McGarvey v. McNally, (1908) 40 SCR 489

Supreme Court of Canada

McGarvey v. McNally, (1908) 40 S.C.R. 489

Date: 1908-06-30

Margaret McGarvey (Plaintiff) Appellant;

and

William McNally, Ês Qualitê (Defendant) Respondent.

1908: June 10, 11; 1908: June 30.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE SUPERIOR COURT, SITTING IN REVIEW, AT MONTREAL.

Will—Powers of executors—Winding-up estate—Time limit—Legacy —Special legislation—Extension of time—3 Edw. VII. c. 136 (Que.)—Construction of statute.

The provisions of the Quebec statute, 3 Edw. VIL, ch. 136, have not the effect of extending indefinitely the time limited by the will of the late Owen McGarvey for the investment of $50,000 for the appellant's benefit as directed by the will.

Judgment appealed from (Q.R. 32 S.C. 364) reversed.

Appeal from the judgment of the Superior Court, sitting in review, at Montreal (1), which affirmed the judgment of the Superior. Court, District of Montreal (Fortin J.), dismissing the plaintiff's action with costs.

The case is stated as follows in the judgment of Mr. Justice Mathieu in his dissenting judgment delivered on the appeal to the Court of Review.

"Mathieu J.—The plaintiff inscribed in review, from a judgment of the Superior Court (Fortin J.), rendered at Montreal 24th October, 1905, maintaining the pleas of the defendant, William McNally ês qualité, and dismissing her action, with costs.

[Page 490]

"The plaintiff is the daughter of the late Owen McGarvey and Margaret Cooper.

"On the 23rd of May, 1894, Owen McGarvey made his will, in authentic form, before Labadie, N.P.

"The will contains, among others, the following provision:

'I give and bequeath after the death of my said wife, to my said daughter, Margaret McGarvey, during her lifetime, the income or revenue of the capital sum of fifty thousand dollars, current money of Canada, which capital shall be invested with first-class security by my executors for the best advantage of my said daughter; and at the death of my said daughter, the said capital I give and bequeath to her lawful children and descendants, to be divided amongst them, share and share alike by families, par souche, according to law, and to be then their own and absolute property forever.'

"The will also contains the following order: 'I wish and direct that my estate be settled and wound up within one year from the day of the death of my said wife.'

"The testator and his wife were common as to property.

"Owen McGarvey died on the 7th July, 1897.

"On the 9th day of July, 1898, his widow, Margaret Cooper, made her last will, in notarial form, before Cox, N.P.

"She appointed as executors the defendants, William McNally, her son-in-law, and Joseph Cooper, of Lindsay, Ontario, her brother, who had been appointed executors of the estate of her husband, in the place of the executors mentioned in his will, who had resigned.

"As regards the plaintiff, the will of Margaret Cooper contains the following disposition:

[Page 491]

'Inasmuch as, by his last will and testament, executed before J. E. O. Labadie and colleague, notaries, on the twenty-third of May, eighteen hundred and ninety-four, my deceased husband gave and bequeathed, after my death, to my daughter, Margaret McGarvey, during her lifetime, the income or revenue of the capital sum of fifty thousand dollars, should it appear to my executors, either at my death or at the time fixed for the winding up of his estate, that his estate would not be sufficient to pay in full the various legacies bequeathed by him under his said will, and that, in consequence, my said daughter, in common with the other legatees, would be obliged to suffer a proportionate diminution of her legacy, I direct my said executors to pay, out of my estate, to my said daughter, Margaret McGarvey, such sum of money as my said executors may deem sufficient to make up the deficiency in the bequest to her made by my husband's will, should there be any, so that my said daughter, Margaret McGarvey, shall, with the sum of money to be set aside for her advantage, by the executors of his will, with, in addition, the sum of money to be paid to her by my executors, in the event of there being any deficiency, as above mentioned, be assured of obtaining the revenue or interest of the sum of fifty thousand dollars.'

'In the event of there being any diminution in the bequest to my said daughter, under my husband's will, and my executors paying to her such sum as may, in their opinion, be necessary to cover such deficiency, such sum as shall be paid to my said daughter, Margaret McGarvey, by my executors, shall be her own and absolute property, and shall be used, enjoyed and disposed of as she may think proper.'

