Judgment of the Court
J.-By his will dated the 20th December, 1890, Robert Inderson bequeathed to his sister Margaret Anderson and her heirs one-fourth of his residuary estate. The said Margaret Anderson died on the 19th of June, 1895, leaving a will, dated the 9th of February preceding, by which she had appointed her five surviving children her universal legatees. On the 17th of July following, Robert Anderson, after having taken communication of his deceased sister's will, made a codicil in the following terms: He died in March, 1896.
Whom did the testator mean by the aforesaid words "her heirs" in that codicil, is the question in controversy. Are these words to be construed as meaning exclusively Margaret's testamentary heirs, as contended for by the appellants, or as meaning all her heirs-at-law, as contended for by the respondents ? Under the Civil Code of the province it is, when there is a will, the person to whom the testamentary succession devolves, the universal legatee, if the testator has appointed one, that is called the heir, and is, in law, the only heir of the deceased.
Art. 597 C. C. So that her universal legatees, and they alone, are in law the heirs of Margaret Anderson.
Art. 864 C. C. No one else can be called her heir.
It cannot be said that one who does not, and cannot inherit is an heir, though, but for a will, he would have been one. He is disinherited.
The testator has taken away from him, as he had the right to do, the very name of heir that he otherwise would have been entitled to.
Such is the consequence of the unrestricted freedom of disposing by will given by the Acts, 14 III. c. 83 (Imp.), and 41 Geo. III. c. 4 (Lower Canada), re-enacted by Article 831 of the Civil Code. Under the droit coutunier no other heir was known to the law but the natural or legitimate heir, and the word " succession " applied more correctly to intestate successions, successions conferred by the law.
But under the express terms of Article 596 of the Code, the word, in the Province of Quebec, now means a transmission by a will as well as a transmission by the law. And when there is a transmission by a will of the whole of ~the estate of the deceased, there is no transmission by Jthe law; consequently, there is no heir but the one made such by the will. The universal legatee is the appointed heir, the Adritier institu.
Merlin, Rep. vo. Ldgalaire, sec. n. and vo. Instit. d'hdr., sec. 1, n. 2. Consequently, the words "her heirs " in Robert Anderson's codicil must be applied exclusively to Margaret's testamentary heirs.
The respondent's contention that when Robert Anderson made the bequest in question to his sister's heirs, he intended some one else than her testamentary heirs, imports the irrational consequence that he intended a person or some persons that had no possible existence, and could never have any. They would have us read it as made not to his sister's heirs but to those who would have been her heirs had she died intestate.
We cannot do it. Her will must be read as if it said in express terms " I appoint John, Robert *
*
* my heirs."
It says nothing else though in different words
The words "heir" and "universal legatee " are synonymous expressions.
Art. 840 C. C.; 6 Hue, p. 404.
Nothing whatsoever of Margaret Anderson's estate passed to the respondents.
In her testamentary heirs alone vested the right to the action petitio hereditatis to revendicate it had it been in the possession of anyone else at her death. Merlin, Rep. v. Hriditd. They alone were then seized of all her rights and of all her property, real and personal.
Art. 891 C. C. They alone are liable for her debts and obligations.
Under the Coutume de Paris, as at one time in force in the province, it was the heir-at-law who was liable for the debts of the testator even in the case of a will appointing a universal legatee, saving his recourse against the latter for his share. That was the consequence of a system under which universal legatee was not, and could not be, a legatee of the whole estate, the testator not being allowed to dispose of the reserves chraJ nor of the Idgitine ; the droit coutumier then provided for the heirs-at-law, from whom the universal legatee had to get delivery, because said Pothier:
In the Province of Quebec this difference has disappeared, and the universal legatee is now the heir, and the only heir. As under the Roman law, testamentary heredity and legitimate or natural heredity are incompatible.
A testamentary heredity excludes the. legitimate heredity.
Simmonet, de la Saisine H6r6ditaire 13, 145.
It is undoubtedly true, as argued at Bar on the part of the respondents, that the heir-at-law has the right to contest the validity of the will, and, if he succeeds, he then is the heir. But he is the heir because there is then no will, because there is then no testamentary heir.
