Blais v. Touchet

J.:-The question in this litigation is whether a certain disposition made in the will of the Reverend Father George Emile Touchet, parish priest at Duke Lake, J. Saskatchewan, dated August 14, 1955, is charitable. The will was in holograph form and written in French in the following words:

The following literal translation into English was accepted by the Court of Appeal:

In the translation attached to the Letters Probate issued on December 15, 1959, "ceuvres" is translated "charities" on each occasion of its use. In the translation accepted by the Court of Appeal it is literally translated as "works". McKercher J. held that the bequest was charitable. The Court of AppealP held that it was not. The conflict is not as direct as the result might suggest. Both McKercher J. and the Court of Appeal were of the opinion that the bishop did not take beneficially but as trustee and that by virtue of his office, the gift was limited to his charities or works arising from his religious responsibilities as the bishop. McKercher J. held that by saying "mais pour les ceuvres qui -aideraient la cause des Canadiens frangais dans son diochse", the testator was merely confining the charities within a certain field and that these were words of limitation in no way affecting the gift as a charity.

The Court of Appeal differed on this one point. They held that these words enlarged the field of application of the bequest, and no -longer made it imperative to apply it to purposes strictly charitable.

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As a matter of construction, I cannot adopt this view. To me the construction put upon the bequest by McKercher J. is the correct one. Our task is to determine what this testator meant. He was an educated man and writing in his tongue. His bequest was to his bishop as trustee for certain purposes. This bequest to the bishop by virtue of his office is held to be charitable in both Courts. We must assume that the testator knew what he was doing, that he knew the meaning of his own words and the religious responsibilities of the bishop. Dictionary definitions recognize the use of "<euvre" in this context. I quote from:

With this well-recognized meaning of the word in the French language and its use in a will by a French-speaking parish priest who knew what he was writing about, it would, in my opinion, be error to hold that because he mentioned the application of the bequest in the terms above quoted, among French Canadians in the diocese, by so doing he stepped outside the charitable field.

This problem is one of construction in each particular case. Fine distinctions have been made from time to time and it is not always easy to see why in one case a court would decide that a case fell on the charitable side of the line and in another case on the non-charitable side. Evershed M.R. in In re Rumbalt' reviewed all the recent litigation where these problems have arisen. The following is his summary in one of the opening paragraphs of his judgment:

Eminence the Archbishop of Westminster Cathedral, London, for the time being to be used by him for such purposes as he shall, in his absolute B s discretion, think fit" have been held to be good charitable gifts (In re Garrard, [19071 1 Ch. 382, and In re Flinn, [19481 1 All E. R. 541). But a gift to the Archbishop of Brisbane for such purposes "as the Arch- Judson J. bishop may judge most conducive to the good of religion in this diocese" has been held by the Privy Council to be bad (Dunne v. Byrne, [19121 A.C. 407). Again, a gift to a vicar "for parish work" has been held bad by the House of Lords in Farley v. Westminster Bank [19391 3 All E.R. 491; but a gift to a vicar to be used by him as he should think fit "for his work in'the parish" was held in 1946 by Romer J. to be good (In re Simson, [1946] 2 All E.R. 220); and in In re Beddy in 1953, unreported, where the words of the gift bore a resemblance (at least) to those in the present case-for they were a gift "to the Roman Catholic prelate who shall be Archbishop of Westminster at the time of my death, to use for such purposes in the diocese as he may choose"--Harman J., expressing himself as not willing to add to the fineness of the distinctions already made, held the gift to be bad.

A recent author, Keeton in The Modern Law of Charities (1962) p. 65, has commented that this branch of the 'law of charities is suffering from over-technicality. I join with others who have said that they do not wish to add to it. I therefore follow the -line of reasoning in In re Garrad, In re Flinn and In re Rumball and hold that this particular gift to the bishop is charitable by virtue of his office and that the testator did not step outside the charitable field in imposing the limitation to work among French Canadians.

I would allow this appeal and restore the judgment of McKercher J. In the circumstances, I would direct that the costs of both parties, here and in the Court of Appeal, be paid out of the estate, those of the executor as between solicitor and client.

Appeal allowed.

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