Smith,
DJ:—Minnie
Green,
who
died
at
Winnipeg,
in
Manitoba,
on
November
5,
1971,
left
a
will
dated
December
29,
1965,
wherein
she
appointed
as
her
executors
and
trustees
of
her
will,
her
husband
Ernest
Green,
and
her
father
Louis
Frank.
The
issue
in
this
case
is
the
meaning
and
effect
of
certain
provisions
in
her
will
and
the
effect,
if
any,
of
certain
provisions
in
the
Estate
Tax
Act,
RSC
1970,
c
E-9,
(hereinafter
referred
to
as
“the
Act’’).
By
the
will,
the
testatrix
devised
and
bequeathed
all
her
property
of
every
nature
and
description
to
her
trustees
upon
the
trusts
set
out
therein.
By
paragraph
3(a)
the
trustees
were
given
discretionary
power
to
sell
and
convert
into
money
any
part
of
her
estate,
and
power
in
their
absolute
discretion
to
retain
any
assets
in
the
form
existing
at
the
time
of
her
death.
By
paragraph
3(b)
their
trust
obligation
was
the
normal
one
of
paying
out
of
the
capital
of
the
general
estate
all
debts,
funeral
and
testamentary
expenses,
succession
duties
and
inheritance
and
death
taxes.
Then
following
the
trust
obligations
that
are
relevant
to
this
case:
(c)
To
keep
invested
the
residue
of
my
estate
and
to
use
the
income
therefrom
and
any
amount
or
amounts
out
of
capital
that
my
trustees
may
deem
advisable,
for
the
advancement
and
education
of
my
children
or
some
one
or
more
of.
them,
in
such
proportions
and
in
such
manner
as
my
trustees
in
their
absolute
discretion
consider
advisable.
Any
income
not
so
used
in
any
year
shall
be
added
to
the
capital
of
the
said
residue
of
my
estate
and
dealt
with
as
part
thereof.
(e)
When
there
shall
no
longer
be
any
child
of
mine
living
and
under
the
age
of
twenty-one
years,
to
divide
the
said
residue
of
my
estate
or
the
amount
thereof
remaining
among
my
children
then
alive
in
equal
shares
per
stirpes.
The
parties
to
this
action
are
agreed
that
the
words
“per
stirpes’"
were
in
error
and
should
be
“per
capita’’.
The
testatrix
left
five
children
surviving
her
aged
8
to
18.
The
plaintiff
submits
that
the
gifts
to
the
children
were
contingent
and
must
remain
so
until
the
condition
on
which
the
division
of
the
residue
was
to
take
place
has
come
to
pass.
The
defendants,
on
the
other
hand
submit
that
the
gift
to
each
child
vested
in
that
child
at
the
date
of
the
testatrix’s
death,
with
only
the
date
of
transfer
or
payment
being
postponed.
The
importance,
for
this
case,
of
the
distinction
between
“contingent’’
and
“vested”
is
seen
by
referring
to
paragraph
7(1)(c)
of
the
Act,
which
reads,
in
part:
7.
(1)
For
the
purpose
of
computing
the
aggregate
taxable
value
of
the
property
passing
on
the
death
of
a
person,
there
may
be
deducted
from
the
aggregate
net
value
of
that
property
computed
in
accordance
with
Division
B
such
of
the
following
amounts
as
are
applicable:
(c)
in
respect
of
each
child
of
the
deceased
who
survives
him,
the
lesser
of
(i)
the
value
of
any
property
passing
on
the
death
of
the
deceased
to
which
the
child
is
the
successor
that
can,
within
six
months
after
the
death
of
the
deceased
or
such
longer
period
as
may
be
reasonable
in
the
circumstances,
be
established
to
be
vested
in
the
child
for
his
benefit
indefeasibly,
or
subject
to
defeasance
only
in
the
event
of
his
death
before
attaining
such
age,
not
exceeding
forty
years,
as
is
specified
in
the
will
or
other
instrument
under
or
by
virtue
of
which
the
property
so
passing
became
vested
in
him,
or
(ii)
$10,000
plus
(B)
...