The question here, of course, is not what the word "heir " means generally, or what it means in the Code, but what it means upon the true construction of this codicil, what the testator's intention was in using it. But it being an incontrovertible proposition that under the Code when there is a will appointing an heir, he is, in law, the only one who can be called heir, or who can assume that title, the onus was upon the respondents to establish beyond all doubt their contention that, in this codicil, the testator used it in a different sense.
For it is a universally admitted rule in the construction of wills that when the law has affixed a certain meaning to an expression of this nature, that meaning must be given to it, unless the s. testator excluded beyond all doubt such construction. . Towns v. Wentworth De Beauvoir v. De Beauvoir Dorin v. Dorin
The principle of the English jurisprudence invoked by the respondents, that the law favours the heir-atlaw, clearly has no application under a system that denies the very existence of an heir-at-law when there is a testamentary heir.
Even the expression of the Code and of all the commentators of the French law, " testamentary heir " is unknown to the English law. The droit coutumier also favoured the heir-at-law, but as the court said in The Royal Institution. v. Desrividres in the province.
The appellants' contention receives strong support from the case of Herse v. Dufaux in the Privy Council (not cited at Bar) where their Lordships said upon the construction to be put upon that very same word in the Province of Quebec.
And their Lordships, citing Article 597 of the Code, held that the word heirs in that case meant the testamentary heirs, and that it was competent to the testator there in question to deprive his grandchildren of the character of " heirs-at-law " that they would have been entitled to in the absence of a will.
The respondents' contentions imply that Article 318 of the Coutume Paris:
is still the law of the Province of Quebec.
Now that is not so when there is a will disposing of the whole succession, or more correctly speaking, the hoir in such a case, the hoir saisi, is the heir appointed by the will, the hritier institud. This was, at one time, a controverted question, but it has been authoritatively settled by the case of Blanchet v. Blanchet and since by Article 891 of the Code.
Webb v. Hall (2); King v. Tunstall ; Art. 831 C. C. The rule " the appointment of an heir is forbidden " (institution d'hdritier n'a pas lieu) is now superseded.
The provincial law in the matter is assimilated to the law of the pays de droit 6crit, where the rule was, not as under the coutumes that Dieu seul peut faire des heritiers, but that it is the will of man that makes an heir, the law only intervening by way of exception in default of a will. Merlin, Rep. vo. Hritier, vol. v., p. 630; Ferribre, Dict. de Dr. vo. Edritier; 13 Demol. no. 80 ; Laurent, nos. 477 et seq. ; 5 Toullier, 486; Royal Institution v. Desrivibres confirmed in the Privy Council in May, 1828.
The respondents' argument based upon the terminology of the Code and the fact that in many of its enactments the word "heir " means the heir-at-law does not help their contentions.
Of course, where as in the chapter on successions for instance, intestate successions alone are in questiop, the word "heir" applies exclusively to the heir-at-law.
In the chapter on wills likewise, when a distinction has to be made between a legatee and an heir-at-law, the word " heir " applies and could then apply only to the heir-at-law. But when no such distinction is necessary to render the enactment intelligible, the word "heir" applies, as the context requires, as well to the testamentary heir as to the heir-at-law.
Then Article 597 already referred to, when it decrees in so many words that he who inherits under a will is called " heir " is by itself alone a complete answer to the respondents' argument that ground.
The respondents further contended that in ordinary language the word "heir" means " heir-at-law." No doubt that is so in England, and also in France, where the old rules of the droit coutumier on the subject have been in a great measure incorporated in the Code Napoleon.
In the Province of Quebec, likewise, when speaking of an intestate succession, the word "heir" has that same meaning. But when speaking of the succession of any one who has bequeathed his estate to a universal legatee, the word "heir"
in plain language means that legatee, the person made heir by the will of the testator.
If Robert Anderson on the day he made his codicil had been asked who were his deceased sister's heirs he would have answered that she had left John, Robert * * * as her heirs, that she had appointed them her heirs. The word "heir"
in popular language is used as a word of succession, and, under a system and in a country where testamentary successions are the rule, and legitimate successions or successions conferred by law the exception, when used in relation to the succession of any one who by his will has appointed an heir, it means the testamentary heir. Evas. Herse v. Dufaux (1).
