Supreme Court of Canada
Cameron v. Church of Christ, Scientist, (1918) 57 S.C.R. 298
Date: 1918-10-08
Mary Cameron (Plaintiff) Appellant;
and
The Church of Christ, Scientist, and Others (Defendants) Respondents.
In re Estate of Mary Helen Orr.
1918: June 18; 1918: October 8.
Present: Sir Charles Fitzpatrick C.J. and Idington, Anglin and Brodeur JJ. and Cassels J. ad hoc.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Will—Charitable purposes—Devise of residue—Estate to be “used for God only.”
The will of a Christian Scientist left the whole estate of the testatrix to trustees and contained several bequests for purposes connected with Christian Science doctrine and practice. One of such bequests was “fifty thousand will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God’s people are willing to help others to see the light that is so real, near and. universal for all who will receive. These institutions may take the place of what at present are called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity.”
Held, reversing the judgment of the Appellate Division (40 Ont. L.R. 567), Idington J dubitante, that the terms of this bequest are so vague and impracticable, and the objects to be benefited and the time for the benefit to accrue so uncertain that no reasonable or intelligible construction can be given to it and this sum of $50,000 must fall into the residue of the estate.
The will contained no formal disposition of the residue of the estate, but the final bequest ended with the sentence, “the whole of my estate must be used for God only.”
Held, also, reversing the judgment appealed against, that even if the testatrix intended this expression to be a disposal of the residue the words are too broad, indefinite and controversial to be capable of being carried out and there is an intestacy as to said residue.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario, reversing the judgment of Sutherland J. in favour of the appellant.
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The proceedings in this case were commenced by originating notice of motion on behalf of the respondents, executors of the will of Mary Helen Orr, for the opinion and direction of the court on certain questions respecting the construction of said will and administration of the estate. The will was in the following terms:
This is the last Will and Testament of me, Miss Mary H. Orr, presently residing at Bobcaygeon, Victoria County, Ontario, I hereby revoking all former Wills at any time made by me, and being desirous of settling my affairs in the event of my decease and having full confidence in the persons after-named as Trustees and Executors, do hereby give, grant, assign, dispose, convey and make over to, and in favour of Mr. George Silas Haddock, 9 Crawford St., Roxbury, Christian Science Practitioner, Mr. Alfred Farlow, 609 Berkley Building, Boston, Mass., Christian Science Practitioner, Mr. William C. Moore, Bobcaygeon, Ontario, Manufacturer, and the survivor of them, as Trustees and in trust for the purposes aftermentioned the whole estate and effects, heritable and movable, real and personal, presently belonging to me and that shall belong to me at the time of my decease, together with the whole Writs and Vouchers thereof; and I nominate and appoint the said Mr. George Silas Haddock, Mr. Alfred Farlow, Mr. William C Moore and the survivor of them as they may appoint to be my sole Executors and Trustees of this my Will, but declaring that these Presents are granted in trust always for the purpose aftermentioned, viz.: (First) I direct my Executors and Trustees to first pay my just debts, personal and testamentary expenses.
(Second) I give, devise and bequeath unto:—The Mother Church, Boston, ten thousand dollars to be used in spreading the truth. Ten thousand dollars towards encouraging those building C.S. Churches to be distributed in smaller or larger sums as may be wise, from $100 to $300 to each Church. Ten thousand to be placed to the interest of Bobcaygeon to be used only for such purposes as will elevate the community spiritually. Ten thousand for the benefit of those who are endeavoring to uplift the needy in Chicago such as Miss Jane Addams, United Charities and whatever may seem to require assistance. Five thousand to be used for any necessary or uplifting purpose among Father’s Kin. Five thousand to be used for any necessary or uplifting purpose among Mother’s Kin. Fifty thousand will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive. These institutions may take the place of what at present are called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity. Ten thousand as a fund to be used in lending to deserving people, men or women, to buy small homes or farms. This money can be lent at 6 per cent. or
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whatever is lawful on good security. The profits accruing can be utilized as said before in such work as is helpful to men and women who are willing to know and experience the truth as revealed in the Bible and which has been unlocked through the Revelation as given in Science and Health with Key to the Scriptures by Mary Baker Eddy. The whole of my estate must be used for God only.
