Supreme Court of Canada
Power v. The Attorney-General for Nova Scotia (1903) 35 SCR 182
Date: 1903-06-08
Power v. The Attorney-General for Nova Scotia
Present:—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Nesbitt JJ.
1903: June 3; 1903: June 8.
Will—Discretion of executors—Withholding income—Reasonable time—Failure of object of devise—Cy-pres — Costs.
Appeal from the judgment of the Supreme Court of Nova Scotia, in banco, affirming the decision of Townshend J., which declared that the direction in the will of the late Patrick Power to apply a portion of the income of the residue of his estate for the introduction and support of Jesuit Fathers in the City of Halifax was inexpedient and impracticable and could not now be accomplished and ordered such unapplied revenue, with the accumulations thereof, to be applied to charitable purposes having regard to the will and that the defendants should formulate a scheme to that effect, such scheme to be submitted to the court within three months from the date of the decree.
The action was brought by the Attorney-General for Nova Scotia, on the relation of the Roman Catholic Episcopal Corporation of Halifax, against the executors and trustees under the will for inquiry and account in respect to the estate, a decree that the income of the residue should be applied to charitable purposes and for the settlement of a scheme for its disposition and the application cy-pres of such portion of the income as could not be applied in the particular mode directed by the will, with. such further directions as might be necessary. The devise in question is set out at pages 527 to 529 of the above cited report.
[Page 183]
The appeal was asserted by the executors and trustees against the judgment of the court below in favour of the contentions of the plaintiff.
After hearing counsel for the parties the Supreme Court of Canada reserved judgment and, on a subsequent day, made an order varying the decree appealed from by striking out the introductory paragraph so as, in effect, to declare the direction in the will at present impracticable and adjudging that the unapplied income of the residue should, from and after a date named, be applied semi-annually by the defendants to the promotion and support, in the City of Halifax or its vicinity, of such charitable institutions and religious orders in connection with the Roman Catholic Church, and in such manner and in such proportions as the executors, in their discretion, might think proper in accordance with the terms of the will and the powers thereby conferred upon them. And the court reserved further directions, with leave to either party to apply to the court below and ordered the costs of all parties to be paid out of the funds of the estate in the hands of the defendants.
Newcombe K.C. and Power for the appellants.
Borden K.C. and Chisholm for the respondents.
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