Supreme Court of Canada
Brodie v. Chipman, (1918) 57 S.C.R. 321
Date: 1918-10-08
Blanche Gertrude Brodie and Another (Plaintiffs) Appellants;
and
John D. Chipman and Others (Defendants) Respondents.
1918: June 19, 20; 1918: October 8.
Present: Sir Charles Fitzpatrick C.J. and Idington, Anglin and Brodeur JJ. and Cassels J. ad hoc.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Will—Codicil—Revocation of bequest—Life insurance.
The will of S. provided that his life insurance should be paid as directed in the respective policies and of the rest of his estate one-half should be paid to his wife and the other to trustees who were to pay the revenue therefrom to his wife during her life, and on her death to divide it equally among his four children. His son having died he added a codicil setting out his insurance policies and providing that “one-quarter of these policies go direct to my wife, but all my other property now goes, with my last son dead, to my three daughters under the terms of my said last will.”
Held, reversing the judgment of the Appellate Division (41 Ont. L.R. 281), Anglin and Cassels JJ. dissenting, that the codicil revoked the bequest to testator's wife of half the residue of his estate.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario, reversing the judgment on an originating summons in favour of the female appellant.
The facts are sufficiently set out in the above head-note.
McLaughlin K.C. and Stinson for the appellant cited In re Whiting; Hearle v. Hicks; Hunter v. Attorney-General.
Hellmuth K.C. and Neil Sinclair for the respondents referred to Follett v. Pettman; In re Smith.
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THE CHIEF JUSTICE.—The case, I think, comes before the court with insufficient information to enable it to be satisfactorily dealt with. By his will the testator recited:—
I have certain life insurance upon my life, some payable to my estate some payable to my wife, some payable to my wife and children, and it is my wish, purpose and desire that the conditions of payment in all policies of insurance be carried out and that my wife and children and estate may receive and benefit in the proportions and manner as set forth in all and each of said policies.
With the exception of a specific bequest to his wife of his household goods and effects the testator bequeathed to trustees upon the trusts mentioned all of his property which, of course, would include insurance moneys coming to his estate.
The codicil to the will provided:
And further I say, and irrevocably will and determine that my wife E.F. Spink, shall have one-quarter or one-fourth of my life insurance. I intend it to cover my policies in the Standard Life, now over $8,000, I think No. 80076 W. and United Workmen, I think certificate No. 3491, and I think Provident Saving Life No. 177,764, and Independent Order of Foresters, Certificate No. I think Nos. 31236 and 242662.
Although much argument has been made upon the amounts of the insurance moneys as they would go under the provisions of the will or codicil, there is no information concerning them in the record beyond a statement by certain of the parties that under the will the widow would receive of the life insurance about $9,000, and under the codicil about $4,000 or $5,000 less. This statement, of course, depends upon what is the understanding of the parties as to the effect of the will and codicil, an understanding that is possibly, if not probably, erroneous.
Not only have we no information concerning the policies and the amounts which, under their terms, would go to the widow and children and the estate of the testator respectively, but we do not know whether
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in the codicil the testator, in the insurance of which he makes mention, was dealing only with those belonging to his estate, or whether he was assuming to dispose of the whole of the insurance on his life.
Chief Justice Meredith has accepted the parties’ figures and ignored any difficulties to which they give rise, though his remarks that the insurance money amounted to about $20,000, that the half share of the widow under the will would have amounted to $9,000, and her quarter share under the codicil to about $4,000, seem to involve calculations difficult to reconcile with the immutable laws of arithmetic.
I do not, however, think it is necessary to refer the matter back on account of this imperfect evidence, because, in my opinion, the judgment appealed from cannot in any event be maintained.
The important words of the codicil which are in question read:—
One-quarter of these policies go direct to my wife but all my other property now goes with my last son dead, to my three daughters under the terms of my said last will.
I suppose it must be admitted that, taken by themselves alone, the meaning of these words does not admit of much doubt. Omitting the words
under the terms of my said last will,
it does not admit of any doubt.