And I reserve my life-rent, and full power to alter, innovate or revoke these presents in whole or in part. And I dispense with the delivery hereof. And I consent to registration hereof for preservation.
The appellant is the next of kin of the testatrix. The respondents are the Church of Christ, Scientist, the executors of the will and the Attorney-General of Ontario.
At the original hearing on the motion Mr. Justice Sutherland held that the two last bequests were void and that no disposition had been made of the residue of the estate. The Appellate Division affirmed his judgment as to the last bequest of $10,000, but reversed it as to the preceding one of $50,000, and held that the words
all my estate must be used for God only
constituted a valid devise of the residue. The next of kin appealed to the Supreme Court of Canada.
McLaughlin K.C. and Stinson for the appellant. The devise of $50,000 cannot be construed as being for a “charitable purpose” as that expression is defined in the cases. See Morice v. Bishop of Durham; Kendall v. Granger; Dunne v. Byrne.
The words
the whole of my estate must be used for God only
were not meant to be operative nor intended to be a bequest. If they were they cannot be held to be a devise of the residue. Powerscourt v. Powerscourt; Hunter v. Attorney-General.
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Hellmuth K.C. for the respondents, The Church of Christ and the executors. As to the residue the testator intended that the whole estate should be used for religious purposes and the words used constitute a valid devise. See In re White; In re Pardoe, at p. 192.
As to the bequest of $50,000 see Townsend v. Carus; Houston v. Burns.
THE CHIEF JUSTICE.—The late Mary Helen Orr, who was possessed of large means, left a will, a printed form filled in in writing, of which the individual respondents are the executors. They found it necessary to apply to the court for an opinion as to the meaning and validity of the provisions of the will and certainly there was necessity for so doing.
The will is as following:—
This is the last Will and Testament of me, Miss Mary H. Orr, presently residing at Bobcaygeon, Victoria County, Ontario, I hereby revoking all former Wills at any time made by me, and being desirous of settling my affairs in the event of my decease and having full confidence in the persons after-named as Trustees and Executors, do hereby give, grant, assign, dispose, convey and make over to, and in favour of Mr. George Silas Haddock, 9 Crawford St., Roxbury, Christian Science Practitioner, Mr. Alfred Farlow, 609 Berkley Building, Boston, Mass. Christian Science Practitioner, Mr. William C. Moore, Bobcaygeon, Ontario, Manufacturer, and the survivor of them, as Trustees and in trust for the purposes aftermentioned the whole estate and effects, heritable and movable, real and personal, presently belonging to me and that shall belong to me at the time of my decease, together with the whole Writs and Vouchers thereof, and I nominate and appoint the said Mr. George Silas Haddock, Mr. Alfred Farlow, Mr. William C. Moore and the survivor of them as they may appoint to be my sole Executors and Trustees of this my Will, but declaring that these Presents are granted in trust always for the purpose aftermentioned, viz.:
(First) I direct my Executors and Trustees to first pay my just debts, personal and testamentary expenses.
(Second) I give, devise and bequeath unto:—The Mother Church, Boston, ten thousand dollars to be used in spreading the truth. Ten
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thousand dollars towards encouraging those building C.S. Churches to be distributed in smaller or larger sums as may be wise, from $100 to $300 to each Church. Ten thousand to be placed to the interest of Bobcaygeon to be used only for such purposes as will elevate the community spiritually. Ten thousand for the benefit of those who are endeavoring to uplift the needy in Chicago such as Miss Jane Addams, United Charities and whatever may seem to require assistance. Five thousand to be used for any necessary or uplifting purpose among Father’s Kin. Five thousand to be used for any necessary or uplifting purpose among Mother’s Kin. Fifty thousand will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to show that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive. These institutions may take the place of what at present are called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity. Ten thousand as a fund to be used in lending to deserving people, men or women, to buy small homes or farms. This money can be lent at 6 per cent. or whatever is lawful on good security. The profits accruing can be utilised as said before in such work as is helpful to men and women who are willing to know and experience the truth as revealed in the Bible and which has been unlocked through the Revelation as given in Science and Health with Key to the Scriptures by Mary Baker Eddy. The whole of my estate must be used for God only.
