Supreme Court of Canada
Jones v. T. Eaton Co. Ltd., [1973] S.C.R. 635
Date: 1973-02-28
Alfred E. Jones, Charles M. Jones, Barry Jones, Audrey Traviss, Charles Augustus Jones and Frank L. Jones (Plaintiff) Appellants;
and
The Executive Officers of the T. Eaton Company Limited, National Trust Company Limited, Executor of the Estate of Francis Bethel, deceased, The Queen Elizabeth Hospital, Toronto, Harley J. Marshall, Irvine Marshall, Lorna Johnston, Ethel Grose, Alvin Marshall, Mabel Weir, Newton Marshall, Eileen Mildred Smith, Barbara Anderson, Thomas Marshall, Alameda Haxton and Bertha Pooke (Defendant) Respondents.
1972: October 10, 11; 1973: February 28.
Present: Martland, Judson, Ritchie, Spence and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Wills—Trust fund for benefit of any needy or deserving Toronto members of Eaton Quarter Century Club—Whether valid charitable bequest.
The testator’s will, executed on August 2, 1934, contained a clause which read, in part, as follows: “On the death of my wife or should she predecease me on my death, to pay the following legacies as soon as conveniently possible out of the residue of my estate: To the Executive Officers of The T. Eaton Company Limited, Toronto, to be used by them as a trust fund for any needy or deserving Toronto members of the Eaton Quarter Century Club as the said Executive Officers in their absolute discretion may decide, the sum of Fifty thousand dollars.”
The testator died on May 10, 1936, and after the death of his widow, which took place on April 20, 1965, an application for interpretation was made. The judge of first instance determined that the bequest in question was not a valid charitable bequest. The majority of the Court of Appeal, however, were of the opposite opinion.
Held: The appeal should be dismissed.
If the word “needy” alone had been used by the testator, it was quite plain that the bequest would have been a valid charitable bequest for the relief of poverty. The submission that the words “or deserv-
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ing” were so broad and indefinite that they deprived the bequest of its charitable characteristic was not accepted. This particular testator making this will at the time and under the circumstances that he did make it was expressing a charitable intent when he used the word “deserving”. As used by the testator, the word meant a person who although not actually poverty stricken was nevertheless in a state of financial depression, perhaps due to a sudden emergency.
The fact that the possible beneficiaries did not include every member of the public but only the Toronto members of the Timothy Eaton Quarter Century Club did not invalidate the charitable trust. The words “Toronto members” were interpreted as meaning those members who were employed by the company in Toronto at the time when they became members. The determination of who were “needy or deserving” Toronto members was in the absolute discretion of the executive officers of the company and, of course, the determination might only be exercised within the limitation set by the testator.
Re Cox, [1955] A.C. 627, distinguished; Re Scaris-brick, Cockshott v. Public Trustee, [1951] Ch. 622; Chichester Diocesan Fund and Board of Finance (Incorporated) v. Simpson, [1944] A.C. 341; Re Sutton, Stone v. Attorney-General (1885), 28 Ch. D. 464; Re Wall, Pomeroy v. Willway (1889), 42 Ch. D. 510; Gibson v. South American Stores (Gath & Chaves) Ltd., [1950] Ch. 177; Bruce v. Presbytery of Deer (1867), L.R. 1 Sc. & Div. 96; Re Clark, [1901] 2 Ch. 110; Re Coulthurst, [1951] Ch. 661; Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 531; Re Massey, [1959] O.R. 608; Dingle v. Turner, [1972] 1 All E.R. 878; McPhail v. Doulton, [1971] A.C. 424, referred to.
APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Grant J. Appeal dismissed.
G.T. Walsh, Q.C., and T.W.G. Pratt, for the appellants.
R.J. Rolls, Q.C., for the respondents, Harley J. Marshall et al.
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J.M. Roland and T.J. Lockwood, for the respondents, the Executive Officers of T. Eaton Company, Limited.
A. McN. Austin, for the respondent, National Trust Company Limited.
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the majority judgment of the Court of Appeal for Ontario pronounced on March 8, 1971, whereby that Court allowed an appeal from the order of the Honourable Mr. Justice Grant pronounced on September 9, 1970.
The late Francis Bethel executed his last will and testament on August 2, 1934, and died on May 10, 1936. The issue before both the learned judge of first instance and the Court of Appeal for Ontario was the interpretation of cl. III (j) of the last will and testament of the late Francis Bethel which reads as follows:
(j) On the death of my wife or should she predecease me on my death, to pay the following legacies as soon as conveniently possible out of the residue of my estate:
To the Executive Officers of The T. Eaton Company Limited, Toronto, to be used by them as a trust fund for any needy or deserving Toronto members of the Eaton Quarter Century Club as the said Executive Officers in their absolute discretion may decide, the sum of Fifty thousand dollars.
