In Re the Trustee Act >>in Re Garbut Estate, [1951] CTC 261

CAMPBELL, J.:—The court is moved by originating notice for opinion, advice and direction in the form of four questions directed to the proper construction or interpretation of the holograph will of the late Albert Ernest Garbut of Winnipeg, Manitoba, who died on November 30, 1949. On November 15, 1949, he made his last will, which was duly admitted to probate on January 23, 1950. The four questions are as follows:

"‘1. Is the bequest to Mrs. E. H. McGee of ‘all money remaining after the above bequests have been paid’ a bequest of the residue of the estate?

“2. If the said bequest is not a bequest of the residue, which of the assets of the estate are included in the said bequest?

“3. Does the bequest of ‘my personal effects such as jewellery to be given one to each W. H. Bower and William Hamilton (now in bank) ’ include all personal effects and jewellery and if not, which of the effects and jewellery are included in the said bequest?

“4. Do the succession duties payable to the Provinces of Quebec and Ontario form part of the general costs of administration and are payable as such, and, if not, by whom and in what proportion should the said duties be borne ?’?

Among the assets of the testator were shares in a number of companies situate in Ontario and Quebec and, by an implied direction contained in the will, the executors were required to sell them and from the proceeds to pay, inter alia, the following pecuniary legacies: $3,000 to Edith Hamilton; $2,000 to Wm. Hamilton; $2,000 to Dorothy Jackson; $2,000 to Lilian Samsen.

The residuary legatee is Mrs. E. H. McGee, who is also the principal legatee.

The testator directed that his 1938 Plymouth automobile ‘‘be sold for estate;’’ that his hunting equipment, including his shooting lodge, be sold and I Proceeds to be applied in executors’ fees. ‛ ‛

He also gave certain specific bequests, among which were the following: ‘‘ My personal effects such as jewellery to be given one to each, W. H. Bower & Wm. Hamilton.’’ The will also contained the following : "‘All money remaining after the above bequests have been paid, I bequeath [sic] to Mrs. E. H. McGee.”

The answer to the first question is ‘‘ Yes’’ following Perrin v. Morgan, [1943] A.C. 399 ; 112 L.J. Ch. 81 ; [1943] 1 All E.R. 187; In re Trustee Act; In re Hutchinson Estate, [1943] 2 W.W.R. 714; 51 Man. R. 180.

The answer to the second question is answered by No. I.

In regard to the third question, I find that the bequest does not include all personal effects. It is a gift of jewellery only: In re Abbott; Public Trustee v. St. Dunstan 9 s etc. Trustees, [1944] 2 All E.R. 457. It is also evident that in the direction ‘‘to be given one to each, W. H. Bower & Wm. Hamilton’’ there is an obvious omission of the word ‘‘half,’’ for the inventory of the estate shows that there are more than two articles of jewellery.

Dealing now with the fourth question: The value of the estate is less than the minimum which would make it dutiable under The Dominion Succession Duty Act, 1940-41, c. 14; but by reason of the situs of some of the shares of companies in Ontario (duty payable $1,028.25) and Quebec (duty payable $1,113.56) the executors desire to know whether those duties should be paid by them as part of the general cost of administration or, if not, by whom should they be paid and in what proportion?

Councel advise that they have been unable to find a case in which similar circumstances existed; nor have I been able to find one.

Very complete argument was presented by counsel for the pecuniary legatees that the succession duties payable in Ontario and Quebec should be paid by the residuary legatee, and by counsel for the residuary legatee that they should be paid by the pecuniary legatees.

As mentioned above, this is a holograph will and it is the duty of the court to interpret what meaning should be attributed to the will as a whole. That is the fundamental rule. If the intentions expressed by it appear obvious and clear, then there is no difficulty ; but where, as here, the will does not express the testator’s intentions as lucidly as one could wish, the court will give effect to his intentions if they can be ascertained with reasonable certainty from perusal of the will, and in this instance I think they can be.

The testator makes no mention of, or provision for, the payment of succession duties. I am inclined to the view that the payment of succession duties outside the province of Manitoba never occurred to the testator.

Three important clauses appear in the will. Effect must be given to the words of these three clauses:

(1) The introductory clause, which governs other clauses, reads: "The following assets to be divided as follows: 11 Then follow a number of general bequests above referred to.

(2) Clause 4 provides: ‘‘$3,000.00 Three thousand dollars which I owe to Mrs. Elsie Atkinson to be paid to her from sale of stocks bonds etc.’’ It is to be noted that the pecuniary gifts are contained in clauses 5, 6, 7 and 8 immediately following clause 4, and I am inclined to the view they are governed by the words in italics in clause 4, and by the introductory clause and clause 11 as well.

(3) Clause (11) reads: ‘‘All money remaining after the above bequests have been paid, I bequeth [sic] to Mrs. E. H. McGee.”

Under the implied power of sale in the will it was necessary for the executors to sell the stocks and bonds, and in order to do so they were first required to pay the succession duties in Ontario and Quebec. It was only after this was done that the stocks and bonds could be sold and then the pecuniary legacies became payable. The succession duties were therefore part of the administration expenses of the estate and payable by the estate.

This is the only way in which effect can be given to the words in italics, supra.

Question 4. is therefore answered that the succession duties should be paid by the executors as part of the general costs of administration.

Costs to be paid out of the estate, those of the executor on a solicitor-and-client basis.