1.
the
product
obtained
when
$1,000
is
multiplied
by
the
number
of
full
years
in
the
period
commencing
on
the
day
of
the
death
of
the
deceased
and
ending
on
the
day
on
which
the
child
will,
if
ever,
become
26
years
of
age,
.
.
.
At
November
5,
1971
the
ages
of
the
5
children
and
the
amount
which
each
would
be
entitled
to
deduct
from
the
value
of
the
property
passing
to
him
if
subparagraph
7(1)(c)(ii)
is
applicable,
are
shown
on
the
following
table:
Age
at
Nov
5,
1971
|
Birthday
|
(Death
of
|
|
|
Name
of
Child
|
of
Child
|
Testatrix)
|
Amount
Deductible
|
|
Sheal
Richard
Green
|
April
|
9,
1963
|
8
|
$10,000
+
$17,000
|
$27,000
|
|
David
Zalman
Green
|
June
17,
1959
|
12
|
$10,000
+
$13,000
=
$23,000
|
|
Charles
Leslie
Green
|
Oct.
|
2,
1957
|
14
|
$10,000
+
$11,000
=
$21,000
|
|
Cheryl
Adrienne
Green
|
July
|
13,
1954
|
17
|
$10,000
+
$
8,000
=
$18,000
|
|
Coleman
Oscar
Green
|
May
|
1,
1953
|
18
|
$10,000
4-
$
7,000
=
$17,000
|
|
Total
$106,000
|
On
the
assessment
by
the
Minister
of
National
Revenue,
the
aggregate
taxable
value
of
the
estate,
after
allowing
for
the
exemption
to
the
textatrix’s
husband
was
$81,027.
The
amount
passing
to
each
child,
if
the
submission
of
the
defendants
as
to
vesting
is
correct,
would
thus
be
1/5
of
$81,027,
or
$16,205.54.
The
smallest
amount
deductible
by
any
child
is
$17,000,
under
subparagraph
7(1)(c)(ii).
Therefore
subparagraph
7(1)(c)(i)
would
be
the
applicable
rule,
the
whole
value
of
the
property
passing
to
each
child
would
be
deductible,
and
no
estate
tax
would
be
payable.
On
the
other
hand
if,
as
submitted
by
the
plaintiff
the
gifts
to
the
children
were
contingent
and
could
not
be
established
to
be
vested
in
them
within
six
months
of
the
date
of
the
death
of
the
deceased
(or
such
longer
period
as
might
be
reasonable
in
the
circumstances)
paragraph
7(1)(c)
had
no
application,
the
right
to
the
property
remained
vested
in
the
executors
and
trustees
of
the
estate
and
its
value
was
taxable
under
the
Act.
The
fundamental
rule
for
the
interpretation
of
a
will
is
that
the
intention
of
the
testator,
as
that
intention
may
be
ascertained
from
the
words
of
the
will,
read
as
a
whole,
must
be
given
effect.
In
most
cases
the
testator’s
intention
is
clear,
but
sometimes
the
expressions
used
are
ambiguous,
particularly
with
respect
to
the
time
at
which
the
testator
intends
a
legacy
to
vest
in
the
legatee.
For
such
cases
the
courts
have
prescribed
auxiliary
rules
of
interpretation.
At
first,
no
doubt,
these
rules
were
based
on
what
the
court
thought,
in
the
circumstances
of
the
case,
the
unexpressed
or
not
clearly
indicated
intention
of
the
testator
was.
In
course
of
time,
by
similar
decisions,
they,
along
with
exceptions
to
them,
have
for
the
most.
part
become
firmly
established,
though
some
decisions
may
be
difficult
to
reconcile
with
others.
Where
so
established
they
are
to
be
applied,
subject
always
to
the
overriding
rule
that
they
must
yield
to
a
contrary
intention
clearly
expressed
in
the
words
of
the
will.