The testator drew both will and codicil himself, and the latter document when he was in extremis. May he not well have supposed that some of the terms of the will would still be applicable to his bequest, the equal division between the children; the taking by survivorship; grandchildren inheriting their parents’ share, etc.? Is not this more likely than supposing that he had forgotten that by his will he had left his children
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nothing but a reversionary interest in one-half share of his residuary estate.?
In the reasons for judgment appealed from it is said:—
These considerations (of intention) are no doubt relevant only if the meaning of the provision of the codicil which is in question is doubtful, for if, on the true construction of it, there is a clear gift of the whole of the residue to the three daughters they are irrelevant and the codicil must be given effect to according to its terms.
The first ground on which the decision is put is the rule of law that an erroneous recital by a testator in a codicil that he has by his will given a legacy to A.B. when he has not done so, creates no legacy at all. This, of course, admits of no doubt but does not seem to be in point here. It has application in such cases as Mackenzie v. Bradbury, quoted by Meredith C.J.O., where the codicil erroneously stated:—
Whereas, by my will, I have bequeathed to Francis, the son of my husband’s niece, the sum of £1,000, now I hereby declare that the said legacy shall not be payable until, etc.,
and the claim of Francis to be entitled by implication to a legacy of £1,000 was held to be unfounded. Such a case as this has no bearing on the present unless we assume that the testator was not, by his codicil, making a bequest but merely a purposeless and erroneous recital of so important a matter as the disposition made by his will of the whole of his property.
The second ground put forward is that, as held by the House of Lords in Hearle v. Hicks, where there is a clear and manifest intention to devise it is incumbent on a party alleging a revocation by a codicil to prove that the intention to revoke was equally clear and manifest. To enable this rule to have any application it is necessary to assume the point in dispute,
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namely, that the codicil gave no bequest to the daughters, for obviously there must be a necessary revocation of a devise made by a will if the same property is left by the codicil to a different devisee. The argument, therefore, seems to amount to this that there was no bequest by the codicil because there was no revocation of the will and there was no revocation because there was no bequest by the codicil. This does not prove the proposition.
In the absence of any ambiguity the court cannot consider what may have been the intentions of the testator, but if it were possible in the present case to inquire into these, I do not think the probabilities would be such as the Chief Justice of Ontario suggests. The main ground on which he rests his views is that the testator must have intended in his codicil to have preserved to his widow the same proportion of his estate as he had left her in his will. Why should he wish to do so? I can imagine no reason, but, on the contrary, think the presumption, so far as there is any, should be the other way. The ordinary man, I apprehend, desires to leave his widow a suitable income proportionable to his means for the rest of her life, or until her remarriage, a dower in fact, following the provision made for her by the common law. If he should have an estate of $50,000 he might leave his widow one-half or $25,000, but if subsequently to the making of his will he became possessed of $500,000, it is most unlikely that he would wish to leave her half of this. He might increase her legacy to $50,000, or one‑tenth of his estate, but the rest he would leave to his married children.
What are the facts assumed in this case, for as I have said, we do not know with certainty what they really are? The estate, excluding life insurance, was
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sworn at $26,500, but this included the moiety of the son’s insurance which, as appears from the affidavit of the latter’s executor, was upwards of $11,000. Consequently the estate, excluding insurance, of which the testator was disposing at the date of his will, was not much over $20,000. Of this he left half, or $10,000, to his widow, and the other half, subject to a life interest to her, to his children. Adopting the figures of the executor, the respondent, J.R. Brodie, the widow would have taken $9,000 of the insurance money, a total of $19,000. Now the son died, and his mother took one moiety of his insurance money, and by the codicil in question, the other moiety, $11,000 and upwards; then the testator, again according to the figures of the executor, reduced her share of his insurance moneys from $9,000 to $5,000, and gave all the residue to his children, leaving her with $16,000 actual cash, instead of an uncertain $19,000, for he could not have known what the share which she would get under the will would amount to, and the life interest in half the residue. This, of course, was a reduction in the benefits given to the widow, but not an extravagant one, especially in view of the fact that the testator did undoubtedly intend to make some reduction of them.
We cannot speculate as to the motives of the testator. It is suggested in the appellants’ factum that
the son, unmarried, being dead and all the daughters being married, the necessity of the widow looking after and caring for the unmarried son had also ended.
