Fraser v. Fraser, (1896) 26 SCR 316

Supreme Court of Canada

Fraser v. Fraser (1896) 26 SCR 316

Date: 1896-05-06

James S. Fraser (Defendant)

Appellant

And

T. Graham Fraser (Plaintiff)

Respondent

1896: May 5; 1896: May 6.

Present:—Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Will—Devise to two sons—Devise over of one's share—Condition—Context—Codicil.

A testator devised property "equally" to his two sons j. s. and t. G. with a provision that "in the event of the death of my said son t. G. unmarried or without leaving issue" his interest should go to j. s. By a codicil a third son was given an equal interest with his brothers in the property on a condition which was not complied with and the devise to him became of no effect.

Held, reversing the decision of the Supreme Court of Nova Scotia, that the codicil did not affect the construction to be put on the devise in the will; that j. s. and t. G. took as tenants in common in equal moieties the estate of j. s. being absolute and that of t. G. subject to an excutory devise over in case of death at any time and not merely during the lifetime of the testator. Cowan v. Allen (26 Can. s. c. r. 292) followed.

Held also, that the word "equal" indicated the respective shares which he two devisees were to take in the area of the property devised and not the character of the estates given in those shares.

Appeal from a decision of the Supreme Court of Nova Scotia, reversing the judgment of the trial judge in favour of the defendant.

This appeal related to the construction of a clause in the will of the late Thomas Fraser, of New Glasgow, taken in conjunction with a codicil to the said will. The clause in question and the codicil were as follows:

"6th. I give, devise and bequeath the lots and stores between Provost and Archimedes Streets equally unto my said sons James Simon and Thomas Graham, but in the event of the death of my said son Thomas Graham, unmarried or without leaving issue, then his interest in the said lots and stores shall go to and be

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the property of my said son James Simon or his children."

"This is a codicil to the last will and testament of me, Thomas Fraser, of New Glasgow, in the County of Pictou, merchant, bearing date the eighth day of June, 1891.

"I do hereby give, devise and bequeath unto my son Robertson Fraser, providing he returns to New Glasgow to live, an equal interest with James Simon Fraser and Thomas Graham Fraser in the lots and stores between Provost and Archimedes Streets."

Robertson Fraser died, having never returned to New Glasgow to live.

The trial judge held that they took as tenants in common with a conditional limitation in favour of defendant in case the plaintiff died unmarried or without issue. The full court reversed this decision and held that plaintiff had a half interest in fee.

Mellish for the appellant. If the condition had been expressed to take effect on "the death of my said son'' merely that would have meant death in the lifetime of the testator, but with the words "unmarried or without leaving issue" added it means death at any time. See Cooper v. Cooper[1]; Edwards v. Edwards[2]; O'Mahony v. Burdett[3].

It is claimed that the words "or without leaving issue" should be read "and without leaving issue" to give effect to the intention of the testator, but all authority is against such a forced construction. See Grey v. Pearson[4].

Borden Q.C. for the respondent. The will and codicil must be read together to ascertain the testator's intention. Grey v. Sherman[5]; Darley v. Martin[6].

The second rule laid down in Edwards v. Edwards (2), and followed in O'Mahony v. Burdett (3), must

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always be controlled by the context, which in this case makes it necessary to refer the death of Thomas Graham Fraser provided for in the will to death in the lifetime of the testator.

The learned counsel also referred to Barker v. Cocks[7]; Olivant v. White[8]; In re Hayward[9]; and In re Luddy[10].

The judgment of the court was delivered by:

THE CHIEF JUSTICE.—The only question involved in this appeal relates to the construction of a particular devise contained in the will of Thomas Fraser, read in conjunction with a codicil to the same will.

This devise is contained in the sixth clause of the will and is as follows:

I give, devise and bequeath the lots and stores between Provost and Archimedes Streets equally unto my said sons James Simon and Thomas Graham, but in the event of the death of my said son Thomas Graham, unmarried or without leaving issue, then his interest in the said lots and stores shall go to and be the property of my said son James Simon or his children.

The codicil is in these words:

I do hereby give, devise and bequeath unto my son Robertson Fraser, providing he returns to New Glasgow to live, an equal interest with James Simon Fraser and Thomas Graham Fraser in the lots and stores between Provost and Archimedes Streets.

