Supreme Court of Canada
Milburn v. Grayson and the Executors and
Administrators Trust Company, (1921) 62 S.C.R. 49
Date: 1921-03-11
William Milburn and
Others (Defendants) Appellants;
and
William Grayson and
P. A. Reilly (Plaintiffs)
and
The Executors And Administrators
Trust Company And Others (Defendants) Respondents.
1921: February 4; 1921: March 11.
Present: Idington, Duff, Anglin, Brodeur and
Mignault JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
SASKATCHEWAN.
Will—Interpretation—Legacies—Condition
precedent—Revocation—Residuary bequest—Interest—Real estate—Conversion—Personalty—Appeal—Question
of costs.
By his will, one William Walsh, after
bequeathing to the appellants the sum of $800 each, directed that the proceeds
of two policies of insurance in two different companies should become part of
his estate. By a codicil, he further declared that "in order that there
may not be any possible misapprehension in respect" to the above bequests,
"in the event of its being found that I have not effectually by the said
will ordered that the moneys due under (one policy) and under (the other
policy) should be and become part of my estate, * * * the said bequests * * *
be and are hereby revoked." The order of the testator as to the moneys
payable under one policy was effectual, but as to the other was ineffectual.
Held, Mignault
J. dissenting, that, there being nothing in the context to warrant reading
"and" as "or", the courts must adhere strictly to the
intention expressed; and as the condition precedent upon which revocation of
the legacies was to take place did not come into existence, the legacies have
not been revoked.
[Page 50]
Per Mignault
J. dissenting.—As the testator did not succeed in making the moneys due under
one of the policies a part of his estate the legacies have been revoked.
By another clause of his will, the testator
bequeathed "all the residue of my personal estate and effects" to
certain persons therein designated "to be paid to them without interest
when they reach the full age of twenty-one years." The question submitted
to the court was whether the residuary legatees were entitled to the interest
or income accruing from investments of the residuary personalty notwithstanding
the words "without interest."
Held, that the
legatees were entitled to such interest, as it remained part of his estate and
passed under the residuary bequest of personalty.
After having bequeathed all the residue of
his personal estate and effects as above stated, the testator bequeathed
"all my real estate of every kind and all my personal estate and effects
unto my executors * * * according to the nature thereof upon trust, that my
trustees shall and will call in and convert (the same) into money * * * : to
pay my funeral and testamentary expenses and debts (and) the legacies
bequeathed by this my will."
Held, that the
testator's intention, by the direction for conversion, was not to make the
proceeds of his real estate personalty so that it should, as such, fall within
his residuary bequest; and the surplus of the proceeds, after the payment of
the debts and legacies must pass as on an intestacy.
The executors of the will commenced this
action by way of originating summons in order to submit the above questions
arising upon the construction of the will for the opinion of the court. They
were represented by counsel in the trial court and, being served with notice of
appeal, before the Court of Appeal but the latter court refused them any costs.
Held, Duff and
Anglin JJ. dissenting, that this court should not interfere with the discretion
exercised by the Court of Appeal on a question of costs.
APPEAL from the judgment of the Court of
Appeal for Saskatchewan, reversing the judgment of the trial court, Bigelow J.
and maintaining the cross-appeal of the official guardian, now respondent.
One William Walsh died on the 23rd day of
May, 1914, having previously executed his will, dated the 26th day of April,
1912, and a codicil, dated the 6th day of May, 1912. Letters probate in respect
of the
[Page 51]
will and codicil were granted to the
respondents, William Grayson and P. A. Reilly, the executors therein named.
They then took out an originating summons for the determination of certain
questions arising upon the construction of the following clauses of the will.
The first question was whether the appellants
or any of them are entitled to any portion, and if so, what portion of the sum
of $800.00 directed to be paid to each of them under the following clauses in
the said Will and Codicil thereto, namely:
Clause A. (will): "I bequeath to my
nephews William Milburn, Robert Milburn, Walter Milburn, and to my nieces, Mary
Milburn, Ida Milburn, the sum of Eight Hundred ($800.00) Dollars each, to be
paid to them without interest four years after my death."
