Supreme Court of Canada
Crawford v. Brody, (1896) 26 S.C.R. 345
Date: 1896-05-18
Adeline Crawford and Margaret Harkley (Plaintiffs) Appellants;
and
Alexander Broddy, Alexander Ellis and Francis Nixon (Defendants) Respondents.
1896: March 10, 11; 1896: May 18.
Present: Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Will, construction of—Death without issue—Executory devise over—Conditional fee—Life estate—Estate tail.
A testator died in 1856 having previously made his last will divided into numbered paragraphs by which he devised his property amongst certain of his children. By the third clause he devised lands to his son F. on attaining the age of 21 years,—“giving the executors power to lift the rent, and to rent, said executors paying F. all former rents due after my decease up to his attaining the age of 21 years,” and by a subsequent clause he provided that “at the death of any one of my sons or daughters having no issue, their property to be divided equally among the survivors.” F. attained the age of 21 years and died in 1893, unmarried and without issue.
Held, that neither the form nor the language used in the will would authorize a departure from the general rule as to construction according to the ordinary grammatical meaning of the words used by the testator, and that, as there would be no absurdity, repugnance or inconsistency in such a construction of the will in question, the subsequent clause limiting the estates bequeathed by an executory devise over must be interpreted as referring to the property devised to the testator’s sons and daughters by all the preceding clauses of the will.
Held further, that the gift over should be construed as having reference to failure of issue at the death of the first devisee who thus took an estate in fee subject to the executory devise over.
APPEAL from a decision of the Court of Appeal for Ontario, reversing the judgment of the Divisional Court, Chancery Division, and restoring the judgment of the trial court.
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The action sought a declaration that under the true construction of the will of which the material parts are quoted in the judgment of his Lordship the Chief Justice, his son Francis Nixon, the younger, took, under the third clause, only a life estate in the lands in question, and that upon his death the property passed to his surviving brothers and sisters under the executory devise over contained in the fourth clause of the will. The trial judge dismissed the action with costs, holding that the devisee took an estate tail, but this decision was reversed by the Chancery Division and it was there held that the devise gave a fee conditional with an executory devise over and a reference was directed as to improvements made on the lands under mistake of title, the question of costs being reserved.
The Court of Appeal reversed the judgment of the Divisional Court and restored the judgment at the trial, and a majority of the court held that the gift over in the fourth clause did not apply to or modify the devise in the previous clause of the will which had vested the absolute fee in Francis Nixon, jr.
Chrysler Q.C. for the appellants. There being no inconsistency or repugnancy with the declared intentions of the testator as drawn from the whole instrument, each clause of the will must be expounded according to the ordinary and grammatical sense of the words used. The survivorship clause thus would include all the devisees and avoid uncertainty by referring to all that precedes it. Clark v. Clark; Fisher v. Anderson; Williams on Executors; Jarmyn on Wills; Gordon v. Gordon; Bathurst v. Errington; Rhodes v. Rhodes.
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Unless the survivor clause refers to the whole prior part of the will, there would be an intestacy as to lot 8 and its rents in case the son Francis died before he was of age. An intestacy must be avoided if possible. See In re Harrison. There is no connection by grammatical construction or direct words of reference between the devise of lot 5 and that of lots 6 and 8. See Doe d. Palmer v. Richards; Compton v. Compton. Where two devises are in opposition the last governs. Ulrich v. Litchfield; Randfield v. Randfield.
The use of the word “fourthly” could not limit the executor’s powers nor the devise as to lands. Ex parte Wynch; Jarmyn on Wills. The failure of issue was limited to the death of Francis, the younger, by the words “at the death, &c,” because the will does not contain the phrase “die without issue,” which standing alone before the Wills Act, had a technical meaning, indicating an indefinite failure of issue, but contains the words “having no issue” which have no technical meaning but the grammatical one of having no issue living at the death, and because the prior estate was a fee simple, and also by the use of the word “survivors” without words of limitation. Jarmyn on Wills; Gray v. Richford and cases there cited; Ex parte Davies; M’Enally v. Wetherall; King v. Evans; Ranelagh v. Ranelagh. The survivors were the other sons and daughters living at Francis’ death. King v. Frost. On the whole will and the surrounding circumstances the testator intended the survivor clause to apply to the whole
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prior part of the will, and if its effect is restricted to paragraph 4 the doubt spoken of in Thornhill v. Hall remains but is removed by applying it to the whole will. Pickwell v. Spencer.