[Page 492]

"Margaret Cooper died on the 31st October, 1902, and, under the provision hereinabove cited in her husband's will, the estate of the latter was to be wound up on the 31st October, 1903.

"The wife of defendant McNally, Annie McGarvey, is the residuary legatee, under the will of her father, and, also, residuary legatee, together with the plaintiff, her elder sister, under her mother's will.

"On the 25th April, 1903, a bill was passed by the Legislature of Quebec (3 Edw. VII. ch. 136), 'to interpret the will of the late Owen McGarvey, to extend the powers of the executors, provide for the payment of legacies and make provision for the administration and winding up of the estate.'

"The only dispositions of the said statute of 1903, which might have any bearing on this cause are the following:

'1.—The said executors or their successors in office duly appointed are hereby declared seized and possessed of all the property, movable and immovable, of the estate and succession of the late Owen McGarvey, until the complete execution and fulfilment of the said will is accomplished, or until the same is otherwise disposed of under the provisions of this Act, and are declared to be vested with and to have the fullest and most unrestricted power in respect of such property and estate for the following purposes, to wit:

'(a) To sell all or any portion thereof, by private sale or otherwise upon such terms and for such prices as they see fit without the necessity of judicial authorization, but with the consent or the assistance of the tutor to the minors or of the curator to any substitution under the said will; to join with others in all deeds of partition or otherwise concerning property held

[Page 493]

jointly or forming part of any community; to grant good and effectual title to all or any of the same; to lease, mortgage, hypothecate or in any other way dispose of or alienate the same or any part thereof; to make any and all conveyances, transfers or assignments and all contracts and agreements of and concerning the same which they may see fit; to grant all receipts and discharges necessary in the premises and all delays for payment or otherwise which in their discretion they may deem necessary or advisable; to borrow upon the security of such property or any part thereof all sums they may deem necessary in the interest of the estate; to invest all moneys now in their hands or hereafter realized and collected and the proceeds of all sales in such manner as they may deem advisable, and until such time as the same are paid or handed over to the legatees entitled thereto under the said will or otherwise disposed of according to the provisions of this Act.'

'(b) To pay over, out of the cash assets of the estate and the amount realized from any sales of the property of the succession to the legatees named in the said will, the respective amounts of their legacies on the basis hereinafter provided at such time or times and in such amount or amounts as the executors shall have on hand; provided, however, that, at the date of distribution of any moneys in payment of legacies, each legatee shall receive a "pro ratà" amount of his or her legacy.'

'(c) To capitalize the annuity of five hundred dollars per annum payable to Miss Jane Cooper and the annuity of one thousand dollars per annum payable to Dame Theresa Heney, widow of the testator's son, the late John McGarvey, at five per centum interest,

[Page 494]

to wit: ten thousand dollars and twenty thou- sand dollars respectively; the revenue upon which capitalized sums shall represent the annual value to each of the said legatees of her legacy respectively, whether the amount derived from the same is equal to the amounts mentioned in the will or not. The legacy of the annuity of five hundred dollars per annum shall be due and payable to Miss Jane Cooper on and after the 31st October, 1903.'

'3.—All the legacies of whatsoever kind, other than that of the testator's share in the immovable lot No. 910 of St. Antoine Ward of the City of Montreal, shall be subject to a uniform reduction in proportion to their respective amounts in the event of the estate not realizing sufficient to pay them in full.'

'This section shall not apply to the legacy to Dame Theresa Heney and Margaret McGarvey before the 31st of October, 1903,'

'4.—The said executors are authorized to pay and hand over to the residuary legatee, Dame Annie McGarvey, wife of the said William McNally, and she is authorized to receive, and hold upon such security as the Superior Court or any judge thereof shall, upon application of the executors or the said residuary legatee, determine, the capital of all annuities and amounts which may form part of the residue of said estate until her death, or her handing over thereof according to law and the provisions of the said will.'