It may be so, we cannot go into the family circumstances. It is said in the affidavit of the respondent, Ruby J. Middleton, that
to the last there never was any change whatever in the tender relations and most affectionate regard which existed between my father and my mother.
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It would indeed be unfortunate if the courts undertook to vary testamentary dispositions on such considerations. Where, owing to family circumstances, a testator finds it desirable to alter the previous appropriation of his property he would often have the best of reasons for not wishing to make public the cause of his doing so. The present case itself affords an illustration and I give it only as such. The testator may have had reason to foresee that, as in fact has happened, his widow would leave all her property to two of her daughters, disinheriting the third, contrary to his own wish. Yet how impossible it would have been for him to set down in his codicil the reason for revoking the bequest to his widow and making a different provision for her by the codicil.
In my own view a natural interpretation would be that in making his will the testator knew that his wife would employ her property largely for the benefit of his only son, but the death of the latter entirely changed the condition of affairs. The codicil was undoubtedly made owing to this occurrence; it was then only necessary to make a suitable provision for his widow, which was done, and the testator said
but all my other property now goes with my last son dead to my three daughters.
If, as I should think, these were his wishes, the terms used seem natural and apt enough to carry them into effect.
It is, I suppose, possible that the construction contended for by the appellants would involve the revocation of the specific bequest to the widow of the household goods and effects, and this can hardly have been the intention of the testator. Even if it were so, this would only be an unfortunate accident due to his want of skill or incapacity at the time, and cannot affect the
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construction of the provision in the codicil. In my opinion, however, it is not necessary to attribute any such effect to the provision. The testator is dealing only with his residuary estate, money and valuables, all of his property other than goods and chattels which form the subject of the specific bequest to the widow. Except in so far as the appropriation of his residuary estate is concerned, the will is in all other respects expressly confirmed.
The case is unlike that of In re Smith, in the Ontario courts, affirmed by the Privy Council, to which reference is made by Meredith C.J.O. That case was so wholly special and the decision so entirely dependent on the particular circumstances and the terms of the testamentary documents in question that it is of no general value as an authority, which doubtless is the reason that it was not reported in the law reports.
If I am correct in the views above set forth it will be seen that the testator secured to his widow his household goods and effects and a sum of $16,000 cash. It, moreover, appears from the will that she already had some property of her own. This seems to have been a very reasonable provision for the testator to make for his widow, a woman of advanced age with no one dependent upon her, considering the amount of his estate and that his three children were all married and they and his grandchildren and their needs were the objects, as they naturally would be, of his careful consideration for their welfare.
For these reasons I am of opinion that the appeal should be allowed and the judgment on the trial restored with the variation that the declaration should only be as to the residue of the property of the deceas-
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ed after giving effect to the specific bequests contained in both the will and codicil.
It is a proper case in which the costs of all parties should be paid out of the residuary estate.
IDINGTON J.—The testator, by his last will, made on the 23rd December, 1913, after some specific dispositions, referred to his life insurance as consisting of some payable to his estate, some payable to his wife, some payable to his wife and children, and declared it to be his wish that the conditions of payments in all policies of insurance on his life should be carried out.
Then he directed the residue of his estate, real and personal, to be divided into two equal parts of which one was given the wife absolutely and the other to his executors and executrix upon trusts which he declared at some length.
The income of the trust was to be paid the wife during her life and at her death the principal to be divided equally between his son and three daughters.
He provided for the children of his son and each of his daughters taking the parent’s share in case of death and even anticipated the possibility of grandchildren’s rights in case of any of his children dying leaving such.
He further provided against loans to wife or child being enforced as he declared them cancelled.
The son died suddenly under painful circumstances within a week after the testator had made his will.
The son left life insurance amounting to $11,000, which came by his will in equal shares to the testator and his wife.
The only other apparent alteration in the circumstances of the testator created by the death of the son
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arose from the fact that the son had been named an executor of the will.
The testator, on the 3rd February, 1914, made a codicil to his will, by which it is made clear to my mind that for some reason or other he had conceived another plan or scheme for the disposition of the greater part of his estate.
