Lucey v. Catholic Orphanage of Prince Albert, [1951] SCR 690

Supreme Court of Canada

Lucey v. Catholic Orphanage of Prince Albert, [1951] S.C.R. 690

Date: 1951-06-20

George W. Lucey And Lyman J. Lucey Appellants;

and

The Catholic Orphanage of Prince Albert, Commonly Known as St. Patrick's Orphanage Respondent,

and

Francis Charles Neate, Administrator of Estates of the Mentally Incompetent, as Administrator of the Estate of Nellie A. Lucey Respondent.

1951: May 22; 1951: June 20.

Present: Kerwin, Taschereau, Kellock, Locke and Cartwright JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.

Wills—Interpretation—Gift to "Reverend William Bruck o.m.i. St. Patrick's Orphanage of the City of Prince Albert * * *"—Whether intended donee the individual or the Orphanage of which he was Director.

By a will in her own handwriting, a testatrix left all her estate to "Reverend William Bruck o.m.i. St. Patricks Orphanage of the City of Prince Albert in the Province of Saskatchewan, absolutely" and appointed him her sole executor. Father Bruck, who had been continuously director of the orphanage from 1906 to the date of his death in 1947, predeceased the testatrix, who died in 1949. On an application to determine whether because of Father Bruck's death an intestacy existed, or whether the words of the will amounted to a bequest to him as "Director of" said orphanage.

Held: that the words of the will must be interpreted in their grammatical and ordinary sense and so interpreted the words "unto Reverend William Bruck o.m.i. St. Patricks Orphanage of the City of Prince Albert * * *" meant that the donee of the estate was the Reverend William Bruck and not the Orphanage.

Held: also, that on a true construction of the will the Reverend William Bruck, had he survived the testatrix, would have been beneficially entitled to the whole of her estate but, as he predeceased her, the gift to him lapsed, and the estate passed to those entitled on an intestacy.

In re Delany, Conoley v. Quick [1902] 2. Ch. 642 at 646, approving Thornber v. Wilson, (4858) 4 Drew. 350 at 351; Re Flinn, Public Trustee v. Griffin [1948] 1 All E.R. 541, applied.

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APPEAL from the judgment of the Court of Appeal for Saskatchewan 1, affirming the judgment of Brown C.J. K.B.2.

C. L. B. Estey for the appellants.

J. M. Cuelenaere K.C. and J. G. Diefenbaker K.C. for The Catholic Orphanage of Prince Albert, respondent.

The judgment of the Court was delivered by:

Cartwright J.:—This is an appeal from a unanimous judgment of the Court of Appeal for Saskatchewan 3 affirming the judgment of the learned Chief Justice of the King's Bench 4 by which it was decided that the estate of the late Nellie A. Lucey passed under her will to the respondent, The Catholic Orphanage of Prince Albert, commonly known as St. Patrick's Orphanage.

The question raised is whether on a proper construction of the will the estate was given beneficially to the Reverend William Bruck, in which case, he having predeceased the testatrix, it would pass to those entitled on an intestacy, or whether it was given either directly to St. Patrick's Orphanage or to the Reverend William Bruck as trustee for the Orphanage.

The will is a short one. It reads as follows:

This is the Last Will and Testament of me, Nellie A. Lucey of the City of Prince Albert, in the Province of Saskatchewan.

I devise and bequeath all the real and personal estate to which I will be entitled at the time of my decease, unto Reverend William Bruck o.m.i. St. Patricks Orphanage of the City of Prince Albert in the Province of Saskatchewan, absolutely, and I appoint the said Reverend William Bruck sole Executor of this my Will; hereby revoking all former Testamentary writing. In Wittness (sic) whereof I the said Nellie A. Lucey the Testatrix, have to this, my Last Will and Testament, set my hand and seal this 2nd (second) day of December 1929.

SIGNED by the said Testatrix as and for her last Will and Testament, in the Presence of us, present at the same time who at her request, in her presence and in the presence of each other, have subscribed our names as wittnesses. (sic)

(Signed) NELLIE A. LUCEY.

(Signed) ELIZABETH SEREDA.

(Signed) FRED SCHWALK.                

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The Reverend Father Bruck died on January 9, 1947. The testatrix died on April 6, 1949.

The respondent was incorporated by Special Act (1915, Statutes of Saskatchewan, c. 46) with power inter alia to acquire by gift, devise or bequest any real or personal estate.