McFadden and Blain for the respondents. The third paragraph standing by itself gives the fee in lot 8 absolutely to Francis Nixon, the younger, and it would be wrong to cut down this interest by extracting the sentence “at the death, &c.” from the middle of the fourth paragraph of the will to connect and read along with the third paragraph. Doing so is contrary to the true principle of construction laid down in Meyers v. The Hamilton Prov. & L. Co., and in Thornhill v. Hall24. And as Francis attained the age of twenty-one he became indefeasibly seized in fee simple of the land in question.
Transferring the sentence and reading it along with paragraph three would make Francis’ taking subject to two contingencies, and as one contingency has been fulfilled (arriving at the age of 21 years), he would take an estate absolute upon the authority of Cook v. Noble, and Griffith v. Griffith.
This is not a grant of an estate in fee with an executory devise over, but a fee without a devise over. Farrell v. Farrell. The intention of the will as to dying without issue applied before the devisee became 21; when he became 21 the property vested. Gould v. Stokes.
If it did not vest as a fee simple it did as a fee tail. Little v. Billings; Gray v. Richford; Travers v. Gustin; Theobald on Wills; Morgan v. Thomas;
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Hellem v. Severs; Doe d. Cannon v. Rucastle; Evans v. King; Tyrwhitt v. Dewson.
The words “having no issue,” import an indefinite failure of issue. Theobald on Wills; and if there is a devise to A. simply or to A. for life, followed by a gift over in default of issue, if these words import an indefinite failure of issue, A. takes an estate tail. Theobald on Wills40. Therefore, Francis Nixon the younger takes an estate tail by implication.
Francis Nixon, the younger, took an absolute interest by implication, inasmuch as an absolute interest will be implied from a direction that the trust is to cease at twenty-one or from a reference to the trustees for the legatees; Peat v. Powell, and other cases referred to in Theobald, and an absolute interest will be given because the trustees will be directed to apply not only the interest but the produce till Francis Nixon, the younger, attains twenty-one years.
Even if the clause as to failure of issue relates to the third paragraph, the death having no issue meant an indefinite failure of issue, and not a failure at the death of the devisee or legatee. Jarmyn on Wills; Farrell v. Farrell.
As to a bequest of personal estate with a gift over of the share of any one dying without issue to survivors, see Hawkins on Wills, where Hughes v. Sayer is cited; but Hawkins states it is otherwise in devises of real estate, and states that the above case of Hughes v. Sayer does not apply in devises of real estate and cites Chadock v. Cowley. Where there is a devise to A., and his heirs, with a gift over if A. should
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die under twenty-one, or having attained twenty-one should die without issue, it has been held that the correspondence between the two events on which the limitation over is to take effect, is sufficient to restrain the dying without issue to a failure of issue at the death.
The learned counsel referred to the following cases. Forth v. Chapman; Bamford v. Chadwick; Simmons v. Simmons; Coltsman v. Coltsman, is distinguished from the earlier cases, and is not at variance with former decisions. Wyld v. Lewis was not cited in Coltsman v. Coltsman50. As to the meanings of the word survivor, see Theobald on Wills. If it means in this case the longest liver, then the failure of issue is not restricted. Chadock v. Cowley; O’Donohoe v. King.
There was an intention to benefit the stirpes; and in such case a restricted construction would not be adopted. Theobald on Wills53.
The judgment of the court was delivered by:
THE CHIEF JUSTICE.—The only question on this appeal is one as to the construction of the will of Francis Nixon who died in 1856, and therefore before the passing of the provisions of the Wills Act regarding death without issue.
