Meagher v. Meagher, (1916) 53 SCR 393

Supreme Court of Canada

Meagher v. Meagher, (1916) 53 S.C.R. 393

Date: 1916-06-13

George Meagher (Plaintiff), and Others (Defendants) Appellants;

and

Mary Ann Meagher, and Others (Defendants) Respondents.

1916: February 17; 1916: June 13.

Present: Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur, JJ.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Will—Construction—Estate for life—Power of appointment—Trust.

A will devised all the testator’s real and personal property to his two daughters (naming them) upon trust as follows:—To make certain payments and then “to hold all my property in lots eight and nine * * * for my said daughters for themselves and to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom.”

Held, affirming the judgment of the Appellate Division (34 Ont. L.R. 33), Fitzpatrick C.J. and Idington J. dissenting, that the said two daughters took a beneficial life interest in the property; and that the words “or otherwise” where they occur gave them an unfettered power of disposition which they could exercise in favour of any person, including themselves.

APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario^[1] varying the judgment at the trial in favour of the respondents.

The only question on the appeal was as to the construction of clause 5 of the will of Thomas Meagher. The clause is set out in the above head-note.

A.C. McMaster and J.H. Fraser for the appellants. By the general devise in the beginning of his will the

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testator created a trust which governs all that follows: Buckle v. Bristow^[2]; and the trustees cannot take beneficially: Briggs v. Penny^[3], at pages 556-7.

The daughters are in no way pointed out as objects of the testator’s bounty. See In re Smith^[4]. Yeap Cheah Neo v. Ong Cheng Neo^[5]; and McDermott v. Anderson^[6] were also cited.

Hellmuth K.C. for the respondents referred to In re Howell; Liggins v. Buckingham^[7].

THE CHIEF JUSTICE (dissenting).—The will of the testator, Thomas Meagher, commences as follows:—

For the purpose of carrying out the trusts contained in this my will I give, devise and bequeath all the estate real and personal of which I may die seized or possessed or to which I may be entitled at the time of my decease unto my daughters Mary Ann Meagher and Margaret Ellen Meagher upon trust as follows.

There follows an enumeration of the trusts so declared, of which the fifth is as follows:—

To hold all my property in lots eight and nine in the third concession from the bay in the Township of York, together with all stock, crops, furniture and other goods and chattels and personal property thereon for my said daughters Mary Ann Meagher and Margaret Ellen Meagher for themselves and to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom.

The dispute in the action has been narrowed down to the single question of the effect of the fifth trust declared by the testator’s will. I do not think this question presents any great difficulty; such as it does, arises from the fact that the trust is not set forth in regular and settled terms the meaning of which has

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become well established. Where these are departed from, there is always a likelihood that some opening will be left for a doubt as to the construction to be put upon the language employed; a vast amount of ingenuity has been shewn in the suggestion of possible meanings in the present instance.

I cannot doubt that the intention of the testator was to place the disposal of the property in question among his children, both as to shares and time, at the discretion of his daughters, Mary Ann Meagher and Margaret Ellen Meagher. It has to be considered how far he has succeeded in carrying out his intention, because, though we may look to the intention to decide the meaning of any ambiguous phrase, we cannot give an effect to the words used which their meaning will plainly not bear. In my opinion, however, full effect can be given in this case to the intention of the testator without adding to or departing from the exact words used.

I do not understand that any life interest can be taken by the daughters, because there is given to them a power to dispose of the whole property at any time, and it is only in the meantime that they are to receive the rents and profits. By making no appointment, they might, indeed, continue this state of things during their lives, but I do not think this makes any difference; it is only accidental that the power of disposition and the right to receive the rents and profits are in the same hands; if the power of appointment had been given to another child, he could by disposing of the whole property have put an end at any time to the enjoyment by the sisters of the rents and profits.

