In re Tyhurst, Deceased, [1932] SCR 713

Supreme Court of Canada

In re Tyhurst, Deceased, [1932] S.C.R. 713

Date: 1932-06-15

In the Matter of the Estate of Theophilus Tyhurst, Deceased

John C. Smith and Others (Plaintiffs) Appellants;

and

The Trustees of the Home of the Friendless in the City of Chatham and Others (Defendants) Respondents.

1932: May 25; 1932: June 15.

Present: Duff, Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Will—Construction—Words “legacies” and “bequests”—Whether used by testator to distinguish donations to different classes—“Legatees.”

A testator’s property, when he made his will, when he died, and at the time for distribution hereinafter mentioned, amounted in value to about $55,000. By his will, he left to his wife (who actually survived him only eight days) the entire income during her life, with provision for payments to her out of principal if required; after her death the estate was to be converted into cash and distributed as follows: specified amounts to four individuals, aggregating $2,500; specified amounts to various charities, aggregating $4,600; then, by clause 5, “All money remaining after payment of the legacies and bequests made herein shall be paid to the said legatees in equal shares, and in case my said estate shall not be sufficient to pay all of the said legacies and bequests in full then I direct that the legacies and bequests shall abate proportionately.” Clause 6 provided: “In the event of any of the legatees dying leaving a child or children, then the share which would have gone to the said legatee shall go to the child or children of such legatee in equal shares, and in case any of the said legatees die without leaving a child or children then the share to which they would have been entitled to shall become part of my residuary estate, and shall be divided as aforesaid.” The question for determination was whether the residue dealt with in clause 5 was bequeathed to the four individual legatees, or was to be divided in equal shares among them and the charities.

Held, that, upon the true construction of the will as a whole, and considering the circumstances surrounding and known to the testator when he made it, and in view of the effect of the other construction, and the nature of some of the charities, the testator must be taken to have intended the word “legatees” in clause 5 to mean the four individual legatees only; that he intended a distinction between the “legacies” and the “bequests” in clause 5, applying “legacies” to his gifts to the individuals, and whom he referred to as “legatees,” and “bequests” to his gifts to charities.

Judgment of the Appellate Division, Ont., [1932] 1 D.L.R. 595, reversed.

In construing a testator’s language, where ambiguous, the court may consider not only the provisions of the will, but also the circumstances surrounding and known to him when he made it, and adopt the meaning most intelligible and reasonable as being his intention.

While the words “legacies” and “bequests” are indiscriminately used in testamentary dispositions to mean gifts of personalty, yet a testator

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may use them to distinguish donations to different classes, and his intention to do so, if clear, will be given effect.

It is not to be imputed to a testator, unless the context requires it, that he uses additional words for no purpose (Oddie v. Woodford, 3 My. & Cr. 584, at 614).

APPEAL by certain of the individual beneficiaries named in the will of Theophilus Tyhurst, deceased, from the judgment of the Court of Appeal for Ontario[1], which (reversing, on the question at issue, the judgment of Raney J.[2]) declared that the individual beneficiaries in question and the charitable beneficiaries in question (except, as settled in the formal judgment, the City of Chatham for upkeep of cemetery plot) were all entitled to share equally in the residue of the estate of the said deceased.

The material facts of the case and the question in issue are sufficiently stated in the judgment of Lamont J. now reported, and are indicated in the above head-note. The appeal to this Court was allowed.

G.P. Campbell for the appellants.

John M. Godfrey K.C. for the respondent, the Muskoka Hospital for Consumptives.

J.A. McNevin K.C. for the respondents, the Trustees of the Home of the Friendless in the city of Chatham.

H.D. Smith K.C. for the respondents, the Trustees of the Children’s Shelter of the city of Chatham, and the Salvation Army of the city of Chatham.

A.T. Whitehead for the respondents, the Home Mission Fund of the United Church of Canada, the Superintendent of the Sunday School of the United Church at Charing Cross, and the Superintendent of the Sunday School of the Zion United Church, Creek Road, county of Kent.

McGregor Young K.C, Official Guardian, for the respondent Harvey Mitton, an infant (contending the same as appellants).

H.E. Grosch for the Executors of the Estate of the said deceased.

DUFF J.—I concur with my brother Lamont.

One cannot, I think, properly overlook the juxtaposition of the words “legacies” and “bequests,” at several points

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in article 5 of the will. The argument on behalf of the respondents has not convinced me that this clause does not recognize some distinction between a bequest, as connoting a gift proceeding from something in the nature of a charitable intention, in the legal sense, and a legacy as something in the nature of a personal gift.