So much of this will as is material to the question raised on the present appeal is as follows:
2nd. I give and bequeath to my son Adam Nixon, lot number 6 in the 3rd concession of the township of Chinguacousy, aforesaid, containing 100 acres more or less, together with the houses and outhouses thereon erect.
3rd. I give and bequeath to my son Francis Nixon, lot number 8 in the 4th concession of the said township of Chinguacousy, contain-
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ing 100 acres more or less, together with all the houses and outhouses thereon erect, at the age of 21 years, giving the executors power to lift the rent, and to rent, said executors paying said Francis Nixon all former rents due after my decease up to his attaining the age of 21 years.
4th. I appoint Ross Nixon, James Alderson, and Alexander Nixon my executors of this my last will and testament, in whose hands I leave lot number 5 in the 3rd concession of township aforesaid, containing 50 acres more or less, to be disposed of as follows as soon as the lot can liquidate the following:
To my son Franklin Seymour, the sum of 250 pounds of lawful money.
To my son Francis, one acre, being the north-west corner of said lot number 5 in the 3rd concession.
To my daughter Ellen Benson, wife of James Benson, the sum of 25 pounds of lawful money.
To my daughter Margaret, the sum of 50 pounds, and in case she pleases the executors in her marriage the sum of 25 pounds more.
To my daughter Adeline, the sum of 50 pounds, and in case she pleases the executors in her marriage the sum of 25 pounds more.
At the death of any one of my sons or daughters having no issue, their property to be divided equally among the survivors.
To my niece the sum of 12 pounds, 10 shillings.
To James William the sum of 25 pounds.
After the aforesaid claims are paid, lot number five in the third concession falls into the hands of Adam Nixon. And in case the said lot 8 in the 4th concession will not realize the above claims in full, the balance to be paid by Adam and Francis, share and share alike, and in case the lot brings more than said claims the overplus to be paid by my executors to Adam Nixon.
The action, which originally involved other questions besides that relating to the construction of this will, was tried before Mr. Justice Ferguson, who held that Francis Nixon the testator’s son took an estate tail in lot number eight in the 4th concession of Chinguacousy. Upon appeal to the Divisional Court of Chancery that court (composed of the Chancellor and Mr. Justice Meredith) held that Francis Nixon took a fee subject to an executory devise over in the lands in question. There was then a further appeal to the Court of Appeal and it was there held by a majority
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of the court that both the preceding judgments were erroneous, and that Francis Nixon took a fee simple absolute in lot no. 8. Mr. Justice Street dissented from this judgment and agreed in the conclusion of the Divisional Court of Chancery.
The judgment of the Court of Appeal proceeded upon the reasons which are fully stated in the judgment of Mr. Justice Maclennan. The will, as I have already remarked, having been made in 1852 by a testator who died in 1856, must be construed according to the old law as it stood before the enactment, copied from the English Wills Act, providing that a failure of issue is to be taken to mean a failure of issue at the death, thus altering the old rule of construction which had established that unless there was a context calling for a restrictive construction failure of issue meant a failure of issue indefinitely.
The question here turns on a provision in the fourth section of the will which is in these words:
At the death of any one of my sons and daughters having no issue their property to be divided equally among the survivors.
The Court of Appeal were of opinion that this gift over on death without issue did not apply to the lot number 8, in the 4th concession, which by the third clause of the will had been given to Francis Nixon in absolute terms, but was applicable only to lot number five, in the 3rd concession, which by the 4th clause of the will was directed to be sold to pay the legacies thereby bequeathed, with the exception of one acre devised to the testator’s son Francis. The Court of Appeal therefore held it was unnecessary to decide the question upon which Mr. Justice Ferguson and the Divisional Court had differed as to the effect of this gift over on failure of issue. With all due respect for the Court of Appeal, I am entirely unable to adopt the reasoning which has led to their conclusion. The
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rule of construction established by the well known cases of Gray v. Pearson; Abbott v. Middleton; and Roddy v. Fitzgerald, is that we are to construe a will by reading it
in the ordinary and grammatical sense of the words unless some obvious absurdity, or some repugnance or inconsistency with the declared intentions of the writer to be extracted from the whole instrument, should follow from so reading it.
