Tottrup v. Patterson et al., [1970] SCR 318

Supreme Court of Canada

Tottrup v. Patterson et al., [1970] S.C.R. 318

Date: 1969-12-17

Lois Tottrup Appellant;

and

Guy Patterson and Bruce D. Patterson, Executors of the Estate of Frank Clinton Ottewell, deceased, and William J. Ottewell, Ella Hamilton, Arthur Ottewell, Jennie Smith, George Ottewell, Sylvia Carruthers, Alberta Ottewell, Linda Milligan, John Devereux Respondents.

1969: November 4; 1969: December 17.

Present: Cartwright C.J. and Martland, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Wills—Gift to X and his heirs—Mixed realty and personalty—Whether words of limitation or substitution.

In their respective wills, Frank Clinton Ottewell and his brother, Fred S. Ottewell, named each other as residuary legatee. The will of Frank was in the same words mutatis mutandis as the will of Fred. Fred predeceased Frank by some two and one-half years and his estate, consisting entirely of personalty, went to his brother. The testator Frank died leaving an estate of mixed personalty and realty.

The appellant was the only daughter and sole next-of-kin of Fred. The respondents (together with the appellant) were Frank’s next-of-kin entitled to take on an intestacy. In claiming the whole of the residue of Frank’s estate, the appellant contended that the concluding words of the residuary clause—“to hold unto him, his heirs, executors and administrators absolutely and forever” were words of substitution not of limitation. The Chambers judge and the majority in the Appellate Division held that the said words were words of limitation, and, accordingly, denied the appellant’s claim.

Held: The appeal should be dismissed.

The words of the will in question had long been held to be words of limitation not of substitution. Their insertion was no longer necessary to confer an absolute interest in realty and they were inapt in a

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bequest of personalty; but this circumstance did not alter their character or effect. The rule that a limitation of personal estate to one and his heirs operates to vest in the person named an absolute interest was equally applicable where the property given consists of mixed realty and personalty.

The meaning of the will was clear; it contained no patent ambiguity; if the facts surrounding its execution were considered they did not disclose any latent ambiguity and they were consequently irrelevant.

In re McElligott; Grant v. McElligott, [1944] Ch. 216 at 219, applied.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing an appeal from a judgment of Milvain C.J. Appeal dismissed.

A.G. Macdonald, Q.C., for the appellant.

P.M. Owen, Q.C., and G.D. Lavallée, Q.C., for the respondents.

B.D. Patterson, for the executors.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta¹, delivered on July 23, 1969, dismissing an appeal from a judgment of Milvain C.J. pronounced on November 27, 1968; Porter J.A., dissenting, would have allowed the appeal.

The application before Milvain C.J. was to construe the will of the late Frank Clinton Ottewell, who died on December 30, 1967, leaving an estate consisting of realty valued at $158,000 and personalty valued at $194,661.14, and to determine the beneficiaries entitled to take the residue of the estate.

The will is a simple one; it reads as follows:

THIS IS THE LAST WILL AND TESTAMENT of me, FRANK CLINTON OTTEWELL, of Clover Bar, in the Province of Alberta.

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I HEREBY REVOKE all Wills and testamentary dispositions of every nature or kind whatsoever by me heretofore made.

I NOMINATE, CONSTITUTE AND APPOINT Guy Patterson and Bruce D. Patterson, or the survivor, to be the Executors and Trustees of this my Will and I hereinafter refer to them as my Trustees.

To the Clover Bar United Church I leave the proceeds of my insurance policy which I hold with the Mutual Life in the sum of Two Thousand Dollars ($2,000.00). The said proceeds shall be used by the said Clover Bar United Church as they shall see fit.

I GIVE, DEVISE AND BEQUEATH unto my brother, Fred S. Ottewell, the balance and residue of all my estate, both real and personal, whatsoever and wheresoever found or situate, to hold unto him, his heirs, executors and administrators absolutely and forever.

IN WITNESS WHEREOF I, the said FRANK CLINTON OTTEWELL, the Testator, have to this my last Will and Testament set my hand this 19th day of June, A.D. 1957.

There follows an attestation clause in the usual form, one of the witnesses being Bruce D. Patterson.

The question raised is as to the true meaning and effect of the residuary clause, Fred S. Ottewell having died on June 15, 1965, and so predeceased the testator. The appellant who is the only daughter and sole next-of-kin of Fred S. Ottewell claims the whole of the residue. The respondents claim that the residue should be divided amongst the next-of-kin of the testator and if this contention is upheld the appellant will be entitled to a one-eighth share of the residue.