And I reserve my life-rent, and full power to alter, innovate or revoke these presents in whole or in part. And I dispense with the delivery hereof. And I consent to registration hereof for preservation.
In witness whereof I have subscribed these presents written (in so far as not printed) by myself at Bobcaygeon this twenty-ninth day of August, nineteen hundred and twelve.
Mary Helen Orr.
Signed, published and declared by the above named testatrix as and for her last Will and Testament in the presence of us both present at the same time, who at her request and in her presence have hereunto subscribed our names as witnesses.
(Witnesses)
Name, “Mrs. Georgenna McKay,” (C.S. Practitioner),
Address, 2 College St., Toronto.
Name, “Louise Lewis,” Chiropodist,
Address, No. 2 College Street.
The present appeal is confined to the disposition by the judgment a quo of the $50,000 for supplying institutions described in vague and general terms and the decision that the concluding sentence in the paragraph containing the bequests made,
the whole of my estate must be used for God only,
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is a good and charitable bequest of the residue of the estate.
As to the specific bequest of $50,000 the trial judge found that
the language in which the legacy is couched is so vague, visionary, chimerical and impracticable, and the objects intended to be benefitted, and the time when the benefit is to accrue, are so uncertain, that no reasonable or intelligible construction or effect can be given to the clause and the legacy must therefore be held to be void.
The Court of Appeal, varying the judgment, declared that
the words contained in the will constitute a good and valid charitable bequest and that the intention of the will is that the sum of $50,000 shall be devoted by the executors to the dissemination and teaching of the principles and purposes of the Church of Christ, Scientist, commonly known as Christian Science.
I should have thought it impossible to say that by providing for the establishment of a fund towards helping to supply institutions for the uplifting of humanity the testarix intended that the capital sum should be devoted by her executors to the dissemination and teaching of the principles and purposes of the Church of Christ, Scientist, commonly known as Christian Science. I should have thought this impossible even if the will had not in the first two bequests made provision for this same purpose of dissemination and teaching of Christian Science.
The Chief Justice of Ontario, in his judgment, referring to this bequest, says:—
The intention in favour of charity is for the reasons I shall mention when I come to deal with the 9th gift (the residue) found in the provisions that the whole of the estate of the testatrix “must be used for God only,” aided to some extent perhaps by the other provisions of the Will.
Later on, however, when he comes to deal with the residue, he says:—
It may be suggested that all that the testatrix meant by the provision in question was that the preceding bequests should be “used for
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God only,” but that view cannot, I think, be supported. The words, “the whole of my estate” are inconsistent with it as is also the fact that the testatrix had already carefully directed the purposes to which the money she had bequeathed should be applied, and it is highly improbable that having done that she would have thought of restricting the use to which these benefactions should be put by the much looser expression that they “must be used for God only.”
I think his latter view is the correct one and that the will itself, in which the purposes of the specific bequests are set out, contradicts any suggestion that they are to be governed by the words,
The whole of my estate must be used for God only.
The key-note of the purpose of the bequests is, I should say, the uplifting of humanity. We find the word itself used not only in the bequest under consideration, but in three others, and the bequest for loans may be said to be a fifth bequest given for this purpose out of the eight bequests. On the other hand, the $10,000 for Bobcaygeon is expressly restricted
to be used only for such purposes as will elevate the community spiritually.
The uplifting of humanity is a benevolent but not a charitable purpose; James v. Allen.