The most important question is, who are the persons in whose favour the power of disposition may be exercised, and it seems to have been thought that the

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words “or otherwise” following the power “to make such disposition among my children” must be construed to give the daughters a general power of disposition to any one they please. I do not think this is the meaning to be placed on the words “or otherwise.” I think they are to be read with reference to the word “among” in the power of disposition among the children. It is, I think, only a way of expressing a very common trust which in proper legal phraseology would be framed as a power to appoint the trust property to such one or more of the testator’s children in such shares and proportions and at such time or times as the donee of the power might think fit. There is nothing either in the particular trust or in the general scope of the will to warrant the suggestion that the testator intended to give power to appoint strangers or any other than his own children.

The power of disposition can only be exercised by the two daughters, Mary Ann Meagher and Margaret Ellen Meagher, and on the death of either of them before making any disposition of the property it will fall into the residuary estate.

I am not overlooking the words “for themselves” following the names of the testator’s daughters, Mary Ann Meagher and Margaret Ellen Meagher, which may be thought to be against the construction which I have placed upon the trust. Apart, however, from the fact that they have no technical meaning, they seem, if not senseless, at any rate inapt to express any possible meaning which the testator could have intended. If they refer to the beneficial interest which these ladies take, it can only be such interest as they have under the trust. I am, however, disposed to think that there is another explanation. It is apparent on the face of the will that it was drafted either by a

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lawyer who was not a very competent draftsman or by someone who had considerable knowledge of legal forms. I think it may be that the insertion of the words “for themselves” is due to some confused and mistaken idea of proper and apt legal forms. These are perhaps useless speculations and, looking to the intentions of the testator as they are to be gathered from the whole will including the particular devise and bequest, I should have no hesitation in saying that if the words “for themselves” were repugnant to the construction which I have placed upon the trust, they ought to be disregarded.

The effect of the trust construed in accordance with the views above expressed will therefore be: Devise and bequest of all testator’s real and personal estate to trustees; as to the property in the fifth enumeration mentioned—To hold the same upon trust, to make such disposition thereof to or for such one or more of his children in such shares and proportions and in such manner as his daughters, Mary Ann Meagher and Margaret Ellen Meagher, may from time to time direct or appoint, and in the meantime and until any such disposition shall have been made and so far as the same shall not extend, to permit his said daughters, Mary Ann Meagher and Margaret Ellen Meagher, to receive the rents and profits thereof for their own use and benefit and from and after the death of either of them, the said Mary Ann Meagher and Margaret Ellen Meagher, and in default of any such direction or appointment or so far as the same shall not extend, upon the like trusts as are in the will declared concerning the residuary estate.

I think by following these indications there will be no difficulty in settling the judgment varying the judg-

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ment of the Appellate Division. If necessary, the matter can be spoken to in chambers.

The appeal must be allowed and under ordinary circumstances the costs should come out of the estate, but as it appears that all available assets have been distributed and the action is mainly at any rate concerned with the trust declared in the fifth enumeration in the will, I think the costs of all parties may fairly be paid out of the particular trust property.

IDINGTON J. (dissenting).—This will seems to have trust written all over it except one ambiguous bit contained in clause 5. Its first clause was evidently intended to be all comprehensive and determine the general scope and purpose of the instrument. That and clause No. 5 are as follows:—

1. For the purpose of carrying out the trusts contained in this my will I give, devise and bequeath all the estate real and personal of which I may die seized or possessed or to which I may be entitled at the time of my decease unto my daughters Mary Ann Meagher and Margaret Ellen Meagher upon trust as follows:—

* * *

5. To hold all my property in lots eight and nine in the third concession from the bay, in the Township of York, together with all stock, crops, furniture and other goods and chattels and personal property thereon for my said daughters Mary Ann Meagher and Margaret Ellen Meagher for themselves and to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom.

One thing quite clear is that everything was given these daughters for the purpose of carrying out the trusts contained in the will.

Let us take and apply the following extract from Lewin on Trusts, (12 ed.) ch. IX., p. 169, sec. 1, par. 16:—

16. Next, a trust results, by operation of law, where the intention not to benefit the grantee, devisee or legatee is expressed upon the instrument itself, as if the conveyance, devise or bequest be to a person “upon trust” and no trust declared, or the bequest be to a

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person named as executor “to enable him to carry into effect the trusts of the will” and no trust is declared, or the grant, devise or bequest be upon certain trusts that are too vague to be executed, or upon trusts to be thereafter declared and no declaration is ever made, or upon trusts that are void for unlawfulness, or that fail by lapse, etc.; for in these and the like cases the trustee can have no pretence for claiming the beneficial ownership, when, by the express language of the instrument, the whole property has been impressed with a trust.