For the appellants it is contended that the wording of the will in plain and unambiguous terms gives the whole of the estate to the Reverend William Bruck beneficially, and that the courts below have erred in admitting extrinsic evidence and in the construction which they have placed upon the will.

Counsel for the respondent contends that the words "unto Reverend William Bruck o.m.i. St. Patrick's Orphanage of the City of Prince Albert in the Province of Saskatchewan," describe as donee the Orphanage rather than the Reverend Father Bruck, that all of the words quoted Which precede the word "Orphanage" are descriptive of the Orphanage and that, while the words "St. Patrick's Orphanage" might well have been a sufficient description, the words "Reverend William Bruck o.m.i." were inserted as a further description out of an abundance of caution. Counsel argues that if the words "St. Patrick's Orphanage" had been intended merely as the address of the Reverend William Bruck the word "of" would have been inserted before the words "St. Patrick's Orphanage" or a comma would have been inserted after the initials "o.m.i." Alternatively the respondent submits that the words describing the donee are equally apt to describe either the Orphanage or the Reverend Father Bruck and that extrinsic evidence of the intention of the testatrix was admissible and shows that such intention was to make the Orphanage the donee.

In the further alternative the respondent contends that if the words are held to describe the Reverend Father Bruck as donee then, on the proper construction of the will, read in the light of the surrounding circumstances, he takes as director, or as the member of the O.M.I. in charge, of the Orphanage and as trustee for it.

It is, I think, clear that the Court, unless it may take judicial notice of the meaning of the letters "o.m.i.", is entitled to be informed by evidence of their proper meaning.

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The affidavit of the Reverend Charles Charron makes it clear that these letters following the name of the Reverend William Brack indicate that he was a member of an Order of priests in the Roman Catholic Church known as "Oblates of Mary Immaculate" and that as such member he had taken perpetual vows of obedience, chastity and poverty.

Our first task is to interpret the words, in which the testatrix has expressed herself, in their grammatical and ordinary sense. I cannot bring myself to doubt that, so interpreted, the words "unto Reverend William Brack o.m.i. St. Patrick's Orphanage of the City of Prince Albert in the Province of Saskatchewan" mean that the gift of the testatrix' estate is to the individual whose name is Reverend William Bruck and who is further described by the initials and words which follow his name, the letters "o.m.i." denoting the Order to which he belonged and the words "St. Patrick's Orphanage" the place where he lived, the institution of which he was director and in which he carried on his life work. The words do not appear to me to be susceptible of the interpretation that the estate is given "unto St. Patrick's Orphanage" and that the preceding words "Reverend William Bruck o.m.i." are simply descripive of the Orphanage. It would, I think, involve a violent and unnatural construction to regard the words "Reverend William Bruck" or "Reverend William Bruck o.m.i." as an adjectival phrase descriptive of St. Patrick's Orphanage, and I do not think the testatrix so employed them. This view is, in my opinion, somewhat strengthened by the use of the words "the said" in the sentence which follows "—and I appoint the said Reverend William Bruck sole executor of this my will".—The testatrix first gives her estate to Reverend William Bruck and then appoints "the said Reverend William Bruck" her executor. I have concluded that the words of the will mean that the donee of the estate is the Reverend William Bruck and not the Orphanage.

It is next necessary to consider the argument of the respondent that if it should be held that the gift is to the Reverend William Bruck it is made to him not beneficially but virtute officii impressed with a trust for the benefit of the Orphanage.

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In none of the cases to which counsel referred was a gift to a named individual held to be other than a beneficial gift merely because such individual was described as the holder of an office.

In re Delany, Conoley v. Quick 5, Farwell J. quotes with approval from the judgment of Kindersley V.C. in Thornber v. Wilson 6. (A ease in which there was a devise—subject to a term of seven years—of real estate on trust to sell and pay the net residue of the proceeds of the sale "to the then Minister of the Roman Catholic chapel at Kendal") as follows:

The question whether there is a charitable gift does not depend on the fact that there is a gift to an individual describing him as minister; but on this, whether the testator designates the individual as such, or as being the person who happens to fill the office. A gift to a minister as such, is a charitable bequest. I think here the intention was clearly to benefit the minister and chapel; it was not a personal bequest, with a description of the person to be benefited. A gift to the person now minister would have been different; the testator might be unacquainted with his name, and so only be capable of describing him by his office. And here the surplus is only to be realized at the end of seven years after the testator's death, which makes it stronger to shew that the testator meant to benefit the chapel, not the particular person.