The
first
rule
that
counsel
for
the
defendants
submitted
should
apply
in
the
present
case
is
stated
in
Williams
on
Executors
and
Administrators,
12th
edition
at
page
791,
as
follows:
Where
the
bequest
is
in
terms
immediate,
and
the
payment
alone
postponed,
the
legacy
is
vested.
Counsel
submitted
that
the
testatrix
intended
the
residuary
estate
to
vest
in
her
five
children
at
her
death,
with
only
the
payment,
by
division
between
them,
being
postponed
till
the
date
of
division.
The
rule
is
one
of
long
standing.
Williams
cites
several
cases.
in
which
it
was
applied.
one
of
which,
Jackson
v
Jackson
(1749),
1
Ves
Sen
217;
27
ER
992,
is
sufficient
by
way
of
illustration.
In
that
case
the
testator
bequeathed
to
his
son
400
pounds
to
be
paid
to
him
at
the
end
of
one
year
after
the
testator's
death,
and
a
further
100
pounds
at
the
death
of
his
mother.
The
son
survived
his
father,
but
died
before
his
mother.
Lord
Hardwicke
held
that
the
words
"to
be
paid”
applied
to
the
legacy
of
100
pounds
as
well
as
to
that
of
400
pounds,
and
that
the
legacy
of
100
pounds
(as
well
as
that
of
400
pounds)
vested
in
the
son
at
the
testator’s
death.
From
other
cases
it
is
clear
that
this
rule
is
not
affected
by
a
direction
to
deduct
from
the
legacy
money
for
maintenance
of
the
legatee
nor
by
a
direction
to
accumulate
interest
until
the
date
of
payment.
The
rule
is
the
same
where
a
gift
to
children
as
a
class
is
immediate,
only
the
time
of
division
being
postponed
until
they
attain
a
certain
age
respectively.
The
present
case
is
concerned
with
five
children
who
are
a
class
of
residuary
legatees,
but
otherwise
the
provisions
of
the
will
differ
materially
from
those
stated
in
the
will
in
Jackson
v
Jackson.
There
are
no
words
of
immediate
gift
to
the
children.
There
is
a
provision
for
the
trustees
to
use
the
income
from
the
residue
of
the
estate
of
the
testatrix
any
amount
or
amounts
of
the
capital
that
the
trustees
deem
advisable
for
the
advancement
and
education
of
the
children
or
of
one
or
more
of
them,
in
such
proportions
and
in
such
manner
as
the
trustees
in
their
absolute
discretion
consider
advisable.
This
does
not
vest
any
ascertainable
part
of
the
income,
nor
any
share
of
the
capital
in
any
child.
In
fact
there
are
no
words
of
gift
to
the
children
at
any
time
until
the
youngest
of
them
who
survives
to
the
age
of
21
attains
that
age.
At
that
date
the
trustees
are
directed
to
divide
the
residue,
including
accumulations
of
unused
income,
among
the
children
then
surviving
in
equal
shares.
There
is
no
question
but
that,
as
submitted
by
counsel
for
the
defendants,
the
testatrix
intended
to
benefit
her
children,
at
any
rate
those
who
survived
till
the
date
of
distribution.
The
question
is
whether
she
intended
the
benefit
to
vest
at
her
death.
As
the
will
contains
no
immediate
gift
to
the
children
I
am
unable
to
say
that
the
first
rule,
quoted
above
from
Williams,
can
be
invoked
to
hold
that
the
children’s
right
to
the
residue
became
vested
at
the
death
of
the
testatrix.
The
second
rule
is
stated
by
Williams
at
p
794,
as
follows:
If
the.
words
“payable”
or
‘‘to
be
paid”
are
omitted,
and
the
legacy
is
given
at
twenty-one,
or
if,
when,
in
case,
or
provided,
the
legatee
attains
twenty-one,
or
“on”
his
attaining
that
age,
or
any
other
future
definite
period,
this
confers
on
him
a
contingent
interest,
which
depends
for
its
vesting,
and
its
transmissibility
to
his
executors
or
administrators,
on
his
being
alive
at
the
period
specified.
