sub
section (2)(e) which merely constitutes one type
of the property to be so included. He suggests,
for example, that section 3(1)(e), which reads as
follows:
3. (1) There shall be included in computing the aggregate
net value of the property passing on the death of a person
the value of all property, wherever situated, passing on the
death of such person, including, without restricting the
generality of the foregoing,
(e) property comprised in a settlement whenever made,
whether by deed or any other instrument not taking effect
as a will, whereby any interest in or income from such
property for life or any other period determinable by
reference to death is reserved either expressly or by
implication to the deceased as settlor or whereby the
deceased has reserved to himself the right, by the exercise
of any power, to restore to himself or to reclaim the
absolute interest in such property ; 5
might be applied, since despite the establish
ment of the community of acquêsts in the mar
riage contract the deceased consort still had an
interest enabling him to alienate such property
during his lifetime, and to share in the use of the
income from it. It is my view, however, that
while this section might be wide enough to
cover a marriage contract, the deceased's inter
est in the income from the community of
acquêsts during his lifetime cannot be said to
have been reserved, even by implication, in the
said contract. His rights to the income derive
from the laws relating to administration of com
munity property, rather than from any rights
reserved in the marriage contract, nor could he
restore to himself or reclaim any absolute inter
est in the community of acquêsts.
The Minister further depends on sections
3(2)(a) (now R.S.C. 1970, c. E-9, s. 3(4)(a)) and
58(1)(i) (now R.S.C. 1970, c. E-9, s. 62(1)(i))
which read as follows:
3. (2) For the purposes of this section,
(a) a person shall be deemed to have been competent to
dispose of any property if he had such an estate or
interest therein or such general power as would, if he
were sui juris, have enabled him to dispose of that
property;
58. (1) In this Act,
(i) "general power" includes any power or authority ena
bling the donee or other holder thereof to appoint, appro
priate or dispose of property as he sees fit, whether
exercisable by instrument inter vivos or by will, or both,
but does not include any power exercisable in a fiduciary
capacity under a disposition not made by him, or exercis-
able as a mortgagee;
directing attention to the fact that the definition
of "general power" in 58(1)(i) refers to a power
exercisable by instrument inter vivos or by will
disjunctively and argues that the deceased had a
general power to dispose of the property of the
community of acquêsts during his lifetime sub
ject always to the concurrence of his wife, when
this concurrence was necessary by virtue of
article 1292 of the Civil Code (supra). I am of
the view, however, that the rights of disposal
which the deceased consort undoubtedly had
with respect to the community of acquêsts
during his lifetime arose not out of a general
power as defined in section 58(1)(i) but rather
because he had "an estate or interest therein"
enabling him to dispose of it (although only inter
vivos and in some instances with the concur
rence of his wife) in accordance with the provi
sions of section 3(2)(a), and that any disposition
which he made of it during his lifetime could not
include an appropriation of the capital of it for
his own use, so that he would be accountable to
the said community of acquêsts for any such
disposition. Moreover, section 3(2)(e) com
mences with the words "notwithstanding any
thing in this section" and is thus not only an
exception limiting the words "competent to dis
pose" as used in section 3(1)(a), but also must
limit the application of section 3(2)(a).
The jurisprudence to which I was referred is
not very helpful since the precise issue has
apparently never arisen before, although some
analogies may perhaps be drawn from the cases
cited on other points. The Sura case (supra) in
the Supreme Court, which refused to permit
income earned on community property to be
divided between husband and wife for income
tax purposes, merely decided that although they
were co-proprietors of the community during
their lifetime the husband had the administra
tion of it and the income earned must be includ
ed in his tax return, the tax being imposed on
the person and not on the property, and that the
person who must pay the tax is the one whose
enjoyment of the income is absolute, unfettered
by any restriction on his freedom to dispose of
the income as he sees fit. The cases of Wilson
Estate v. M.N.R. 66 DTC 5430; M.N.R. v.
Maine Estate 64 DTC 5128; and Hickson Estate
v. M.N.R. 64 DTC 5230 all deal with the inter
pretation of wills, and whether or not there was
general power to dispose thereunder. Perhaps
some analogy might be drawn from the Maine
Estate case which concerned a will leaving the
income of the husband's estate to the wife and
on her death to the children and grandchildren
with the trustees being "authorized" to pay her
such amounts as she might "request or desire".
Counsel for the Minister said the question of
her competency to dispose could be reduced to
the simple question of whether the wife could,
on the day after her husband's death, have said:
"I want all of that property"? If she could have
enforced such a demand she would have been
deeméd competent to dispose. Jackett P., as he
then was, accepted this. In the present case the
question might be put as to whether the husband
could, at any time before his death, have dis
posed of all of the property of the community of
acquêsts. The answer would have to be, how
ever, in this case that while he could have
disposed of some of it, he could not have given
it away without the concurrence of his wife, nor
disposed of it by will, and for the disposal of
immovables his wife's consent would also have
been necessary. Mr. Justice Thurlow touched on
a somewhat similar issue in the case of Conway
Estate v. M.N.R. 65 DTC 5169 which con
cerned a joint bank account. He held that the
husband could have disposed of it during his
lifetime but had he done so he would have been
accountable to the wife for her interest therein
and that he therefore had no right to withdraw
the entire balance either to make it his own or to
dispose of it without her consent, so he was
found to be not competent to dispose of it
within the meaning of the provisions of section
3(1)(a) and 3(2)(a) of the Estate Tax Act. The
judgment found that in the absence of proof to
the contrary one-half of the account must be
deemed to have been the wife's and therefore
this half should not be included among the prop
erty of the husband's estate. The facts in that
case are evidently substantially different from
the facts of the present case in that the wife
could also have disposed of the bank account
during the lifetime of the parties, whereas in the
present case it would only be the husband who
could have disposed of the community assets,
and also in that it was deemed in the absence of
proof to the contrary that each consort had a
one-half interest in the bank account, while in
the present case, although they were in co-pro
prietorship in the community of acquêsts, this
does not mean that they were equal proprietors
of it. In fact, either one or the other was the
owner of the entire community as a result of the
condition that whichever consort died first
would lose all right to any part of it with the
surviving consort's share being the whole of
such community.