Clause B. (will): "I hereby direct that
the proceeds of my policy of insurance in the Independent Order of Foresters to
the best of my recollection, number 57437, for Two Thousand ($2,000.00)
Dollars, dated January 18th, 1893, and that the proceeds of my policy of
insurance in the Ancient Order of United Workmen for Two Thousand ($2,000.00)
Dollars, dated July 21st, 1892, notwithstanding any designation of beneficiary
or beneficiaries herein shall be and become part of my estate directed to be
distributed in this my will."
Clause C. (codicil): "In order that
there may not be any possible misapprehension in respect to my bequests in my
said will to my nephews and nieces, the children of my sister, Margaret A.
Milburn, I hereby declare that in the event of it being found that I have not
effectually by the said will ordered that the moneys due under the policy of
insurance in
[Page 52]
the Independent Order of Foresters No. 57437
and under the policy of insurance in the Ancient Order of United Workmen, dated
August 1st, A.D. 1892, should be and become part of my estate directed to be
distributed under the terms of my said will, the said bequests to the said
nephews and nieces, the children of my said sister, be and are hereby
revoked."
After the testator's death his executors
claimed and received from the Independent Order of Foresters the amount due
under his insurance policy in the Order. The Ancient Order of United Workmen
refused to pay the executors the amount of the policy in that Order, on the
ground that there was no effectual designation of beneficiaries by the will,
and that, the beneficiary designated in the policy having died before the
testator, the amount of the policy was payable to the next-of-kin. The
executors thereupon sued the Order for the amount of the policy; and Brown J.,
before whom the action was tried, decided that the amount of this policy formed
no part of the testator's estate. There was no appeal from this decision, and
the Order paid the amount of the policy to the next-of-kin.
The trial judge in the present action held that
the appellants were entitled to the sum of $400 each; but the Court of Appeal
held that the appellants were not entitled to any part of the legacies to them.
The second question was whether the entire
residue of both real and personal estate including accrued interest or other
income, if any, is payable to the children of the testator's nephew,
represented in this case by the Trust Company and the official guardian, now
respondents, and if not so payable, who is entitled thereto and in what
proportions, the whole under the following clauses of the will:
[Page 53]
Clause D. (will): "I bequeath all the
residue of my personal estate and effects share and share alike to the
following children of my nephew Frederick J. Walsh, Jean Mary Walsh, Kathleen
Lillian Walsh, Marie Margaret Walsh, Thomas Robert Walsh, Frederick Michael
Walsh, to be paid to them without interest when they reach the full age of
twenty-one years."
Clause E. (will): "I devise and bequeath
all my real estate of every kind and all my personal estate and effects, unto
my executors and the survivor of them, and his successor, their and his heirs,
executors and administrators respectively, according to the nature thereof upon
trust, that my trustees shall and will call in and convert into money, and such
thereof as shall not consist of money within four years from the date of my
death, and shall call in and add to the monies produced on such sale, call in
and convert and call in and add to my said moneys:
"1. Pay my funeral and testamentary
expenses and debts.
"2. The legacies bequeathed by this my
will."
The trial judge held that the above named
children were entitled to the entire residue with the interest and income and
that the proceeds of the real estate must all be considered as personalty and
passed under the residuary bequest of personal estate; and the Court of Appeal
maintained this holding.
The Court of Appeal gave costs to all
parties, except the executors, out of the estate and gave no costs to the
executors. The latter cross-appeal to this court against the award of costs to
the appellants out of the estate and against the refusal of costs to them.
[Page 54]
Christopher C. Robinson for the
appellants.
M. G. Powell for the respondents Grayson et
al.
J. A. Ritchie for
the respondents, the executors and Administrators Trust Co. and the official
guardian.
Idington J.—This appeal arises out of the submission made to a court below
for a construction of the last will and testament of William Walsh, dated 26th
April, 1912, and a codicil thereto dated 6th May, 1912.
The second question thus submitted was stated as
follows:—
(b) Whether William Milburn, Robert
Milburn, Walter Milburn, Mary Milburn and Ida Lewis, formerly Ida Milburn, or
any of them are entitled to any portion, and if so, what portion of the sum of
$800.00 directed to be paid to each of them under the following clauses in the
said will and codicil thereto, namely,—(see clauses A, B, C, page 51), in view
of the fact that no moneys under the policy of insurance in the Ancient Order of
United Workmen were paid or became payable to the estate of the said deceased.