Mr. Justice Townshend, before whom the action was tried, held that the gift over of the share devised to Thomas Graham Fraser was a good executory devise, which would take effect upon the death at any time "unmarried and without issue" of the devisee Thomas Graham Fraser, the present respondent. This judgment was however reversed by the Supreme Court in banc, it being there held that the intention indicated by the will and codicil was that the gift over of the share or interest of Thomas Graham Fraser was only

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to take effect in the event of his death in the testator's lifetime. From this judgment James Simon Fraser. the defendant in the action, has appealed to this court.

In the case of Cowan v. Allen, in which we have just delivered judgment, the same question arose as that here presented, and we determined that the second rule laid down by the Master of the Rolls in Edwards v. Edwards[11], approved of by the House of Lords in O'Mahony v. Burdett[12], and Ingram v. Soutten[13], and followed and applied in the case of Woodroffe v. Woodroffe[14], required us to hold that in the case of a gift to a devisee in fee, not preceded by any life estate, with a gift over in case of death without issue, the executory devise over was referable to death without issue at any time, and was not to be restricted to death in the lifetime of the testator so as to be a mere provision for the case of a lapse, provided the context did not require the latter construction.

The proposition, however, in the present as in the former case, is that there is a context requiring us to adopt the restrictive construction. This is indeed the single question in the case.

With all due respect for the opinion of the majority of the learned judges who heard this cause in the Supreme Court of Nova Scotia, I am clearly of opinion that there is no such context and that the judgments of the learned Chief Justice and Mr. Justice Towns-hend are in all respects right. The codicil by which an equal share in the property was devised to Robertson Fraser never took effect inasmuch as he did not comply with the condition precedent therein prescribed, namely, that he should return to New Glasgow to live; still we are bound to consider this codicil as having the same effect on this question of

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construction as if its terms had been embodied in the will itself.

By the sixth clause of the will the testator gives the property ''equally" between the appellant and the respondent in fee; this means, of course, that they are to take equal shares as tenants in common. Then the share of the respondent is to go over on death unmarried or without leaving issue, but there is no such ulterior gift as regards the share of the appellant. This want of reciprocity, however, is not at all repugnant to the word "equally," if we refer that word to the respective shares which the two devisees were to take in the area of the property devised, and not to the ulterior disposition of the estate or quantum of interest which they were to take in those shares. And this is what we are bound to do in order to carry out the obvious meaning of the testator and to give effect to all the words of his will as sound rules of interpretation require us to do. This construction involves no inconsistency or repugnancy; the testator has given his property in two undivided halves, and he has chosen to give one of these absolutely to the appellant and the other undivided moiety for a defeasible estate only to the respondent; if he had devised the property not in undivided moieties, but had given one specific part of it to the appellant and the other part to the respondent and had made the estate of the former absolute and the estate of the latter defeasible on death without issue, no one could say that there was any context which would confine the gift over to death before the testator: Why should there be any more doubt here where the word "equally" is used only to indicate the shares, not the defeasible or indefeasible character of the estates given in those shares respectively. The word "equally" has exactly the same meaning here as if the testator had said "I give the

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"lots and stores' in equal undivided shares to my two sons" and had then added the same limitations over as those he actually added to the respondent's share alone. As to the effect of the codicil that can make no possible difference; had Robertson Fraser complied with the condition precedent on which his taking anything under it depended, the only difference which it would have introduced into the sixth clause of the will would have been that the three sons would have taken equal one-third shares of the property as tenants in common instead of equal moieties as the two sons, the appellant and respondent, take under the will, and whilst the shares of Robertson Fraser and the appellant would have been absolute, the respondent's share would have been subject to the executory devise over.

I am clearly of opinion that there is nothing either in the will or codicil requiring us to adopt any other than that laid down as the primâ facie construction by the cases cited.

Something has been said about reading the word "or" in the gift over as "and" so as to make the executory devise over to take effect upon the respondent dying unmarried "and" without leaving issue. No authority was cited for such an alteration of the testator's words, and I can find no trace of any. It is to be observed that the limitation over in O'Mahony v. Burdett[15] was on the same events and expressed in precisely the same words and that no point was made of any such change of words in that case, or even suggested; and Lord Cairns is particular in saying that:

A bequest to A. and if she shall die unmarried or without children to B. is according to the ordinary and literal meaning of the words an absolute gift to A. defeasible by an executory gift over in the event of A. dying at any time, under the circumstances indicated, namely, unmarried or without children.

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The appeal must be allowed and the judgment of Mr. Justice Townshend must be restored with costs to the appellant here and on the appeal to the Supreme Court of Nova Scotia in banc.

Appeal allowed with costs.

Solicitor for the appellant: John McGillivray.

Solicitors for the respondent: Fraser & Jennison.