It is suggested that
this gift may be supported as a charitable bequest coming under the 4th head mentioned in section 2 (s.) of the “Mortmain and Charitable Uses Act” (R.S.O. 1914, c. 103,
the opinion being expressed that the courts of Ontario are warranted in looking to it as the courts in England look to the Statute of Elizabeth for the purpose of determining what in law is a charitable gift in the case of personalty.
The law relating to charitable bequests in this province is not the English law, though no doubt like most of our law derived from English law. This law
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having existed in the province from the beginning I do not think so great a change could be effected by the jurisprudence of the courts. It would require legislation and there is nothing in the “Mortmain and Charitable Uses Act” even to suggest that by this Act, dealing solely with land, there was any intention of indirectly altering the established law relating to charitable bequests.
I am of opinion that there is no ground for the interpretation which the Appellate Division has put upon this bequest and I think that the trust is so vague and uncertain that the trial judge was right in declaring that the bequest was void and falls into the residue.
Coming to the question of the disposal of the residue, I can find no ground for holding that the words,
The whole of my estate must be used for God only,
constitute a charitable bequest disposing of the whole residue of the estate.
I do not think the words constitute a bequest at all. They occur at the end of the specific bequests in the space left for these in the printed form, and may perhaps be merely a statement of what the testatrix considers is the effect of the bequests. There seems to be some reason for supposing that she thought she had disposed of the whole of her property by the specific bequests and I think a very natural meaning to put upon the expression in the position in which we find it, is that she intended it as an apology or explanation of her leaving no individual or strictly private bequests. I cannot believe that in making use of these words she had the least idea of giving any property.
Chief Justice Meredith says that he has numbered the bequests for convenience of reference, but he has given an unfair gloss to the words in the last sentence
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by putting this in a separate paragraph and numbering and speaking of it as gift number 9. There is nothing to justify this. In the will it follows straight on after the disposition made by the specific bequests. But even if the words be held to pass the residue the question still remains whether it is a valid bequest.
I suppose it may be said that every use of property is, or at any rate ought to be, for God. In the case of In re Darling, Mr. Justice Stirling did indeed hold that a gift by will
to the poor and the service of God
was a good charitable gift thinking that
when the service of God is spoken of as it is in this will no one so construing the expression would hesitate to say that service in a religious sense was intended.
The learned judge was careful to restrict his construction to the service of God spoken of as it was in the will before him, and in this he adopted the same reserve as many other learned judges in similar cases. Each case must be considered upon it own special circumstances, and here the words are of the widest.
In Dunne v. Byrne, it was held that a residuary bequest
to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge conducive to the good of religion in this diocese
is not a good charitable bequest and is void. It seems clear that a use of property that is conducive to the good of religion must be said to be used for God, and the present case would seem to fall clearly within this decision.
Again, whilst in In re White, it was held that in accordance with the authorities a bequest for religious
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purposes must be considered as a good charitable gift, the cases all treat these purposes as necessarily of a public nature as was shewn by the Vice-Chancellor Wickens in Cocks v. Manners; there may well be religious purposes which are not of such a nature and consequently not charitable. No one could deny that a use of property for private devotion or edification was a use for God, and the words in this will must, therefore, be wider than any in which they have been held to make a good charitable gift. The language of the bequest is open to such latitude of construction as to raise no trust which a court of equity could carry into execution: Baker v. Sutton.
Perhaps, moreover, it may be said that Christian Science is rather a theory of all things in Heaven and earth evolved by the foundress of the Scientist Church, than a religion as commonly understood. The testatrix conceivably did not intend her property to be devoted to religious purposes according to the commonly accepted meaning of these words.
There is, I think, a difference between the present and the Darling Case and the other similar cases which have been referred to. In all of these there was no doubt about the meaning of the testator in speaking of “God” or
My Lord and Master and I trust Redeemer,
or in similar expressions. In the appellant’s factum it is said that the testatrix was pantheistic in her religious views. I am far from accepting that statement as correct, but on the other hand I am not prepared to agree with the Chief Justice of Ontario. He sets out the religious tenets of Christian Science as found in
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their authoritative manuals and adds the brief comment that
there is nothing in all this which conflicts with the beliefs of the most orthodox Christian.
