Supreme Court of Canada
MacLean v. Henning, (1903) 33 S.C.R. 305
Date: 1903-04-20
Catherine Isabella MacLean and Minnie MacTavish (Defendants) Appellants;
and
John Henning and Others (Plaintiffs), and Ida Henning and Others (Defendants) Respondents.
1903: April 3; 1903: April 20.
Present: Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Mills JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Will—Construction—Survivorship—Intestacy.
H. by his will provided for disposal of his property in case his wife survived him but not in case of her death first. The will also contained this provision: “In case both my wife and myself should, by accident or otherwise, be deprived of life at the same time I request the following disposition to be made of my property” * * * H. died sixteen days after his wife but made no change in his will.
Held, affirming the decision of the Court of Appeal (4 Ont. L.R. 666) which affirmed the judgment of the Divisional Court (2 Ont. L.R. 169) that H. and his wife were not deprived of life at the same time and he therefore died intestate.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court in favour of the respondent.
The sole question for decision was whether or not Thomas Henning, the testator, and his wife were deprived of life at the same time so that the provision in his will set out in the above head-note attached. If not there was an intestacy as the will made no provision for the event of the testator surviving.
[Page 306]
He and his wife had gone to Europe and the latter died at Florence on 11th December, 1888. The testator was ill at the time of her death but lived until 27th December, 1888. The respondents claimed that he died intestate and the courts below have so held.
Aylesworth K.C. for the appellant, referred to Marklew v. Turner; Davies v. Davies.
H.J. Scott K.C. and O’Brien K.C. for the respondents (plaintiffs) cited Wing v. Angrave; Van Grutten v. Foxwell.
O’Donoghue appeared for Clara Henning one of the respondents (defendant).
The CHIEF JUSTICE.—The sole question involved in this appeal is as to the meaning of a will in which the testator says:
In case both my wife and myself should by accident or otherwise be deprived of life at the same time, I request the following disposition to be made of my property.
The testator died sixteen days after his wife. The appellants contend that as, on the testator’s death, both he and his wife were then dead, they were deprived of life at the same time, within the meaning of the will. The Court of Appeal could not see its way to countenance such a contention and held that a testator who dies sixteen days after his wife, whether of accident or otherwise, has not been deprived of life at the same time as his wife. That is, in my opinion, a plain interpretation of plain words, and the only one that can reasonably be put upon the will.
The appeal is dismissed with costs to the plaintiffs, respondents against the appellants, but with no costs upon this appeal to the respondent Clara Henning.
[Page 307]
SEDGEWICK and GIROUAKD JJ. were also of opinion that the appeal should be dismissed with costs for the reasons stated by His Lordship Mr. Justice Davies.
DAVIES J.—I have no doubt as to the true construction of the will in controversy in this case. To support the appellants’ interpretation it would be necessary, as said by the Chief Justice of the Court of Appeal, to interpolate after the words “at the same time,” the words “or in case I shall survive her,” which of course we have neither the right nor the power to do.
Much has been said as to the “intention” of the testator. It is our duty, however, to gather that intention from the language he has used. Speculation as to what he must have intended has been indulged in based upon the alleged vagueness of the language of the will, the relations of the testator towards his wife who predeceased him, the character of the contingent dispositions he made, and the circumstances surrounding his death. Able and ingenious as many of them are, however, they must not be permitted to alter the plain meaning of the language used. A counter suggestion made by Mr. Scott, as to testator’s failure expressly to provide for the contingency of his survivorship, suggests itself as most reasonable. The deceased intended to give to himself or his wife, whoever survived the other a “free hand” in disposing of property they had jointly accumulated. Accordingly he expressly, in the first paragraph of his will, gave to his wife, if she survived him, everything he possessed at time of his death and made her his sole executrix. No attempt was made to control her in the absolute disposition of the property in case she became possessed of it by survivorship.
Then he provided as in the will
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in case both my wife and myself should by accident or otherwise be deprived of life at the same time,
the disposition of the property should follow as there specified and no doubt as they had mutually determined.
The other contingency, that which actually happened, his surviving his wife, left him with the property and a free hand to do with it as he pleased, and as circumstances might then determine, just as his wife was left had she survived him. The will carried out their mutual intention, and the omission on Mr. Henning’s part during the fortnight intervening between his wife’s death and his own to make another will or other disposition of the property than the law, unaided, did, does not to my mind weaken the force of Mr. Scott’s contention that the language of the will fully and completely expressed the intention of the testator when it was written.
MILLS J.—I am also of opinion that the appeal should be dismissed.
Appeal dismissed with costs.
Solicitor for the appellants: Alfred S. Ball.
Solicitors for the respondents, plaintiffs: O’Brien & Lundy.
Solicitor for respondent Clara Henning: J.G. O’Donoghue.
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