In re Estate of Brown (deceased), [1934] SCR 324

Supreme Court of Canada

In re Estate of Brown (deceased), [1934] S.C.R. 324

Date: 1934-03-06.

In the Matter of The Estate of Katherine Hamilton Browne, Deceased.

And in the Matter of The Construction of the will of the said Deceased.

1933: November 28, 29; 1934: March 6.

Present: Duff C.J. and Rinfret, Smith, Cannon and Hughes JJ.

ON APPEAL FROM THE HIGH COURT OF JUSTICE FOR ONTARIO

Will—Construction—Vesting

By clause 5 of her will the testatrix directed that a fund invested in a certain way for her by W. should continue to be so invested by W. during the lifetime of the testatrix’ son and the income therefrom be paid to the son during his lifetime, and, in the event of W.’s death during the son’s lifetime, the fund be invested by the testatrix’ executors and the income therefrom paid to the son during his lifetime; and “on the death of my said son”, that the fund “is to be

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divided as follows”: one half to her grand-daughter, E. (daughter of the son), and the remainder “to be divided equally between” three named daughters of the testatrix. By clause 6 the residue of the estate was given equally amongst E. and the said three daughters. Clause 7 read: “In the event of [E.] or any of my said daughters predeceasing me or predeceasing my said son, leaving issue, I direct that the child or children of the person so dying shall take the interest to which their mother would have been entitled had she survived.” All said beneficiaries survived the testatrix.

Held: The legacies directed under clause 5 to be paid to E. and said three daughters upon the death of the son, did not become vested upon the testatrix’ death. The fair and literal meaning of the words used in clause 5 in giving the capital of the fund is that the testatrix gives when she divides—that the operation of the gift is postponed until the period of distribution; and this meaning found support in the form and nature of the prior directions in clause 5, in contrasting the wording of the gift in question with that of other gifts in the will where immediate vesting was indicated, and in the wording of clause 7 (“would have been entitled had she survived” indicating that the “mother”—i.e., any one of E. and said three daughters—should take no title to the interest conferred in clause 5 unless she survived both the testatrix and her son).

The fundamental principle to guide in interpreting wills is that effect must be given to the testator’s intention ascertainable from the expressed language of the will. So far as possible the will itself must speak. If, after careful consideration of the language used, in the particular passage in question and consistently with the context of the document, the intention remains doubtful, then resort may be had to certain rules which have been generally adopted, upon the strength of which courts are enabled to draw a certain conclusion as “more nearly corresponding” with the testator’s intention. (Busch v. Eastern Trust Co., [1928] Can. S.C.R. 479, explained. That case should not the “cited as deciding more than was actually determined”; there was no intention of laying down a rule of general application, far less of “effecting a radical change in the law and creating some new principle governing the question of vesting”).

APPEAL, directly to the Supreme Court of Canada (by leave granted by the Court of Appeal for Ontario), from the judgment of Rose C.J.H.C.[1], against that part only of the judgment which declared that the legacies directed by the testatrix, Katherine Hamilton Browne, deceased, under paragraph 5 of her will, to be paid to Enid Browne, Florence Yoda Moody, Constance Emma Kinnear and Helen Smith, named therein, upon the death of the life tenant, William George Hamilton Browne, did not, nor did any of such legacies, become vested upon the death of the said testatrix.

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The said judgment was rendered on questions submitted, on an originating notice of motion, for the adjudication of the court, with respect to the construction of the will of the said testatrix.

A special case was settled for the purpose of the present appeal to this Court. The material facts of the case, the material provisions of the will in question, and the questions submitted on the present appeal, are sufficiently stated in the judgment now reported. The appeal was dismissed.

A. J. Russell Snow K.C. and N. B. Gash K.C. for the appellants (Florence Yoda Moody, Constance Emma Kinnear and Helen Smith) and for Enid Browne (who since the date of the originating motion had attained the full age of 21 years).

McGregor Young K.C., Official Guardian, for the infant children of Florence Yoda Moody and Constance Emma Kinnear, and any unborn children of the said Florence Yoda Moody and Constance Emma Kinnear, as well as of Helen Smith and of Enid Browne.

G. A. Urquhart K.C. for the executors of the estate of the deceased.

The judgment of the court was delivered by

Rinfret J.—This is an appeal per saltum from part of the judgment rendered in Weekly Court, at Toronto, on an originating notice of motion submitting for determination certain questions (among others not relevant to the present appeal) arising out of the interpretation of the will of Katherine Hamilton Browne bearing date the 16th day of December, 1929.

The will begins, as usual, by revoking all former testamentary dispositions and by directing the executors to pay all debts, funeral and testamentary expenses.

