Robin v. Duguay

The late Joseph Rochon made his will in 1852 by which he devised to his two sisters the usufruct of all his estate and the property therein to their children, naming Pierre Dupras, his uncle, as his testamentary executor, and directing that his estate should be realized and the proceeds invested according to the executor's judgment, adding to these directions the words " enfin placer la masse liquide de ma succession 4 int6rit on autrement, de la manibre qu'il croira le plus avantageux, pour en fournir les revenus h. mes dites scours et conserver le fonds pour leurs enfants," and providing that these legacies should be considered as an alimentary allowance and should be non-transferable and exempt from seizure.

By a codicil in 1890 he appointed a nephew as his testamentary executor in the place of the uncle, who had died, and declared :-" Il sera de plus 1'administrateur de mes dits biens jusqu'au d6cbs de mes deux seurs usufruitires, nommies dans mon dit testament, et jusqu'au partage d6finitif de mes biens entre mes hdritiers propri6taires, et il aura les pouvoirs qu'avait le dit Pierre Dupras dans mon dit testament."

, that the testamentary dispositions thus made did not create a substitution, but constituted merely a. devise of the usufruct by the testator to his two sisters and of theestate, (subject to the usufruct), to their children, which took effect at the death of the testator.

Held also, that the charge of preserving the estate-"conserver le fonds "-imposed upon the testamentary executor could hot be construed as imposing the same obligation upon the sisters who were- :-Sir Henry Strong C.J. and Gwynne, Sedgewick, King, and Girouard JJ.

347' Bench for Lower Canada (appeal side) (1) reversing the decision of the Superior Court which had maintained the plaintiff's action.

The facts and questions at issue sufficiently appear from the head note and judgments reported. It may be added, however, that when the usufruct became extinct one of testator's sisters left nine children, one of whom is the respondent, and the other sister left but one child, the appellant.

A fiduciary substitution was created by the will in favour both the sisters' children. (Arts. 925, 928 The succession must be divided per stirpes and not per capita. Even if, instead of a substitution, a usufruct had been created, the result would be the same. Desive v. Desive ; Chester v. Gall ; Roy v. Gauvin (4); Thevenot-Dessaule, 63.

The charge to -deliver the property bequeathed to the children of the two sisters, joint legatees, is expressed plainly in the will, by the term " " in the sentence " conserver lefonds pour leurs enfants."

Three conditions are required for the existence of a substitution: lo. two donations; 2o. tractus temporis; So. ordo successionis. The two donations exist, first to his sisters, secondly, to their children.

The tractus temporis is also found, for the will charges his sisters to deliver over to their children the property bequeathed. The children were not seized at the testator's death. The ordo successionis is equally evident; the children received from their mothers and are legatees, in virtue of a second gratification.

The testator charges his sisters to deliver over the property to their children generally, not merely to children born at the time of his death.

No accretion took place, because none of the legatees died before the testator. There can be no accretion once the succession is opened.

The property bequeathed is to serve as an alimentary allowance.

There is no accretion, in cases legacies made to serve as alimentary allowance. Pothier, 455, par. 149, art. 868 C.

According to the terms of the will, no reciprocal substitution was intended. Th6venot-d'Essaulle, nos. 408 et 409.

The requisites of reciprocal substitution are wanting, and we cannot presume reciprocal substitutions.

Th6venot-d'Essaulle

Phillips v. Bain The words " partage ddfinitif " imply two partages, i. e., a provisional partage first and then a final one.

The word " leurs " in cases of substitutions, applied to the children, substitutes of several legatees, is to be construed as determining amongst the substitutes, a partition per stirpes and not per capita. See Th6venotd'Essaulle, nos. 1003 & 1004, -and Dumont v. Dumont (3). The theory of partition, per stirpes, prevails, unless the contrary intention is clear. It must be presumed that the testator wished the order of successions to be followed, as nothing appears to the contrary.

In any case, whether the will created a substitution or a usufruct, the appellant as sole representative of her deceased mother (one of the testator's sisters), is entitled a to the ownership of one-half of all the property bequeathed and enjoyed by her mother during her lifetime.

See art. 433 C.

The will creates merely a usufruct, and not substitution, and even if it did create a substitution, the partition must, nevertheless, be made per capita, not per stirpes. In both his will and codicil, the testator used the words " usufruct," " usufructuary " which creates this presumption, and it is supported by the fact that there is no tractus temporis.

The gift is not of the usufruct to his sisters, and, after their death, the ownership to their children, but the children take the ownership together, and consequently by equal shares at the same time as their mothers take the usufruct. See art. 868 C. C. Again, the word " conserver " is not at all characteristic of a substitution.

On the contrary, it is the very word used by the Civil Code in defining usufruct. Moreover, the obligation to keep the property for the children is not imposed upon the usufructuaries but upon the executor. Hence it is not a substitution but a trust imposed upon the latter in favour of the children, who are the owners.

There is reciprocal substitution between the sisters of the testator; (art. 868 C. C.); and the testator has treated his two sisters and their children equally and as one mass (not as two independent roots), making one legacy and not two independent ones. This affords further presumption that the partition should be per capita. Moreover, the legacy to the children is made jointly. There is therefore also accretion between them.

