Cowan v. Allen, (1896) 26 SCR 292

Supreme Court of Canada

Cowan v. Allen, (1896) 26 S.C.R. 292

Date: 1896-05-18

Samuel George Cowan and Others (Plaintiffs and Defendants) Appellants;

and

W.F. Allen (By Original Writ) and Jeanne Cowan (Made a Party in the Master’s Office) (Defendants) Respondents.

1896: March 9, 10; 1896: May 18.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Will—Construction of—Executory devise over—Contingencies—“Dying without issue”—“Revert”—Dower—Annuity—Election by widow—Devolution of Estates Act, 49 V. (O.) c. 22—Conditions in restraint of marriage—Practice—Added parties—Orders 46 and 48 Ontario Judicature Act—R.S.O. (1887) c. 109, s. 30.

A testator divided his real estate among his three sons, the portion of A.C. the eldest son being charged with the payment of $1,000 to each of his brothers and its proportion of the widow’s dower. The will also provided that “should any of my three sons die without lawful issue and leave a widow, she shall have the sum

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of fifty dollars per annum out of his estate so long as she remains unmarried, and the balance of the estate shall revert to his brothers with the said fifty dollars on her marriage.” A.C. died after the testator, leaving a widow but no issue.

Held, reversing the judgment of the Court of Appeal, that the gift over in the last mentioned clause was intended by the testator to take effect on the death of the devisee without issue at any time and not during the lifetime of the testator only; that it was no ground for departing from this primâ facie meaning of the terms of the gift that very burdensome conditions were imposed upon the devisee; and that no such conditions would be imposed on the devise to A.C. by this construction as the two sums of $1,000 each charged in favour of his brothers were charged upon the whole fee and if paid by him his personal representatives on his death could enforce repayment to his estate.

Held also, that the widow of A.C. was entitled to dower out of the lands devised to him, notwithstanding the defeasible character of his estate; that she was also entitled to the annuity of $50 per annum given her by the will, it not being inconsistent with her right to dower and she was therefore not put to her election; that the limitation of the annuity to widowhood was not invalid as being in undue restraint of marriage; and that she could not claim a distributive share of the devised lands under the Devolution of Estates Act which applies only to the descent of inheritable lands.

The mortagee of the reversionary interest of one of his brothers in the lands devised to A.C. was improperly added, in the master’s office, as a party to an administration action and could take objection at any time to the proceeding either by way of appeal from the report or on further directions; she was not limited to the time mentioned in Order 48 of the Supreme Court of Judicature which refers only to a motion to discharge or vary the decree.

APPEAL from the judgment of the Court of Appeal for Ontario, whereby the appeal of the present appellants from the judgment of the Chancery Division of the High Court of Justice for Ontario was dismissed with costs.

The respondents are the widow and administrator of the intestate Alexander Cowan.

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An administration order was issued, on proceedings taken by the plaintiff, on the 16th June, 1892, for the administration of the real and personal estate of Alexander Cowan, who died on the 30th June, 1891, intestate and without issue, leaving a widow, the respondent, Jeanne Cowan, and his brothers, the appellant plaintiff, Samuel George Cowan, and the appellant defendant, Albert Wilberforce Cowan, him surviving. In the course of the reference it became necessary to ascertain what interest the deceased Alexander Cowan had taken under the will dated 24th October, 1885, of his late father, James Cowan, in the lands referred to in the sixth paragraph of the will, his brothers, the appellants plaintiff and defendant, contending that in the events which had happened such lands had passed to them by virtue of the 14th clause of said will. The clauses in question are quoted in the judgment by his Lordship the Chief Justice. The widow of the intestate, Jeanne Cowan, and his brother, A.W. Cowan, were added as parties in the master’s office by order in the usual form; and by a further order, the appellant, Sarah MacPherson, a mortgagee of the plaintiff’s interest in the lands subsequent to the intestate’s death, was also added as a party. It seems to have been urged at some stage of the proceedings before the master that none of these three defendants should have been added as parties, and that Sarah MacPherson had no interest in Alexander Cowan’s estate. These objections were renewed on the appeal from the master’s certificate, but subsequent to the order by which they were made parties these defendants, together with the original plaintiff and defendant, joined in making certain written and signed admissions of fact and in submitting to the master the following questions therein:

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“1. What estate did Alexander Cowan take under the will of his father, James Cowan, in the lands referred to in the sixth paragraph of said will?”

