Carter v. The Montreal Trust Co. and Goldstein

the judgment of the Superior Court and maintaining the respondent's action.

The late C. B. Carter, K.C., of Montreal, made on the 28th of June, 1905, his will under the olograph form, which contained the clauses above recited. He had married on the 19th of April, 1905, dame Emma Blunden; and when he died on the 9th of August, 1906, there was no issue. Mrs. Carter died on the 21st of August, 1917, leaving a will under which the respondent was appointed executor.

The latter brought action against the defendants, who were the executors of Mr. Carter's will, to recover the sum of $25,000 as being part of Mrs. Carter's estate.

The lawful heirs of Mr. Carter were called in the case as mis-en-cause and they contested the action on the ground that that sum had been devolved upon them as on an intestacy.

I have little difficulty in reaching the conclusion that the $25,000 in question did pass to the widow of the testator.

The two clauses of the will in question upon the construction of which the dispute in question must be determined read as follows:- 5. In addition to the sum given to my said wife, I direct and desire that my executors, whom 1 also name as trustees, shall set apart a sum of twenty-five thousand dollars and invest the same in the securities provided by law, and pay the interest or dividends from the said sum as the same are payable to my said wife during her lifetime so long as she remains a widow, but in the event of her marrying then in such case the said interest or dividends shall cease and the said sum revert to my estate, in the same manner as it will revert to my said estate upon the death of my said wife.

construe the word "revert" to mean "fall back into" his estate.

In that paragraph, however, he it aarpnwvr made no further disposition of the corpus of the $25,000 beyond saying that under the specified contingencies it should revert to his estate.

When, therefore, in the fifteenth clause he provides that in default of issue from his marriage the residue of his estate should go absolutely to his wife, that residue necessarily included the corpus or principal of the $25,000 which was previously undisposed of. When the possiblity of issue from his marriage ceased, the absolute devise of the corpus of the $25,000 being part of the residue of his estate, would attach and become operative.

As the widow survived him and there was no issue of the marriage the bequest to her absolutely of the corpus of the $25,000 attached and became operative. I would therefore dismiss the appeal with costs. J.-The late Christopher Benfield Carter who married Emma Blunden on the 19th April, 1905 and made his last will and testament on the 28th of June, 1905, died on the 9th of August, 1906. He had by a marriage contract on the day of his said marriage, but preceding same, bound and obliged to This transaction is of no consequence save as illustrating the provisions made in said will in respect thereof and also, I may be permitted to think, of the mentality of the testator whose said will we are now asked by this appeal to consider and reverse the construction put thereon by the Court of King's Bench which reversed that put upon it by the Superior Court.

The said wife survived the testator and died on the

21st of August, 1917, after having made her last will and testatment in the preceding February of the same year.

The respondent Goldstein was appointed thereby executor and trustee thereof.

The Montreal Trust Company and one Armstrong, a brother-in-law of the deceased testator, were the acting trustees of the said testator's estate under the said will.

The respondent Goldstein, as executor and trustee, brought before the said Superior Court the question of his right as executor of the will of the said testatrix to recover from said trustees the sum of $25,000 or the securities in which the said sum had been invested in course of their executing the trusts under the said testator's will.

The whole difficulty arises in regard to the proper interpretation and construction of the 5th and 15th clauses of said will of the testator.

The first clause revokes all former wills.

The second deals with his burial, and the third with the direction to pay all debts and funeral expenses.

The fourth refers to the said marriage contract, directs the sum of money due thereby to be handed over and paid his said wife absolutely to be disposed of by her as she thinks proper, and asks his executors to assist his wife in the investment of said sum so that she shall not suffer any loss, and that the investment should be in the best securities.

Then follows the fifth clause which reads as follows: 5. In addition to the sum so given to my said wife, I direct and desire that my executors whom I also name as trustees, shall set apart a sum twenty-five thousand dollars and invest the same in the Go ,sTEm. securities provided by law, and pay the interest or dividends from the said sum as the same are payable to my said wife during her life- Idington time so long as she remains my widow but in the event of marrying then in such case the said interest or dividends shall cease and the said sums shall revert to my estate, in the same manner as it will revert to my said estate upon the death of my said wife.

Then there follow a great many bequests in which appellants and others are given personal bequests. And amongst other bequests of that kind, he gives a total of eight thousand dollars to a number of institutions as objects of charity.

As his entire estate did not much exceed, if at all, ninety thousand dollars he clearly did not think of his own relatives, amongst whom he distributed the bulk of his estate, as needy objects of further generosity or charity, or we should have, I submit, expected something more presented in his will than what I am about to refer to which it is contended was an expression of such intention.