The death of his last son evidently was to him a disturbing factor of more far-reaching consequences than involved in the possible need, suggested by acquisitions derived from the son’s bequests of his life insurance, for a slight readjustment of amounts he, as testator, had bequeathed. That could easily have been provided for by a few words clearly expressing such purpose, instead of the complex plan the codicil presents, which suggests much that is entirely overlooked in the elaborate computation in the judgment of the learned Chief Justice of Ontario, the correctness of which was challenged in argument.
Did the father not feel that, with the last son gone, there was some reason to fear the happening of that which has in fact taken place, by the mother preferring two out of three daughters?
Had he been possessed of unbounded confidence that an equal distribution would ultimately prevail, there would certainly have been little use in his making a codicil.
This codicil was made when the testator was very ill and suffering much on his death-bed, and he died ten days later.
Inasmuch as we do not know more than is presented, which does not even tell us all that was involved in the original distribution of insurance, I lay no great stress upon the facts just referred to but merely allude thereto by way of pointing out that the results of the
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construction put upon said codicil by Mr. Justice Masten, as contrasted with what the wife might have got had there been no change in circumstances, may have been, as I respectfully submit, pressed too far by the judgment appealed from. It may be that the statements in affidavits filed as to what the wife would have got under the distribution which each of the policies of insurance provided, furnishes a possible key to the whole; but it by no means is necessarily to be implied that it accurately does so, or can disclose all relative to the original schemes of distribution in said several policies of insurance, which we should know if the train of thought, adopted by the use of such a key, is to be accepted as a leading factor in reaching our decision.
The codicil deals with the subject matter of the insurance in an entirely different manner from that adopted in the will by giving only one-fourth of the insurance on the testator’s life to the wife.
That entire insurance money amounted to $20,000 and he gave the wife all that might have come to her or him under the son’s will.
Then, after specifying the life insurance on his own life, he proceeds first by repeating that bequest, and comprehensively as follows:—
One-quarter of these policies go direct to my wife but all my other property now goes with my last son dead to my three daughters under the terms of my said last will.
The neat point to be determined in this case is the effect of this single sentence.
I think we must have regard to the law requiring the express language used to be given its plain ordinary meaning, and if possible give effect to every word of it.
Then there is a principle deducible from numerous
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cases of which Hearle v. Hicks, is one usually relied on, which requires the language of a codicil to be clear and manifest before it can be maintained in revocation of a clear and manifest devise or bequest in a will.
That principle was involved in the case of In re Stoodley, and presumably was what induced Mr. Justice Eve to place the construction he did on the will in question therein. The report does not make clear exactly what he relied upon, but the course of argument and reasoning in the judgments in appeal suggest strongly such was the case.
Upon appeal therefrom the Court of Appeal reversed his construction and rested the judgment doing so upon the case of Earl of Hardwicke v. Douglas.
That involved in each of those two cases, as in that at bar, what had been given by a residuary bequest in each of the respective wills.
The language used in each codicil in question in the cases cited was, as the conflicting opinions shew, capable of more than one construction, but I venture to think is neither more comprehensive, forcible and expressive of the real intention of the testator, having regard to the circumstances surrounding each of the respective testators, than that I have just quoted from the codicil now before us.
I therefore conclude, so far as concerns the residuary bequest to the wife, that it was, in my opinion, partially revoked by this codicil, but the will in all other respects stands unrevoked save as to the insurance money of which there is no question.
I observe such a difference between the expressions of the strong, clear-headed man, writing his will, and the same man writing his codicil, under most painful
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circumstances, that I cannot help feeling how he would in health and strength have put the possibility of this lawsuit beyond peradventure.
Yet I cannot doubt his intention was that, seeing his last son dead and his wife provided for, as far as she was concerned, there was no contingency to be anticipated but what affection would meet, and that the daughters, so far as he was concerned, should be treated equally.
Such would be my reading of this will and codicil apart from authority save the doubt that must ever exist of whether or not he did not suppose that he was giving his wife the income of the entire residue for life.
The expression,
to my three daughters under the terms of my said last will,
indicates such a restricted intention. Any way one may try there is a difficulty just there, but clearly the predominant purpose was an equal distribution amongst and between his three daughters.
Out of respect to the court below I have fully considered all the cases cited, but am of the opinion that the three cases I have cited above contain the whole relevant law which should govern us.