“2. What interest, if any, in said lands survived to the estate of Alexander Cowan?”

“3. What rights has the defendant, Jeanne Cowan, now in said lands,

“a. By virtue of the said will of James Cowan;

“b. By virtue of the death of Alexander Cowan and her widowhood?”

The master issued the following certificate or report of his answers:

“I certify that, pursuant to judgment herein bearing date the 16th day of June, 1892, I was attended by the solicitors for the plaintiff and the defendants herein and I find as follows:

“1. That Alexander Cowan took under the will of his father, James Cowan, deceased, in the lands referred to in the sixth paragraph of said will, an absolute estate in fee simple.

“2. An absolute estate in fee simple survived to the estate of Alexander Cowan, subject to the charge thereon to Isabella Cowan as stated in the second paragraph of said will, and also subject to the rights of defendant Jeanne Cowan, doweress therein.

“3a. By virtue of the will of said James Cowan, the defendant Jeanne Cowan has the right to be paid $50 a year so long as she remains unmarried.

“3b. By virtue of the death of Alexander Cowan the defendant Jeanne Cowan is entitled to dower in said lands of her husband, or a distributive portion under the Devolution of Estates Act, as she may elect.”

From these findings and the certificate all the appellants appealed, contending:

1. That the master should have found that Alexander Cowan took under his father’s will an estate in fee

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simple with an executory devise over in fee to the appellants S.G. and A.W. Cowan, which in the events that had happened had taken effect, so that the lands formed no part of the intestate’s estate.

2. That the master should not have found that the respondent Jeanne Cowan was entitled to dower in the lands in question or a distributive share under the Devolution of Estates Act as she might elect, or to any other interest therein than the annuity of $50 per annum bequeathed to her by said will so long as she remained unmarried.

3. That the certificate did not set aside and discharge the order adding the appellant MacPherson as a party in the master’s office.

This appeal was dismissed, the learned judge holding that the intestate took under his father’s will an estate in fee simple absolute and that the 14th clause of the will under which the appellants claimed was repugnant and void. “The result,” as he expressed it, “being that the lands in question will devolve on the two surviving brothers of Alexander Cowan as his next of kin and his widow, should she elect to take under the Devolution of Estates Act, instead of her dower, her share under the Act.” He held also that MacPherson had been properly made a party in the master’s office.

The Court of Appeal upheld this decision, and the present appeal is by the same appellants seeking relief upon grounds similar to those above stated.

Moss Q.C. and Hall for the appellants. According to O’Mahony v. Burdett^[1] and Ingram v. Soutten^[2], the general rule of construction is, that where there is a bequest or devise and the will refers to the death of the legatee or devisee, with a contingency as death without leaving issue—that primâ facie means death

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whenever it may happen unless the testator expressly shows by the language of the will that death before a particular period was really intended. And see Jarman on Wills^[3]; Re Ball. Slattery v. Ball^[4]; Woodroofe v. Woodroofe^[5]; Palmer v. Orpen^[6].

In Tenny v. Agar^[7], before the Wills Act, the lands were devised to the first taker and his heirs forever, “upon the condition that he pay a charge of £300 to his sister.” The words “die without leaving any child or issue (then over)” were there held to create an estate tail and not an absolute estate in fee, though now, since the Wills Act, the first taker would be held to take an estate in fee with an executory devise over. Had the supposed rule of construction adopted by Mr. Justice Maclennan been a proper one, it should have been held in Tenny v. Agar⁷ that the first taker took the fee absolute owing to the charge of £300 being imposed upon the first taker’s interest. The fact that the devise was to the first taker and his heirs forever, made it a stronger one for such a rule than the one now in question in this appeal, and should have aided the court to come to such a conclusion, if it had been a proper one. See also Denn. ex dim Geering v. Shenton^[8].

The $2,000 charged in favour of S.G. and A.W. Cowan was never in fact paid to them, and being now entitled to all Alexander Cowan’s estate under the will their charge of $2,000 thereon is merged in their right to the fee. See Duke of Chandos v. Talbot^[9]. But had the charges been paid, Alex. Cowan’s executors would be entitled to be repaid the amount of the charge. Drinkwater v. Combe^[10].

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The construction sought to be applied requires the court to read into the 14th clause of the will after the word “die” the words “in my lifetime.” See In re Heathcote’s Trusts^[11], where a similar attempt to read similar words in the will was overruled, and Ingram v. Soutten^[12].