"As we have just seen, the Act, 3 Edw. VII. ch. 136, sec. 3, states no reduction will be made in the " plaintiff's legacy, before October 31st, 1903. We must remember that the 31st October, 1903, is the date fixed by the will of Owen McGarvey, for the winding-up of his estate.

[Page 495]

"The defendants took possession of the estate of Owen McGarvey, as executors, and Joseph Cooper, being a resident of Lindsay, Ontario, had very little, if anything, to do with the administration of the estate, and defendant McNally, on the other hand, left the whole administration in the hands of John W. Grier, of Montreal.

"It appears, from the evidence, that the defendants did not change, in any manner, the investments made by the late Owen McGarvey, in his lifetime, and did not invest or set apart $ 50,000, for the plaintiff; and the plaintiff complains that she received considerably less than the legal interest on the sum of $50,000, even during the year immediately following the decease of Margaret Cooper, during which year, according to the statute of 1903, there was to be no reduction.

"The plaintiff caused her attorneys to write, on the 18th of October, 1904, a letter, whereby she asked that the legacy upon which she depends be invested, as provided for in the will, and, in the second place, that she should receive a regular income, at stated intervals.

"The defendant McNally having refused to meet her wishes, she took the present action. The plaintiff alleges in her declaration, that, in and by section 3 of the said Act of 1903, it was ordained and decreed that all legacies, with one exception, should be subject to a uniform reduction, in the event of the estate not realizing sufficient to pay them in full, said reduction, however, not being applicable to the plaintiff, in any event, before October 31st, 1903; that the plaintiff has not been notified, by the defendants, of any reduction being necessary, as regards her said legacy, and is entitled to have the full benefit thereof; that the

[Page 496]

said defendants have always failed and neglected to invest the said capital sum of $50,000 with first-class security, as bound and obliged to do by the said last will and testament of the said Owen McGarvey, although duly requested so to do, particularly, by letter bearing date October 18th, 1904; that the said defendants, és qualité have failed and neglected to pay and satisfy to the said plaintiff the interest on the said sum of $50,000 at the legal rate of 5 per cent, per annum, and the said plaintiff has only received, on account of the said annuity, for the years ending October 31st, 1904, the sum of $3,725, leaving a balance due to her, for the said years, of $1,275; that the said plaintiff has just cause to fear that, unless the said sum of $50,000 is invested in first-class security, as provided for in and by the said testament and Act, she will lose her claim and sustain damage. And, by her conclusions, the plaintiff prays:

'(a) That the said defendants, ês qualité, be adjudged and condemned jointly and severally, to pay and satisfy to her, out of the assets of the said estate, the sum of $1,275, with interest, on the sum of $350, from 31st October, 1903, and, on $925, from 31st October, 1904.'

'(b) That, in the event of the said defendants, ês qualité, being unable to pay and satisfy to the said plaintiff the said sum of $1,275, with interest, as aforesaid, out of the assets of the said estate, the said defendants be personally condemned, jointly and severally, to the payment of the said sum, or such part thereof, as may not be paid by the said estate.'

'(c) That the said defendants, ês qualité, be ordered and condemned, jointly and severally, to invest the said sum of $50,000, with first-class security,

[Page 497]

for the benefit of the said plaintiff, within such delay as the court may fix, and to pay her interest on the said sum, at the legal rate of 5 per cent. per annum, on the 31st of October of each year, or at such date or dates as the court may decide.'

'(d) That, in the event of the said defendants declaring themselves unable to set aside the whole of the said sum of $50,000 for the purpose and in the manner aforesaid, they be, jointly and severally, adjudged and condemned to render to the said plaintiff a true and faithful account of the estates of the said late Owen McGarvey and Dame Margaret Cooper, with receipts and vouchers (pièces justificatives), indicating why the whole of the said sum of $50,000 cannot be set aside, as aforesaid, the whole with costs.'

"The defendant James Cooper has not pleaded to the action, but the defendant McNally pleads, as executor of the estate of the late Dame Margaret Cooper, by demurrer, that plaintiff's action is premature, inasmuch as she is only entitled to her bequest, under the will of the Dame Margaret Cooper, in the event of her having suffered a diminution of her legacy under the will of the late Owen .McGarvey and no such diminution is alleged.