Certain admitted facts, in addition to those mentioned above, were stated in the Courts below and before us and I will set these out without pausing to discuss their relevance.

Frank C Ottewell and his twin brother Fred S. Ottewell lived and farmed in the Clover Bar district of the province of Alberta. They lived together for some years before the death of Fred. The testator Frank C Ottewell was a bachelor and his brother Fred S. Ottewell was divorced. Fred S. Ottewell made his will on May 5, 1957, and Frank C Ottewell made his will on June 19, 1957. The will of Frank C Ottewell was in the

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same words mutatis mutandis as the will of Fred S. Ottewell; each left the other his entire estate save for the bequest to the Clover Bar United Church in the will of Frank C. Ottewell. The wills were both drawn by the same solicitors in the city of Edmonton and the signature of the solicitor Bruce D. Patterson appears as witness on both wills. At the time they made their wills the twin brothers were 52 years of age and the appellant was 30 years of age. In addition to the appellant Frank C. Ottewell had the following next-of-kin entitled to take on an intestacy in 1957:

—a brother 75 years of age

—a sister 74 years of age

—a brother 71 years of age

—a sister 78 years of age

—a brother 70 years of age

—three daughters of a brother who had died in 1950, aged 21, 18 and 14 years

—a sister who died in 1961 leaving a son who was 41 years of age in 1957.

Fred S. Ottewell, died on June 15, 1965; his estate consisted of personalty having a net value of $125,862.98, which went to his brother Frank C. Ottewell.

The contention of the appellant is that the words with which the residuary clause concludes—“to hold unto him, his heirs, executors and administrators absolutely and forever” are words of substitution not of limitation. I can find no support for this submission in the numerous cases which were referred to in argument or in the text-writers. No assistance is derived from decisions such as In re Marshall Estate[2] dealing with wills in which the wording in a devise or bequest is “to X or his heirs”. The words of the will with which we are concerned have long been held to be words of limitation not of substitution. It is quite true that their insertion is no longer necessary to confer an absolute interest in realty and that, as Vaisey J. pointed out in In re McElligott; Grant v. McElligott[3], they are inapt in a bequest of personalty; but this circumstance does not alter their character or effect. I am in agreement with the passage from the reasons of

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Vaisey J. in the last-mentioned case which was adopted by Johnson J.A.:

…there can, I think, be no room for doubting that a limitation of personal estate to one and his heirs operates to vest in the person named an absolute interest, the words being for that purpose adequate, although inapt.

and I agree with Johnson J.A. that the rule is equally applicable where the property given consists of mixed realty and personalty.

In my opinion the duty of a court of construction is accurately stated in Theobald on Wills, 12th ed., s. 417, p. 127, as follows:

What has to be done is first to construe the will. The meaning placed upon the language used as the result of this process cannot be altered by reference to the surrounding circumstances when the will was executed. The procedure is not—first ascertain the surrounding circumstances and with that knowledge approach the construction of the will, but first construe the will; if the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt upon that meaning, or to give the will a different meaning.

In my view, the meaning of the will is clear; it contains no patent ambiguity; if the facts surrounding its execution recited above are considered they do not disclose any latent ambiguity and they are consequently irrelevant. The will has been correctly construed by Milvain C.J. and by the majority in the Appellate Division.

I am in general agreement with the reasons given by Milvain C.J. and by Johnson J.A. for holding that the words quoted from the residuary clause are words of limitation.

I would dismiss the appeal. All counsel who appeared before us, in answer to a question from the Court, submitted that, whatever the result of the appeal, in view of there being a difference of opinion in the Appellate Division, the costs of

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all parties represented before us should be paid out of the estate and, not without some hesitation, I would so order.

Appeal dismissed.

Solicitors for the appellant: Macdonald, Spitz & Lavallée, Edmonton.

Solicitors for the respondents, Ella Hamilton, George Ottewell, John Devereux and Jennie Smith: Field, Hyndman, Field, Owen, Blakey & Bodner, Edmonton.

Solicitors for the respondents, William J. Ottewell, Arthur Ottewell, Sylvia Carruthers, Alberta Ottewell and Linda Milligan: Lavallée, Feehan & Remesz, Edmonton.