In the 14th clause the testator has used the technical words, “die without issue,” upon the true meaning of which the result of this appeal really turns. They must be taken in their technical sense and given their well recognized meaning as defined by R.S.O. [1887], ch. 109 sec. 32 and by the courts. See Roddy v. Fitzgerald^[13]; Jesson v. Wright^[14]; Bowen v. Lewis^[15]; Hawkins on Wills, p. 1 et seq., and cases there cited.

In regard to the gift to the widow of the deceased son “of the sum of $50 per annum out of his estate so long as she remains unmarried” being in restraint of marriage, it should be observed that this is not the case of a gift of an annuity to the widow for life upon condition that she does not remarry. It is a gift only so long as she remains unmarried. In either event such a gift would be perfectly good. See Allan v. Jackson^[16]; Jordan v. Halkham^[17]; and Heath v. Lewis^[18].

No attempt is made to deprive the widow of her dower. She is entitled to her dower in the lands of her husband and the annuity as well. One of the incidents attaching to an executory devise is a widow’s right to dower, and “the balance of the estate” is simply given over to the two brothers with all its incidents. See Moody v. King^[19];

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Smith v. Spencer^[20]; Buckworth v. Thirkell^[21]; Cameron on Dower, 149 et seq., and Jarman on Wills^[22] and the cases there cited. The most that could be urged would be whether or not the widow is put to her election to take the annuity or dower. This does not arise as she is entitled to both, but she cannot claim a distributive share under the Devolution of Estates Act as the estate passes under the father’s will and not under the statute. See McGregor v. McGregor^[23].

The appellant MacPherson has no interest whatever in the estate of the late Alexander Cowan, which is being administered; her title cannot be tried on a reference for the administration of the estate, which claims adverse to her; her right is to have her title tried in an action properly instituted for that purpose; she has objected and protested at every stage of the proceedings that she was improperly brought into the master’s office; she is improperly added as a party, and the order adding her as a party should be discharged.

Shepley Q.C. for the respondent W.F. Allen (Simpson with him). MacPherson was made a party to these proceedings under rule 46, Ontario Judicature Act and so far as she is concerned these proceedings began in the master’s office. This court will not entertain the appeal under section 24 (a) of the Supreme and Exchequer Courts Act as it is not a case so far as MacPherson is concerned in which the court of original jurisdiction is a superior court. Kandick v. Morrison^[24]; Martin v. Moore^[25]; McGugan v. McGugan^[26].

She was served with notice and did not move under rule 48 Ont. Jud. Act and therefore she ought not to

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be heard in appeal, but is bound under the rules and practice in that behalf. Scammell v. James^[27].

This order is a practice order and interlocutory and therefore not appealable even to the Court of Appeal under section 68 of the Judicature Act.

MacPherson never appealed against the order making her a party, but joined in making admissions before the master for considering and determining the interests of the estate and of Jeanne Cowan in certain land; the master made findings and an interlocutory certificate upon the question alone, and she did not move to discharge the order making her a party; she moved by way of appeal complaining that amongst these interlocutory findings and in that interlocutory certificate the master had not inserted a further finding that the order which he had made ought to be set aside with costs. See Shaw v. St. Louis^[28].

The devise over depends on two conditions, and both these must concur or the devise over cannot take effect. Cook v. Noble^[29]; Grey v. Pearson^[30]; Wing v. Angrave^[31]; Abbott v. Middleton^[32].

Where a devise is made upon several conditions, one of which is void, the other, though good by itself, being coupled with the void one will also be rejected. In re Babcock^[33]; Bradley v. Peixoto^[34].

The attempted disposition of the land on the devisee dying leaving a widow, that the widow is to have $50 per annum out of the estate, is void. It is a direct interference with the laws of England as to the incidents of an estate in fee and so is void for repugnancy. Earl of Arundel’s case^[35]; Portington’s case^[36];

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Mildmay’s case^[37]; Rosher v. Rosher^[38]; Dugdale v. Dugdale^[39].

The executory devise merely contemplates the death of one of the sons of the testator during his lifetime leaving a widow but without children. He knew that if his son predeceased him leaving children the devise would not lapse but would go to the children subject to the widow’s dower; R.S.O., c. 109, s. 36. But to provide for his son’s widow in case the son left no issue and predeceased the testator a provision was made for her while she remained unmarried.