We may assume this to be an accurate presentation of the law. For my present purpose I see no reason to labour with the manifold fine distinctions existent behind this expression thereof.

These authorities, cited in foot-notes, at pages 169 and 170, (Lewin on Trusts,) in support of the text I have quoted, shew that the absence of a declaration of trust would not enable such a devisee or legatee to claim the property.

Is it not therefore quite clear that the first clause of this will has impressed upon the bequests and devises comprised therein a trust which would result respectively to the heirs at law or personal representative of the testator unless so far as relieved therefrom by later clear and unmistakable language? No one will attempt to deny that such later language, so far as clearly intelligible, must govern.

This clause 5 contains all that can be invoked to aid the daughters so bound by the obligation of a trust. How can it? It is not necessary to enter upon the profitless discussion of what might have been the exact nature of the title taken by the daughters had the latter part of clause 5 been obliterated, further than to say that even in such a case it might be fairly arguable they took no more than an estate for life under the circumstances in which they had been placed by the rest of the will.

Assuming it possible to maintain in such a case that they would have taken thereby an estate in fee

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simple in the land, and a corresponding absolute property in the personalty, how can we say that the following language:—

and to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make they my said daughters in the meantime to have all the rents and profits therefrom,

must be discarded and is of no effect?

It seems, at least impliedly, to rebut any construction of what had preceded it, as ever having been intended by the testator to transfer absolutely all title or interest he had therein.

It removes all possibility of holding, properly, that the daughters were intended to have taken all freed from any trust. It leaves them nothing but a life estate, carved out of what they got, freed by virtue of the express terms, including the nominative fashion of doing it, from the trust which otherwise would have bound them.

But how does that help us to find a general power or free the additional power over the estate given by these lines from the implication of being impressed with a trust? That additional power is not inconsistent with the trust expressed in the first clause, but quite consistent therewith and what was intended thereby to be defined later.

Either the language creates a power or it does not.

If by reason of and through inaccuracy of expression it fails to convey any meaning, save that I have just adverted to, of making clear it was only a life estate that was intended to be given these daughters, then there has been no trust declared, and the absence of either a declared trust or devise or bequest, in clear and unmistakable terms freeing the same from the trust impressed on it from the beginning, leaves this

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property to the heirs at law and personal representatives subject to the life estate therein of the daughters or survivor of them.

And if the language used can be construed as giving a power, that is likewise impressed with a trust unless it can clearly be interpreted as excluding it.

The only thing in this power which lends a possibility of such exclusion is the use of the phrase “or otherwise.”

When I find that used as the foundation for a process of reasoning which ends by concluding that the donees of the power are but the probable objects of its execution, I hesitate to attribute such intention to the testator, who certainly could have accomplished that result, if so intended, by using direct and simple language.

The phrase “or otherwise” may mean so much or so little that its slovenly use, so evident here, tempts me to think it would be more in accord with the scope and purpose of the whole will, and the evidence it furnishes of the testator’s intention, to read it as having relation to the time when the power was to be used.

It seems to me this is one of those cases where the strictly grammatical construction does not express what the writer intended.

It is more in harmony with all else to be looked at and considered to read the phrase “or otherwise” as related to the question of time. Doing so would give a clear and operative effect to the whole paragraph, instead of rendering it futile.

It might obviously be expedient in the interest of those concerned to execute the trust by appointing part of the property at one time, and other parts at other times, as circumstances developed, or if occasion

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called for it to await a time when a final distribution might be made.

Again, if the power never could be prudently executed in its entirety, the result would be to let the children and (or) their descendants acquire the property by the direction of the court or possibly without such direction.

One of the difficulties attendant upon its due execution might be the possibility of the donees being excluded.