Farwell J. continues "The mere description of the legatee as the holder of an office is not, of course, sufficient to raise any such inference." (i.e. an inference that it was not a personal bequest.)

The sentence last quoted was not strictly necessary to the decision of the case with which Farwell J. was dealing but, after such search as I have been able to make, I have not found any reported case which appears to be at variance with it, and in my respectful opinion it correctly states the law.

In Halsbury's Laws of England, Vol. 34, page 320, section 370, the matter is put as follows:

The mere descripion of a donee as the holder of an office is not of itself sufficient to raise the inference that the gift is for the benefit of the office and not of the holder personally, unless the context and circumstances show that the holder for the time being was intended. A gift, however, to a person either described as, or known to the testator as, the holder of an office, "or his successors," or a gift to the holder of an office for the time being, is for the benefit of the office or of the association or body in which the office is held.

[Page 695]

This appears to me to be an accurate statement of the law, supported by the authorities cited and by the reasoning of Jenkins J. in Re Flinn, Public Trustee v. Griffin, 7 where a number of cases are collected and analysed.

It is argued for the respondent that, even if the statement of the law quoted above from Halsbury be accepted, in the case at bar the context and circumstances should lead the court to decide that the intention of the testatrix was that the Reverend Father Bruck should take not beneficially but as director of and trustee for the Orphanage; and that extrinsic evidence of these circumstances was properly admitted. Reliance is placed on placitum 96 in Sir James Wigram's treatise on Extrinsic Evidence in Aid of the Interpretation of Wills, 5th Edition, page 83, reading as follows:

Every claimant under a will has a right to require that a Court of construction, in the execution of its office, shall—by means of extrinsic evidence—place itself in the situation of the testator, the meaning of whose language it is called upon to declare.

Accepting this, it appears to me that the following facts set out in the affidavit of the Reverend Charles Charron were properly admitted in evidence.

(i) That Reverend Father William Bruck was director of St. Patrick's Orphanage from the year 1906 until his death in 1947.

(ii) That he was a member of the Order known as the "Oblates of Mary Immaculate" and had made a perpetual vow of poverty and that the fact that he had made such vow was known to the testatrix.

(iii) That the Orphanage had no Board of Directors and that Reverend Father Bruck was in full charge of its administration and devoted all his time, energy and attention to the furtherance of its objects.

(iv) That the testatrix was a Roman Catholic, had come to Prince Albert in 1929 and in her lifetime had made contributions and paid money to Reverend Father Bruck for the benefit of the Orphanage.

(v) That she was a spinster and apparently had not kept in close touch with her brothers, the appellants.

(vi) That she was admitted to the Saskatchewan Hospital on November 7, 1947, having become mentally senile and unable to attend to herself and her affairs.

With such added light as this information affords I am unable to construe the words of the will as making the Reverend Father Bruck a trustee for the Orphanage. Even if the words are read, as counsel for the respondent contends they should be, "unto Reverend William Bruck,

[Page 696]

member of the Oblates of Mary Immaculate in charge of St. Patrick's Orphanage" they still appear to me to be words of gift to the Reverend Father who is further described as the holder of an office. To indicate that he was to take as trustee it would have been necessary for the testatrix to add some such words as "or his successor" or "or the member of the Oblates of Mary Immaculate for the time being in charge of St. Patrick's Orphanage."

I have found no case which decides, and I do not think that it should be held, that the fact that a beneficiary is described in a will as a member of an order, vowed to poverty, is of itself sufficient to prevent his taking beneficially.

In In Re Barclay 8, a testatrix by her will dated September 7, 1903, gave the residue of all her property, after the death of G., to whom she had given a life interest, in the following terms: "To the Superior of the Jesuit Church of the Immaculate Conception, Farm Street, London, to the Superior of that Church at the moment of the legacy falling due, and failing him to any other representative Father of the Order of the Society of Jesus * * *" The testatrix died in 1910, and G. died in 1928. The Superior of the Church of the Immaculate Conception, Farm Street, London, was not the same person at the death of the testatrix as at the death of G. Tomlin J. held that this was a valid gift to the Superior at the death of G. absolutely. At page 182, Tomlin J. says:

In my opinion the gift to a person described as the Superior does not per se make him a trustee, even though he may not be personally known to the testatrix, nor do I think he can be fixed with a trust, because by vow or otherwise, he is under some obligation of conscience carrying no legal sanction to deal with what he receives in a particular way.