"By a further plea, he admits, in substance, the making of the wills, their contents, the death of the testators, defendants' appointments, and the passing of the Act, 3 Edw. VII. ch. 136, and denies that the defendants have failed to invest the capital sum of $50,000, and alleges that the plaintiff has always received the full income and revenue of her legacy, and he further says that the late Dame Margaret Cooper, and Owen McGarvey, were in community as to property, the assets of which community consisted almost

[Page 498]

wholly of real estate held and administered in undivided ownership by the executors of their respective estates; that the sale or division of the properties, if forced, would entail great loss, and the defendant would be unable to carry out the provisions of the will of the said late Margaret Cooper, and that defendant, in the exercise of his discretion, deems it advisable to dispose of the said property only as the demand for the same may arise and at prices nearly representing their value, and that, until the final sale and division of the said properties, it is impossible to say what sum, if any, may be due to the plaintiff, under Dame Margaret Cooper's will.

"As executor of the will of the late Owen McGarvey, defendant McNally pleads, making substantially the same admissions and denials as in the foregoing plea, and, especially, invoking the whole of the Act, 3 Edw. VII. ch. 136, and alleges that plaintiff's legacy, together with the residue of the said two estates was invested in hypothecs upon real estate and real estate chosen by the testator himself, and that the plaintiff has always been paid the full revenue of her legacy; that the assets of the said estates consisted, for the most part, of real estate which can only be divided at a loss, and the defendant, in the exercise of his discretion, admits the advisability of selling the said real estate to the best advantage, only when a demand for the same arise, in accordance with the terms of the said will, and with the Act, 3 Edw. VII. ch. 136.

"On the twenty-fourth day of October, 1905, the Superior Court, at Montreal, Fortin J., dismissed plaintiff's action, with costs, for the following reasons:

[Page 499]

'Considering that plaintiff has not established the allegations of her declaration, and that defendant McNally has established his pleas.'

'Considering that, neither by the will of the late Owen McGarvey, nor by the statute, 3 Edw. VII. ch. 136, are the executors bound to sell and dispose of the assets of the testator's succession, within any specified delay, or to change the nature of the investments made by said deceased.'

'Considering that plaintiff has received, from the said succession the revenue of the said sum of $50,000.'

'Considering that plaintiff, as legatee by particular title, cannot compel defendants to render, at the present time, an account of their administration of said succession.'

'Doth maintain defendant McNally's pleas, and dismiss plaintiff's action, with costs.'

"McNally pretends that the part of the plaintiff's. action, and her last conclusion, relating to the estate of the late Margaret Cooper is premature, inasmuch as she is only entitled to her bequest under the will of the said Dame Margaret Cooper, in the event of her having suffered a diminution of her legacy under the will of the late Owen McGarvey, and no such diminution is alleged.

"The plaintiff alleges, and it is shewn, in the record, that the defendants, as executors of the will of the late Owen McGarvey, are not now in a position to invest the whole of the sum of $50,000 for the plaintiff, as directed by the will of the late Owen McGarvey, and, consequently, her demand of an account seems pertinent.

"Defendant McNally denies that he has failed to invest the said sum of $50,000, and alleges that the

[Page 500]

plaintiff has received the full income or revenue of her legacy.

"I am not prepared to say that the defendants could not, in executing the will of Owen McGarvey, set apart some property of his estate, as an investment of the whole or of part of the said $ 50,000, because, by article 981 C.C., investments can be made in real estate; but I say that, to execute the will of the late Owen McGarvey, the defendants must set apart, for the plaintiff, some property of the estate, or make an investment otherwise according to law.

"The defendant maintains that the plaintiff has received the full income or revenue of her legacy.

"The defendants have not proved that; and they are not in a position to prove what was the income or revenue of the investment of f 50,000, because they have made no investment. And, having made no investment, I believe they are bound to pay to the plaintiff the legal interest on the said sum of $50,000, as compensation for the revenues of the investment which they were bound to make and which they did not make.

"The defendant says that this is not the proper-time to dispose of the real property.

"This might be said in the interest of the defendant's wife, who is the universal legatee of Owen McGarvey, but the defendants must execute the will.