To the Sick Children’s Hospital, 67 College Street, Toronto, or to any institution organized in succession to it, the sum of Fifteen Thousand dollars.
To the Hospital for Incurables, 130 Dunn Avenue, Toronto, or to any institution organized in succession to it, the sum of Five thousand dollars.
To the Benevolent Fund of Zetland Masonic Lodge, A.F. and A.M., Toronto the sum of Five thousand dollars.
I note that the clause does not go into effect until the death of the late Francis Bethel’s widow and that her death did not take place until April 20, 1965. Therefore, no application for interpretation was made until after that date. The application for interpretation submitted the following questions to the Court:
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1. Is the bequest “to the executive officers of the T. Eaton Company Limited, Toronto, to be used by them as a trust fund for any needy or deserving Toronto members of the Eaton Quarter Century Club as the said executive directors in their absolute discretion may decide” a valid charitable bequest?
2. If the answer to the question 1 is “no”, is the bequest a valid non-charitable bequest?
3. If either of questions 1 or 2 is answered in the affirmative, what is meant by “Toronto members” of the Eaton Quarter Century Club?
4. If either of questions 1 or 2 is answered in the affirmative, is the determination as to who are “needy or deserving” Toronto members of the Eaton Quarter Century Club in the absolute discretion of the executive officers of The T. Eaton Company Limited?
5. If the answer to question 4 is “no”, how are the “needy or deserving” Toronto members of the Eaton Quarter Century Club to be determined?
6. If the answer to both question 1 and question 2 is “no”, how is the bequest to be disposed of?
7. If the bequest is to go as on an intestacy as of what date are the next kin to be determined?
Upon the agreement of the parties, Q. 7 was withdrawn prior to the presentation of the application to the Court of first instance. For reasons which I shall outline hereafter, I deem it necessary to answer only Qs. 1, 3 and 4 and I turn immediately to Q. 1 which, shortly stated, is whether the bequest “to the executive officers of the T. Eaton Company Limited, Toronto, to be used by them as a trust fund for any needy or deserving Toronto members of the Eaton Quarter Century Club as the said executive officers in their absolute discretion may decide” is a valid charitable bequest.
Grant J., the learned judge of first instance, determined that the bequest was not charitable
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by the interpretation of the words thereof and Gale C.J.O., giving dissenting reasons in the Court of Appeal for Ontario, came to the same conclusion. The majority of the Court, however, were of the opinion that the words did constitute a charitable bequest.
Firstly, it should be noted that the trust, if any trust is created, is a purpose trust. The executive officers of the T. Eaton Company Limited, Toronto, certainly did not constitute a charitable institution but these officers are to take the funds only upon trust and the problem is to determine whether the purpose of the trust is charitable. The trust is “for any needy or deserving Toronto members of the Eaton Quarter Century Club”. The Eaton Quarter Century Club or, as it is more properly known, the Timothy Eaton Quarter Century Club, was founded in 1919 and there was filed as material upon the application an elaborate constitution of that club including a set of by-laws dealing with club matters in a most particular fashion. Perhaps the only relevant article of that constitution, in view of the present situation, is art. 2, ss. 1 and 2, which provide:
Article 2.
SECTION 1. Any employee having completed twenty-one years’ continuous service with the T. Eaton Co. Limited shall be eligible for membership.
SECTION 2. Any employee, a member of the Club, having completed twenty-five years’ continuous service, shall receive a certificate of membership.
The club carried on independently until 1923 when the T. Eaton Company Limited took an official part in its affairs by presenting gold watches to any new member. In 1924, the president and officers of the club subscribed sums of money to the club and thereafter no fees of any kind have been charged to the members of the club. The club carried on as a general social club until 1930 but by that time so many persons had been employees of the T. Eaton Com-
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pany Limited for twenty-five years that the membership became too unwieldy to operate as a social club and from that date until this, it would appear that the main and sole function of the T. Eaton Quarter Century Club was the presentation of certificates and watches or like tokens to each employee upon reaching twenty-five years of service with the company.
There were also filed upon the application extracts from the T. Eaton Company personnel policy manual dealing with the Timothy Eaton Quarter Century Club.