This
rule
states
conditions
very
similar
to
what
is
said
in
clause
3(c)
of
the
will
in
the
present
case,
As
we
have
seen,
in
this
case
there
is
no
word
of
gift,
such
as
“bequeath”
or
“give”,
in
relation
to
the
children,
with
payment
to
take
place
at
a
later
date.
The
only
words
from
which
a
gift
to
them
can
be
discovered
are
found
in
the
direction
to
divide
the
residue
among
the
children
in
equal
shares
at
the
time
indicated
in
the
clause,
viz:
“when
there
shall
no
longer
be
any
child
of
mine
living
and
under
the
age
of
twenty-one
years.”
To
my
mind
these
words
have
precisely
the
same
meaning
as
“when
the
youngest
of
my
children
who
survives
to
the
age
of
twenty-one
years
has
attained
that
age”.
Stated
in
this
form
the
legacy
would
seem
clearly
to
fall
within
the
rule.
This
view
is
supported
by
Williams
in
a
short
paragraph
beginning
at
the
bottom
of
page
795,
where
he
Says:
Where
there
is
no
gift
but
by
a
direction
to
pay,
or
divide
and
pay,
at
a
future
time,
or
on
a
given
event,,
or
to
transfer
‘from
and
after’
a
given
event,
the
vesting
will
be
postponed
till
after
that
time
has
arrived,
or
that
event
has
happened,
unless,
from
particular
circumstances,
a
contrary
intention
Is
to
be
collected.
Apart
from
the
matter
of
particular
circumstances
this
present
case
conforms
exactly
to
the
rule
just
stated.
However,
to
both
of
these
rules,
as
stated
in
Williams
at
pages
794
and
795,
there
are
exceptions,
depending
on
particular
circumstances
and
other
provisions
of
the
will.
One
of
these
is
of
sufficient
importance
to
the
determination
of
this
case
that
it
requires
examination
at
some
length.
It
is
stated
in
Williams
at
page
796:
Where
a
testator
bequeaths
a
legacy
to
a
person
at
a
future
time,
and
either
gives
him
the
intermediate
interest,
or
directs
it
to
be
applied
for
his
benefit,
the
Court
there
considers
the
disposition
of
the
interest
to
be
an
indication
of
the
testator’s
intention
that
the
legatee
should
at
all
events
have
the
principal,
and
on
this
ground
holds
such
legacies
to
be
vested.
Williams
quotes,
in
support
of
this
rule,
from
the
judgment
of
Leach,
MR
in
Vawdry
v
Geddes
(1830),
1
Russ
&
M
204
at
208;
39
ER
78:
Where
interim
interest
is
given,
it
is
presumed
that
the
testator
meant
an
immediate
gift,
because,
for
the
purpose
of
interest,
the
particular
legacy
is
to
be
immediately.
separated
from
the
bulk
of
the
property;
but
that
presumption
fails
entirely
when
the
testator
has
expressly
declared
that
the
legacy
is
to
go
over,
in
case
of
the
death
of
the
legatee
before
a
particular
period.
It
seems
likely
that
the
origin
of
the
rule
was
to
avoid
an
intestacy.
The
exception
where
there
is
a
gift
over
accords
with
this
opinion,
because
where
there
is
a
gift
over
there
will
not
be
an
intestacy.
The
reason
just
quoted
from
Vawdry
v
Geddes
does
not
apply
to
the
present
case,
aS
we
are
not
dealing
with
a
particular
legacy
which
is
to
be
separated
from
the
bulk
of
the
property,
but
with
a
legacy
of
all
the
residue
remaining
after
debts
and
other
things
have
been
paid.