The fifteenth clause (which is the last in the will, save an injunction in way discharge of duty on the part of his executors was to be observed and power to discharge same), is as follows:- Should there be any issue of my marriage the residue of my estate shall be kept in trust for such issue until such issue shall attain the age of twenty-one years, but the interest or revenue shall be employed in the education and support of such issue, but in default of such issue, the said residue shall go to my wife to whom I give the I do not find the serious difficulty that the appellants do in the interpretation or construction of this will. I think that these two clauses, 5 and 15 read together and in light of the whole will clearly gave the whole of that fund of $25,000 to his testators to hold as an investment solely for the benefit of his widow and possible children, but to be subject to the condition against re-marriage.

It was clearly to be for her and them subject only to a forfeiture on re-marriage.

So interpreted and construed there arises no such difficulty as suggested in argument of a bequest only to become operative on her death.

There seems to me neither such difficulty nor room for the rather curious suggestion of interpreting the words in the last part of clause 5, reading as follows it either as a bequest to his heirs or as a case of intestacy. He certainly did not (being a member of our profession) in making such a will as before us intend that as a bequest to any one; nor did he expect to die intestate, unless his widow should remarry which as a reasonable man he would, in confronting her with forfeiture of such a bequest, consider highly improbable.

We must never forget, if we would interpret correctly the situation, that this will was made within a little more than two months after his marriage when the possibility of issue was quite conceivable.

I do not think the contention should have been continued beyond the decision of the Court of King's Bench and hence conclude that this appeal should be dismissed with costs.

J.-The intention of the testator is, I think, plainly enough evinced to dispose by testamentary disposition of the whole of his property both in extent and in interest. A certain interest in the investments representing the sum of $25,000 passes (under clause five) to his wife-it is not necessary, I think, to determine with precision the character of that interest. What of the interest left untouched by that clause? J.

I see no good reason why it should be supposed that it is not captured by the residuary clause-clause fifteenso as to pass in one event to the issue and in the other to the wife.

There being no issue, the combined effect of the two pertinent clauses (five and fifteen) is to give to Mrs. Carter the entire property in the sum of $25,000 and the investments respecting it. J.-The late C.

The residue of the estate was bequeathed to the testator's children if any (to be held in trust for them until they should attain 21 years, the income meantime to be applied for their education and support) and, if he should die without issue, to his wife absolutely. He died childless.

The single question is whether the sum of $25,000 passed as part of the residue bequeathed to the wife or devolved on the heirs-at-law as on an intestacy.

I find nothing in the context to limit the universality of the word "residue".

6 Aubry & Rau, 4 ed. p. There may be a question, of no practical importance since Mrs. Carter's death, whether, having regard to the trust for her of the income, she could have claimed payment of the corpus of the sum of $25,000 -during her lifetime. But that the ownership of that sum became vested in her on her husband's death without any child born or en ventre, so as to form part of her estate, I entertain no doubt whatever.

The corpus in fact does not pass under it but is undisposed of by any provision of the will other than that dealing with the residue. Moreover, the direction for reverter appears to signify nothing more than that in the event of the widow's remarriage the same disposition of the $25,000 shall ensue as would occur under the other terms of his will upon her death. The word "revert" is obviously not applicable in the technical sense to the corpus of the $25,000. Since that sum was never taken out of the testator's estate, it could not revert to it. But in using this word the testator would seem to have had in mind as well the payments of income to his wife for the rest of her life, which had been in a sense taken out of his estate by the gift of them to her defeasible in the event of her contracting a second marriage.

His use of the word "sums" would so indicate.

This may explain his employing the word "revert", notwithstanding its inconsistency, if so used, with the succeeding phrase Note that the singular pronoun "it" is used to signify the "sums"

directed to "revert".

Inaccuracy of diction is perhaps the most notable characteristic of this entire provision.

I cannot find in the use of the word "revert" however, any indication of an intention to divert the otherwise undisposed of corpus from the residuary legatees or legatee to the heirsm at-law.

Still less can I discern in the word "estate" a designation of such heirs-at-law as its ultimate recipients to the exclusion both of the children and the widow of the testator as residuary legatees. For both would have been alike excluded if the appellant's contention is sound.

I cannot conceive that that was the testator's intent. His future children, if any, were the first and direct objects of his residuary bequest. The objection made against the wife claiming under the bequest that the benefit of it would enure only to her estate after her death does not apply to the bequests to the children.