The by-laws of the club had provided in one paragraph of s. 4 that one of the duties of the membership committee was “to report any case of sickness, death or distress among the Club members to the Secretary and in a general way to look after the welfare of the members”, and in the extract from the personnel policy manual of the T. Eaton Company Limited para. 7 reads as follows:
MISCELLANEOUS
Comforts are provided and necessary welfare arrangements are made by the Company in case of the illness of any member of the Quarter Century Club.
Mr. Robert V.A. Jones, the secretary of the T. Eaton Company Limited, in his affidavit producing the material to which I have referred, deposed in para. 4:
4. Initially the activities of the Club were of a social nature, the most important being the annual banquet. By 1930 the Club had such a large membership that social events were discontinued and the main Club activities since that date have consisted of the presentation of gifts and certificates by the Company on enrolment in the Club and welfare arrangements by the Company in the case of the illness of Club members.
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Membership in the rather vaguely defined Timothy Eaton Quarter Century Club has, according to Mr. Jones, now reached approximately 7,000 persons who are still living who served the T. Eaton Company for twenty-five years and who were still with the T. Eaton Company Limited at the time of their retirement. There must be, in addition, a very considerable number of persons who were members having served the T. Eaton Company Limited for the required twenty-five years but who left the employment of the company for one reason or another prior to retirement. Of that 7,000, approximately 3,500 were, at the time of Mr. Jones giving his affidavit, i.e., October 7, 1969, still employed by the company.
The clause in question provides that the funds are to be used for any “needy or deserving Toronto members of the Eaton Quarter Century Club”. If the word “needy” alone had been used by the testator then authority would seem to have made it quite plain that the bequest would have been a valid charitable bequest for the relief of poverty: see Re Scarisbrick, Cockshott v. Public Trustee. But it is said that the words “or deserving” are so broad and indefinite that they deprive the bequest of its charitable characteristic.
It would seem plain that in order to qualify as a charitable trust each of the purposes or objects to which the trust funds may be applied must fall within that charitable characteristic. In Chichester Diocesan Fund and Board of Finance (Incorporated) v. Simpson and others, Lord MacMillan said at p. 350:
As the law of England stands, it is impossible to sustain this bequest as valid. The testator has empowered his executors to distribute the residue of his estate inter alia among either charitable objects or benevolent objects and has thereby empowered them to devote the whole bequest, if they please, to
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benevolent objects, a class of objects which has over and over again been held by the courts to be too uncertain.
The respondent executive officers seek to support the charitable end of this bequest by two arguments; firstly, it is submitted that the word “or” is not always a disjunctive word but may on occasion be conjunctive so that both the word “needy” and the word “deserving” may, joined by a conjunctive, be considered to be of like meaning, and, secondly, they submit that even if the word “or” were disjunctive then the testator in using the word “deserving” was expressing a charitable intent.
In my opinion, I need not deal with the first argument because I am ready to hold that this particular testator making this will on the date and under the circumstances that he did make it was expressing a charitable intent when he used the word “deserving”. It is true that the word “deserving” was, as Pearson J. said in Re Sutton, Stone v. Attorney-General, at p. 465:
...so vague that I do not know what meaning could be attached to it. Almost any object might be said to be a “deserving” object.
However, it is perfectly proper to interpret the words of a will in the context of that will and when the words are ambiguous it is proper to consider the factual situation in which the testator wrote those words. A persuasive example of the use of context was the decision Re Wall, Pomeroy v. Willway. There, the Court was considering a clause which read:
“This will make the sum to be put in consols £2500. Now I desire the interest of this £2500 absolutely and for ever to be divided into annuities of ten pounds each, and to be paid half-yearly to an equal number of men and women not under fifty years of age, Unitarians, and who attend Lewin’s Mead Unitarian
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Chapel or chapels in Bristol; a tablet to be placed in Lewin’s Mead Chapel to give the information of gift, otherwise how should the deserving know of it.”
Certainly all men and women who attended Lewin’s Mead Unitarian Chapel or the Bristol chapel could not be considered as being poor so as to qualify the trust as charitable but the specification of those only who were not under fifty years of age and the use of the word “deserving” Kay J. held justified him in coming to the conclusion:
...I cannot help thinking that the true construction of these words must be that poor members of the congregation who have passed that age, and are less able to provide for themselves than they would be if they were younger, are intended to be benefited. I hold, therefore, that the gift is charitable, and good so far as the pure personalty of the testator is concerned.
The decision has been criticized as being one depending on the limitation of the gift to the aged but I am of the opinion it must be considered as having a broader application. It was not only those who were over fifty years of age who qualified but they must also be “deserving”.