I think the use of the term “said legatees,” in the second line of article 5, points in the same direction. In article 6 we have the same term “legatee” continued throughout: this term in both articles is unmistakably limited to gifts of the second of the above mentioned classes. It is true that there is no word so precisely descriptive of the recipient of a bequest as of the recipient of a legacy. But I think if the testator had intended all the gifts to be on the same footing, in relation to the provisions of article 6, a very slight modification of the language would have been sufficient to make it clear.

The appeal should be allowed; except as to any disposition of costs in the courts below, which is not disturbed. There should be only one set of costs in this court, payable, respectively, to the appellants and to the respondents out of the estate; two counsel fees may be allowed in each case; the Official Guardian will, of course, have his costs as usual.

The judgment of Rinfret, Lamont, Smith and Cannon JJ. was delivered by

LAMONT J.—This appeal involves the interpretation of the will of Theophilus Tyhurst, deceased, made the 12th day of March, 1928.

After making provision for the payment of his just debts and testamentary expenses, the testator devised and bequeathed the remainder of his estate to his executors upon trust:

1. To pay to his wife the entire income of the estate during her lifetime and to make payments to her out of the principal if, in her discretion, she considers the income insufficient for her personal requirements.

2. After the death of the wife the executors were directed to convert the estate into cash and distribute it as follows:

To John D. Smith, $500.

To his daughter Rose Verna, $500.

To his niece Lillian Roseburg, $500, and

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To Harvey Mitton the sum of $1,000.

To the Trustees of the Home of the Friendless in the city of Chatham, $1,000.

To the Trustees of the Children’s Shelter in the city of Chatham, $1,000.

To the Home Missionary Fund of the United Church of Canada, the sum of $500.

To the Muskoka Hospital for Consumptives at Gravenhurst, the sum of $1,000.

To the Salvation Army at the city of Chatham, $500.

To the Superintendent of the Sunday School of the United Church at Charing Cross, $200 for Sunday School purposes.

To the Superintendent of the Sunday School of Zion United Church, Creek Road, in the county of Kent, $200 for Sunday School purposes.

To the proper officials of the City of Chatham, the sum of $200 for the maintenance and upkeep of the family cemetery plot in the Maple Leaf Cemetery.

Then clause 5 of the will reads:

All money remaining after payment of the legacies and bequests made herein shall be paid to the said legatees in equal shares, and in case my said estate shall not be sufficient to pay all of the said legacies and bequests in full then I direct that the legacies and bequests shall abate proportionately.

The neat question for determination in this appeal is whether upon the true construction of the will the residue (which amounts to $48,000) is bequeathed to the four individual legatees, or whether it is to be divided in equal shares among them and the above mentioned charitable beneficiaries.

In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole will taken together. Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed in their technical sense, unless from a consideration of the whole will it is evident that the testator intended otherwise.

The learned judge of the first instance construed clause 5 to mean that the residue was to be divided among the four individual legatees only. On appeal to the Second Appellate Division his judgment was reversed (Latchford C.J.

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dissenting). From the judgment of the Appellate Division this appeal is brought.

The contention of the respondents, to which effect was given by the Appellate Division, is that the “legatees” mentioned in the second line of clause 5, who are to share in the residue, comprise all beneficiaries receiving under the will a gift of personal estate; that the words “legacy” and “bequest” in a will have exactly the same meaning and that the word “legatee” is just as apt to describe the recipient of a gift intended as support for charity as the recipient of a gift intended as a personal donation.

It cannot be denied that the words “legacies” and “bequests” are indiscriminately used in testamentary dispositions to mean gifts of personal property. A testator, however, is entitled to use them to distinguish donations to different classes and his intention will be given effect to provided he has made it clear what his intention was. As has often been said, a will ought as far as possible to be its own dictionary. In determining whether the testator used “legacies” and “bequests” as synonomous terms or as specifying gifts to different groups, we must bear in mind the canon of construction laid down by Lord Cottenham in Oddie v. Woodford[3]:

Now I take it to be one rule in the construction of a will, that you are not to impute to a testator, unless the context requires it, that he uses additional words except for some additional purpose; that you are not to suppose he uses additional words for no purpose.

Turning now to what may be called the plan of the will, it will be seen that the testator has made three classes the objects of his bounty: first his wife; second the four personal legatees, each of whom was a relative or friend, and third the charitable beneficiaries. His gifts to the latter two classes were to take effect only after the death of his wife. Contemplating, or, to use the term employed by Blackburn J. in Grant v. Grant[4], “soliloquizing” as to what distribution he would make of his property after the death of his wife, the testator directs his executors to pay to the beneficiaries, both individual and charitable, the specific sums above set out. These amounted to $2,500 for the four individuals and $4,600 for the charitable bequests.