The question thus raised has been dealt with in argument in a recent case of Tharp v. Tharp^[8], where the cases are collected.

I do not intend herein following the inquiry thus suggested, and only mention it for the consideration of those concerned.

I conclude for the foregoing reasons that the appeal should be allowed and the judgment below varied by striking out the words

and are also entitled to a general power to appoint the corpus of the said real and personal property either to themselves, the said Mary Ann Meagher and Margaret Ellen Meagher, or to any other person as they may think fit, and doth adjudge the same accordingly,

and substituting the words

and have as trustees a power of appointment over said property in favour of the children of the testator to be executed from time to time or otherwise as prudent persons acquainted with the circumstances and conduct of the said children respectively should feel just.

It seems to me such was the desire of the testator.

It is impossible for us, without the slightest information as to the ages and conditions in life of these children or any of the surrounding circumstances which led the testator to make such a peculiar provision, to say more.

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It is possible an equal distribution was not intended. It is possible that the testator expected the distribution to depend upon the conduct of the children, and undeserving ones to feel that the trustees had a power of discrimination. I pass no opinion on such suggestions. They may be, even if one knew, a great deal more than presented of no value.

At present all that seems to me quite clear is that the impress of a trust is stamped on the power for whatever it is worth. If too vague to be effective as probably intended, the trust will result to the benefit of the heirs.

As to the costs, I should leave each party to pay their own costs in the Appellate Division and in this court.

DUFF J.—The appeal should be dismissed with costs.

ANGLJN J.—I know of no rule of equity which prevents a devisee of property upon trust from taking out of it a benefit which it was the intention of the testator that he should have. Dawson v. Clark^[9]; Hughes v. Evans^[10]. No doubt the intention to benefit the trustee personally must clearly appear. Such an intention, in my opinion, is explicitly stated in the fifth paragraph of the will here in question in favour of the testator’s two daughters, in regard to the property therein dealt with, and no contrary intention anywhere appears. The concluding words of the fifth clause,

they my said daughters in the meantime to have all the rents and profits therefrom

admittedly give them a beneficial life interest in the property in question. I agree that they also preclude

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the construction in favour of their having an unrestricted fee simple, which was the view taken by the learned trial judge. The earlier words,

for my said daughters Mary Ann Meagher and Margaret Ellen Meagher for themselves,

unmistakably indicate that this particular property, which the testator had included in the general devise to them in trust of his entire estate, was nevertheless to be held by the two daughters, not as trustees, but, as the testator puts it, “for themselves,” i.e., for their own benefit, having regard to what follows, during life, or until disposed of. The words “for themselves” I regard as at least equivalent in effect to the words “at his own disposal,” discussed in In re Howell^[11], as indicative of the testator’s intention that this property was not to be subject to any obligation of trust. After devising the property to his two daughters nominatim “for themselves,” the testator proceeds to give them the right

to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make,

i.e., not as trustees, but as individuals with an unfettered power of disposition. I cannot find in these words any indication of an intention to benefit the testator’s children exclusively. The words “or otherwise as my said daughters decide to make” distinctly exclude that idea. Should the power conferred not be exercised, subject to the life interest of the two daughters, the property would pass either under the residuary clause or as upon an intestacy.

I can find no justification for distorting the language of the testator by transposing the words “or otherwise,” as contended for by counsel for the appellants,

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and placing them immediately after the phrase “from time to time” or for refusing to give them their ordinary signification.

In a word, this case is governed by that primary and cardinal rule of interpretation, that the grammatical and ordinary sense of the words is to be adhered to unless absurdity, repugnancy or inconsistency should result—a rule too often disregarded in order to give effect to some technical and artificial rule of construction distinctly subordinate and never meant to be invoked where the language is plain and ordinary and there is neither ambiguity or obscurity in it. A testator’s clearly expressed intention, not unlawful or impossible of performance, must be carried out.

I would dismiss the appeal with costs.

BRODEUR J.—After a good deal of hesitation, I have come to the conclusion that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: McMaster, Montgomery, Fleury & Co.

Solicitors for the respondents: Coatsworth & Richardson.