In re Gibson v. South American Stores (Gath & Chaves) Ltd., the Court of Appeal entered into a most meticulous examination of all the circumstances surrounding the question of determining the meaning of the clause to hold that it was charitable.
In the present case, there is no indication whatsoever in any of the material filed upon the appeal as to the history of the testator. It would have assisted had we known whether the testator had been himself an employee of the T. Eaton Company Limited and a member of the Timothy Eaton Quarter Century Club. However, even if he were not, the testator did exhib-
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it a very considerable appreciation of the personnel of that club. As I have pointed out, they had to have been employees of the T. Eaton Company Limited for twenty-five years so that they were certainly not young people. I note hereafter the statement in the factum of the executive officers of the T. Eaton Company Limited confirming this.
The by-laws of the club as originally constituted provided for some reference to the welfare of the members in the provision which I have cited and when the company took over as it were the operation of the club there is the same reference to the welfare of the members in case of illness. The testator executed his will in 1934 when the economic depression was far from its termination and died in 1936 when there still was very considerable degree of economic depression. Even at that time, the number of employees of the T. Eaton Company Limited who had served the company for twenty-five years must have been very large. It would be inevitable that some of those members, particularly the ones who had retired from service with the company, might well become “needy or deserving”. Even if such members were not so poverty stricken as being properly describable as “needy”, illness of the member himself or of some member of his family, financial misfortune, or family tragedy might well justify in describing his condition as “deserving”.
The testator’s will was very carefully drafted with a most specific series of testamentary trust clauses. He disposed of an estate which was probated at little less than $700,000. He evidently owned three different residential properties and provided that his widow should have one for her life, another, Charles Melvin Jones might occupy during his lifetime and after his death his wife might continue to do so. He described Charles Melvin Jones as being his nephew although in truth the devisee was a nephew of the testator’s wife. As to the third house, he made like provision in favour of a brother-in-law.
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In many cases throughout the will, gifts of income were not to result in the devisee having an income smaller than the stated amount and the testator very carefully directed encroachments on principal to maintain the income benefits at not less than the stated level, and also the manner in which those encroachments were to be treated for estate accounting purposes. As I have said, in short, the whole will was very carefully done. Therefore, I think that a view attributing to the word “deserving”, one of the non-charitable meanings which have been suggested throughout the argument here and below, would fail to do justice under these circumstances to the testator’s very evident ability and intent. It has been well said that a rational meaning should be given to every word in the testator’s will if it is possible and that capricious or whimsical intent should be avoided unless the words require it. Halsbury’s Laws of England, 3rd ed., vol. 39, pp. 973 ff. and 986-7.
In Bruce et al v. The Presbytery of Deer et al., Lord Chelmsford L.C. said at p. 97:
It is quite clear that this was intended as a charitable bequest; and therefore it must be carried out, if the general object of the testator can be ascertained. When it is said that charitable bequests must receive a benignant construction, the meaning is, that when the bequest is capable of two constructions, one which would make it void, and the other which would render it effectual, the latter must be adopted;
It has been suggested that a member of the Timothy Eaton Quarter Century Club may be considered as deserving because of merit, industry, intelligence, imagination, honesty, sobriety
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and even punctuality, or loyalty, but it must be remembered that the testator was not directing a distrubution of the funds of the T. Eaton Company Limited which might well have been interested in the exhibition by its employees of any of those virtues but was directing the disposal of his own estate and I find it hard to believe that he would consider any retired members of the T. Eaton Quarter Century Club to be “deserving” because he had been punctual or loyal. I am of the opinion that the only proper interpretation of the words “or deserving” following the word “needy” and as used by this testator at the time he did use it means a person who although not actually poverty stricken was nevertheless in a state of financial depression, perhaps as I said due to a sudden emergency and that his purpose is sufficient to qualify as a charitable trust: Re Clark; Re Coulthurst, per Evershed M.R. at pp. 665-6.
I have therefore, with respect, come to the conclusion as expressed by Jessup J.A. in his majority reasons for the Court of Appeal for Ontario:
In my opinion, therefore, the intention of the testator, by his use of the word “deserving”, must be taken to benefit not only the necessitous whom he designated by the word “needy” but also those of moderate means who might require financial assistance in the exigencies from time to time arising.