In this, I think, he goes further than the facts warrant.
If the testatrix did not accept the Christian religion, which is assumed in all the cases to which reference has been made, I do not know how the court is to say what were her intentions, or that the bequest was for religious purposes as ordinarily understood, still less how it is to formulate a trust for giving them effect cy près.
For these reasons I am of opinion that the bequest of $50,000 is void and the money falls into the residue of the estate; and that the residuary estate is not disposed of by the will but passes to the next of kin of the testatrix. The judgment of the Appellate Division should be varied accordingly.
Costs of all parties should come out of the estate.
IDINGTON J.—A number of questions were submitted to the Supreme Court of Ontario for advice and direction of that court respecting the construction of the last will and testament of Mary Helen Orr, a Christian Scientist, and respecting the administration of her estate.
All but three of these have been so disposed of that they need not concern us now save for purposes relative to these three.
If the judgment of the Appellate Division is right, in regard to the last of these, we need not trouble ourselves with any other.
The will written by the testatrix using, it is said, a printed form, begins by giving to three persons named as trustees and executors
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in trust for the purposes after mentioned, the whole estate and effects heritable and movable, real and personal, presently belonging to me and that shall belong to me at the time of my decease,
and repeating the purport of this, proceeds in effect as follows:—
First, a direction to pay debts and testamentary expenses.
Secondly,
I give, devise and bequeath unto,
and then follows under that heading a continuous, consecutive stream, as it were, of giving of eight legacies, of which the last is thus expressed:
Ten thousand as a fund to be used in lending to deserving people, men or women, to buy small homes or farms. This money can be lent at 6 per cent. or whatever is lawful on good security. The profits accruing can be utilized as said before in such work as is helpful to men and women who are willing to know and experience the truth as revealed in the Bible and which has been unlocked through the revelation as given in Science and Health with Key to the Scriptures by Mary Baker Eddy. The whole of my estate must be used for God only.
The last sentence,
The whole of my estate must be used for God only,
forms part of the continuous text and to all appearance is a part of the definition of purpose attendant on this last gift.
But for the holding of the court below that this must be taken as a residuary bequest, I should have said that it was nothing more than a pious ejaculation, or possible admonition relative to the spirit in which “the profits accruing” referred to in the next preceding sentence were to be utilised.
And if I felt clear that it must be read as an intentional disposition of the residue of her estate, I should read it as clearly intending that the said preceding sentence, dealing with part of the residue falling into the hands of the trust, and in no other way disposed of, was comprised within its scope, and both sentences be
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read together in order to grasp the meaning of the testatrix.
The residuary bequest would then read:—
The profits accruing can be utilized as said before in such work as is helpful to men and women who are willing to know and experience the truth as revealed in the Bible and which has been unlocked through the revelation as given in Science and Health with Key to the Scriptures by Mary Baker Eddy. The whole of my estate must be used for God only.
I submit that such a construction as may be given these two sentences read together, as they were written, much more truly represents the thought that was in the mind of the testatrix, than does the result embodied in paragraphs 8 and 9 of the formal judgment appealed from, which is intended to be worked out within the lines of the Ontario “Mortmain and Charitable Uses Act,” as construed by the Master at Lindsay subject to the corrective power of the court.
The said paragraph 8 of the said judgment declares the words I have quoted (omitting the last sentence) do not constitute a valid bequest, and that despite one of the obvious purposes of the trust to produce an income designed to promote religion as the testatrix understood it.
The mode of investment of the fund is only a small part of the trust, and could not help many people, but the fund would produce or was intended to produce, six hundred dollars a year to promote in the way expressed the religion the testatrix held dear.
Not only have we thus, by reason of its immediate context, an expression which sheds light on the meaning of the testatrix’s words
the whole of my estate must be used for God only,
but also by the whole preceding bequests in the will.
It is not the residue, but the whole of her estate which is to
be used for God only.