Mr. Justice Bigelow before whom the application
was first heard construed the said will and codicil as giving to the Milburn
legatees each a share of the moneys due under the policy of the Independent
Order of Foresters, which undoubtedly became part of the estate of the
testator.
He seems to have observed the fact that the
total amount of the two policies on their nominal face value of $2,000 each,
would, when added together, amount to the sum of $4,000, which would produce to
each of the Milburn legatees, the sum of $800, and that the intention of the
testator, when illuminated by what appears in the codicil, was probably, when
read in light thereof, to have the said legacies paid out of that fund.
[Page 55]
The testator had not, whatever may have been in
his mind, clearly expressed by his will any such intention. It may be highly
probable that in light of what is now presented to us that it was from the fund
these policies would produce that he desired to pay the said legacies.
The bequests are made in the most absolute form
and hence payable out of his estate unless he has in some way pro tanto revoked
his will.
Upon appeal to the Court of Appeal for
Saskatchewan that court reversed the said judgment.
Curiously enough that judgment of reversal
proceeded upon the assumption that the language of the codicil is plain and
unambiguous and therefore held the said legacies to each of the Milburns had
been revoked thereby.
They now appeal from that judgment to this court
and their counsel points out (what is fairly arguable in my opinion) that so
far from the said language of the codicil being "clear and
unambiguous" it is capable of other meanings than that given it by the court
of appeal below.
If the disjunctive "or" had been used
instead of the conjunction "and," of course there would have been a
clear revocation on account of one of the policies having, by its terms, been
given to others designated in same, and hence did not fall into the testator's
estate.
But the implied, if not the express, condition
precedent upon which the alleged or intended anticipative revocation of the
codicil was to take place, never came into existence, and the legacies stand
unrevoked. In any event, unless and until a clear intention to revoke appears
we should not hold the bequests revoked.
[Page 56]
The bequests to appellants and the direction
that the proceeds of the policies should become part of testator's estate, were
in the will separated by five paragraphs, each distinctly dealing with other
matters.
Yet they were, I submit, improperly presented,
in the question submitted relative to them, as if the bequests and directions
had been so placed or connected in the will, suggesting a possibly close relation
of these subject matters, and tending thereby to confuse.
No one could suspect any such relationship of
subject matters from a mere reading of the will.
And the codicil is in the same question placed
next after two independent clauses.
Whether all this has in fact confused I know
not. But such a condition of things leads me to repeat that there never was in
fact room for so blending, as it were, subject matters absolutely independent
of each other, and each to be given only its own express force and effect by
strict observance of the language used in each expression of thought so
presented.
It is fairly arguable that the testator having
disclosed by the codicil what he had in mind relative to the source from which
these legacies were to be paid, we may, without resorting to mere speculative
opinion of possible intention having any sphere in which to operate, clearly
find that unless and until there was a failure to bring both policies into his
estate, no revocation was intended.
The appeal should, therefore, be allowed with
costs throughout to appellants out of testator's estate.
I agree that if such view as that of Mr. Justice
Bigelow had been suggested to the testator framing this codicil, he possibly
would have assented thereto but more probably would have considered who had
[Page 57]
in fact been designated, and seen that they, or
some of them, did not get the duplicate shares they were seeking, and getting,
if the judgment appealed from stands.
Two other questions are raised by the same
appellants in regard to which it occurs to me as quite possible that the nature
of the estate and the relative parts thereof to bear its burden, may be such as
to leave the appellants without any direct, or even indirect, interest in
having same determined.
If they get paid the legacies bequeathed to them
and cannot claim as heirs at law, they need not concern themselves with the
determination of these questions. No objection of that kind having been taken
by counsel for respondents, I presume it is deemed necessary to have same
determined even if my view, or the alternative one of Mr. Justice Bigelow, is
adopted in regard to the above question, No. 2, of the submission, with which I
have dealt.
The first of these questions is thus stated in
said appellant's factum:—
In holding that the legatees of the
residuary personalty are entitled to the interest or income accruing thereon
between the date of the testator's death and their attaining the age of
twenty-one years;
And in another form the question is, in same
factum, presented thus:—
The next question is whether the residuary
legatees are entitled to the interest or income accruing from investments of
the residuary personalty between the date of the testator's death and their
attaining the age of twenty-one years, notwithstanding the express direction of
the will that the residuary personalty is to be then divided among them
"without interest."
