Majority
4,500 cords of birchwood, 1,500 cords to be delivered for three consecutive years., such wood to be suitable for the making of spools; and that the respondent was able to deliver 200 cords only. The respondent pleaded that the wood was to be taken from certain lots of land specified in the contract and that he had delivered all the wood that was there.
The Superior Court maintained the action for $6,179.69. Both parties appealed to the Court of King's Bench, the respondent to claim the dismissal of the action in toto and the appellant to ask for an increase in damages; and the appellate court reduced the amount of damages from $6,174.69 to $574.69.
The plaintiff alone appealed to the Supreme Court of Canada.
The Supreme Court of Canada, after hearing counsel, dismissed the appeal with costs.
Judgment of the Court
J.-The questions in controversy on this appeal concern the construction of the will of the late Robert H. Simpson, and, admittedly, the decision of them turns upon the application or non-application of the rule in Shelley's Case (1) to the provisions in dispute.
The following paragraph is typical of the clauses to be construed:- There is also a gift over to be considered in these words:- If the rule in Shelley's Case (1) governs, Fern McDaniels takes an estate tail, which, by statute, is in effect an estate in fee: if not, she takes a life interest only. The Appellate Division in Alberta has held that the rule in Shelley's Case (1) has not the force of law in Alberta. The learned judge of first' instance, Clarke J., held that the rule applies. It is unnecessary, in my view, to consider whether or not the rule is in force in Alberta. I have come to the -conclusion that, assuming it to be in force, it does not apply.
The precise question is this:
Are the words "to her children in equal shares per stirpes," words of designation or words of limitation; do these words, "include the whole line of succession capable of inheriting"? (Foxwell v. Van Grutton (2).)
Prima facie, the word "children," in such a context, denotes persons of the first degree of descent, and therefore is a word of designation.
There is another proposition, which I will state in the words of Lord Cairns in Bowen v. Lewis (3):
at
S.C.R.
This proposition, which Lord Cairns gives as the result of the authorities, and about which he says there was no dispute in the House of Lords, would suffice at once for the determination of the dispute before us but for the presence of the phrase per stirpes in the clause in question, upon which the appellant's counsel largely builds his argument.
The argument is that the phrase per stirpes is insensible as applied to a division among children in the restricted prima facie sense, and, therefore, that " children " should be read in such a sense as to conform to the terminology of the gift over, that is to say as " issue." In examining that argument, you must look at the whole of the will. (Per Lord Cairns) (1).
The words in which the gift over is expressed are significant. On the death of the life tenant without issue, the trustee is to sell the land, and the proceeds are to be divided among " the sons and daughters of my brother Frank Simpson in equal shares per stirpes." Whatever may be said about the word " children," it would require a very demonstrative context-a context having the force and value of an interpretation clause-to impart to the phrase " sons and daughters " a meaning embracing the whole line of descendants capable of inheriting; especially so when employed in describing the destination of a gift of money. Here there is no such demonstrative context. " Sons and daughters " must be read, I think, according to the primary import of the words.
It follows that, whatever be the effect he ascribed to them, the testator did not regard the words " per stirpes " as meaningless when applied to a direction for distribution among descendants of the first degree-among children in the primary sense of the word. So read, moreover, the terms of the gift over, the nominated beneficiaries being of the first generation only, seem to give evidence of an intention that it was to take effect not on an indefinite failure of issue, but on the death of the life tenant, without having had a child in whom an interest could vest under the terms of the devise to the child-