"I have already cited a clause of the will of Owen McGarvey expressing a desire and direction that his estate be closed, within one year from the death of his wife. The same direction is expressly given later: 'As to the balance or remainder of my estate, I give and bequeath the enjoyment and usufruct thereof to my daughter, Annie McGarvey, wife of William McNally,

[Page 501]

during her lifetime, from the close and final settlement of my estate, which is to be within one year after the death of my wife.'

" 'Winding-up' means the realization of the assets and investments, as in the case of corporations (R.S.C. ch. 129).

" 'Wind up' is defined in the standard dictionary, 'to bring into a conclusion or a settlement.' Surely this is not done by leaving everything in statu quo.

"The executors' obligation to invest is further expressed by clause 11 of the will:

'I desire that, in so far as regards the investment of any money, which they should deem necessary to make, my said executors shall not be restricted to investments in which, by law, executors are bound to invest, and that they shall not be responsible for any loss which may happen in consequence.'

"Such clause is hardly necessary, if defendants can leave everything in abeyance.

"McNally contends that the clear and imperative terms of the wills of both Mr. and Mrs. McGarvey were rendered inexistent by the bill which he obtained from the Legislative Assembly, in Quebec, and for which he saddled the estate with the sum of $1,918.41.

"The parties have not submitted to us the question whether the Legislature of Quebec, had the right to pass this extraordinary bill. It seems hard to believe that our legislators in Quebec have any mandate from the electors to change wills. We might perhaps properly say that they are sent there to administer the public affairs of the province.

"The object of the bill, as appears by the title and preamble, is threefold:

"To extend the powers of the executors;

[Page 502]

"To provide for the payment of legacies;

"To make .provision for the administration and 'winding-up' of the estate.

"Clause 1, and sub-section (a) thereof, leave no doubt as to the powers of the executors to sell the real estate; but do not, in any way, relieve them from the obligation of investing $50,000, to pay the plaintiff as prayed for in the conclusion (c) of her declaration.

"Sub-sections (b) and (c) of clause 1 provide that the legacies will suffer a shrinkage, their total amount being $86,729.15, as against $80,167.34, being the assessed or estimated value of the estate, which consists mainly of immovable property.

"Moreover, by clause 3, the reduction does not apply to plaintiff's legacy before October 31st, 1903.

"What would be the use of such a clause, if the legislature, as well as the testator, had not had in view the proceeds invested before the 31st of October, 1903? Thereafter, of course, any diminution in the value of the properties in which the fifty thousand dollars ($50,000) would be invested, and of the revenue derived therefrom, would fall upon the plaintiff.

"Moreover, how could the amount be completed with funds accruing from Margaret Cooper's estate, if the whole of the two estates remained intact, and no investments were made, for the purpose of paying plaintiff the income, revenue or interest thereof?

"The bill contains no provision regarding the winding-up of the estate, save clause 4, which empowers the executors to hand over to Mrs. William McNally the residue of the estate which may not have been otherwise invested for the carrying out of particular legacies, upon giving proper security.

"On the whole, I say that the executors were bound to sell enough of the real estate of Owen McGarvey to

[Page 503]

put aside for the plaintiff a sum of $50,000, or such portion thereof as «may correspond to the proportion between the assets of the estate with the amount of the particular legacies, or to set apart, for her, properties to that amount, and, in any event, to complete the said amount of $50,000, by means of a sum realized out of Margaret Cooper's estate.

"I also believe that it is in the interest of all parties concerned that this estate be wound up as soon as possible; for the administration which is made of the same is not an advantageous administration. One of the executors resides at Lindsay, Ontario, and he takes no part in the administration. The other executor, McNally, resides at Montreal, but he, as well, does not bother himself much about the estate. He knows nothing of the affairs of the estate, and, when he is asked what are the revenues, he answers that he does not know, and to ask John Hyde, an accountant, a stranger, who, of course, will ask Mr. Grier. Grier seems to administer that estate as he pleases, and he gets ten per cent, on the gross revenues, when that administration could be better attended to by responsible companies who charge only five per cent.