The Court of Appeal varied the order of Tomlin J. holding that the Superior took the gift "upon trust to apply the same for the benefit of the Church of the Immaculate Conception, Farm Street, London, as he may in his discretion think fit"; but I can find nothing in the judgments delivered in the Court of Appeal at variance with the statement of Tomlin J. that a person cannot be fixed with a trust, because by vow or otherwise, he is under some obligation of conscience carrying no legal sanction to deal with

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what he receives in a particular way. The Court of Appeal proceeded on the grounds (i) that the gift was not to a named individual but to a person who might and in all probability would be quite unknown to the testatrix, a person designated by his office, and that office one held in connection with the Farm Street church, (ii) that there was an alternative gift, should the office of Superior be vacant, to "any other representative Father of the Order of the Society," (iii) that the will directed that in certain events two legacies should be paid by the Society of Jesus, (iv) that the testatrix in her will explained the reason of the gift —namely, gratitude to the Society of Jesus for her receipt of the grace of the true faith.

I have not overlooked the use of the word "absolutely". It can not assist the contention of the respondent but is not, of itself, necessarily decisive against the view that the gift was in trust. Had the will contained words sufficient to indicate that the testatrix intended the Reverend Father Bruck to take qua trustee, it might then have appeared that the word "absolutely" was inserted by the testatrix for some such reason as that suggesed by Clauson J. in Ray's Witt Trusts 9 where the learned judge held that the use of the word "absolutely" following a gift to an abbess for the purposes, as he held, of the convent over which she presided, was merely to show that she was to be free from any fetter or trust which would bind her to keep the fund intact as an endowment for the purposes of the community and that the legacy was to go into the funds of the society and to be used without fetter for any purpose for which the funds of the society could be used.

In my opinion those portions of the affidavit of the Reverend Charles Charron which state that the testatrix had in her lifetime told him that it was her intention to leave all her estate to and for the benefit of St. Patrick's Orphanage and that she had made out her will in favour of St. Patrick's Orphanage were inadmissible.

It is, I think, sufficient to refer to the statement of Lord Cairns in Charter v. Charter 10.

* * * My Lords, upon one part of the case I have never entertained any doubt. I hold it to be clear, as I think all your Lordships do, that this is not a case in which any parol evidence of statements of the testator,

[Page 698]

as to whom he intended to benefit, or supposed he had benefited, by his will, can be received * * * I am of opinion that it ought to have been excluded. The only case in which evidence of this kind can be received is where the description of the legatee, or of the thing bequeathed, is equally applicable in all its parts to two persons, or to two things. That clearly cannot be said of the present case.

I have already expressed my opinion that the words of this will are apt to describe the Reverend William Bruck as donee of the estate and are not apt to so describe the respondent. I do not read the reasons of the learned Chief Justice of the King's Bench or those of the Court of Appeal as indicating that they regarded such evidence of intention as admissible.

There is, I think, no doubt that if the Reverend Father Bruck had survived the testatrix he would have used all of her estate either for the Orphanage or for other equally worthy objects and would have retained nothing whatever for himself; but, in my opinion, no obligation to so deal with the estate was imposed upon him by the words which the testatrix has used in her will.

For the above reasons I have reached the conclusion that, on a true construction of this will, the Reverend William Bruck, had he survived the testatrix, would have been beneficially entitled to the whole of her estate. It follows from this that as he predeceased her the gift to him lapses.

The appeal should be allowed accordingly and judgment should be entered declaring that the administrator with the will annexed holds the estate of the late Nellie A. Lucey in trust for those persons who, under the laws of Saskatchewan, would have been entitled thereto had she died intestate. The orders as to costs made by the Chief Justice of the King's Bench and by the Court of Appeal should stand and the costs of all parties of the appeal to this court should be paid out of the estate, those of the administrator with the will annexed on a solicitor and client basis.

Appeal allowed.

Solicitors for the appellants: Moxon, Schmitt & Estey.

Solicitors for the respondent, The Catholic Orphanage of Prince Albert: Diefenbaker, Cuelenaere & Hall.