(Art. 868 C.

There could not be accretion between them if the partition was per stirpes; but only accretion between the members of each stirpes. Finally the testator bequeathes his property to the children incessible and insaisissable titre d'ali- 'ments." He considers that he is giving them the necessaries of life.

It must therefore be presumed that as the legacy was not to enrich them but only to give them what they needed, the property is intended to be divided among them equally. Joseph v. Castonguay J. (dissenting).-This case turns wholly upon the construction of a clause in the will of one Joseph Rochon whereby he gave and bequeathed to his two sisters Exulphre and Rosalie Rochon, the usufruct of all his property and the ownership thereof to their children.

He then appointed Pierre Dupras his executor whom he authorized to realize the whole of his estate, and to invest the clear capital at interest in such a manner as he should think most advantageous and to give the revenue thereof to his said sisters, and to keep the capital for their children. He added that the above legacies were given.

The executor named in the will having died the testator appointed another in his place by a codicil wherein he declared and directed that such person

The sole question upon this will is whether the children of the testator's sisters took the ownership the property devised to them per stirpes or per capita. If per stirpes the appellant is entitled to prevail, if per .capita the respondent.

I am of opinion that the appeal should be allowed' The true construction of the will appears to me 'DA clearly to be ihat the executor held the property devised in trust for the testator's two sisters and their J. children respectively in equal moieties for their respective children as to the ownership in the capital, and for the sisters during their respective lives as to the revenues.

Upon the death of one of testator's sisters, in the lifetime of the other, the children of the one so dying became entitled in possession to one moiety of the capital out of which their mother's life income issued-the devise to the testator's sisters and " their children," the former for life as to the income, and the latter as to the capital must be construed " their respective children " upon the authority of Arrow v. lellish ; Wills v. Wills ; and in re Hulchinson's Trusts

I think there can be no doubt that this is the construction which should be put upon the will, and I am therefore of opinion that the appeal should be allowed with costs and the judgment of the Superior Court restored.

:

J.-Cette cause soulive une question de substitution.

Le 12 octobre 1852, Joseph Rochon fit son testament par lequel il dispose de la masse de sa succession comme suit:pos ; enfin placer la masse liquide de ma succeession & int6rat ou autrement, de la manibre qu'il croira le plus avantageux, pour en fournir les revenus b mes dites sceurs usufruitibres et conserver les . fonds pour leurs enfants.

J'assigne les legs ci-dessus b mes 16gataires, N titre d'aliments, ainsi GO d J. les biens 16gu6s seront incessibles et insaisissables.

Par un codicile en date du 12 avril 1890, le testateur d&clara :- Je nomme pour ex6cuter mon testament, an lieu et place de Pierre I)upras qui 1'dtait dans mon dit testament et qui est dicdd6, la personne de Maxime Dupras, mon neveu, cultivateur, de St-Henri de Mascouche.

II sera de plus Padministrateur de mes dits biens, jusqu'au d6chs de mes deux sceurs ugufruitibres nommies dans mon dit testament et jusqu'au partage ddfinitif de mes britiers propridtaires, et il aura les pouvoirs qu'avait le dit Pierre Dupras dans mon dit testament.

Le testateur et ses deux scours, Exulpare et Rosalie 6tant d6c6ds, il s'agit de savoir si le partage des biens 16gu6s doit se faire entre les enfants par souches ou par t&tes; en d'autres termes, si le testament contient une substitution on tout simplement donation d'usufruit , ses deux sceurs et de la propri6t6 A leurs enfants La cour Suphrieure a d6cid6 qu'il y avait substitution, et que le partage devait se faire par souches et non par tates.

La majorit6 de la cour d'Appel, compos6e de BossA, Blanchet, Hall et Witrtele JJ. a d6cid6 le contraire, lejuge en chef, Lacoste, dissident.

Lejugement de la cour est ainsi motiv6:- Considrant que cette disposition ne comporte pas une substitution, on deux lib~ralitis successives prenant effet Pune aprbs Pautre, mais constitue seulement un legs d'usufruit par le testateur A ses sceurs et un legs de propridt6 (sujet cet usufruit) A leurs enfants, qui tons deux ont pris effet A son d6cbs, et qu'en chargeant son excuteur testamentaire de conserver le fonds pour les enfants, devoir qui lui 6tait prescrit par la loi, le testateur ne peut pas 6tre pr~sum6 avoir impos4 la mime obligation A ses sceurs exclues de Padministration des dits biens et leur en avoir ainsi remis et donn6 Ia propridt a la charge de la rendre elles-m~mes A leurs enfants, A leur 'Acds, et ne (1) Q. R. 5 Q. B. 291.

Ce motif est d6velopp6 par M. le juge l3lanchet dans Girouard une opinion claire et concise, A laquelle je n'h6site pas i donner mon adh6sion.

J'entends, cependant, faire mes reserves au sujet des d6cisions dans Morasse v. Baby (1), et Guyon v. Chagnon (2), qu'il cite.

Je suis done d'avis de confirmer le jugement dont est appel, avec d6pens.

Appeal dismissed with costs.