In
Jarman’s
Treatise
on
Wills,
8th
edition,
Vol
2,
p
1397,
we
find
the
following
concerning
the
vesting
effect
of
a
gift
of
interim
interest:
.•
A
gift
of
interest,
eo
nomine,
obviously
is
difficult
to
be
reconciled
with
the
suspension
of
the
vesting,
because
interest
is
a
premium
or
compensation
for
the
forbearance
of
principal,
to
which
it
supposes
a
title;
but
a
mere
allowance
for
maintenance
out
of,
and
of
less
amount
than
the
interest,
has,
it
seems,
no
such
influence
on
the
construction.
If,
however,
the
entire
interest
is
made
applicable
to
maintenance,
the
argument
in
favour
of
the
vesting
exists
in
full
force.
Similar
expressions
are
found
in
the
works
of
other
writers
and
in
many
judicial
decisions.
Thus
far
I
have
been
discussing
cases
of
particular
legacies
given
to
individual
legatees.
I
turn
now
to
legacies
to
a
class,
which
is
the
Situation
in
the
present
case.
Williams
says,
at
page
797:
On
the
same
principle
separate
gifts
to
each
member
of
a
class,
when
they
should
respectively
attain
a
certain
age,
the
income
in
the
meanwhile
to
be
applied
in
maintenance
of
the
person
to
whom
each
legacy
is
given,
are
vested.
But
it
is
otherwise
where
the
gift
is
to
such
of
the
members
of
a
class
to
attain
a
certain
age,
or
where
the
income
of
a
fund
is
given
for
the
maintenance
and
education
of
all
the
members
of
a
class
indiscriminately,
and
there
is
no
division
of
the
fund
until
a
future
event.
What
is
said
about
income
in
the
latter
part
of
the
foregoing
quotation
accords
fairly
closely
with
the
provisions
in
the
will
in
the
present
case
concerning
income,
except
that
in
our
case
the
trustees
have
a
very
wide
discretion
as
to
the
use
of
the
income
among
the
children
or
any
of
them.
Jarman,
at
page
1398,
expresses
the
same
opinion,
but
in
fewer
words:
Where
the
legacy
is
to
a
class,
a
gift
of
the
interest
for
maintenance
operates
to
vest
the
legacy,
provided
that
each
member
of
the
class
has
a
distinct
title
to
the
interest
of
his
own
share.
But
where
the
interest
is
given
as
a
common
fund
for
the
maintenance
of
all
the
members
of
a
class,
it
does
not
vest
the
fund.
There
are
many
cases
which
can
be
cited
as
the
basis
of
this
rule.
I
shall
refer
at
this
point
to
four
of
them,
which
I
consider
constitute
a
sufficient
indication
of
judicial
treatment
of
it.
The
first
is:
In
re
Parker,
Barker
v
Barker
(1880),
16
Ch
D
44.
In
this
case
the
testatrix
gave
her
residuary
estate
to
trustees
in
trust
for
sale
and
investment
of
the
proceeds,
and
to
pay
the
income
thereof,
“or
such
part
thereof
as
her
trustees’’
should
“from
time
to
time
deem
expedient,’’
in
or
towards
the
maintenance
and
education
of
her
children
until
they
should
attain
their
respective
ages
of
twenty-one
years;
then
to
pay
and
transfer
the
capital
to
the
said
children
in
equal
shares.
The
testatrix
left
three
children,
of
whom
two
attained
twenty-one,
and
the
third
died
an
infant.
Jessel,
MR
held
that
the
infant
(deceased)
did
not
take
a
vested
interest
in
his
one-third
share
of
the
residuary
estate.
He
said,
at
page
46:
I
am
not
aware
of
any
case
where,
the
gift
being
of
an
entire
fund
payable
to
a
class
of
persons
equally
on
their
attaining
a
certain
age,
a
direction
to
apply
the
income
of
the
whole
fund
in
the
meantime
for
their
maintenance
has
been
held
to
create
a
vested
interest
in
a
member
of
the
class
who
does
not
attain
that
age.
