Re Schiff, [1949] CTC 97

URQUHART J.:—Application by the executor for interpretation of the will and codicil of the deceased. All parties interested in the controversy have been duly served under the directions of Wells .J.

Five questions were submitted on the application and on the argument I answered Questions 1, 2, 4 and 5. The only remaining question was the third:

If the answer to Q. 1 is “no”, are the provisions of cis. 3 and 6 of the will operative so that the debts and succession duties are payable out of the residuary estate?

As my answer to Q. 1 was in the negative it followed that els. 1, 2, 3 and 6 of the will survived, and were preserved by the codicil of the deceased. Clause 1 is the ordinary revocation clause; cl. 2 appoints the executor; cl. 3 reads as follows:

“I Direct all my just debts, funeral and testamentary expenses and all succession duties and inheritance and death taxes that may be payable in connection with any insurance or any gift or benefit given by me to any person, either in my lifetime or by this my Will or any Codicil thereto, to be paid and satisfied by my Executors hereinbetore named, as soon as conveniently may be after my decease.’’

Clause 6 reads as follows:

“I Declare that an Executor or Trustee, being a solicitor, may be so employed, and shall be entitled to charge and be paid all professional or other charges for any business or act done by him or his firm in connection with the trusts, including any act which an Executor or Trustee, not being a solicitor, could have done personally.”

Many of the specific legatees are strangers. There were no gifts inter vivos that are known, nor was there any life insurance. The residue is equally divided among four charities, all of which are incorrectly named, but the identity of which is manifest.

Must the residue bear all the suecession duties chargeable, including those otherwise payable by the individual legatees above referred to? When I read the will and the codicil over the first time I was of the opinion that on a reasonable construction the residue must bear the whole of the duties, and that the legacies of the specific legatees were exonerated. In Re Henderson, [1945] O.R. 176 at p. 178, Rose, C.J.H.C. said: "The cases uniformly support the statement that the answer to such a question as this depends upon whether on a reading of the whole will there can be found an intention that the legatee or devisee shall be freed of the obligation to pay succession duties: see Gillanders, J.A., in Re Patterson, [1943] O.W.N. 736, more fully reported in [1944] 1 D.L.R. 196.’’ In Re Aldrich, [1945] O.W.N. 693, Mackay J., in deciding that succession duties were assessable against individual legatees, said at p. 695: "‘While decisions in other cases are helpful only in so far as the particular terminology of the will then being construed is the same, or practically so . . . I am . . . of the opinion that Re Patterson, supra, is decidedly more applicable? ‘

On the argument I was referred to a number of authorities, which I have read, and in addition I have been able to find one other authority. These authorities include Re Snowball, [1941] O.R. 269; [1942] S.C.R. 202; Re Shaw, [1941] O.R. 297; Re Prittie, [1942] O.W.N. 359; Re Munroe, [1943] O.W.N. 617; Re Patterson, supra; Re Aldrich, supra; Re Henderson, supra.

The decision in each of these cases appears to depend upon the wording and the manifest intention expressed in the will itself, and as the wording in each case is somewhat different from that of the present will, I can see no use in reviewing these cases in detail herein, although in my notes I have attempted to distinguish each. I am of the opinion that the case of Re Reading, [1940] O.W.N. 9, furnishes the solution in this case. The will in that case contained a direction as to payment of succession duties so closely resembling in its wording el. 3 of this will that one might be tempted to believe that the draughtsman of the present will had looked up the case and had followed its wording precisely. That case was decided on January 9, 1940 and was published in the issue of the Ontario Weekly Notes of January 12, 1940. The will herein was drawn on June 11, 1940, by a solicitor, I believe, of the firm to which the executor belongs. The codicil was drawn by a doctor the day before the executrix died, eight years later. It is probable that the draughtsman of the will had the recent Reading case in mind, if not before him on his desk, when the will in question herein was drawn.

The only differences between the two wills are, first, that in the Reading case all property is given to the executors in trust; then follows el. (c):‘To pay my just debts funeral and testamentary expenses and all succession duties and inheritance and death taxes that may be payable in connection with any insurance or any gift or benefit given by me to any person either in my lifetime or by survivorship or by this my will or by any codicil hereto/ ‘ The present will contains merely a direction and no such trust, but, it will be observed, the assets of the deceased herein are capable of easy administration and no trust would be required. The only other difference in the wording is that the words ‘‘or by a survivorship’’ are omitted from the text of cl. 3 of the present will. Otherwise the text follows word for word the clause in Re Reading.

Therefore, after consideration of all the cases I have mentioned, and one other, Re Fitzsimmons, [1939] 2 D.L.R. 50, 13 M.P.R. 429, which I have considered on another point, it seems to me that I must follow the reasoning in the Reading case and conclude that, dependent as it seems to be on the wording of the particular will, the reasoning of J. G. Kelly, J., in that case applies, the wording here being so similar. Therefore, I must hold that it is the manifest intention that all succession duties shall fall upon the residue.

The result is, and the answers to the questions are as follows:

Q. 1: No; Q. 2: Need not be answered; Q. 3: Yes.

Q. 4: The Evening Telegram British War Victims Fund, the Canadian Save the Children Fund, the Governing Council of the Salvation Army (Canada East) and the Women’s Auxiliary of the Church of England in Canada, share the residue equally.

Q. 5 : The legacy in question is to be paid to the Rector and Church Wardens of St. George’s Church, Willowdale, whose receipt shall be a sufficient discharge to the executor. Such legacy should be set aside by these Church officials for the purpose of contributing to the building of the Church now in process of erection.

Judgment accordingly ; costs of all parties out of the residuary estate, those of executors between solicitor and client.