The rule has been adopted in such cases that the death and failure of issue are to be read as though they must occur during the lifetime of the testator.

In any event the land does not “revert” to the brothers until the marriage of the said Jeanne Cowan (which has not happened) and until the happening of the said event it remains the property of the estate of Alexander Cowan. This affords another argument that the alleged executory devise is bad.

The word “revert” has no technical meaning in the strict construction of the clause. Re Norman’s Trusts^[40]; Carter v. Carter^[41]. As to the possession in fee, the “charge” is not a personal liability. Drinkwater v. Combe^[42].

The testator’s intention was to divide the property between all his sons left him surviving, and this object is best attained by reading the will so as to make “dying without issue” refer to the period anterior to the testator’s death. See O’Mahony v. Burdett^[43]; Barker v. Cocks^[44]; Olivant v. Wright^[45].

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Riddell Q.C. for the respondent Jeanne Cowan.

This respondent seeks to maintain her right to a distributive share in the estate under the Devolution of Estates Act, and against this decision there is no appeal by either party. She has the right of election as to this share or to take dower, to which she is entitled as the estate was of inheritance and her husband died seized. Smith v. Spencer^[46]. The quality of this estate not the quantity settles her right to dower. Moody v. King^[47]. The annuity is a special devise to the widow and is not incompatible with dower; the widow is entitled to the annuity in addition to her dower or a distribute share under the statute in case she so elects.

The judgment of the court was delivered by:

THE CHIEF JUSTICE.—This is an appeal from an order of the Court of Appeal affirming with costs a decision of Mr. Justice Robertson. The cause had originally been heard before the Chancellor who pronounced a judgment by which inter alia it was referred to the master, in the usual form of an administration order, to take the accounts of the estate of Alexander Cowan, deceased. In the course of the proceedings before the master a question arose as to the proper legal construction of the will of James Cowan, the father of Alexander Cowan, and the master having made his report dated the 8th of May, 1894, declaring the construction of the will in question, the present appellants, Samuel George Cowan, the plaintiff in the administration action, Albert Wilberforce Cowan and Sarah MacPherson (the two last named persons having been added as parties in the master’s office) appealed against the report, the respondents on that appeal

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being the present respondents, W.F. Allen, the administrator of Alexander Cowan (who had died intestate), the defendant in the administration action, and Jeanne Cowan, the widow of Alexander Cowan, added as a party in the master’s office. The judgment of Mr. Justice Osler delivered in the Court of Appeal is prefaced with a statement of the proceedings in the several courts below and before the master to which I refer.

The motion by way of appeal from the report was dismissed with costs by Mr. Justice Robertson, and, as already stated, this order was affirmed by the Court of Appeal, that court being, however, equally divided, the Chief Justice and Mr. Justice Osler being for allowing the appeal, whilst Mr. Justice Burton and Mr. Justice Maclennan were of a contrary opinion.

The clauses of the will of James Cowan upon which these questions of construction have arisen, and which are material to be considered, are the sixth, eighth, ninth and fourteenth, and are in the following words:

6. I will, devise and bequeath to my son Alexander Cowan the north half of the north half of lot seventeen, concession four, township Clarke; also the south half of the south half of lot sixteen, concession five, township Clarke, amounting in all to one hundred acres more or less, subject to his mother’s dower of $100 per annum during her life, $1,000 to his brother Samuel George and $1,000 to his brother Albert Wilberforce, and certain other considerations to his mother in bequest number two.—And which legacies and considerations before mentioned in the several sections hereinbefore written are bequeathed to my wife Isabella Cowan in lieu of dower as interlined in bequest number two.

8. I will, devise and bequeath to my son Samuel George the west half of the north half of lot number fourteen, concession four, township Clarke, known as the Doney Farm, containing fifty acres more or less, subject to his mother’s dower of $50 per annum during her life; also the sum of $1,000 to be paid to him in two years after my decease with interest at six per cent per annum on the second year only unless the money shall be paid by the end of the first year, in which case there shall be no interest; and the said $1,000 is to be paid by my son Alexander and chargeable upon the said lands willed

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to my son the said Alexander. And the line and parts of two lines erased immediately preceding are done at my request.