The
second
case
is:
/n
re
Mervin,
Mervin
v
Crossman,
[1891]
3
Ch
197.
The
facts
of
this
case,
taken
from
the
headnote,
were:
The
testator
directed
his
trustees
to
hold
his
residuary
estate
(in
investments)
and
the
income
thereof
“upon
trust
to
pay
and
divide
the
same
equally
between
the
children
(5
named
persons)
of
my
son
J
M
and
any
other
children
who
may
hereafter
be
born,
as
and
when
they
shall
respectively
attain
the
age
of
twenty-five
years,’’
and
the
testator
gave
his
trustees
power
“in
the
meantime
to
pay
and
apply
the
whole
or
any
part
of
the
remainder
of
the
income
of
the
investments
for
the
maintenance
and
education
of
such
grandchildren
during
their
minority;”
and
also
“to
pay
and
apply
for
the
benefit
or
advancement
of
his
said
grandchildren
or
any
of
them
any
part
not
exceeding
one-half
of
the
capital
to
which
they
or
he
may
be
entitled
expectant
on
their,
his,
or
her
attaining
the
age
of
twenty-five
years.”
At
the
testator’s
death,
his
son
J
M
had
five
children
living
and
three
were
born
thereafter..
All
these
children
were
alive
at
the
time
of
the
hearing
in
1891.
JM’s
eldest
son
attained
the
age
of
25
in
January,
1890.
Stirling,
J
held
that
the
children
of
J
M
did
not
take
vested
interests.
The
gift
was
a
gift
to
a
class
which
must
be
ascertained
when
the
first
child
of
J
M
attained
twenty-five.
At
page
203,
he
quoted
with
approval
Sir
George
Jessel’s
view
in
/n
re
Parker,
quoted
in
part
supra.
The
third
case
is
Fox
v
Fox
(1875),
LR
Eq
286.
This
case,
like
/n
re
Parker,
was
a
decision
of
Jessel,
MR.
It
was
given
five
years
before
In
re
Parker
and
was
distinguished
therein
by
the
learned
Master
of
the
Rolls.
In
Fox
v
Fox
the
testator
directed
his
trustees
to
raise
a
sum
of
15,000
pounds,
and
after
two
life
interests
therein
to
T
and
his
wife
had
ended,
to
divide
and
transfer
one-fifth
of
the
fund
to
and
amongst
the
children
of
T
equally
as
and
when
they
should
respectively
attain
the
age
of
twenty-five
years,
applying
from
time
to
time
the
income
of
the
presumptive
share
of
each
child,
or
so
much
thereof
as
the
trustees
for
the
time
being
might
think
fit,
for
his
and
her
maintenance
and
education
until
such
share
should
become
payable.
There
was
a
gift
over
if
no
child
of
T
survived
him
and
attained
the
age
of
twenty-
five.
Sir
George
Jessel
held
that
the
children
of
T
took
vested
interests.
He
said,
beginning
at
the
bottom
of
page
290:
I
hold
that
a
gift
contained
in
a
direction
to
pay
and
divide
amongst
a
class
at
a
specific
age,
followed
by
a
direction
to
apply
the
whole
income
for
maintenance
in
the
meantime,
is
vested,
and
not
the
less
so
because
there
is
a
discretion
conferred
on
the
trustees
to
apply
less
than
the
whole
income
for
that
purpose.
I
also
think
that
the
gift
over,
if
not
conclusive
on
the
question,
certainly
aids
the
construction
adopted
by
me.
Five
years
later,
in
/n
re
Parker
he
distinguished
Fox
v
Fox,
saying,
referring
(to
In
re
Parker)
at
page
46:
The
trust
is
of
residue;
“to
pay
the
dividends,
interest,
or
income
thereof,
or
such
part
thereof
as
my
trustees
for
the
time
being
shall
from
time
to
time
deem
expedient,
in
or
towards
the
maintenance
and
education
of
my
children,
until
my
said
children
shall
attain
their
respective
ages
of
twenty-
one
years;’’
so
that
there
is
nothing
here
giving
an
aliquot
share
of
income
to
any
individual
child;
the
direction
being
to
pay
the
income
of
the
whole
fund
in
such
shares
as
the
trustees
shall
think
fit.