The disposition thereof turns upon the
interpretation and construction of the residuary bequest, which reads as
follows:—(See Clause D, page 53).
[Page 58]
The question raised thereon is whether or not
the words "without interest" therein can be given any effect and if
so what.
I have tried to give these words some effect but
failed to find anything rational to which direct effect can be given unless we
extend the primary meaning of the bequest which is expressly confined to
"the residue of" the "personal estate and effects" which
certainly does not comprehend real estate. Surely that residue must comprehend
all interest earned from investments of purely personal estate.
It might be surmised that if we attribute all
intention on the part of the testator to exclude interest from the investments
of proceeds of sales of real estate after the conversion of the latter, we
might catch a glimpse of something possibly existent in his mind which the
words would express. The decisions cited in the factums of counsel do not carry
us very far.
The unfortunate expression may help by virtue of
said decisions to maintain the position taken by appellants in their third
contention, which is that the residuary request expressly limited to personal
estate cannot be extended to include the proceeds of the conversion of the real
estate and hence if anything thereof remains after applying same as
specifically directed there would be an intestacy pro tanto.
There is much to be said for that contention.
The will provides, next after the above quoted
residuary bequest as follows:—(See Clause E, page 53).
It was stoutly contended by counsel for the
official guardian that the case of Singleton v. Tomlinson, is
decisive of the question raised, and it certainly would be if the provisions in
the will there in question were either identical or quite analogous.
[Page 59]
The will in that case started out with a
direction to convert the estate, real and personal, and then proceeded to
dispose of "the proceeds" of such conversion in manifold ways with
one exception specifically dealt with and subject thereto ended by constituting
a party named the testator's legatee.
How could he be supposed to be residuary legatee
of anything save the balance of the fund thus produced?
Here the provision for conversion comes last and
after the residuary bequest above quoted which restricts its operation to the
personal estate.
With great respect, I fail to see much
resemblance between the Singleton Case
relied upon and this, especially in light of the stress laid by Lord Cairns and
others on the words "the proceeds."
Then to cover the ground of the effect of a
direction to convert real and personal estate, there are numerous decisions
shewing that such a direction, even when acted upon and the conversion
completed, is in itself by no means decisive of the ultimate character and
destiny of the fund so created, if there is open the question of intestacy as
there is here, if the restricted nature of the residuary bequest is had in
view.
Of the numerous authorities cited on either side
and duly considered by me perhaps the case of Amphlett v. Parke, is the
strongest in appellants' favour.
There the will only directed a conversion of the
real estate which was to be considered as personal estate with a gift as here
of the residue of the general estate.
The review of the decisions in the opinion
judgment of that case is in itself valuable, as well as the judgment and though
those affected thereby were proceeding to the House of Lords, they prudently
settled the matter by dividing evenly.
[Page 60]
The net result of the authorities seems to me to
be that the provisions of the will itself and the language used in making same
must be kept in view in deciding whether or not there has been clearly intended
a conversion of realty into personalty with interest, to determine the scope of
the residuary bequest.
The best opinion I can form, keeping that in
view, is that the restricted nature of the residuary bequest given by above
quoted provision is such as to render it impossible to say that the testator
really intended by his later creation of a trust to finally determine all the
proceeds to become thereby personal property within the meaning of the
residuary bequest.
The direction to pay thereout debts and legacies
does not seem to be a satisfactory basis upon which to so decide. To pay
legacies I should read as to pay specific legacies, and all the more
so as payment in all cases involved, except when otherwise specified, was to be
"without interest," which might reasonably be referable to interest
on the real estate proceeds, and thus be made intelligible and effective.
I am of opinion that as to any proceeds of real
estate so converted, if not eaten up by debts and specific legacies, the
testator died intestate.
There is a cross-appeal by the executors against
the ruling of the court below refusing them costs.
That was a matter entirely in the discretion of
the court below and, by the settled jurisprudence of this court, we, even when
we have jurisdiction, refuse to entertain any appeal merely as to costs.