9. I will, devise and bequeath to my son Albert Wilberforce the north quarter of lot number fifteen, concession four, township Clarke, containing fifty acres more or less, subject to his mother’s dower of $50 per annum during her life and to half of the wood my wife will require during her life; also I will and bequeath to him the sum of $1,000, payable to him by my son Alexander in four years after my death with three years interest at 6 per cent per annum on said $1,000.

14. I will and bequeath that should any of my three sons die without lawful issue and leave a widow she shall have the sum of $50 per annum out of his estate so long as she remains unmarried and the balance of the estate shall revert to his brothers with the said $50 on her marriage.

The master found as follows:

1. That Alexander Cowan took under the will of his father, James Cowan, deceased, in the lands referred to in the 6th paragraph of said will, an absolute estate in fee simple.

2. An absolute estate in fee simple survived to the estate of Alexander Cowan, subject to the charge thereon to Isabella Cowan as stated in the second paragraph of said will, and also subject to the rights of defendant Jeanne Cowan, doweress therein.

3a. By virtue of the will of said James Cowan, the defendant Jeanne Cowan has the right to be paid $50 a year so long as she remains unmarried.

3b. By virtue of the death of Alexander Cowan, the defendant Jeanne Cowan is entitled to dower in said lands of her husband, or a distributive portion under the Devolution of Estates Act, as she may elect.

The first question arising in this appeal is as to the estate taken by Alexander Cowan. The appellants, including Mrs. MacPherson, who is a mortgagee of the interest taken by the plaintiff Samuel George Cowan in the lands originally devised to his brother Alexander, contend that under the 6th and 14th paragraphs of the will, Alexander Cowan took an estate in fee in the lands specifically devised to him, subject to an executory devise over, in the event of his death without issue (which event happened) to his brothers,

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the plaintiff, and Albert Wilberforce Cowan. The respondents on the other hand contend that Alexander Cowan took an absolute estate in fee under the same provisions of the will.

Mr. Justice Robertson held that Alexander Cowan took an absolute estate for the reason that the gift over to his brothers in case of his death without issue was void for repugnancy. The two judges of the Court of Appeal who concurred in the conclusion of Mr. Justice Robertson entirely dissented from his reasons, holding that the gift over upon the death of Alexander Cowan, without children, did not take effect, for the reason that the executory limitation over was one which must be construed as intended only to take effect in the event of the death of Alexander Cowan without issue, in the testator’s lifetime.

The opinion of Mr. Justice Robertson appears to have been founded on an erroneous view of the case of Re Parry and Daggs^[48]. In that case there was a devise to the testator’s son, and his heirs, with an attempted gift over in the following words:

And I hereby declare and direct that in case my said son shall die without leaving lawful issue, then and in such case the estate and premises hereby devised to him shall go to his next heir at law, to whom I give and devise the same accordingly.

A question as to the nature of the title taken by the son having arisen under the Vendor and Purchasers’ Act, it came first before Bacon V.C., and then was carried to appeal. The Court of Appeal, in a judgment delivered by Fry L.J., held that the testator’s son took an absolute estate and that the gift over to the collateral heir in the event of the son’s death without issue was void. This interpretation proceeded on the following reasoning. It was pointed out that in either event of there being or not being issue the heir at law would

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take just as under the original gift; that if the collateral heir took he would still take as heir; therefore the gift over did not alter the devolution of the estate and its only effect would be to fetter the first taker’s power of alienation for which purpose it was presumably designed. This being an illegal device, as a restraint repugnant to an estate in fee, was therefore held to be void. All this had nothing to do with the present case. The gift over here is to the two brothers of the first taker Alexander, not to his heirs. The case of Re Parry and Daggs has therefore manifestly no application, and indeed it was not on the argument before this court attempted to support the judgment under appeal on any such ground.

Speaking with the utmost respect, it seems to me that the grounds upon which the prevailing opinion of the Court of Appeal proceeded also fail of support from authority.

Mr. Justice Maclennan puts his judgment on the ground that the dying without lawful issue of Alexander Cowan, referred to in the 14th clause, upon which the estate in the lands devised to him by the 6th clause was to go over to his brothers, meant and was restricted to a dying without issue in the testator’s lifetime.

