Supreme Court of Canada
White et al. v. Barton, [1941] S.C.R. 426
Date: 1941-06-24
In the Matter of the Estate of Willerton Barton, Deceased
Mildred White and Louisa Chard (Plaintiffs) Appellants;
and
Thomas Barton (Defendant) Respondent.
1941: March 27; 1941: June 24.
Present: Duff C.J. and Davis, Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Will—Construction—Gift to grandson “when he shall attain the age of 25 years,” with provision for advances from income for maintenance, etc., and provision for gift over—Vesting—Right of grandson to intermediate income on attaining said age.
A testator by his will gave to his grandson the sum of $7,000 “when he shall attain the age of 25 years”; and continued: “Provided that my executor * * * may advance to my said grandson such of the income from the said bequest as may be necessary for his maintenance and education prior to his attaining the age of 25 years”; and later in the will provided that in the event of the death of the grandson “before the period of distribution,” then “the share of” the grandson should, if he left no wife or child him surviving, fall into the residue of the estate, and if he left a wife or a wife and child or children him surviving, be divided equally amongst them.
Held: The gift vested in the grandson at the testator’s death (subject to be divested if he died before attaining the age of 25 years), so that on his attaining the age of 25 years he would be entitled to receive, in addition to said sum, the intermediate income therefrom (less sums, if any, paid out for his maintenance and education).
APPEAL by the surviving executrices and residuary legatees of the will of Willerton Barton, deceased, from the judgment of the Court of Appeal for Ontario dismissing their appeal from the judgment of Hogg J. upon a motion by the present respondent, Thomas Barton, a grandson and a legatee named in the will of the said deceased, for the opinion and advice of the court in respect to certain matters arising under the will and for an order declaring its construction.
By the will the testator gave to the said Thomas Barton the sum of $7,000 “when he shall attain the age of 25 years,” with provisions for advances for maintenance and education and for gift over. The clauses in question of
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the will are set out in the reasons for judgment in this Court, now reported. The questions asked on the motion were:
(i) Who is entitled to the income from the said sum of $7,000?
(ii) Should the executors have set aside and invested the said sum of $7,000 out of the assets of the estate of the said deceased in securities authorized by law for trust funds for the benefit of the said Thomas Barton?
(iii) If the said Thomas Barton is entitled to the said income, to what rate of interest is he entitled in the event of it being shown that the executors have failed to establish a satisfactory trust fund and from what date should said interest commence to run?
The order of Hogg J., affirmed by the Court of Appeal, declared:
that the said Thomas Barton is entitled to receive on his attaining the age of twenty-five years interest upon the bequest to him in the said will contained of $7,000 to be computed at the legal rate of interest and commencing from the date of the death of the testator, the said Willerton Barton, deceased, less such sums, if any, as shall have been paid out in the meantime by the executrices for his maintenance and education.
C.L. Fraser for the appellant.
N.N. Wardlaw for the respondent.
The judgment of the Chief Justice and Davis and Taschereau JJ. was delivered by
DAVIS J.—Willerton Barton, late of the Township of York, in the County of York, gardener, deceased, died on September 30th, 1930. His grandson, Thomas Barton, had been born on June 13th, 1919. By his last will, made April 20th, 1928, Willerton Barton made a bequest to his grandson, Thomas Barton, in the following words:
I give and bequeath to my grandson, Thomas Barton, the sum of Seven thousand dollars, when he shall attain the age of twenty-five years; Provided that my Executor, Executrices and Trustees may advance to my said grandson such of the income from the said bequest as may be necessary for his maintenance and education prior to his attaining the age of twenty-five years.
Later in the will occur these provisions:
Provided that in the event of the death of my said grandson leaving no wife or child or children him surviving, before the period of distribution, then the share of my said grandson shall fall into the residue of my estate.
Provided that in the event of the death of my said grandson before the period of distribution, leaving a wife or a wife and child or children him surviving, then the share of such grandson so dying shall be divided equally amongst the said wife and child or children, if any.