"In conclusion, I say that the plaintiff has good grounds of complaint, and that it is the duty of the court to come to her relief.

"I am of opinion to reverse the judgment of the Superior Court, and to dismiss the pleas of the defendant McNally, ês qualité, with costs, and to maintain the demand of the plaintiff, and condemn the defendants, ês qualité, as executors of the will of the late Owen McGarvey to pay to the said plaintiff the sum of $1,275, with interest, on the same, from 10th day of September, 1904, the date of the service of this action,

[Page 504]

and to order and condemn the defendants, ês qualité, to invest within six months from this date, the sum of $50,000 or so much as the plaintiff is entitled to have from the estate of the late Owen McGarvey, with first-class securities, for the benefit of the said plaintiff, and to condemn the defendants to pay the costs of the plaintiff's demand in the Superior Court and the costs in this court, reserving to adjudicate hereafter on the other portions of the plaintiff's demands, and reserving also to the said plaintiff all other recourse which she may have in the premises."

Surveyer, for the appellant.

Atwater K.C. and Duclos K.C., for the respondent.

Girouard J.—We are again invited to give effect to a statute of the Legislature of Quebec undertaking to substitute a will of its own for the will of the testator, Owen McGarvey, in his lifetime, furniture manufacturer, of Montreal, and this in spite of the strongest enactment made by the Imperial Parliament as early as 1774, in 14 Geo. III., ch. 83, generally known as "The Quebec Act," which is the first Imperial charter of Canada outside the capitulation and the Treaty of Paris.

Section 10 of that Act provides that it shall be lawful for any person freely to "devise or bequeath * * by last will and testament" any property he may have or leave at his death. This enactment has been reproduced in the Civil Code, forms the general law of the province and has always been looked upon as one of the dearest rights of. every British subject. Mr. Owen McGarvey has made a will under these laws; but, after his death, the provincial legislature was

[Page 505]

requested by his heirs to make another will or at least materially change the same. Mr. Justice Mathieu, who dissented in the Court of Review, observes that

it seems hard to believe that our legislators in Quebec have any mandate from the electors to change wills.

But, as long as these extraordinary bills are not disallowed by the Government of Canada, which is the constitutional guardian of the liberties of the people of the Dominion, we must accept them as binding laws. The Imperial Parliament always could and still can change these laws, but, with regard to property and civil rights, a provincial legislature is as omnipotent as the Imperial Parliament, subject to the veto power.

I do not intend to review all the facts of the case. They are fully set forth in Mr. Justice Mathieu's dissenting judgment in which I concur and I merely refer to it to ascertain what they are.

We are unanimously of opinion that the judgments of the two courts below are wrong and must be reversed. It is contended by the respondent that the time for winding up the estate has been extended indefinitely, just as the executors deem expedient. This court does not entertain that view; and, although I have some doubt upon the point, it is not strong enough to induce me to dissent from the majority, and, as usual in cases like this, as I observed in the case of Prévost v. Lamarche[1], that doubt should be given in favour of the will of the testator.

With regard to the second point involved in the appeal, viz., that the sum of $50,000 be invested for the benefit of the appellant, no doubt is possible. The clause of the will is clear and is not in any way

[Page 506]

changed or affected by the Quebec statute. Here it is, word for word:

I give and bequeath, after the death of my said wife, to my said daughter, Margaret McGarvey, during her lifetime, the income or revenue of the capital sum of fifty thousand dollars, current money of Canada, which capital shall be invested with first-class security by my executors for the best advantage of my said daughter, and at the death of my said daughter, the said capital I give and bequeath to her lawful children and descendants, to be divided amongst them, share and share alike, by families, "par souche?' according to law, and to be then their own and absolute property for ever.

We are, therefore, of opinion that the appellant is entitled to the main conclusions of her action. If the estate of the late Mr. McGarvey be not sufficient to bear the investment of the whole amount, then the deficit should be met by the estate of his late wife.

