DUFF J.-This appeal should be dismissed with costs.
RINFRET J.-This is a motion brought by way of originating notice in the Supreme Court of Ontario for interpretation of the last will and testament of the late Cecilia Roach.
The will reads as follows:
I Revoke all former Wills and other Testamentary Dispositions by me at any time heretofore made, and declare this to be my last Will and Testament.
I Direct all my just debts and funeral and testamentary expenses to be paid and satisfied by my executor and trustees hereinafter named. I Give, Devise, and Bequeath all my Real and Personal Estate which I may die possessed of or interested in, in the manner following, that is to say:
I direct that my entire Estate both Real and Personal shall be held in trust by my Executors and trustees hereinafter named and my son John Roach M.D. will be maintained from my estate after the maintenance given him from his Father's Estate is exhausted and that the entire Estate be held in trust for him and for him only so long as he lives.
Whatever portion of my Estate is not used in behalf of my son John Roach M.D. as herebefore directed at the time of his demise such portion is then to be divided among my remaining sons and daughter as follows:
After my son Thomas Roach, Priest and William J. Roach Priest each receive One Thousand Dollars legacy then the entire balance of the Estate is to be divided among the remaining two sons Martin Roach and George Roach and my daughter Mary Rosella Kormana as in the judgment of my son Thomas and my daughter Mary Rosella deem wise, fit and proper to divide and apportion the Estate.
My Executors and trustees are to dispose of my Real Estate only when and as same can be done advantageously.
I direct that my Executors and trustees shall apply One Hundred Dollars of my Estate for Masses for the Repose of my soul after death and Two Hundred Dollars for Monument to be erected for my deceased husband and myself.
And I nominate and appoint Thos. P. Hart, Estate Agent of the Town of Orillia, Ont., and my son Thomas Roach, Priest and my The testatrix died on the 9th of June, 1923.
John Roach, M.D., for whom the entire estate was to be held in trust so long as he lived, died on the 5th of February, 1929.
During his lifetime, he received the maintenance directed in the will.
Martin Roach died on the 1st of March, 1926, and, by his will duly probated, named as executors his widow and Frederick S. King.
Mary Rosella Kormann, the daughter and one of the executors, is also dead (22nd of October, 1928).
By her will, she appointed Arthur J. Holmes as her executor. The executors of Martin Roach and Mary Rosella Kormann are the respondents in this appeal.
George Roach is the only surviving child and, as will be noticed, was also the only child still living at the death of John Roach. He is the appellant in this court. Thomas P. Hart, one of the three executors, died on the 5th of December, 1929.
Thomas Roach is the only surviving executor. He sought the interpretation of the will with reference to the following matters, namely:
"(a) To determine what interest, if any, the estate of Martin Roach and the estate of Mary Rosella Kormann take with George Roach under the said Will.
"(b) If the estates of Martin Roach and Mary Rosella Kormann share in the Estate of the said Cecilia Roach to determine the discretion that may be exercised by the surviving executor in dividing the balance of the estate among the estates of Martin Roach and Mary Rosella Kormann and George Roach."
Logie, J., in the Supreme Court of Ontario, considered that
He further considered that the power of apportionment was
S.C.R.]
of the two persons in whom it was vested.
Accordingly, upon the principle that " equality is equity " he directed that the balance of the estate should be divided equally among
George Roach and the representatives of Martin Roach and Mary Rosella Kormann (1).
That judgment was unanimously confirmed by the Appellate Division (2).
On this appeal, the surviving executor is maintaining merely his application for advice and directions.
Our first duty is to determine what interest, if any, the estates of the deceased children take with George Roach, the surviving child.
We agree with the courts below that Martin Roach and Mary Rosella Kormann took vested interests immediately upon the death of the testatrix.
The controlling words, in the will, are found in the third sentence:
Those are the only words of gift. All the other clauses are directions subordinated to these introductory words. They are words of present gift, under which Martin Roach, George Roach and Mary Rosella Kormann immediately became entitled to a share in "the entire balance of the estate ". There is a prior gift, but it is only for the maintenance of John Roach, long as he lives ". The "remaining " or other children took the beneficial ownership in the contingent corpus, that is: in " whatever portion of (the) estate is not used in behalf of
* *
* John Roach, M.D., as herebefore directed " (i.e., for his maintenance).
On account of the position of the property, because of the prior gift for life, the division was postponed, but the gift in remainder vested at once (Theobald on Wills, 8th ed., p. 656).
What was "not used in behalf of John Roach " is precisely what the executors now have on hand. The beneficial interest in that contingent corpus vested, upon the death of the testatrix, in the named children and not only in such of them as would survive their brother John. The personal representatives of those who re died in the lifetime of John are entitled to the property (Williams on Executors, 11th ed., p. 800), subject to the power of apportionment now remaining to be discussed. The scheme devised by the testatrix is that the entire estate is to be held in trust by the three executors, first to provide maintenance for John Roach, and "then to be divided among (the) remaining sons and daughter ", and the division is to be " as follows ": $1,000 to Thomas Roach. $1,000 to William J. Roach, and
The first point to be noticed in the disposition thus made by the testatrix is that the power to divide is not given to the executors and trustees. There are three executors and trustees. The power is given nominatim to Thomas Roach and Mary Rosella Kormann. They are, in fact, two of the trustees, but the power is not conferred on them as such; and the elimination of the third executor, from among those who are to exercise the power, indicates the intention of the testatrix that the power should not be considered annexed to the office.
Then, the fair construction of the will is that the testatrix intended to make provision for all her children, each of whom is clearly indicated by name. They take through the trustees who hold for them and not through the named persons who are given the power. It is not a power to select or to appoint; it is a power to divide and apportion. A discretion is left to Thomas Roach and to Mary Rosella to use their " judgment but it is a discretion only-which they may or may not exercise-and, under the terms of the will, the children take even if the named persons do not execute the power. It follows that the gift is not subordinate to the exercise of the power and, therefore, that there was not, on the part of the testatrix, an intention of making the exercise of the power a duty. The power is not a trust nor in the nature of a trust; and nobody could complain of a breach of trust if it were not exercised.
See In re Mills. Mills v. Lawrence (1).