Having come to the conclusion that the provision in the will constitutes a trust for the relief of poverty, I have now to determine whether it is valid in view of the fact that the possible beneficiaries do not include every member of the public but only the Toronto members of the Timothy Eaton Quarter Century Club. As I have pointed out, that limitation is far from confining as according to the evidence of the secretary-treasurer of the Timothy Eaton Company Limited it would include at least 7,000 persons and
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so might be considered to apply to a significant portion of the general public. I need not however rest my view as to the validity of the trust upon that ground for I am of the opinion that when a trust is not only charitable in the sense outlined by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel, but is a trust for one of those four purposes, i.e. for the relief of poverty, then the Courts have not required the element of public benefit in order to declare in favour of the validity of the trust. In Canada the decision of the Judicial Committee in Re Cox has been considered the authoritative delineation of the problem. However, in that particular case the Judicial Committee found that the trust in question was not one limited to the relief of poverty but was one which was within any of the four classes set out by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel, and I am of the opinion therefore that that case is not an authority for requiring public benefit in cases where the trust was limited to the relief of poverty. Such was the opinion which Wells J. (as he then was) arrived at after a very carefully considered judgment in Re Massey, and it would seem to be in accord with the decisions of the Court of Appeal in England in Gibson v. South American Stores (Gath & Chaves) Ltd. The Court of Appeal found as a valid trust for the relief of poverty the creation of a fund to be applied at the discretion of the London Board of Directors for granting gratuities, pensions or allowances to persons “who are or shall be necessitous and deserving and who for the time being are, or have been, in the company’s employ… and the wives, widows, husbands, widowers, children, parents and other dependants of any person who for the time being is or would, if living, have been, himself or herself a member of the class of beneficiaries.” Evershed M.R. said at p. 191:
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There is I think no doubt that the emphasis which has been placed in recent years on the need for that public characteristic had to some degree been lost sight of in earlier cases, and its emphatic affirmation (the last case I have in mind is Gilmour v. Coats, [1949] A.C. 426) in the House of Lords, undoubtedly raises the question whether certain decisions of courts of first instance on trusts in favour of poor persons of various categories are now consistent with the principles which have been stated.
And continued at p. 192:
The question, however, arises (which Mr. Milner Holland invited us to answer negatively): is the same true when the trust is one for the relief of poverty?
And at p. 196:
I think that for practical purposes it is clear, and Mr. Milner Holland has conceded, that the point raised in the present case was inevitably and directly involved also in the Laidlaw case; [1935 unreported] for on the face of it in that case an express trust had been established in perpetuity to provide for poor employees of a particular business concern. In the court of first instance, the decision had apparently been given in favour of the testator’s next of kin or residuary legatees, that the trusts which I have read did not constitute a valid charitable trust. An appeal was brought to this court after the Attorney-General had been added as a party… In this court, however, the Attorney‑General does not appear to have been called upon to argue. As I have already stated, no note exists of the terms of the judgment, but the appeal was allowed and the order was, so far as relevant, that the legacy was “a valid charitable legacy for the benefit of the persons who shall from time to time and for the time being be poor members or poor former members of the staff” of this company.
...I conclude that we are here bound, and that this particular trust which I have already many times mentioned must be treated as a valid charitable trust.
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The same result was reached in Re Coulthurst, supra, where a fund was to be applied by a bank as trustee “to or for the benefit of such... of the... widows and orphan children of deceased officers and deceased ex-officers” of the bank “as the bank shall in its absolute discretion consider by reason of his, her or their financial circumstances to be most deserving of such assistance”. Such fund was held to be a valid charitable trust.
Judgment upon that appeal was again given for the Court of Appeal by Evershed M.R. with Jenkins and Hodson L.JJ. concurring.
Finally, the House of Lords have dealt with this matter in Dingle v. Turner. There the testator had made a dispostion of his estate by the direction to the trustees to invest a sum of money and hold it in the name of certain pension fund trustees upon a trust to apply the income in paying pensions to poor employees of E. Dingle & Company Limited, who were of the age of 60 years at least or being of the age of 45 at least and were incapacitated from earning their living by reason of some physical or mental infirmity. The House of Lords affirming the judgment of Megarry J. held that the trust was a charitable trust. Lord Cross, giving the main opinion, referred inter alia at p. 887 to the decision of the Judicial Committee in Re Cox, supra, and expressed the same view of it that I have expressed heretofore. At p. 888 Lord Cross said:
But the “poor members” and “poor employees” decisions were a natural development of the “poor relations” decisions and to draw distinction between different sorts of “poverty” trusts would be quite illogical and could certainly not be said to be introducing “greater harmony” into the law of chanty. Moreover, although not as old, the “poor relations” trust and “poor employee” trusts have been recognized as charities for many years; there are now a
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large number of such trusts in existence; and assuming, as one must, that they are properly administered in the sense that benefits under them are only given to people who are fairly to be said to be, according to current standards, “poor persons” to treat such trusts as charities is not open to any practical objection. So it seems to me that it must be accepted that wherever else it may hold sway, the Compton rule has no application in the field of a trust for the relief of poverty and that there the dividing line between a charitable trust and a private trust lies where the Court of Appeal drew it in Re Scarisbrick.