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Some of these bequests have no very obvious relation to any such restricted charitable uses, as the court below has confined, by its direction, the application of the residue.
I most respectfully submit that the judgment in so wresting the sentence from its context and giving it such interpretation, and directing such an administration of the residue of the estate, is in effect making a will for the testatrix and giving effect to something she failed to express.
I agree with Mr. Justice Sutherland that there was no residuary bequest.
Indeed the originating notice of motion does not seem to have been launched with the conception that there was any actual residuary bequest, and merely wanted to know what was to be done with property given in trust yet no definite trust expressed relative thereto.
I also agree that if the words referred to are to be treated as independent of their immediate context and read only in connection with the words at the beginning of the will expressing an intention to create a trust, they are far too indefinite to be given any effect to.
The learned Chief Justice seems to rely upon In re Darling, the judgment of a single judge, and Powerscourt v. Powerscourt, which finds approval from the same learned judge, but seems to have been followed no place else, and I submit has in effect been overruled by the Privy Council in the case of Dunne v. Byrne, where the expression used and in question was much more definite than anything in either of said cases, yet in law held inoperative. Moreover, the court, deciding the Powerscourt Case19, did not think it needed to form a scheme for execution of the trust.
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Indeed, in regard to any one of these three cases, I should have supposed there was much more to be said in favour of upholding the bequest than can be said in this case if regard is to be had at all to the mind and circumstances of the testatrix and her expressed views as interpreting her meaning.
The most recent case, of which the report has only come to hand since the judgment below was delivered, is that of Houston v. Burns, in which interpretation is given the expression
public, benevolent or charitable purposes
and holding such expression cannot be maintained as establishing a definite trust.
If the testatrix had been asked to define her meaning of the words now in question I have not the slightest doubt she would have given a like definition. Her whole trend of thought, as exemplified in the language of her will, convinces me such was what she thought and meant to be a giving
for the use of God.
It is her understanding and intention we must have regard to in the first place, as the courts did that passed upon the wills respectively in question in the Darling Case, and Powerscourt Case, and even there in light of the judgments in the Houston Case21, just cited, clearly holding public and benevolent purposes mean nothing in such a connection.
It has been repeatedly held by the highest authority that the mere expression of any trust as for public or benevolent or philanthropic purposes, unless expressly defined by indicating some specific object within the meaning of such words, cannot create a trust which the law will recognise. Yet in many of these cases so
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deciding the subject-matter and the object might have fallen within the scope of the words “use of God” had the court felt such a wide range of purpose as within the law enabling courts to maintain such a trust.
If, I submit most respectfully, the court deciding the Houston Case21, I refer to, or Blair v. Duncan, had been as astute to find a charitable purpose as the court below, they could, and no doubt would have discarded all but the word “charitable” and given effect to the trust.
My only difficulties in this appeal have been, and are, the questions: First, as to the $50,000 which is to be
held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive. These institutions may take the place of what are at present called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity,
and next, as to that raised by what I first set forth and quoted above, and is dealt with by paragraph 8 of the formal judgment.
As to the former, with some very grave doubts, I would let it stand as adjudged, but in doing so I cannot see why the equally obvious intention of the other should not be allowed to stand. I imagine it has not been so treated because of a misconception of the whole clause, in assuming that lending money to worthy people was the purpose thereof instead of that being an incident in the mode of carrying out a main purpose which I have already explained, or something like it.
I would therefore amend, in order to be consistent, the said eighth paragraph of the judgment, and declare the bequest valid and the profits from such investments to be devoted to the like purposes as defined in paragraph seven of said judgment.
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Since writing the immediately foregoing hesitating expression of opinion, I learn that the majority of the court have come to the conclusion that both these bequests are invalid, and I agree, content with my expressions of doubt.
In my opinion, the appeal should be allowed; the so-called residuary clause declared invalid, and the formal judgment be rectified in paragraphs 7 and 8 accordingly.