The
distinction
is
of
course
that
in
Fox
v
Fox
the
presumptive
share
of
each
child
was
separated
from
those
of
the
others
and
the
income
from
each
child’s
share
was
to
be
applied
for
that
child’s
maintenance
and
income
until
the
share
itself
became
payable.
Our
case
is
similar
in
this
respect
to
/n
re
Parker
in
that
in
the
will
there
is
no
separation
of
income
into
shares
for
each
child.
In
fact
the
whole
residue
is
treated
as
a
whole
until
the
time
of
distribution
will
arrive.
The
fourth
case
is
Fast
v
Van
Vi/et
(1965),
51
WWR
65.
It
is
a
majority
decision
of
the
Manitoba
Court
of
Appeal.
A
testatrix
directed
that
her
estate
be
divided
into
three
equal
shares,
and
the
will
contained
the
following
clauses:
(e)
Two
thirds
share
to
be
paid
to
my
infant
grandchild,
Calvin
Ralph
Fast
upon
his
attaining
the
age
of
twenty-five
years.
(f)
If
any
beneficiary
hereunder
shall
be
under
the
age
of
twenty-one
years,
to
use
so
much
of
the
income
and/or
capital
of
the
share
of
such
beneficiary
as
my
Trustee
in
his
discretion
shall
deem
necessary
to
provide
for
his
or
her
maintenance
and
education
as
well
as
for
any
illness
or
other
emergency
him
or
her
affecting.
The
grandson,
Calvin
Ralph
Fast,
having
become
21
years
of
age,
brought
an
application
in
the
Court
of
Queen’s
Bench
for
an
order
that
the
Trustee
pay
him
his
two-thirds
share.
His
application
was
refused
and
he
appealed
to
the
Court
of
Appeal.
The
majority
of
the
Court,
Monnin,
JA
and
Schultz,
JA
with
Miller,
CJM
dissenting,
held
that
the
residuary
bequest
to
Calvin
Ralph
Fast
was
contingent
upon
his
reaching
the
age
of
twenty-five
and
nothing
in
the
will
permitted
a
departure
from
the
plain
words
used.
Two
questions
were
involved,
(1)
Had
the
gift
to
the
applicant
(appellant)
vested
in
him
on
the
death
of
the
testator
and
(2)
If
so,
was
he
entitled
to
payment
at
age
21
instead
of
age
25
as
specified
in
the
will.
For
the
purposes
of
the
present
case
this
Court
is
not
concerned
with
the
second
question.
Monnin.
JA
reviewed
the
applicable
law
at
some
length.
Referring
to
the
principle
that
the
law
favours
early
vesting
of
estates,
he
said,
at
page
76:
This
principle
of
early
vesting,
which
at
best
is
an
indefinite
one,
is
not
a
binding
presumption
of
law.
In
the
instant
will
the
language
is
clear
and
unambiguous.
One
need
not
strain
words
or
mind
to
find
the
testatrix’
clear
intention.
She
did
not
wish
her
grandson
to
inherit
until
he
attained
the
age
of
25
and
clearly
said
so.
No
one
but
a
person
who
has
attained
the
age
of
25
can
claim
anything
under
such
a
gift.
This
is
not
the
case
of
an
antecedent
gift
followed
by
a
postponement
of
enjoyment.
The
clause
read
in
the
context
of
the
will
indicates
that
there
is
no
vesting
until
the
applicant
has
reached
the
age
of
twenty-five.
Monnin,
JA
then
considered
whether
clause
(f)
of
the
will,
quoted
Supra,
made
any
difference
and
came
to
the
conclusion
that
it
did
not.