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The grandson, Thomas Barton, is living but will not attain the age of 25 years until June, 1944. The question raised on an application for the construction of the will is whether the gift to him vested on the date of the testator’s death, which would involve the accretion of income, or whether the gift is merely a contingent gift, in which case the grandson on attaining 25 years would not be entitled to the intermediate income. I think upon the language of the will itself it is plain that the testator intended the income to go with the legacy. The words providing for maintenance and education out of “such of the income from the said bequest as may be necessary” prior to the grandson attaining the age of 25 years are not to be construed as a separate and distinct gift of maintenance, having no effect on the question of vesting. See the judgment of Sir George Jessel, M.R., in Fox v. Fox.
The reasons for the judgment of the Court of Appeal which were written by Mr. Justice Riddell, are quite sufficient in themselves, if I may say so with great respect, to justify the dismissal of this appeal from that judgment. But it may be added that, as a matter of construction, the gift over in the event of the grandson not attaining 25 years of age may in itself indicate an early vesting in view of the judgment of Mr. Justice Farwell in In re Heath; see 55 Law Notes (1936), p. 89.
KERWIN J.—The will of the testator, Willerton Barton, contained the following clauses:—
I give and bequeath to my grandson, Thomas Barton, the sum of Seven thousand dollars, when he shall attain the age of twenty-five years; Provided that My Executor, Executrices and Trustees may advance to my said grandson such of the income from the said bequest as may be necessary for his maintenance and education prior to his attaining the age of twenty-five years.
* * *
Provided that in the event of the death of my said grandson leaving no wife or child or children him surviving, before the period of distribution, then the share of my said grandson shall fall into the residue of my estate.
Provided that in the event of the death of my said grandson before the period of distribution, leaving a wife or a wife and child or children him surviving, then the share of such grandson so dying shall be divided equally amongst the said wife and child or children, if any.
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His wife had the use of the residue of the estate, real and personal, for her own use during her life. The question is whether the legacy of $7,000 vested in the grandson at the death of the testator, subject to being divested if he should die before attaining the age of twenty-five, i.e., going to his wife and child or children, or, failing them, falling into the residue of the estate. If this related to real estate, the question is settled by authority, Phipps v. Ackers, and the reason for the rule is stated to be that if there is a gift over upon death under the stated age, the gift over shows that the first devisee is to take whatever interest the person claiming under the devise over is not entitled to, that is to say, the immediate interest. Halsbury, 2nd edition, vol. 34, p. 381.
In Bickersteth v. Shanu, the Judicial Committee saw no reason to doubt
that the established rule for the guidance of the court in construing devises of real estate is that they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness.
The same rule, I think, is a proper one to be applied in construing bequests of personal estate.
The rule in Phipps v. Ackers5 was held applicable to gifts of both realty and personalty, Whitter v. Bremridge, and I agree with Farwell J. in In re Heath, that the rule applies to personalty.
The order of the Court of first instance, affirmed by the Court of Appeal, declared:—
that the said Thomas Barton is entitled to receive on his attaining the age of twenty-five years interest upon the bequest to him in the said Will contained of $7,000 to be computed at the legal rate of interest and commencing from the date of the death of the testator, the said Willerton Barton, deceased, less such sums, if any, as shall have been paid out in the meantime by the executrices for his maintenance and education.
I am satisfied that this is the correct order, and the appeal should be dismissed with costs.
HUDSON J.—I agree with the decision of the Court of Appeal. The language of the will itself makes it clear that it was the testator’s intention that his grandson should take a vested interest in the bequest to him and should have the income as well as the principal on his attaining the age of twenty-five years.
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There is severance of the legacy from the rest of the estate, there is a reference in the succeeding three paragraphs to “all the residue of my estate,” and there is provision that the executors may advance the grandson such of the income “from the said bequest” as may be necessary for his maintenance and education prior to his attaining the age of twenty-five years.
The authorities support this construction: see Halsbury’s Laws of England, 2nd edition, vol. 34, page 380; Phipps v. Ackers; and In re Heath.
The appeal should be dismissed.
Appeal dismissed with costs.
Solicitor for the appellants: C. Lorne Fraser.
Solicitor for the respondent: Norman N. Wardlaw.
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