In the cases of O’Mahony v. Burdett^[49], and Ingram v. Soutten^[50], though in neither of these cases did the exact question presented here arise, since in each of them the gift to the person upon whose death without issue the executory devise over was to take effect was preceded by a life estate, this point of the effect of an immediate devise in fee not preceded by any life interest, with a gift over in the event of the death of the first donee in fee without issue, was considered and opinions expressed as to its construction by the Lords who decided the two cases referred to. It was in the

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cases mentioned recognized as a well established rule of construction, and as having been properly laid down as such by the Master of the Rolls in his second rule in Edwards v. Edwards^[51], that, as in the case now before us, where there is first an immediate devise in fee and then a gift over on the death of the first devisee without leaving children or issue, the primâ facie meaning of the testator is that the gift over is to take effect on a death without children not confined to the testator’s lifetime but at any time. Thus in O’Mahony v. Burdett^[52], Lord Cairns at p. 395 of the report expressly recognizes the soundness of the second rule in Edwards v. Edwards^[53], and argues from it to a similar conclusion in the different case then actually before him.

At page 393 Lord Cairns also says:

In the absence of any authority to the contrary I should entertain no doubt that the decision of the Court of Appeal in Chancery in Ireland was in accordance with the true interpretation of the will. A bequest to A. and if he 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.

In the opinion of Lord Hatherley, at p. 401, we find the following passage:

Then comes a subsequent case, a gift to A., apparently absolutely, and on his death without leaving any children, then over. Here the courts have at all times held, and the Master of the Rolls so states in Edwards v. Edwards⁵³, that that affords a sufficient indication that the words “in case of his death without leaving issue,” or “without leaving children,” as the case might be, were to extend to the whole period of the first taker’s interest. Although he would apparently, by the terms of the gift itself, and did indeed in point of law, take absolutely yet there was an executory devise over, that might take effect at his death when the contingency should be ascertained whether he died childless or not.

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Lord Selborne in the same case of O’Mahony v. Burdett⁵² also approves of this rule. In Re Parry and Daggs^[54], already referred to on another point, Lord Justice Fry refers to this principle of construction as follows:

In the first place, it was argued that the gift over was to take effect only in the case of the devisee dying in the lifetime of the testator. In my opinion that construction cannot prevail. When property is absolutely given to a person, and then there is a gift over in the event of the devisee dying, with no further words, it is obvious that some words must be imported to define the contingency intended by the testator. Death in itself is not a contingency, and, therefore, we must imply words to make contingent the event which has been spoken of as contingent by the testator. Where there is no antecedent estate the contingency is referred to death in the lifetime of the testator; and, according to the decision in Edwards v. Edwards⁵³, when the gift in fee is preceded by a life estate, the contingency has been held to refer to the death of the donee, either during the preceding life estate or in the lifetime of the testator. But here the gift over is not on a certain event, for death is coupled with the contingency of not leaving issue. Therefore, there is no need to import any words; and consequently there is no necessity for limiting the event to the lifetime of the testator.

In the case of Woodroffe v. Woodroffe^[55], we have a very full judgment of the Master of the Rolls upon a will which, unlike those in the cases in the House of Lords, had this resemblance with that before us, that there was not there, as there is not here, any previous life estate preceding the estate of the devisee whose estate is made defeasible. In that case the construction contended for by the appellants in the present case was adopted.

I do not understand the learned judges whose opinion prevailed in the Court of Appeal to dispute the rule of interpretation which has been laid down in the cases already cited. But they insist that this rule is subject to be controlled by the context, a proposition which cannot be disputed. When, how-

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ever, they rely upon there being such a context to be found in this will I most unhesitatingly differ from them.

Mr. Justice Maclennan assumed that Alexander had paid the $2,000 charged on the lands devised to him to his brothers; this is said in the appellants’ factum to be a mistake, and this contradiction was not controverted on the argument at the bar. This, however, is immaterial and it can make no difference in the construction whether Alexander had actually paid off the charges or not. Mr. Justice Maclennan argues, from the extreme harshness of what he assumes to be the necessary consequences of Alexander’s estate being charged in the way it is, that the testator could not have intended that after having paid off the two sums of $1,000 each, charged in favour of his brothers, and the other charges, the estate of Alexander Cowan should have been liable to defeasance on his death without children and that the only way of avoiding this was to refer the gift over to death in the testator’s lifetime. The learned judge thus states his reasons for this conclusion:

To my mind it is impossible to suppose that the testator intended that after Alexander had paid the $2,000 to his brothers his estate should be defeasible. He was quite a young man, the son of a farmer, presumably not possessed of independent means wherewith to pay these sums, and yet if the construction contended for is to prevail he could not raise the money wherewith to make the payments by mortgage of the land devised to him, or of the personal property either, for no one would lend it on a title liable to come to an end at any moment. Upon such a construction his father’s gift would indeed be to Alexander a damnosa hereditas.