Considerable stress was laid by the respondents upon the terms of certain parts of the will of Robert Anderson, in which it may be that the word " heir" means " heir-at-law "; but in my view of the case the terms of the codicil are so clear, so free from doubt, that not to adhere strictly to what they say would be assuming the risk of making a bequest for the testator. It was for the very purpose of ascertaining whom 'VMargaret Anderson had appointed her heirs that he asked to have communication of her will before making this codicil.
He then knew that her only heirs were her universal legatees, and when he subsequently made a bequest to " her heirs " he must be taken to have meant what he said.
Moreover, if in his will, Robert Anderson by the word " and to her heirs " meant his sister's heirs-atlaw, it does not follow that when he made this codicil after her death, and because of her death, he meant to use the same words in the same sense.
Quite the contrary.
He made this codicil purposely, it is evident, not to leave anything of her share but to those whom she herself had since appointed her heirs, so that it should pass as it would have passed under her will had he died before her.
He clearly intended to alter the bequest that he had made by his will to her heirs-at-law, as he altered by another clause this same codicil the bequest he had made by the 39th clause of his will to his cousin Watson's heirs-at-law. It was further argued on behalf of the respondents that Robert Anderson could not have meant the same persons in the first and third clauses of this codicil because he merely used the words " her heirs," heirs of Margaret, in the first clause. whilst in the third clause he mentioned the names of those to whom he -bequeathed the lapsed share of his cousin Watson, though they are Margaret's only testamentary heirs. I do not see much weight in that argument. It certainly was not absolutely necessary so to describe them nominatively in the third clause, but he did so, it would appear, because they were not the heirs Watson whose lapsed legacy he by this third clause desired to provide for as he had done for Margaret's share by the first clause.
He could hardly have been expected in a bequest to them by a separate clause of Watson's share to describe them as Margaret's heirs. No doubt he might have made both bequests by one and the same clause.
But the fact that he did not do it does not, under the circumstances, at all tend to prove that the two bequests were not intended for the same parties. In the will, each bequest is in a separate clause, and the codicil follows that course. I am of opinion that the appeal should be allowed with costs and the action dismissed with costs. I deliberately refrain from referring to the English authorities quoted by the parties.
Upon a branch the provincial law so completely at variance with the English law as this one is, they could not, it is obvious, but mislead, though I am quite sure they were not quoted with the intention of misleading. The case is governed exclusively by the Civil Code of the province wherein the law which obtains on the subject is to be looked for.
Gibbon v. Abbott (1) ; Herse v. Dufaux And not only must also the French Code and its commentators be read with caution as the differences between it and the Quebec Code in the matter are very great, but in any reference to the droit coutunier itself, the changes introduced in the province by the looo statutes of 1774 and 1801 have to be constantly kept mind.
(dissenting).-The only question in this owynne J. case is as to the construction to be put upon the word " heirs " as used in a codicil to the will of the late Robert Anderson which is in the words following: During the argument before us an emphatic opinion was expressed from the court that the rule governing the case is that the word " heirs " as here used must be construed in its ordinary and natural sense unless there be something in the will or codicil, the former of which contained 45, and the latter clauses, which shews the intention of the testator to have been to use the word in a special, limited, peculiar sense. I so thoroughly agree with Mr. Justice Hall, in the Court of Appeal, which in my opinion has in a most exhaustive manner treated the subject that 1 only think it necessary to add, with great deference, that in my opinion any other conclusion than that which that learned Judge has arrived at would operate as a distortion of the rule governing the case, which is that the intention of the testator to use the word in the special sense contended for by the appellants must be found in the instrument itself, that is to say in the will and codicil thereto, in which the word is used.
I am of opinion therefore, that the appeal should be dismissed with costs.
(dissenting) .- The question is not whether testamentary heirs exclude heirs at law ; it is whether or not the respondents are sole testamentary heirs, and I have no hesitation in saying that they are not. The late Mr. Robert Anderson did not declare that they were, and the will of his sister Margaret is J. insufficient to make them so. The testator simply provided in his codicil that her share should go to her " heirs," which in law and in common parlance, and within the terms of his will, means all her " children " or natural heirs.
I entirely concur in the opinion of Mr. Justice Hall.
Appeal allowed with costs.