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His property at the time was worth in the neighbourhood of $55,000, so that, after payment of these specific gifts, there would be to dispose of a residue of some $48,000. This he disposes of in clause 5 by providing that, after the payment of the “legacies” and “bequests” made herein, all the money remaining shall be paid to the “said legatees.” Here he designates the specific sums which he directed to be paid as “legacies” and “bequests,” and it is contended for the appellants that, by doing so, he was making a distinction between the two terms and applying “legacies” to the payments made to the four individuals (who may be referred to as Group 1), and “bequests” to the charitable beneficiaries (who may be said to constitute Group 2).

It will be observed that in clause 5 the testator uses the terms legacies and bequests no less than three times. If these words meant, to his mind, exactly the same thing, why use the two words? And why repeat them? It is said that one must be considered as surplusage, but words are only to be treated as surplusage when the will or the circumstances to which we are entitled to look satisfies us that the testator could not have been making a distinction between them. In the light of the testator’s use of the two words it may not be unimportant to ask if it is not more in accordance with the prevailing custom to refer to gifts to charity, as charitable bequests, rather than as charitable legacies?

The respondents contend that the provision in clause 5, that if the “estate shall not be sufficient to pay all of the said legacies and bequests in full,” they shall abate proportionately, shews that two considerations were present to the testator’s mind: (1) a possibility that when his wife should die his estate might not amount to $7,100, the amount of the specified legacies and bequests, and (2) that he desired all the beneficiaries of Groups 1 and 2 to be treated alike. While a man would naturally put such a provision in his will, because it is well known that riches have wings, I find it difficult to conclude that the testator was contemplating as a real possibility that his wife would use up not only the income but the greater part of the corpus of the estate as well, or that there would not be a considerable residue to distribute (the wife survived the testator only eight days). As to the argument that the provision indicated

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an intention that all beneficiaries should be treated equally, it does not follow, in my opinion, that because he might, in case of deficiency, desire all gifts to abate proportionately, he would, in case of a surplus, desire all beneficiaries to share in it to the same extent.

The appellants rely upon clause 6, which reads:—

In the event of any of the legatees dying leaving a child or children, then the share which would have gone to the said legatee shall go to the child or children of such legatee in equal shares, and in case any of the said legatees die without leaving a child or children then the share to which they would have been entitled to shall become part of my residuary estate, and shall be divided as aforesaid.

It is contended that in this clause the word “legatee” is clearly limited to the beneficiaries of Group 1, for they are the only ones who might have children, and that, the testator having indicated in this clause the sense in which he uses the word “legatee,” that meaning must given to it in clause 5. The only answer made to this contention is that the words “any of the legatees” apply only to such as might have children, but do not exclude other legatees from participating in the residue.

In construing the language of the testator where it is ambiguous, we are entitled to consider not only the provisions of the will, but also the circumstances surrounding and known to the testator at the time when he made the will, and adopt the meaning most intelligible and reasonable as being his intention. If the respondents’ contention is right, each of the beneficiaries of Groups 1 and 2 will obtain out of the residue an additional sum of $4,000. Referring to the last three charitable bequests, is it reasonable to think that the testator ever contemplated a gift of $4,000 to each of the superintendents of the two Sunday Schools mentioned, for Sunday School purposes, in addition to the specified gift of $200, and that without knowing who the superintendents might be or what they might consider Sunday School purposes? Or can we reasonably conclude that he contemplated a like contribution to be made to the officials of the City of Chatham for the maintenance and upkeep of his family cemetery plot?

Reading the will as a whole and in the light of the above considerations, I am of opinion that the testator intended to make a distinction between the “legacies” and the “bequests” in clause 5, applying the word “legacies” to

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his gifts to the individuals comprising Group 1, and whom he referred to as “legatees,” and the word “bequests” to his gifts to charities.

The appeal should therefore be allowed with costs but the costs payable out of the estate will be limited to one set each for appellants and respondents. The Official Guardian’s costs will also be payable out of the estate.

Appeal allowed.

Solicitors for the appellants: Shaw & Shaw.

Solicitors for the respondents, the Trustees of the Home of the Friendless in the City of Chatham: Kerr, McNevin & Kerr.

Solicitors for the respondents, the Trustees of the Children’s Shelter of the City of Chatham, and the Salvation Army of the City of Chatham: Smith & Smith.

Solicitors for the respondent, the Muskoka Hospital for Consumptives: Godfrey & Corcoran.

Solicitor for the respondents, the Home Mission Fund of the United Church of Canada, the Superintendent of the Sunday School of the United Church at Charing Cross, and the Superintendent of the Sunday School of the Zion United Church, Creek Road, County of Kent: A.T. Whitehead.

Solicitor for the respondent, Harvey Mitton: McGregor Young.

Solicitors for the executors of the estate of said deceased: Grosch & Bell.