I have therefore come to the conclusion that this Court should not find the trust in the will under consideration in this Court invalid as a charitable trust for the relief of poverty simply on the ground that the public generally is not benefited.
I, therefore, am of the view that the bequest was a valid charitable bequest and would answer Q. 1 “yes”.
Question 3 asks:
If either of questions 1 or 2 is answered in the affirmative, what is meant by “Toronto members” of the Eaton Quarter Century Club?
In his affidavit, Mr. Jones, the secretary of the T. Eaton Company Limited, deposes that
The Company carries on business in all ten provinces of Canada through 53 department stores and over three hundred other retail outlets. All employees of the Company become eligible for membership in the Club after 25 years of service with the Company. Employees are frequently transferred from one location to another in Canada and such transfers do occur after an employee becomes a member of the Club.
It is, therefore, a matter of some little difficulty to determine the meaning of the words
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“Toronto members”. I am of the opinion that the words must be interpreted in the light of the test as cited by Lord Wilberforce in McPhail v. Doulton, at p. 456, that the trust is valid if it can be said with certainty that any given individual is or is not a member of a class. The respondents, the executive officers of the T. Eaton Company Limited, submit:
It is submitted that it is not difficult to ascertain the intention of the testator from the wording of the bequest and relevant surrounding circumstances. It is submitted that a Toronto member would be one who is employed by the company in the City of Toronto. These are the persons with whom the testator would either have worked personally or who would be working in the surroundings with which he was familiar and to which he was attached by his own personal experience.
(The italics are my own.)
This is the only place where I have found any reference to the testator’s previous history. No objection was taken by any other counsel to the statement and it confirms my feeling that the testator was dealing with an organization with which he was very familiar. I am in agreement that the words “Toronto members” should be interpreted in the light of that situation. The testator would mean those members who were employed by the company in Toronto at the time when they became members. If they were members when the testator was a member and when he was still employed by the company, it is almost inevitable that he would have a degree of acquaintance with persons with such seniority in the service of the company. At any rate, he would know the factual situation surrounding the employment of such “Toronto members” and appreciate the possibility of their becoming either “needy or deserving” in the sense which I have attributed to those words. I do not think the testator would have been concerned with whether those who worked in the Toronto store when they became members of the Quarter Century Club lived within the strict environs of
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Toronto or close by. They might well have lived in a suburban area. After their retirement, they might continue to live in that area or in some more salubrious climate. What influenced the testator in his choice of the words “Toronto members” was his thinking of those who had spent twenty-five years working, as he had, for the T. Eaton Company right in Toronto. I would, therefore, so answer Q. 3.
Question 4 asks:
If either of questions 1 or 2 is answered in the affirmative, is the determination as to who are “needy or deserving” Toronto members of the Eaton Quarter Century Club in the absolute discretion of the executive officers of the T. Eaton Company Limited?
I see no difficulty in answering this question in the affirmative. The discretion, of course, of the executive officers may only be exercised within the limitation set by the testator, i.e., the beneficiary must be needy or deserving and must be a Toronto member as I have answered Q. 3.
Acting honestly and with bona fides within such limitations, I am of the opinion that the executive officers are not subject to control in their choice of beneficiary. I would, therefore, so answer the questions.
The costs of all parties should be payable out of the estate. I do not think it would be proper to limit them to this fund. The costs of the executor should be payable upon a solicitor-and-client basis.
Appeal dismissed with costs of all parties payable out of the estate.
Solicitor for the appellants: George T. Walsh, Toronto.
Solicitors for the respondents, Executive Officers of T. Eaton Co. Ltd.: Osler, Hoskin & Harcourt, Toronto.
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Solicitors for the respondent, National Trust Co. Ltd.: Weir & Foulds, Toronto.
Solicitors for the respondent, The Queen Elizabeth Hospital: Mortimer, Clark, Gray, Collin-ger, Toronto.
Solicitors for the respondents, Harley J. Marshall et al.: Fasken & Calvin, Toronto.
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