Specific bequests are made unto the son, William George Hamilton Browne; and then follow the main provisions which form the subject of the submission:

5. Whereas I have now the sum of $100,000 invested in the name of E. H. Watt, of the said firm of Watt & Watt, in trust in the form of a call loan, I HEREBY DIRECT that the said fund is to be continued to be invested in call loans by the said E. H. Watt during the lifetime of my said son, William George Hamilton Browne, and the income arising therefrom is to be paid to my said son during his lifetime. In the event

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of the death of the said E. H. Watt during the lifetime of my said son, I DIRECT that the fund now invested by him in the form of a call loan shall be invested by my executors in such securities as are authorized by the laws of the Province of Ontario as trustee investments, and the income therefrom is to be paid to my said son during his lifetime. On the death of my said son, William George Hamilton Browne, I DIRECT that the said fund of $100,000 is to be divided as follows:

One-half of the said fund to my grand-daughter Enid Browne, daughter of my son, William George Hamilton Browne, and the remainder of the said fund to be divided equally between my daughters, Florence Yoda Moody, wife of Robert E. Moody, now of Los Angeles, California; Constance Emma Kinnear, wife of Harold Kinnear, of the City of Detroit, in the State of Michigan, and Helen Smith, wife of Herbert P. Smith of Jamaica. Long Island, New York, share and share alike.

6. All the rest and residue of my estate, both real and personal, of whatsoever kind and wheresoever situate, I GIVE, DEVISE and BEQUEATH unto my grand-daughter, Enid Browne and my daughters, Florence Yoda Moody, Constance Emma Kinnear and Helen Smith, to be divided amongst them equally, share and share alike.

7. In the event of my grand-daughter, Enid Browne or any of my said daughters predeceasing me or predeceasing my said son, leaving issue, I DIRECT that the child or children of the person so dying shall take the interest to which their mother would have been entitled had she survived.

The final provisions of the will deal with the powers of the executors and appoint as such the son, William George Hamilton Browne, and Thomas Cameron Urquhart, barrister-at-law, of Toronto.

For the purpose of the appeal, a Special Case was settled by a judge of the Court appealed from, and the questions to be determined are stated thus:

(a) Whether or not the legacies directed by the said testatrix, Katherine Hamilton Browne, deceased, under paragraph 5 of her said Will, to be paid to Enid Browne, Florence Yoda Moody, Constance Emma Kinnear and Helen Smith (the Appellants herein), upon the death of the life tenant, William George Hamilton Browne, became vested upon the death of the said testatrix;

(b) And should this Honourable Court find that such legacies did become vested upon the death of the testatrix, then, whether or not the legacy of any of such Appellants is liable to be divested under or otherwise affected by paragraph 7 of the said Will.

The relevant facts are set out in the Special Case:

The testatrix died at Toronto on the 17th March, 1930.

Probate of her will was granted to the executors appointed therein.

All the beneficiaries indicated by name in the will survived the testatrix and are still living.

All of them are now adults. Enid Browne, who was an infant represented by the Official Guardian at the date of the application, has since attained the full age of

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twenty-one years and is now represented by counsel for the appellants.

Florence Yoda Moody is the mother of three infant children, and Constance Emma Kinnear is the mother of one infant child, and these children are represented by the Official Guardian who also represents any unborn children of the said Florence Yoda Moody and Constance Emma Kinnear, and of the other two named beneficiaries, Enid Browne and Helen Smith.

Helen Smith is the mother of one child, Nedra Caroline Smith, an adult, whose interest under the will is the same as that of the said infants.

The judgment appealed from, and which was pronounced by the Honourable the Chief Justice of the High Court for Ontario, declared that the legacies directed under paragraph 5 of the will to be paid to Enid Browne, Florence Yoda Moody, Constance Emma Kinnear and Helen Smith “did not, nor did any of such legacies become vested upon the death of the said testatrix.”

The beneficiaries just named appeal from that judgment.

In answering the questions submitted, our endeavour must be to give effect to the testator’s intention. And the only safe method of determining what was the real intention of a testator is to give the fair and literal meaning to the actual language of the will (Auger v. Beaudry[2]). If we approach from that viewpoint the will now under consideration, the first thing to be noted is that, throughout paragraph 5, there are to be found no words of present gift. The testatrix states that she has now a sum of $100,000 invested in the name of E. H. Watt, in trust, in the form of a call loan. Her direction is that “the said fund is to be continued to be invested in call loans”. A feature perhaps not to be overlooked is that this direction is not given to the executors,—at least, it is not primarily so given. The direction is that the investments are to be made “by the said E. H. Watt”, who is not appointed executor. So that the fund is really treated as separate and distinct from the estate disposed of in the will. And it is to be looked after in this way “during the life-time of my said son, William George Hamilton Browne”, that is to say: during the whole period

