Singer v. The King

C.J.C.-The question for consideration in this case is, whether or not the remainders after the individual life interests in the several properties devised by the testator to his five daughters (and, more particularly, whether or not the remainder in the property which was the subject of the devise made in the 5th paragraph of the testator's will in favour of his daughter Evaline Eliza for life), on his death in 1881, in the cases of properties devised to daughters who left no issue, had vested, either, as on an intestacy, in the testator's heirs-at-law, or, as part of the residue devised by him in the 10th clause of his will, in his surviving children (other than the life tenant of each parcel) and the children of such of the other four as might die leaving issue before the period thereby fixed for the division of the residue.

If the interests of those entitled on the death of any one of the five life tenants, who should die without leaving

In re issue, should be regarded as having been vested on the tes- OF tator's death, although subject to be divested in the event of such life tenant leaving children, it follows that the in- terest of Charlotte Elizabeth Benn (one of the five daughters of the testator), who died on the 12th day of May, 1919, (leaving her surviving as her sole and only

ET children, the appellant Wellesley Drummond Benn and his

Afldli sister, Edna Ravelle Hunter (since deceased)), in the parcel devised for life to her sister, Evaline Eliza Drummond (who died unmarried in September, 1926), was capable of being disposed of, and was disposed of, by her will and passed thereunder.

Clauses 5 and 10 of the will in question read:

5th. Subject to my wife's life estate I give to my daughter Evalina

Eliza to be held by her for and during her natural life the north half of

Lot ten on Yonge street in the City of Toronto as laid down on a plan of Park lot eight made by John Lynn D.P.S. for one Peter McGill (together with the buildings thereon) but in case the centre line of the wall between the second and third stores is not co-incident with the centre line of the lot then the centre line of the said wall and such centre line produced at right angles to Yonge Street shall be the division line between the north and south halves of the lot as intended to be hereby devised and after the death of my said daughter Evaline I give the said north half as herein defined to such children as may have been born of my said daughter Evaline as are living at the time of her death and to the children of such as may be dead to be held by them in fee, the children of a deceased child to take such share as their parent would have taken if such parent had not predeceased his or her mother.

10th. I direct that after the death of my wife and upon my youngest daughter attaining the age of twenty-one years the residue of the property whereof I shall die possessed or entitled to shall subject to the eighteenth paragraph of this my will be divided by my executors equally amongst my said children and in the event of the decease of any of my children leaving issue before such division I direct that the issue of such child or children shall receive respectively the share of such property to which such deceased child or children would have been severally entitled.

Clause 18 of the will has no bearing upon the question now before the court, that being merely a provision made to enable the executors in certain events to equalize the several shares in value.

Of course, if there was an intestacy as to the remainder in the property devised to Evaline Eliza Drummond for life, no question need arise as to the construction of the residuary clause. That view, however,-although not a

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little may be said in support of it-is probably not open, In when regard is had to what is stated below about the order of Middleton J. of the 20th of June, 1912. In the result, in J. w.

that view, however, the judgment appealed from would have been substantially right in holding that the remainder in the parcel devised to Evaline Eliza for life had been vested on the testator's death, and that Charlotte Elizabeth Benn, as one of the testator's heirs-at-law, had effectually disposed of her interest therein by her will.

On the other hand, if an intestacy as to the remainders of the life estates given to such of the five daughters as died childless be not the correct view, or if that view be not open, and the remainder in each of the five parcels devised to the testator's several daughters, as part of the residue, fell into the residuary estate, as seems to have been agreed to by all parties interested before Middleton J., we are inclined to think the question res judicata by virtue of the consent order of that learned judge of the 20th of June, 1912, clauses 9 and 10 of which read:

Hester Ann Drummond, the testator's widow, having died on the 23rd of March, 1912, and Evaline Eliza Drummond being then unmarried and at least one of the other daughters being married but without children, this identical question as to the effect of the residuary clause (No. 10) of the will upon the vesting, as part of the residue, of the remainders in each of the five properties devised to the several daughters must have been present to the minds of the parties when they consented to the order of Mr. Justice Middleton, and, also, to the mind of that learned judge when he pronounced the order. We can discover no justification, therefore, for the view that it was not intended by the order of Middleton J. to deal with the very matter now before the court and to determine that question in favour of the respondents; neither can we understand the view being now taken that the residue of the estate referred to in paragraphs 9 and 10 of the order is not identical with the residue dealt with in the 10th paragraph of the will.

Clause 10 of the order seems to indicate clearly that it is.

We are, therefore, of the opinion that the order of Mr. Justice Middleton is to be taken as having been meant to dispose of the very question now before us. It is perfectly clear that that order is binding until set aside by an action brought for that purpose, and that the present plaintiff, Wellesley Drummond Benn, who was represented upon the

'motion by counsel, cannot now be heard to say that he is not bound thereby. Kinch v. Walcott (1); Ainsworth v.

Wilding (2); Firm of R.M.K.R.M. v. Firm of M.R.M.V.L.

The result is that the vesting of a share of the property, devised for life to Evaline Eliza Drummond, in Charlotte

Elizabeth Benn, one of the daughters of the testator, prior to her death which occurred on the 12th of May, 1919, has been established.

The appeal is, accordingly, dismissed with costs.

Appeal dismissed with costs.

Benn Estate: Marquis, Pepler & Marquis.

Payne & Bissett.

Solicitor to represent unborn children: McGregor Young.

Werden and William A. Werden:

Cassels, Brock &

Kelley.

Campbell,

Jarvis & McKenzie.

Robertson, Aitchison, Pickup & Calvin.

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