The appeal should, I think, therefore, be allowed, and the judgment below be modified accordingly, and that the costs of all parties should be paid out of the estate.
ANGLIN J. (dissenting)—Mr. McLaughlin’s very able argument on behalf of the appellants failed to convince me that the judgment appealed from is erroneous. On the contrary, I think it correct and feel that I cannot usefully add anything to the reasons stated by the learned Chief Justice of Ontario in support of it.
I would dismiss the appeal with costs.
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BRODEUR J.—The question we have to decide in this case is whether by his codicil of the 3rd February, 1914, John Lawrence Spink has revoked the bequest given to his wife by which she was to have one-half of his property.
By his will made on the 23rd December, 1913, Mr. Spink devised all his real and personal property into two equal shares and gave one share absolutely to his wife and the other was to be divided among his three daughters and his son, and he declared that his wife and children should receive the amounts set forth in each of his insurance policies.
The evidence shews that $9,000 of that insurance money would have gone to his wife, and $11,000 to his children, the testator having his life insured for $20,000.
A few days after his will was made, his only son died and left an estate of $11,000, half of it going to his father and half to his mother.
The testator himself became seriously ill and on the 3rd February, 1914, he made a codicil, and he died a few days later, on the 13th February, 1914. The reason for making the codicil is stated by the testator himself to be owing to the fact of the death of his son. In that codicil he provided that the insurance money, instead of being divided as it was stated on the policies, would go one-fourth to the mother, and three-fourths to the three surviving children, his three daughters. He gave also by the codicil the amount of money which he had received from his son to his wife, and he added that everything that might have come to him or to her under the will of his son would belong to his wife. After having described the policies of insurance and included their numbers, he said:—
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One-quarter of these policies go direct to my wife but all my other property now goes with my last son dead, to my three daughters under the terms of my said last will.
It is contended by the appellant that the provisions of that codicil revoke the bequest which the testator had made by his will of one-half of his estate to his wife.
On the other hand, it is claimed that this provision of the will has not been disturbed by the codicil.
Mr. Justice Masten decided that the contention of the appellant should be sustained, and he even declared that the life estate which had been given to the wife by the will had been revoked.
I must say here that the appellants do not insist upon the construction of the will as to the life estate.
The Appellate Division decided in favour of the respondents that the bequest of the half of the estate was not disturbed by the codicil.
It is strongly claimed on the part of the respondents that the sole reason for which this codicil was made was to dispose of the share of the son.
If the words:
all my other property
were ambiguous, the construction put by the respondents on the codicil might perhaps be sustained in view of the relations existing between Mr. Spink and his wife. But those words seem to me so clear that I think we should construe them in their ordinary meaning.
According to my opinion, then, he has disposed of all his other property in favour of his three children. As to the income during the life-time of the wife, I consider that, contrary to the view expressed by Mr. Justice Masten, this was one of the terms under which the bequest to his children was given, namely, that the life estate would remain in his wife and as he has
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said in his codicil that all his other property would go to his daughters under the terms of the will, I consider that the residuary was disposed of on the condition that the life estate would remain in the wife.
For these reasons, the judgment a quo should be reversed and the appeal should be maintained with costs to be paid out of the estate and the trial judgment should be restored with the modification that the wife was entitled, during her life-time, to the income of the property of the husband.
CASSELS J. (dissenting)—After a careful consideration of the able argument of Mr. McLaughlin, and the authorities cited by him, I have arrived at the conclusion that the judgment pronounced by the Appellate Division is correct and should not be disturbed.
The Chief Justice of Ontario has fully discussed the questions argued. I agree with his reasons and conclusions.
It would be merely repetition to again discuss the facts.
The appeal should be dismissed, and I think the appellants should pay the costs of the appeal.
The costs of the other proceedings have been allowed out of the residuary estate, but I think the appellants took a further appeal to the Supreme Court at the risk of costs.
Appeal allowed.
Solicitors for the appellants: McLaughlin, Johnston, Moorhead & Macaulay.
Solicitors for the respondents: Watson, Smoke, Smith & Sinclair.
41 Ont. L.R. 281 sub nom. In re Spink.
15 D.L.R. 44; 5 Ont. W.N. 501.
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