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extending up to the time fixed by the testatrix for the distribution to the appellants. Only indirectly, “in the event of the death of the said E. H. Watt during the lifetime of my said son”, are the executors to be entrusted with the power of investing the fund. Moreover, there is nothing in paragraph 5 necessarily indicating that, except in the event mentioned, the executors are to have anything whatever to do with the fund. In terms, it is not given to them either in trust or otherwise. The testatrix merely says that she has that sum of $100,000 invested in a certain form in the name of E. H. Watt. The income arising therefrom is to be paid to the son. The principal itself is not given, but is to remain in the form in which it is, until the death of the “said son”. Only then, when the testatrix comes to refer to her son’s death, and for the first time in the clause, does she make use of expressions apt to dispose of the capital or in any way connecting the appellants with the fund itself. According to the words she uses, grammatically and literally, the testatrix gives when she divides, and there is no apparent intention that the gift should take effect at any date prior to the time she fixes for the division.

In contradistinction to the language of clause 5, must we point to the wording of every other clause of the will where the testatrix makes a bequest with the evident intention that it should become vested at once. Invariably and in each case without exception, the testatrix says: “I Give, Devise and Bequeath”. That is the expression used in clause 6 (above set out) where she disposes of the rest and residue of her estate. Such is also the expression in clauses 3 and 4, which it is not necessary to quote in full, and which are the other clauses of the will containing the specific bequests.

The contrast between clause 5 and these other clauses is so striking as to lead to the logical—if not the almost inevitable—conclusion that, while all the other bequests were intended to vest immediately upon the death of the testatrix, the language in clause 5 was purposely chosen to indicate a contrary intention. It evidences a desire to postpone the operation of the gift to the appellants until the period of distribution.

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That view is further confirmed by clause 7. The direction there is that in the event of the grand-daughter, Enid Browne, or any of the daughters predeceasing the testatrix or predeceasing her son, leaving issue, “the child or children of the person so dying shall take the interest to which their mother would have been entitled had she survived”. The interest there referred to, and “to which the mother would have been entitled had she survived”, is the interest conferred in clause 5. In the premises, the fair and literal meaning of those words is that the mother (i.e., any of the appellants) takes no title to that interest unless she survives both the testatrix and her son, and that is to say: till the time of distribution.

It follows that our view accords with the judgment pronounced by the learned Chief Justice of the High Court of Ontario.

We feel, however, that we should not part with this case without adding yet one more observation.

In support of his argument before this Court—and apparently also before the learned judge of first instance—counsel for the respondents as well as the Official Guardian strongly relied upon our judgment in Busch v. Eastern Trust Co.3.

The Busch case[3] ought not to be “cited as deciding more than was actually determined” (Re Gilmour[4]). There was no intention in that case of laying down a rule of general application, far less of “effecting a radical change in the law and creating some new principle governing the question of vesting (Re Moore[5]). It is unnecessary to repeat that the golden rule, the fundamental principle whereby the courts must be guided in the interpretation of testamentary documents, is that effect must be given to the testator’s intention ascertainable from the expressed language of the instrument. So far as possible, the will itself must speak. If, after careful consideration of the language used, in the particular passage immediately under examination and consistently with the context of the document, the intention remains doubtful, then

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resort may be had to certain rules which have been generally adopted. Upon the strength of those rules, the courts are enabled to draw a certain conclusion “on the ground that this must more nearly correspond with (the) intention” of the testator. It was one of those rules which this Court thought applicable to the particular language of the will under consideration in the Busch case[6]. But Mr. Justice Newcombe, in delivering the reasons of the court, was careful in recalling at the outset the cardinal principle that “one must decide according to the intent appearing upon the will” (p. 483); and, in Singer v. Singer7, speaking for the majority of the court, he had further occasion of pointing out the limited application of the rule acted upon in the Busch case6. The rule itself, as stated in Williams (12th Ed., p. 795), is made subject to many qualifications.

Each will must be construed according to the apparent intention of the testator (Williams on Executors, 12th ed., p. 726). While the well known rules or the decided cases are no doubt helpful in ambiguous matters or in affording illustrations, “in every case it is the testator’s intention, if it can be gathered from the will, which must govern (Singer v. Singer[7]).

The appeal will be dismissed with costs.* The new questions submitted in the Special Case will be answered as follows:

Question (a): The legacies referred to did not become vested upon the death of the testatrix.

Question (b): In view of the answer to the first question, the point submitted here does not arise.

Appeal dismissed.

Solicitor for the appellants: A. J. Russell Snow.

Solicitor for certain infant children and any unborn children of certain persons: The Official Guardian.

Solicitors for the executors of the estate of Katherine Hamilton Browne: Urquhart, Urquhart, Smith & Parrott.

Solicitor for Nedra Caroline Smith: J. E. Hare.