ANGLIN J.—After such careful consideration as I have been able to give to the judgments of the learned judges of the Appellate Division, and to the factums and oral arguments of counsel, I am, with respect, of the opinion that upon the two questions involved in this appeal the judgment of the learned judge of first instance was right and should be restored.
Assuming that the clause,
The whole of my estate must be used for God only,
should be treated as a residuary bequest—which, I think, open to the gravest doubt—I cannot regard the phrase
for God only
as equivalent to
for the service of God—
words which have been held to import
service in a religious sense—service similar to such service as is referred to when * * * service in the church is spoken of.
In re Darling. The use of money “for God only” may include many things not religious or charitable within the sense in which English law restricts “charitable bequests”—just as a bequest of money to be used and expended as the donee may judge conducive to the
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good of religion within a defined area, may include purposes not strictly religious and therefore not necessarily charitable in the eyes of the law. Dunne v. Byrne. Moreover, the testatrix has by her specific gifts—at least two of which have been held not valid as charitable bequests—in my opinion, clearly indicated that, as used by her, the words
to be used for God only
(which she has made applicable in explicit terms to every bequest in her will) were not intended to restrict the use of her money to purely religious purposes or even to purposes charitable in the eyes of the law. I am therefore unable to regard the clause under consideration as a valid residuary charitable bequest.
Nor in the view which I take of their true import do the words,
to be used for God only,
aid the respondents in the consideration of the $50,000 legacy, the other subject of appeal. Some of the purposes indicated by the testatrix as objects of her bounty in that bequest are clearly not “charitable” in the legal sense; others may or may not be so. Moreover, I have utterly failed in my endeavour to find an intelligible meaning in the words,
such institutions as may in the future be demonstrated to shew that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive.
I agree with Sutherland J. when he says of this bequest:
After repeated perusal and consideration of this clause of the will I have come to the conclusion that the language in which the legacy is couched is so vague, visionary, chimerical and impracticable and the objects intended to be benefitted and the time when the benefit is to accrue, are so uncertain that no reasonable or intelligible construction or effect can be given to the clause and the legacy must therefore be held to be void.
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I, of course, confine myself to the questions raised on the appeal, and to the grounds necessary for the disposition of them. I desire to guard, however, against being understood as holding that the impugned bequests may not be assailed on grounds broader and more far‑reaching.
I would allow the appeal and would restore the judgment of the learned judge of first instance to the extent sought by the appellant. Having regard to all the circumstances, costs of all parties should be paid out of the estate.
BRODEUR J.—The first question submitted to this court is whether the $50,000 bequest is a charitable one. The court of first instance decided that it was not a charitable bequest. The Appellate Division came to a different conclusion.
The will appointed trustees and provided for certain specific bequests, and the testatrix said that
$50,000 will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive. These institutions may take the place of what are at present called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity.
Miss Orr, the testatrix, was a Christian Scientist; and it is contended that the bequest was for religious purposes. She had, however, made legacies to her Mother Church and to encourage the construction of Christain Science churches; but the language of the bequest of $50,000 would be open to such latitude of construction, is so vague, and so indefinite, and I would add with Mr. Justice Sutherland,
so visionary, chimerical and impracticable
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as to raise no trust which a court of justice could carry into execution. (Baker v. Sutton).
The Privy Council, in 1912, decided in the case of Dunne v. Byrne, that a residuary bequest to be used and expended by a trustee, a Roman Catholic Archbishop, in the way most conducive to the good of religion in his diocese, is not a good charitable bequest and is void.
I would rely also on the decision of the Privy Council in Attorney-General of New Zealand v. Brown.
The other question raised in this appeal is with regard to the residue of the estate.
The testatrix, after having mentioned specific bequests, adds:
The whole of my estate must be used for God only.
It was decided in first instance by Mr. Justice Sutherland that such an expression is too broad, indefinite and controversial to be capable of being carried out and that there is no residuary clause in the will. The Appellate Division came to the conclusion that such a clause constituted a good and valid charitable bequest and covered the residue of the estate.
