Ross v. National Trust Co. et al., [1939] SCR 276

Supreme Court of Canada

Ross v. National Trust Co. et al., 1939 S.C.R. 276

Date: 1939-05-29

Douglas H. Ross (Plaintiff) Appellant;

and

National Trust Company, Ltd., Administrator de bonis non with will annexed of the estate of Sarah Anne Hodgson, Deceased (Applicant), and others (Defendants) Respondents.

1939: May 29.

Present: Duff C.J. and Rinfret, Crocket, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Will—Construction—Vesting

The testatrix in her will devised property to her trustees in trust for conversion, the proceeds to be invested and the income therefrom to be paid to her husband (who predeceased her) during his life and after his decease “to be paid half yearly to my unmarried daughters share and share alike and after the marriage or decease of my last remaining single daughter my said Trustees shall divide the whole of my property held by them in Trust among all my children share and share alike.” The question on construction of the will was whether the corpus of the testatrix’ estate vested at her death in all her children or vested on the termination of the income interests (at the death of the last remaining unmarried daughter) in the only child of the testatrix then alive.

Held: The corpus of the testatrix’ estate vested at the time of her death absolutely in all her children then alive, share and share alike. Browne v. Moody, [1936] A.C. 635, referred to.

APPEAL from the judgment of the Court of Appeal for Ontario affirming the judgment of Mr. Justice Middleton on an application by way of originating notice of motion on behalf of the administrator de bonis non with the will annexed of the estate of Sarah Anne Hodgson, deceased, for the opinion, advice and direction of the court on a question of construction of the will of the said deceased.

The will was dated September 23, 1889. It devised to the trustees of the will properties in trust for conversion, the proceeds to be invested and the income therefrom to be paid to the deceased’s husband (who predeceased the testatrix) during his life and after his decease

to be paid half yearly to my unmarried daughters share and share alike and after the marriage or decease of my last remaining single daughter my said Trustees shall divide the whole of my property held by them in Trust among all my children share and share alike.

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The husband of the testatrix predeceased her. The testatrix died on December 17, 1893. She left, surviving her, seven children (and no issue of any child who had predeceased her), six of whom were daughters, four of which daughters were unmarried, and they were not subsequently married. The last remaining unmarried daughter died on February 9, 1935. The only child of the testatrix then surviving was one married daughter, Helen Elizabeth Ross, who died on June 22, 1935, of whose estate the present appellant was the sole beneficiary.

The question submitted to the court was:

Whether upon a true construction of the Will of the testatrix the corpus of her estate vested—

(a) at her death in all the children of the testatrix in equal shares; or

(b) on the termination of the income interests provided in the said Will in Helen Elizabeth Ross, the only child of the testatrix then alive.

The judgment of Mr. Justice Middleton declared that the corpus of the testatrix’ estate vested at the time of her death absolutely in all her children then alive, share and share alike. His judgment was affirmed by the Court of Appeal. An appeal was brought to this Court.

F. Gardiner K.C. for the appellant.

G.R. Munnoch K.C. for certain respondents.

P.D. Wilson K.C, Official Guardian, representing certain infants.

After hearing argument for the appellant, and without calling on counsel for the respondents, the Court pronounced judgment orally, dismissing the appeal with costs.

THE CHIEF JUSTICE (for the Court) (oral)—It will not be necessary to call upon you, Mr. Munnoch.

Having regard to the judgment of the Judicial Committee, delivered by Lord Macmillan, in the case of Browne v. Moody[1], in which the judgment of this Court was reversed, and to the language employed in the particular testamentary disposition which we have to construe, we

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have no doubt that the opinion of Mr. Justice Middleton, accepted as it was by the Court of Appeal, was right.

The appeal must be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Parkinson, Gardiner & Willis.

Solicitors for certain respondents: Blake, Lash, Anglin & Cassels.

The Official Guardian for infant respondents.