While it may never have been intended that
property passing in this way as the result of the
establishment of a community of acquêsts
should escape taxation altogether, a taxing stat
ute must be strictly interpreted and unless the
specific terms of it impose the tax claimed the
right to this tax cannot be inferred. The problem
of the Minister in the present case is to establish
justification for taxation of one-half of the com
munity of acquêsts when the surviving consort
was clearly entitled to all of it retroactively to
the date of the marriage contract. If the inser
tion of section 3(2)(e) in the Act was necessary
to prevent the taxation of the entire property of
a legal community as property passing on death,
what would be the effect of this section on
conventional community specifying unequal
shares, for example 75% to the wife in the
event of her husband predeceasing her? I
believe one would have to conclude that since
this was the "share of the spouse of the
deceased" in the community of property that
existed between her and her spouse immediately
prior to his death that this would be excluded
from his estate. Would not the same situation
prevail here when the "share" consists of the
"whole community"? Section 3(2)(e) uses the
words "any community" which are broad
enough to comprise not only legal community
but also any sort of conventional community
including the community of acquêsts we are
dealing with here. The share of the surviving
consort immediately prior to the deceased's
death was either all or none of the community,
depending on who died first, but the moment he
died it then became the entire community,
retroactively to the date of the marriage con
tract, and is deemed to have always been hers,
since the only condition was a resolutory one
which she did not exercise, and not a suspensive
one taking effect only at the deceased's death
(see Mignault, vol. 6, page 337 (supra)).
On a strict interpretation of section 3(2)(e) of
the Act, therefore, it would appear that, while
this situation may never have been foreseen or
intended, it has the effect of excluding the
entire community of acquêsts from the
deceased's estate.
There is considerable confusion in the judg
ment of the Tax Appeal Board appealed from
which deals with the matter as if it were the
surviving consort's share (which it takes to be
one-half) of the community which the Minister
was seeking to tax, whereas it is, of course, the
deceased's share (which the Minister takes as
one-half) which is being taxed. Since, in any
event, the appeal was allowed against the
assessment of the Minister of one-half of the
assets of the community of acquêsts, I will
dismiss the appeal of the Minister, with costs,
although for different reasons, in view of my
finding that the entire assets of the community
of acquêsts should be excluded from the assess
ment of deceased's estate.
1 These articles read as follows:
1389a. When the consorts stipulate that the community
between them shall consist only of acquests, they are
deemed to exclude from the community all their property
and debts existing at the date of the marriage as well as all
property devolving upon them thereafter as their individual
property. In such case, after each consort has pretaken his
or her duly established contributions, the partition is limited
to the acquests made by the community.
1389b. Moveable property existing at the time of the
marriage or falling to the consorts afterwards shall be con
sidered to be acquests, unless the contrary is proven by an
inventory or other equivalent title, and, as between the
consorts themselves, according to the rules in articles 1387
and 1389.
The debts are governed by the rules contained in articles
1396 to 1399.
2 Quebec Civil Code, 1292 after 1964 and before 1969
amendment.
3 Quebec Civil Code, article 1292 (before 1969
amendment):
1292. The husband alone administers the property of the
community.
He cannot sell, alienate or hypothecate without the con
currence of his wife any immoveable property of the com
munity but he can, without such concurrence, sell, alienate
or pledge any moveable property other than a business or
than household furniture in use by the family.
Saving the provisions of The Husbands' and Parents' Life
Insurance Act, the husband cannot, without the concurrence
of his wife, dispose by gratuitous title inter vivos of the
property of the community, except small sums of money
and customary presents.
4 Prior to the 1964 amendment to article 1292 of the Civil
Code the husband had wider powers, being able without the
concurrence of his wife to dispose of both movable and
immovable property, subject only to the limitation that he
could not dispose of immovable property gratuitously inter
vivos or of the whole or an aliquot part of the movable
property, except for the establishment of their common
children. Section 3(1)(a) of the Estate Tax Act was not
changed following the 1964 amendment to article 1292 of
the Civil Code and it is not necessary to decide here whether
as a result of this amendment the powers of disposition of
the husband were so restricted that he could no longer be
deemed to be "competent to dispose" within the meaning of
section 3(1)(a).
5 It is of interest to note that the Estate Tax Act of 1958,
7 Eliz. II, c. 29, used the words "an interest in such
property" and this was changed so as to read "any interest
in or income from such property" by the 1964 amendment,
13 Eliz. II, c. 8, s. 1(1). It must be presumed that there was a
special reason for this and the words added would seem to
give a wider application to the section.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.