Moreover I agree in the opinion of the court
below that an executor's duty ends when he gets what he has asked and he is not
supposed to take a partizan part.
Hence I think the cross-appeal must be dismissed
with costs.
[Page 61]
Duff J.—The only question requiring examination is the question whether
the residue affected by the testator's bequest of
all the residue of my personal estate and
effects
includes the real estate directed to be
converted. In my opinion the meaning of the will is plain. The bequest of the
residue is a bequest dealing with the subject matter which is described as
the residue of my personal estate and
effects.
The devise of the real estate is clearly, I
think, a devise and the direction to convert is clearly, I think, a direction
for the purposes of administration only and in consequence the bequest of the
residue affects only property which was personal estate independently of the
legal operation of the devise.
There is a cross-appeal as to costs. I can
entertain no doubt that the executors and trustees were acting properly in the
exercise of the statutory authority io submit questions arising upon the
construction of the will for the opinion of the court; and having commenced an
action by way of originating summons with that object, it was not only their
right but their duty as well to be represented in the court of first instance
and on any appeal that might be taken from the judgment of the court of first
instance for the purpose of seeing that the court was correctly informed with
regard to the considerations bearing upon the subjects brought before the court
for examination. That being so, they are by law entitled to their costs by
statutory right and the order of the Court of Appeal refusing them their costs
was an order prejudicing them in a substantive right and one consequently of
which they are entitled to complain by way of appeal.
[Page 62]
Anglin J.—To five children of his sister William Walsh by his will
bequeathed the sum of $800 each. In a codicil he directed that:—(See clause C,
page 51).
The testator had by his will directed that the
proceeds of both these policies
should be and become part of (his) estate.
It is common ground that his order as to the
moneys payable under the Foresters' policy was effectual, but that the like
order as to the Workmen's policy was ineffectual. It was held by Mr. Justice
Bigelow that, under these circumstances, the five legacies must abate to the
extent to which the estate was augmented by the receipt of the insurance
moneys; and by the Court of Appeal that the five legacies were wholly revoked.
With great respect, I am unable to accept either view.
The testator provided for revocation of the
legacies upon the happening of a single condition—that the proceeds of both
policies should become part of his estate. It is quite probable that the
judgment of Mr. Justice Bigelow would carry out what the testator actually had
in mind. But, if that were his intention, he did not express it.
In the judgment of the Court of Appeal, on the
other hand, the word "and" of the codicil seems to have been
unconsciously converted into "or." For that construction I cannot
find justification and I have little doubt that it would defeat the testator's
purpose. The only safe course—the only course open to us—is to adhere strictly
to the intention expressed and that is that revocation should ensue if, but
only if, the condition prescribed has been entirely fulfilled.
The second question arises out of provisions
making certain legacies payable more than one year after the testator's death
without interest. I entirely agree
[Page 63]
with the judges of the provincial courts that
the interest of which the legatees were thus deprived remained part of the
estate and passed under the residuary bequest of personalty. The words
"without interest" in the residuary bequest are senseless and were no
doubt introduced per incuriam. They should be ignored.
The remaining question is whether the testator's
real estate was converted into personalty so that so much of it, or of its
proceeds, as was not required to meet his pecuniary legacies passed under the
residuary bequest couched in these terms:—(See clause D, page 53).
The only disposition of the real estate, made
after all the legacies, including the residuary bequest, had been stated, is in
these terms:—(See clause E, page 53).
Grammatically the word "personal" in
the residuary bequest qualifies the word "effects" as
well as the word "estate." Under this bequest, apart from the effect
of the direction for conversion of the real estate, it would be abundantly
clear that nothing except what was personalty at the testator's death would
pass. "Effects" is no doubt a comprehensive term. The meaning to be
attached to it depends on the context. It may carry real estate. Kirby-Smith
v. Parnell;
Smyth v. Smyth;
Attorney-General of Honduras v. Bristowe; Hammill
v. Hammill.
Alone it will not. Doe v. Bring;
and I know of no case where, used in such a context as "my personal estate
and effects," it has been held to embrace realty. Such a context in my
opinion excludes realty from its purview.