The appeal should be allowed with costs and, adopting the formal judgment suggested by Mr. Justice Mathieu, the demand of the appellant should be maintained with costs in all courts and the defendants, ês qualité, as executors of the will of the late Owen McGarvey, as amended by the Quebec statute, 3 Edw. VII., ch. 136, are condemned to pay to the said appellant (plaintiff in the court below), the sum of $1,275 with interest on the same from the 10th day of September, 1904, the date of the service of this action, and they are further ordered and condemned es qualité to invest, within six months from this date, the sum of $50,000, or so much as the plaintiff is entitled to have from the estate of the said late Owen McGarvey, with first-class security for the benefit of said plaintiff, reserving to adjudicate hereafter on any other portion of the plaintiff's demand and reserving also to the said plaintiff all other recourses she may have in the premises.

[Page 507]

The motion to quash should be dismissed with costs, as the amount involved in this appeal is the investment of a sum of $ 50,000, which is quite sufficient to give us jurisdiction.

Davies J.—I am to allow this appeal.

I do not think the statute enlarges the express limitations of the will as to the time within which the estate should be wound up.

I think there should be judgment accordingly and a declaration to that effect and also that the executors should proceed without delay to administer the estate and render full accounts to the appellant (plaintiff) of their administration in the proper court.

Idington J.—I think the conclusions arrived at by Mr. Justice Mathieu, who dissented in the court below are correct.

I adopt, speaking generally, his reasoning save as indicated hereunder and that questioning the right of the legislature as to amending wills. In this latter regard, I neither approve nor disapprove of what may have been done. The clear purpose of the testator was that, at least within the year next after the death of his wife, the estate would be wound up.

The legislation got facilitated this being done.

The same legislation as clearly as possible indicates that the appellant's rights should not be interfered with.

It seems idle to talk of the testator's real estate as he left it being such an investment as he contemplated when he directed as follows:

I give and bequeath, after the death of my said wife, to my said daughter, Margaret MeGarvey, during her lifetime, the income or

[Page 508]

revenue of the capital sum of fifty thousand dollars current money of Canada, which capital shall be invested with first-class security by my executors for the best advantage of my said daughter; and, at the death of' my said daughter, the said capital I give and bequeath to her lawful children and descendants, to be divided amongst them, share and share alike, by families, "par souche" according to law, and to be then their own and absolute property forever.

The will also contains the following order:

I wish and direct that my estate be settled and wound up within one year from the day of the death of my said wife.

I venture to say that the testator's language is so clear in respect to the duty to be discharged by the executors as regards appellant's rights in the estate that, if they delayed obeying the directions given thereby so that the appellant has suffered any loss, they must make it good.

I should suppose that five per cent, could easily have been got in good safe investments and, for that reason, assent to the conclusion of Mr. Justice Mathieu that no investment having been made the legal rate may properly be adopted as the measure of appellant's claim in the absence of such investment.

I would not desire to be bound to that holding as a rule of law under all circumstances.

Prima facie it may well be accepted as a guide.

The appeal should be allowed with costs here and in the courts below to the appellant throughout.

Since writing the foregoing, I have concurred in the form of judgment drawn up by Mr. Justice Girouard, the acting Chief Justice.

Maclennan and Duff JJ. agreed with Mr. Justice Girouard.

The formal judgment, concurred in by all the judges, was as follows:

[Page 509]

The appeal is allowed with costs; the demand of the appellant is maintained with costs in all courts and the defendants, ês qualité, as executors of the will of the late Owen McGarvey, as amended by the Quebec statute, 3 Edw. VII., ch. 136, are condemned to pay to the said appellant (the plaintiff in the court below), the sum of $1,275 with interest on the same from the 10th of September, 1904, the date of the service of this action, and they are further ordered and condemned es qualité to invest, within six months from this date, the sum of $50,000, or so much as the plaintiff is entitled to have from the estate of the said late Owen McGarvey, with first-class security, for the benefit of said plaintiff, reserving to adjudicate hereafter on any other portion of the plaintiff's demand and reserving also to the said plaintiff all other recourses she may have in the premises.

The motion to quash is dismissed with costs fixed at fifty dollars.

Motion dismissed with costs and appeal allowed with costs.

Solicitors for the appellant: Casgrain, Mitchell & Surveyer.

Solicitors for the respondent: Atwater & Duclos.