And as has been said by Lord Cranworth in Abbott v. Middleton57:
It is not the duty of a court of justice to search for a testator’s meaning otherwise than by fairly interpreting the words he has used.
These cases are of such high authority and the rule of construction they lay down has become so familiar, that no one will be inclined to impugn it. The only doubt or difficulty which arises is in applying it.
It cannot be disputed that the ordinary grammatical construction of the clause in question requires us to read it as applying primâ facie to lot number 8, which the testator in the preceding section had devised to Francis Nixon in terms sufficient to pass the fee simple. The gift over is to be “at the death of any one of my sons and daughters,” words which include Francis as one of the sons. And it is to be of “their property,” meaning of course property which the testator has power to deal with as having previously devised or bequeathed it by the will. Therefore this word “property” must, according to the ordinary primâ facie grammatical meaning, comprise lot 8 devised to Francis. In order then to except lot number 8 from the provision in question we must be able to point to some “absurdity,” “repugnance” or “inconsistency” which would be the consequence of including it.
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No absurdity can, of course, be suggested. That there is either inconsistency or repugnance in a testator first giving an estate in fee in absolute terms and then cutting down that gift and making the absolute estate defeasible by an executory devise over or by the addition of words altering the estate to an estate tail, is a proposition which would be at variance with numberless authorities. The rule adverted to by Mr. Justice Osler as established by Thornhill v. Hall, has manifestly no application here, for no clearer and more decisive terms could be used than the language of the testator in the clause by which he limits the subsequent estates over. I fail therefore to see any safe ground on which we can proceed in following the Court of Appeal in a departure from the ordinary grammatical interpretation If we once cut loose from the rule of literal construction and begin to speculate about the probable meaning of the testator we find ourselves surrounded by uncertainty. The mere mechanical arrangement of the will by a division into sections or paragraphs can have no conclusive effect on this question. It would be unsafe in the highest degree to construe a loosely framed will like this on any such principle. I am therefore unable to agree with the Court of Appeal that the gift over does not include lot number 8 devised to Francis Nixon.
This compels us to determine the point on which the learned judge who tried the action and the Divisional Court differed, viz.: the proper construction of the gift over “at the death” of any of the testator’s sons and daughters having no issue. Do these words import an indefinite failure of issue and thus cut down the estate of Francis to an estate tail, or do they mean a failure of issue restricted to the time of the death of the first devisee, thus leaving Francis Nixon
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a fee but subject to an executory devise over? That the latter, which was that adopted by the Divisional Court, is plainly the proper construction upon authority is not open to dispute. I refer to the cases of Ex parte Davies; Parker v. Birks; Coltsmann v. Coltsmann; and Gray v. Richford. In Jarman on Wills, it is said that the three first of these cases have been considered
to have established the rule of restrictive construction for cases in which the devise is to A. in fee and if he dies without issue then at or on his death over.
Indeed without authority a different conclusion would be quite inadmissible, for the question being whether the testator meant an indefinite failure of issue or a failure of issue at the death of the first taker, all doubt must disappear when we find that he has himself in so many words said that he meant a failure at the death of the first devisee.
The appeal must be allowed, the order of the Court of Appeal discharged, and the judgment of the Divisional Court restored with costs to the appellants here and in the Court of Appeal.
Appeal allowed with costs.
Solicitor for the appellants: Thomas Dixon.
Solicitors for the respondent Nixon: Blain & Mahaffy.
Solicitor for the other respondents: W.H. McFadden.
5 ed. pp. 393, 443 et seq.
3rd ed. 302, 500, 503, 520, 524.
3 ed. pp. 302, 520 et seq.
2 Am. ed. pp. 205 et seq.
Per Lord Wensleydale in Abbott v. Middleton.
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