[Page 64]
Did the testator intend by the direction for conversion
to make the proceeds of his real estate personalty for all purposes so that it
should, as such, fall within his residuary bequest? Such would be the effect of
an absolute direction to sell not limited to any particular purpose. Singleton
v. Tomlinson,
was such a case. There the person constituted "my residuary legatee"
was held entitled to the surplus proceeds of realty not required to satisfy the
dispositions made by the will. The same result follows where the residue,
though designated personal estate, is clearly intended to comprise what remains
of a blended fund arising in part from proceeds of converted realty.
But here the testator has declared the purpose
of a conversion to be the payment of his funeral and testamentary expenses,
debts and legacies. In such a case surplus proceeds of converted realty will
not pass under a bequest of residuary personalty. Maugham v. Mason, and Collis
v. Robins,
are authorities in point. Amphlett v. Parke; Fitch
v. Weber;
Taylor v. Taylor,
and Collins v. Wakeman
(although the last mentioned case is questioned in Theobald on Wills, 7 ed.,
256), may also be referred to.
I do not find in the will before us any
expression or implication of intention that, notwithstanding the indication of
certain purposes of the conversion, it is to be "out and out" and for
all purposes. The leaning against intestacy will not supply the omission of
words expressive of the intention that the residuary legacy of personalty
should include undisposed of realty or its proceeds.
[Page 65]
The avoiding of intestacy is to be regarded
in construing doubtful expressions but is not enough to induce the Court to
give an unnatural meaning to a word.
In re Benn.
In cases of ambiguity you may, at any rate
in certain wills, gather an intention that the testator did not intend to die
intestate, but it cannot be that, merely with a view to avoiding intestacy, you
are to do otherwise than to construe plain words according to their plain
meaning. A testator may well intend to die intestate. When he makes a will he
intends to die testate only so far as he has expressed himself in his will.
In re Edwards.
I would, therefore, with respect, answer
question (c) of the summons in the negative as to realty or proceeds thereof
not required to pay funeral expenses and legacies. Such residuary realty or
proceeds thereof passed as on an intestacy.
There remains to be dealt with the executors'
cross-appeal against the order of the Court of Appeal depriving them of their
costs in that court. No doubt it is most unusual that an appeal should be
entertained in this court on a mere question of costs. Here, however, the
executors have been deprived of their costs not as a matter of discretion but
on an erroneous view of the law, namely that, having received the advice of the
court of first instance, although served with notice of the appeal they had no
interest in it and should merely have awaited its result. They maintain, on the
contrary, that it was their duty and their right to attend the hearing, to
watch the proceedings and, if necessary, to assist the court in the disposition
of a matter which they had originally brought before it. That right seems well
established
[Page 66]
in practice. Carroll v. Graham; Catterson
v. Clark;
Fulton v. Mercantile Trusts Co..
The executors in my opinion should have been allowed their costs in the Court
of Appeal and should also have them here—on such moderate scale however, as is
indicated in the cases cited. I do not regard this question as really the
subject of a substantive appeal involving costs only but rather as an incident
of the main appeal in which the merits of the litigation are before the court
and the disposition of them by the provincial courts will be substantially
varied. Delta v. Vancouver Rly. Co..
All parties should have their costs of these
proceedings throughout out of the estate. The questions involved are important.
They concern the administration of the estate and arise out of dispositions
made by the testator which are by no means free from difficulty.
Brodeur J.—This appeal arises out of an originating summons to construe the
will and codicil of William Walsh. Three questions had been submitted to the
court below, but we have only to deal with two.
The first is whether the appellants are entitled
to any portion of the legacy of $800 under the following clauses in the will
and in the codicil: (See clauses A, B, C, page 51).
It is in evidence that no money under the
insurance policy of the Ancient Order of United Workmen was paid or became
payable to the Walsh estate. It is in evidence also that the insurance policy
in the Independent Order of Foresters was paid to the estate.
[Page 67]
The judge of original jurisdiction decided that
the legacies to the appellants would be discharged by paying them the proceeds
of the Independent Order of Foresters policy. The Court of Appeal reversed this
decision and came to the conclusion that the legacies of $800 made to each of
the appellants had been revoked by the codicil.
The codicil, it seems to me, is very explicit.