I am unable to agree with the opinion of the Appellate Division. Those words:
the whole of my estate must be used for God only,
do not constitute a good residuary bequest. They should be considered as an advice to all those who receive any portion of her estate to spend their share in such a manner that will be agreeable to God.
It may be that the testatrix had a general charitable intention but she has not expressed it in words; and
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the court cannot give effect to an unexpressed intention. Hunter v. Attorney-General.
The appeal should be allowed and the judgment of Mr. Justice Sutherland restored, the costs of all parties in this court and in the courts below to be paid out of the residuary estate of the deceased.
CASSELS J.—The appeal in this case is limited in this court to two points.
The appeal is from the decision of the Appellate Division of the Supreme Court of Ontario in respect to their finding as to the proper construction to be placed upon the clauses in the will of the late Helen Orr.
These clauses are numbered in the very able reasons of the Chief Justice of Ontario seven and nine. There is no numbering in the will, but it is convenient to adopt the method followed by the learned Chief Justice.
The clauses of the will in question read as follows:—
7. Fifty thousand will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God’s people are willing to help others to see the Light that is so real, near and universal for all who will receive. These institutions may take the place of what at present are called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity.
9. The whole of my estate must be used for God only.
After the best consideration I can give to the case and with great respect for the opinion arrived at by the learned judges of the Appellate Division, I cannot bring my mind to the conclusions arrived at by them.
I think the learned trial judge arrived at the proper conclusion. Some propositions laid down in the various reasons are beyond doubt correct. If possible,
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a construction which should avoid an intestacy should be given to the will.
On the other hand, if such a construction be given to the will as would permit the executors and trustees to give the trust funds to purposes other than charitable bequests as to which the cy près doctrine should be invoked, then the bequests are void for uncertainty. Houston v. Burns; Blair v. Duncan; Hunter v. Attorney-General, at page 314.
Consider the bequest referred to in provision 7. It cannot be contended that “gaols and penitentiaries” are in any sense charities of such a character, so that the cy près doctrine could be invoked to save the bequest. It is difficult to place any meaning on this seventh bequest (so numbered). It is too uncertain to be given effect to. If not void for uncertainty the trustees might devote the $50,000 for Godly purposes other than charitable purposes.
Then as to clause nine as numbered:—
The whole of my estate must be used for God only.
If the testatrix intended by this bequest to include all the previous legacies as well as the residue of the estate then the court must add to her will the words
for Godly purposes,
which might harmonise with the previous bequests.
If, on the other hand, this bequest merely applies to the residue of the estate undisposed of, I fail to see how the court can interpolate into the will the words, for the service of God only.
The cases cited by the learned Chief Justice where the words used are for the service of God to my mind are not applicable.
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In the case of Dunne v. Byrne, decided by the Privy Council it was held
that a residuary bequest to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge conducive to the good of religion in this diocese
is not a good charitable bequest and is void.
In delivering the judgment of the Board, Lord Macnaghten, at page 411, uses the following language:
In the present case their Lordships think that they are not bound to treat the expression used by the testator as identical with the expression “for religious purposes,” and therefore, not without reluctance, they are compelled to concur in the conclusion at which the High Court arrived.
To my mind there is great similarity between this case last referred to, Dunne v. Byrne, and the present case. I think the appeal should be allowed and the court should declare the bequests seven and nine void for uncertainty and that there was an intestacy as to the $50,000 and as to the residue.
As to costs: This case is a peculiar one. Having regard to the rule laid down by the House of Lords and the Privy Council, there being a considerable divergence of judicial opinion, and the litigation having been occasioned by the unfortunate warding of the will of the testatrix, the costs of all parties to this appeal as between solicitor and client should be paid out of the residuary estate.
Appeal allowed.
Solicitors for the appellant: McLaughlin, Fulton, Stinson & Anderson.
Solicitors for the respondent, The Church of Christ: Hellmuth, Cattanach & Meredith
Solicitors for the respondents, executors: Stewart & Scott.
40 Ont. L.R. 567 sub nom. In re Orr.
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