In
this
conclusion
he
appears
to
differ
with
Jessel,
MR
in
Fox
v
Fox,
to
which
case
he
did
not
refer.
I
note
here
that
the
decision
in
Fox
v
Fox
has
been
both
criticized
and
distinguished
in
a
number
of
cases.
At
page
77
Monnin,
JA
made
a
further
strong
statement:
The
tendency
of
modern
decisions
is
to
construe
plain
words
according
to
their
proper
meaning
with
little
regard
for
some
of
the
old
rules
of
construction.
If
the
construction
of
the
will,
in
conformity
with
the
old
rules,
would
have
the
effect
of
rendering
nugatory
the
clearly
expressed
intentions
of
the
testator,
a
court
should
not
hesitate
to
ignore
the
rules.
It
should
even
struggle
to
avoid
such
a
rigid
and
unnecessary
construction.
Rules
have
their
value,
but
too
rigid
an
application
of
them
can
only
unduly
fetter
the
hands
of
the
court.
Further,
I
consider
it
unsound
to
apply
a
canon
of
construction
of
wills
to
something
that
is
abundantly
clear.
In
the
instant
case
we
are
not
dealing
with
a
direction
as
to
payment
after
a
clear
bequest,
but
with
a
bequest
conditional
upon
the
beneficiary
attaining
a
given
age.
The
condition
upon
which
the
grandson
is
to
inherit
is
so
clearly
expressed
that
to
treat
the
bequest
as
vested
upon
his
attaining
the
age
of
21
would
be
to
do
violence
to
the
plain,
unambiguous
language
used
by
the
testatrix.
It
is
clear
that
in
Monnin,
JA’s
view
the
meaning
of
the
will
was
so
clear
that
no
rules
of
construction
were
needed
to
interpret
it.
In
my
view,
both
by
analogy
with
many
decisions
of
the
courts,
to
a
few
of
which
I
have
referred
in
these
reasons,
and
from
the
rules
derived
from
a
vast
number
of
cases
and
expounded
by
eminent
writers,
and
also
from
what
I
consider
the
clear
meaning
of
the
words
of
the
will,
the
residuary
gifts
to
the
children
of
the
testatrix
are
clearly
contingent.
There
is
no
gift
of
anything
to
all
or
any
of
the
children
prior
to
the
date
at
which
distribution
is
to
take
place,
except
for
what
the
trustees
in
their
absolute
discretion
may
use,
of
income
or
capital,
for
the
advancement
and
education
of
the
children
or
one
or
more
of
them.
Until
the
date.
of
distribution
the
residuary
estate
is
to
remain
one
whole
fund,
to
which
any
unused
income
is
to
be
added.
There
is
no
reference
to
the
share
of.
one
child
or
the
shares
of
all
or
more
than
one.
The
date
for
dividing
the
residue
among
the
children
is
“when
there
shall
no
longer
be
any
child
of
mine
living
and
under
the
age
of
twenty-one
years”.
These
words
necessarily
import
a
contingency,
the
condition
being
that
those
who
are
to
share
in
the
distribution
of
the
residue
must
all
have
attained
the
age
of
twenty-one
years.
There
is
a
further
contingency,
because
the
division
is
to
be
in
equal
shares
to
the
children
then
alive.
It
is
only
the
children
then
alive
who
are
to
share
and
who
they
will
be
cannot
be
determined
until
the
time
for
division
has
arrived.
To
my
mind
the
language
of
the
will
is
clear
and
unambiguous,
and
I
can
find
nothing
in
it
to
indicate
an
intention
to
vest
anything
in
the
children
at
the
death
of
the
testatrix,
nor
until
the
date,
of
distribution.
The
plaintiff's
appeal
is
allowed,
the
decision
of
the
Tax
Review
Board
is
set
aside
and
the
reassessment
of
the
estate
for
estate
tax
is
restored.
The
plaintiff
is
entitled
to
the
costs
of
this
action.
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