It provides that if the two policies of insurance were not part of the estate,
then the legacies in favour of the appellants would be revoked. It is true that
only one of the policies was paid to the estate, but the condition of the
codicil was that if it was found that the declaration of the testator was
ineffectual as to both the policies then that would deprive the appellants of
the bequest stipulated in the will in their favour. It may be that the testator
did not express correctly what he intended. It may be that he did not intend to
give his nephews a portion of their legacies if only one of the policies would
form part of his estate, but the words are so plain and so explicit that we
have not to look for an intention which otherwise is so clearly expressed.
The appeal is well founded as to the first
question and I would answer it in the affirmative.
The other question which has also been submitted
to the consideration of the court is whether the entire residue of both real
and personal estate, including accrued interest or other income, is payable to
the children of the testator's nephew, Frederick J. Walsh.
In the will the following clause is to be
found:— (See clause D, page 53).
[Page 68]
There is no provision for the residue of the
real estate, except that the executors are empowered to convert the whole
estate into money for the purpose of paying funeral and testamentary expenses
and of paying the legacies. The words "personal estate and effects"
could perhaps be construed as meaning in some cases personal and real property.
The intentions of the testator could in some cases be determined so as to cover
both personal and real property. Kirby Smith v. Parnell. But in
this will no such intention can be found for, in another part of his will, the
testator puts personal estate and effects in juxtaposition with real estate.
The only possible conclusion then is that the
testator has failed to dispose of his real estate; and if there is to be found
some real estate after the conversion ordered by the will, then this real
estate should go to the heirs of the de cujus.
Collins v. Robins; Ackroyd v. Smithson; Curteis v. Wormald.
The point as to interest raised on this second
question could not be of any benefit to the appellants, since this interest
forms part of the residuary personalty and would not belong to them, even if
their construction of the words "without interest" were correct.
I would then answer the second question in the
negative as to the real estate and would state that the children of Frederick
J. Walsh are not entitled to the real estate but they could receive the
interest on their legacy.
The costs of the appeal should be paid out of
the estate.
[Page 69]
There is a cross-appeal on the part of the
executors of the will who were condemned personally in the court below to pay
their costs.
It is a question of discretion about which we
should not interfere. The costs should not be large, if the executors simply
appeared and held a watching brief. Of course they should be larger if they
took an active part in the proceedings below. We have no way to ascertain the
circumstances which brought this condemnation and we should not then interfere
with the exercise of a discretion which might have been equitably exercised. If
the executors had found it advisable to take a part in a contestation which was
argued by the two interested parties, viz., the Milburns and the Walshs, it was
certainly on their part a useless intervention which the court below could very
well dispose of in the way it has done.
The cross-appeal should be dismissed with costs.
Mignault J.—I propose to reply in the following order to the questions
submitted with a brief statement of my reasons for each answer.
First Question:—Is the bequest of $800 by the
late William Walsh to each of his nephews and nieces, to wit to William
Milburn, Robert Milburn, Walter Milburn, Mary Milburn and Ida Milburn, all of
them being children of his sister Margaret A. Milburn, revoked by reason of the
codicil added to his will by the said William Walsh?
The will contained the following directions as
to two policies of life insurance held by the testator: (See clause B, page
51).
In the codicil made a few days after the will
the testator said: (See clause C, page 51).
[Page 70]
Of course, the testator's declaration in his
codicil must be read with the directions given by him in his will as to the two
insurance policies, and I construe the codicil as meaning that if the testator
has not succeeded, by his will, in making the moneys due under these two
policies a part of his estate to be distributed under the terms of his will,
then the legacies to the nephews and nieces, the children of his sister
Margaret A. Milburn, are revoked.
The testator did not succeed in making the
moneys due under one of the policies a part of his estate and therefore in my
opinion the legacies to his nephews and nieces are revoked.
It is contended that the revocation takes place
only if the testator's directions fail as to both policies, and that if they
succeed as to one of them and fail as to the other, the condition is not
entirely fulfilled, and therefore there is no revocation.
I am unable so to read the condition. It deals
with "the moneys due" under the policy of insurance in the
Independent Order of Foresters and under the policy of insurance of the Ancient
Order of United Workmen, as one fund, and if this fund does not become a part
of the testator's estate by virtue of the directions of the will, the bequests
to Margaret A Milburn's children are revoked.