Now, even if the consequences would have been as onerous as Mr. Justice Maclennan assumes they would, in the event of Alexander Cowan having paid off these charges before his death, I am still unable to agree that that is any sufficient reason for altering the plain

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words of the will. The testator had a perfect right to impose any terms he thought fit, and it is no ground for departing from the primâ facie meaning of the terms of his devise that he has imposed very burdensome conditions upon a devisee who is free to accept the gift or not. With great respect for the learned judges I think this, so far from using the context to control the terms of the gift, is rather conjecturing a testator’s intentions by supposing him to have meant to treat this son more fairly and liberally than would be consistent with the primâ facie interpretation of the terms he has used to express his intentions, a mode of construction which is of course entirely inadmissible. I have been through all the cases referred to on this point, but I do not find in any of them the least countenance for such a mode of construction.

In truth, however, no such harsh consequences as Mr. Justice Maclennan argues from would, in my opinion, have been entailed by the construction the appellants contend for. In the first place the two sums of $1,000 each charged by the testator in favour of his two sons, Samuel George and Albert Wilberforce, were not mere personal charges on Alexander arising on his acceptance of the devise, nor were they charges only on the defeasible estate devised to him, but these sums were charged upon the whole fee in the land, that is to say, upon what may be called the corpus. That this is so is not only plain from the tenor of the will, but is well established by the authority of a case which the Chancellor, who decided this point at the trial, cites in support of his judgment, the case of Sadd v. Carter^[56]. There was in that case a devise to—

A. for life, remainder to his children in fee, A. paying £40 to the plaintiff at a certain time,

and it was held that this formed a charge upon the land and not merely on A.’s estate in the land.

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Then, had Alexander paid off the charges it is equally clear that they would not have been thereby satisfied and merged but would be kept alive so that his personal representation on his death would have been entitled to enforce payment of them, and his personal estate would have been recouped. Where there is a charge of this kind and it is paid off by the first taker whose estate is defeasible on the happening of a certain event, the case of Drinkwater v. Combe^[57] establishes that the charge is not merged, and that on the executory devise over taking effect the estate of the first devisee is entitled to be repaid the amount paid off. In that case Sir John Leach V.C., after pointing out the different presumptions arising in the several cases of payment off of charges by a tenant for life, and by a tenant in tail, the presumption in the first case being against merger, and in the second in favour of it, thus proceeds:

But he who takes an estate defeasible by executory devise, not having the power to defeat the devisee over, it cannot be intended that such devisee over is in any sense the object of his choice; and there is not therefore the same reason for presuming when he pays off a charge, that he means to give to such devisee the amount of the charge. In this respect as well as in the quality of his estate, he who takes such defeasible estate is more within the principle that applies to the tenant for life.

Applying this principle the Vice-Chancellor, in the case cited, directed a charge which had been paid by a devisee in fee, whose estate had been divested upon the happening of the event upon which an executory devise over was limited, to be raised in favour of the personal representatives of the first devisee.

Thus, as it appears to me, all the supposed grounds for assuming that the devise to Alexander was burdened with conditions so onerous that the testator must

[Page 312]

be presumed not to have intended what his words primâ facie express, fail, inasmuch as it appears upon the authority of the cases cited that these consequences would not have followed if Alexander had paid the two sums to his brothers.

There is therefore no context overruling the primary meaning of the words “die without lawful issue” as importing death at any time. Indeed, so far from this being so, the context is all the other way, and strengthens the construction which attributes to the expression its ordinary signification. It is to be observed that the language of the testator in directing the gift over is that the estate on the event happening is “to revert to his brothers.” Now, this word “revert” was also used in connection with the gift over in O’Mahony v. Burdett^[58], and as there remarked, it certainly implies a gift over, not before vesting and therefore before any enjoyment by the first taker, as would of course be the case if the event on which the estate was to be defeasible was death restricted to the lifetime of the testator, but rather a gift over subsequent to a vesting of a defeasible title in and enjoyment by the first devisee. In O’Mahony v. Burdett⁵⁹, at p. 393 of the report, Lord Cairns says:

In this particular will any light that is to be obtained from the context is not opposed to, but supports, the natural meaning of the words. The direction that if the niece should die unmarried, or without children, the £1,000 is “to revert to my nephew Colonel Henry L’Estrange,” appears to indicate that the legacy was to come back, or come away, from the niece after she had had the possession and enjoyment of it, rather than to imply that the only state of circumstances under which Colonel Henry L’Estrange could take, would be a state of circumstances under which the niece would have had no enjoyment of the legacy at all. In other words, the benefit intended for the nephew appears to me to be introduced through the medium of an executory limitation over after enjoyment by a previous taker, and not as an alternative gift to take effect, if at all, before the period of enjoyment commences.

[Page 313]

All these observations apply a fortiori to the devise we have to construe in the present case.

I come therefore to the conclusion, which was also that arrived at by the Chief Justice and Mr. Justice Osler in the Court of Appeal, that we are here to adopt the construction propounded by the Master of the Rolls in the second rule in Edwards v. Edwards^[59], which was followed in Woodroffe v. Woodroffe^[60], and approved by the House of Lords in the two cases already quoted, and this requires us to hold that the gift over was intended by the testator to take effect upon the death of the devisee without issue at any time.

Jeanne Cowan, the widow of Alexander, was undoubtedly entitled to dower out of these lands notwithstanding the defeasible character of the fee which vested in her husband. Moody v. King^[61]; Smith v. Spencer^[62]; Buckworth v. Thirkell^[63]; Goodenough v. Goodenough^[64]; Jarman on Wills^[65]. This is clear upon authority.

Then, Jeanne Cowan, the widow, is also entitled to the annuity given to her by the will in the event of her survival of her husband. There is nothing in the gift of this annuity inconsistent with the right to dower, and Mrs. Cowan is therefore not put to her election but is entitled to enjoy both the annuity and the dower.

It is out of the question, having regard to authority, to say, as is somewhere suggested, that the gift of this annuity, which is limited to widowhood, is invalid as being in undue restraint of marriage. Theobald on Wills^[66].

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It is claimed on behalf of Mrs. Cowan, the widow of Alexander, that under the Devolution of Estates Act she is entitled to elect between her dower and a distributive share of the devised lands. This claim is wholly unsustainable; the Act applies only to the case of the descent of the inheritable lands of an intestate; here there is no devolution by way of descent, for the estate devised to the husband, Alexander, immediately upon his death without issue vested in the devisees entitled under the gift over.

Mrs. MacPherson was not a proper party to the action and should not have been added in the master’s office. It was open to her to take this objection at any time, either by way of appeal from the report, or, if sufficient material to enable the court to deal with it appeared upon the report, on further directions, and she was not limited to the time mentioned in order 48 which only has reference to a motion to discharge or vary the decree made before a party added in the master’s office was put in cause. This is quite clear and I agree with what Mr. Justice Maclennan says upon it.

As regards the costs, the appellants, namely, Samuel George Cowan, the plaintiff in the action, and Albert Wilberforce Cowan and Mrs. MacPherson, who were made parties by the master, are entitled to the costs of the motion by way of exceptions or appeal from the master’s report, on the original motion before Mr. Justice Robertson as well as in the Court of Appeal and in this court, against W.F. Allen the administrator of Alexander Cowan, but not against the widow As regards the widow Jeanne Cowan, she has succeeded in maintaining the report, so far as it applies to her in all respects except as regards the right to elect between her dower and her distributive share, but in this latter respect she has failed. Therefore as she succeeds in part and fails in part she ought neither

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to receive nor to pay costs, and there is therefore to be no direction as to her costs nor any order against her as to the costs of other parties. This disposition of the costs is of course only applicable to the motion by way of exceptions to or to vary the report, and the successive appeals from Mr. Justice Robertson’s order. The costs of the action will have to be disposed of on further direction, or under the directions contained in the original decree.

The order of this court to be drawn up on this judgment must declare that the motion to vary the report ought to have been allowed, and must also declare the construction of the will and the rights of the parties in accordance with the foregoing judgment, and with these declarations and directions the cause is to be remitted to the court in which the action originated.

Appeal allowed with costs.

Solicitors for the appellants: Stratton & Hall.

Solicitor for the respondent Allen: D. Burke Simpson.

Solicitors for the respondent Cowan: Riddell & Armstrong.