Berwick v. Canada Trust Co.

inadmissible as hearsay.

Eliminating the evidence so improperly admitted, the matter to be decided is as to whether upon the remaining evidence the verdict would necessarily have been the same (Schmidt v. The King (1), Kerwin, J. at 440). Since there is to be a new trial it is undesirable that there should be any extended comment on the evidence. The onus is upon the Crown to satisfy the Court that there would without doubt have been a conviction had this evidence been excluded and, in my opinion, that onus has not been discharged in this case. I have come to this conclusion upon consideration of the evidence alone as I think the report of the learned trial Judge which, owing to his unfortunate illness, was not made until some months had elapsed from the date of the trial and at a time when the appeal had been partly heard cannot be considered.

The conviction should be quashed and there should be a new trial.

ESTEY J.:-The late Shirley Gertrude Berwick by her will appointed the respondent to be the executor and trustee and to hold all her property, real and personal, in trust to be disposed of 'as directed. The will provides for certain specific legacies and as to the residue her trustee is to convert it and immediately pay one-half to her son, Alexander Raymond Berwick.

No question is raised in these proceedings as to any of the provisions except that which disposes of the second or remaining half of the residue.

(2) [1947] 2 W.W.R. 566. (1) W.W.R.

The testatrix died January 6, 1946; letters probate were granted February 12, 1946, and these proceedings by way of an originating notice are dated the 30th of May, 1947, well within the hereinafter mentioned ten year period. BEICK The trustee asks the following question:

Is Alexander Raymond Berwick, beneficiary named in the said Will, entitled to receive now the entire residue of the estate in the hands of TauST Co. the Trustee?

Estey J. The provisions of her will relative to the foregoing question are:

As to the remaining one half of the residue of my estate I direct my trustees to.invest moneys realized therefrom in Dominion of Canada Bonds or securities and to pay to my said son so long as he continues to survive me the free annual income therefrom and at the expiration of ten years from the date of my death to pay, convey, assign and make over the remainder of my estate to my said son for his own use absolutely if he then be alive.

If my said son should predecease me or if he should survive me and die within ten years after my death the share or shares of my estate which my said son would have received had he survived me or the said period of ten years as the case may be shall be distributed by my trustees in such manner as my said son shall by his last will appoint and in default of such appointment the same shall be distributed by my trustees in the same manner as the same would have been distributed had such share or shares formed -part of my son's estate at the time of his death whether testate or intestate and had he died without owing any debts. The Court of Appeal for Saskatchewan (1) construed. the provisions as providing a gift to the son contingent upon his surviving the testatrix by ten years; that if he did not' do so and did not by his will exercise the power of appointment, then there was a gift over and that the son was not entitled to receive now the entire residue (the remaining half 'above referred to).

The appellant's contention is that the provisions of this will give to him an indefeasible interest in this remaining half and therefore he is now entitled to receive the entire residue or remaining half.

In the first of the above quoted paragraphs there are no words of a present gift but rather a gift only "at the expiration of ten years" and then only "if he then be alive".

In Knight v. Knight (2), the will provided:

I likewise give and devise to each of the daughters of Thomas Knight lawfully begotten, as soon as they attain the age of twenty-one years, the sum of £2,000 . . .

S.C.R.]

(1) [ W.W.R.

Sim. & St. It was held that the interests of the daughters were contingent. The Vice-Chancellor stated at p. 493:

The expressed intention must prevail; and there is no gift, either of principal or interest, until the daughters attain twenty-one.

BERE Halsbury, Vol. 34, p. 374, para. 418:

A gift to a person, "at", "if", "as soon s", "when", or "provided" TRUST he attains a certain age, without further context to govern the meaning Estey J of the words, is contingent, and vests only on attainment of the required age, this being a quality 'or description which the donee must in general possess in order to claim under the gift.

The next of the above quoted paragraphs from the will gives to the son, with respect to this half of the residue, a power of appointment to be exercised by his will, and in the event of his not so appointing then the testatrix by her will directs that:

The power of appointment here given to the son can be exercised only through the medium of his will. It is a limited power as distinguished from a power which might be exercised by will, deed or otherwise, and in default of the exercise of that power the property remains to be disposed of by the testatrix's own will.

As stated by Sir W. Grant in Bradly v. Westcott (1):

See also Bull v. Vardy (2); In re McNeill Estate (3). In In re Mewburn Estate (4), the will directed that the power of appointment might be exercised "by deed or will", and theref ore, notwithstanding the intention of the testator the life interest together with the unqualified power of appointment was equivalent to an absolute interest and entitled the legatee to a transfer of the corpus.

The Will of Shirley Gertrude Berwick provides that her son can exercise his power of appointment only by a provision in his will. It is a qualified power and distinguishes this case from that of In re Mewburn Estate (4).

(1) (1807) 13 Ves. Jun. 445 at 453;

(3) [1920] 1 W.W.R. 523. 33 E.R. 361 at 364.

(4) [1939] S.C.R. 75. (2) 1 Ves. Jun. 270; 1 Ves. Jun.

Supp. 115.