A failure with respect to one of the policies
prevents the moneys due under both policies from becoming a part of the
testator's estate, and therefore the revocation takes place.
If I could resort to conjecture to determine the
probable intention of the testator, I would unhesitatingly concur in the
opinion of the learned trial judge that the revocation took place only pro
tanto or in proportion to the amount of the policy which
[Page 71]
did not form part of the estate. But conjecture
as to the probable but unexpressed intention of the testator is entirely out of
the question. If the testator desired the revocation to operate partially in
the event which has happened, he has not stated his desire in the will.
Therefore the answer must be either revocation or no revocation. My answer is
that the legacies in question are revoked, and in that I agree with the Court
of Appeal.
Second question:—Does the interest on the
bequests payable more than a year after the testator's death, and which is not
to be paid to the legatees, form a part of the residuary bequest?
There is no difficulty here. The interest which
was not to be paid to the legatees on the bequests made payable more than a
year after the testator's death, in my opinion, forms part of the residuary
bequest, notwithstanding the words "without interest" in the latter
bequest, which words should be disregarded. Any other construction would leave
this interest entirely outside of the operation of the will. I may add that the
residuary legatees do not take these moneys as interest on the residuary
bequest, but as moneys forming part of the residue and which have never left
the estate. Here again I agree with the Court of Appeal.
Third question:—Does the surplus of the
conversion of the real estate, if there be any such surplus after payment of
the funeral and testamentary expenses and debts and the bequests made by the
will, form part of the residuary bequest of the personal estate and effects?
I will cite both the residuary bequest and the
clause ordering the conversion of the real estate, the latter being very badly
drafted:—(See clauses D and E, page 53).
[Page 72]
This is by far the most difficult question, and
it appears to me that my answer will be more intelligible if it is briefly
expressed.
In my opinion the residuary bequest is of the
residue of the testator's personal estate and effects (and the word
"personal" qualifies both the words "estate" and
"effects") as it stood at the death of the testator.
I am also of opinion that when the conversion of
real into personal estate is ordered by a will for certain specific purposes,
any residue remaining after these purposes are satisfied, is not to be regarded
as personal but as real estate in so far as the interests of those who upon an
intestacy would take the real estate are concerned.
Now what are the purposes for which this
conversion is ordered? They are:—
1.—The payment of funeral and testamentary
expenses and debts,
2.—The legacies bequeathed by the will.
It would be idle to say that the residuary
bequest is one of the legacies bequeathed by the will, because we would still
have to determine what was the object of the bequest, and this object was the
residue of the personal estate and effects of the testator, that is to say of
what was personal estate and effects at the death of the latter. The surplus of
the converted real estate would not be comprised therein. I find therefore that
if there be a surplus from the conversion of real estate, after providing for
the payment of funeral and testamentary expenses and debts as well as of the
legacies bequeathed by the will, it does not form a part of the residuary
bequest and does not pass under the will. Naturally one shrinks from coming to
the conclusion that there is a partial intestacy but I can see no help for it.
[Page 73]
I have not cited any authorities on this branch
of the case and am content to rely on those contained in the judgment of my
brother Anglin whose opinion I share.
My answer to this question is therefore no, and
consequently, with respect, I differ from the Court of Appeal on this point.
The main appeal should therefore be allowed to
the extent of answering this question in the negative. I would direct that the
costs of the appellants and of the respondents be paid out of the estate. I
would not give costs to the executors on the main appeal.
As to the cross-appeal, nothing more is involved
than the question of costs in the Court of Appeal which the executors claim
should have been granted them. The costs were refused because the executors
applied to the Court for advice and received it, and had no further interest in
the matter, except to await the result of the appeal. I am not ready to say
that this was error on the part of the Court of Appeal. The practice may be
different in England and perhaps in Ontario, but it is a matter of practice and
I am not disposed to interfere with what has been done here. I would dismiss
the cross-appeal with costs.
Appeal allowed in part.
Cross-appeal dismissed with costs.
Solicitors for the appellants: Allan,
Allan & Taylor.
Solicitors for the respondents Grayson et
al.: Grayson, Emerson & McTaggart.
Solicitors for the respondents The
Executors and Administrators Trust Co. and the official guardian:
Mackenzie, Thorn, Bastedo & Jackson.
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