Duggan v. Duggan

Sir W. J. C.J.-I think the plaintiff had more than a possibility or expectation of a future interest, but that he had a present existing contingent interest in the testator's estate and has a right to maintain an action to have his legacies secured- This interest is vested by the testator's will; the enjoyment of it depends on a contingency, but the present interest does not the less exist. His right has come into existence; that right is to receive out of the testator's estate £3,000, in case he survives the defendant, Johanna Duggan; and what he now seeks is simply to have that right declared and his legacy secured, so that it may be paid to him in the event of his surviving the said Johanna Duggan which seems to me to come very clearly within the language of Lord Eldon in Allan v. Allan (10) where he says - 6 Ves. 251,) though the interest may with reference to the chance be worth nothing, yet it is in contemplation of the law an estate and interest. On the other hand, though the contingency be ever so proximate and valuable, yet if the party has not by virtue of that an estate, RitchieO.J. the court does not deal with him.

That demonstrates that the estate is in the tenant in tail for the time being himself ; and then the reasoning that applies to the tenant in fee, must apply to the tenant in tail.

In the case of Lord Berkeley's will referred to the Lord Chancellor says: (1)

A contingent interest is not the less a present interest.

It would seem very clear that if the appellant is refused the relief he seeks there is but a very small, if any, chance of his realising the legacy if the contingency on which its payment is to be made should happen. I cannot think the law so helpless as to allow an executrix and trustee to waste and dispose of the trust estate for her own purposes as was done in in this case, under, as it were, the very eyes of the court, and that the court should be unable to protect the estate so as to be available, on the happening of the event contemplated, for the purposes of distribution in accordance with the provision of the testator's will.

I therefore think this appeal should be allowed. FOURNIER J.-I agree in the reasons given by the learned Chief Justice for allowing the appeal.

TASCHEREAU J.-I am of opinion that the appeal should be allowed with costs.

J.-The question in this case turns upon the true construction of the last will and testament of John Duggan, deceased, in his life time the husband of the defendant Johanna Duggan. John Duggan died in zn the month of November, 1865, having first duly made and published his last will and testament upon and bearing date the 28th day of August, 1865, whereby, after providing for payment of his debts and funeral expenses, he devised as follows:- Now upon the well established principle that a will must be construed so as to give effect, if possible, to every word a testator has used, I am of opinion that this devise operates as a devise to the testator's wife Johanna and to her heirs, executors, administrators and assigns forever, subject to a charge in favor of such of the children of the testator's deceased brother, Maurice, as should be living at the time of the decease of testator's wife Johanna. It appears that the testator's brother Maurice had died ten years before the testator made his will, as the testator well knew; it appears also that when the testator made his will the plaintiff was the only child of his deceased brother Maurice who was living; so that in effect the devise to Johanna was made subject to a charge of X3,000 in favor of the plaintiff, contingent upon his surviving the devisee Johanna his aunt. Now whether his charge be a present bequest vested in interest in the plaintiff subject to be divested in the event of his not surviving Johanna, or a bequest contingent upon his surviving her, there J. can, I think, be no doubt whatever that he has such an interest under the will as entitles him to the interference of the court to have the property subjected to the charge preserved in such a manner that it shall be forthcoming to be applied in payment of the bequest in his favor in the event of his surviving his aunt Johanna. The appeal therefore must be allowed with costs, and a decree be ordered to be made referring it to the master to enquire into particulars of the property devised, and as to the disposition thereof, and to report to the court in the ordinary manner.

J.- Concurred.