Yet if the children were to take under the residuary bequest the.undisposed of corpus must have been included in the residue. Once there it is there for all the purposes of the bequest including the gift over to the wife

Any other construction seems impossible unless the clearly outstanding purpose of the testator-to deal with the entire residue of his estate, including all property not otherwise effectively disposed of by his will (Fuzier-Herman, vbo. Legs. No. 8778), for the benefit in the first place of his children, if any, and failing issue, for that of his wife-should be disregarded.

It is trite law, recently restated in the Privy Council (Auger v. Beaudry (1), that speculation or conjecture as to the motives that may have influenced the testator in giving to his bequests the form in which we find them cannot warrant a refusal to give effect to the fair and literal meaning of the actual language he has used. We may not reject the plain bequest to the wife because in the result it may benefit her heirs rather than the heirs of the testator.

If the right of the widow to payment of the $25,000 under the residuary bequest accrued immediately on the testator's death without children, the objection, "EiR strongly urged by Mr. Lafleur, that the bequest was to a person in whose favour it could not take effect until after her death and therefore in contravention of Art. 838 C.C. would obviously have no application. The same observation might be made if her right to payment of the corpus had arisen by reason of her remarriage. But assuming that the effect of the trust created by clause 5 of the will was, in the event which happened, to defer any right to actual payment of the corpus under the residuary bequest until her death, that suspension merely postponed the execution of the residuary disposition and did not prevent her having under it during her lifetime "an acquired right transmissible to her heirs," Art. 902 C.C." The event which gave effect to" the residuary legacy to the widow was the death of the testator without any children either born or en ventre. Thereupon she became "seized of the right to the thing bequeathed".

Art. 891 C.C. Whatever justification any obscurity in the late Mr. Carter's testamentary dispositions may have afforded for instituting this litigation and carrying it to the Court of King's Bench, the mis-en-cause might well have been content to abide by the judgment of that court.

They should pay the respondents their costs of the unsuccessful appeal here.

BRODEUR J.-Le point en litige en cette cause est de savoir si une somme de $25,000 sp6cifiquement mentionn~e au testament de M. l'avocat C. B. Carter de Montreal appartient aux h~ritiers 16gaux de dernier ou A sa femme.

M. Carter s'est mari6 le 19 avril 1905, A Montr6al, avec Mlle. Blunden; et par son contrat de mariage, il avait donn6 A sa fenune une somme de $10,000 payable A sa mort, avec stipulation cependant que si elle pr6d6c6dait, la donation deviendrait de nul effet. Brodeur J. Environ deux mois apris son mariage, soit le 28 juin 1905, M. Carter faisait son testament par lequel il instituait comme ses l6gataires universels les enfants qui nattraient de son mariage; et il ajoutait que s'il n'avait pas d'enfants alors l'universalit6 de ses biens irait A sa femme.

Ce legs universel est stipul6 dans la clause 15 du testament et se lit comme suit: 15. Should there be any issue of my marriage, the residue of my estate shall be kept in trust for such issue until such issue shall attain the age of twenty-one years but the interest or revenue shall be employed in the education and support of such issue, but in default of such issue, the said residue shall go to my wife to whom I give the II avait dans les clauses pr6c6dentes confirm6 et ratifi6 la donation de $10,000 mentionn~e au contrat de mariage;

il avait nomm6 un de ses parents et un de ses amis comme ex6cuteurs testamentaires et fiduciaires et il avait aussi fait plusieurs legs particuliers A ses parents et A ses amis; il avait au paragraphe 5 dispos6 d'une somme de $25,000 dans les termes suivants: 5. In addition to the sum so given to my said wife I direct and desire that my executors, whom I also name as trustees, shall set apart a sum of twenty-five thousand dollars and invest the same in the securities provided by law and pay the interest or dividends from the said sum as the same are payable to my said wife during her life time so long as she remains my widow, but in the event of marrying then in such case the said interest or dividends shall cease and the said sums shall revert to my estate in the same manner as it will revert to my said estate upon the death of my said wife.

M. Carter est mort un peu plus d'un an aprs avoir fait son testament.

Sa femme lui a surv6cu et aux termes du testament 'elle est devenue 16gataire universelle, vu qu'ils n'ont pas eu d'enfants.

La somme de $25,000 a t administr6e par les fiduciares, qui 6taient en mime temps ex6cuteurs testatmentaires, et le revenu en a 6t6 pay6 A Madame Carter, qui ne s'est pas remaribe et qui est morte elle-mime le 21 aofit 1917, laissant un testament par lequel elle nommait I'intim6, M. Goldstein, son ex~cuteur testamentaire, et son frbre et sa soeur qui demeuraient en Angleterre, ses l6gataires universels.

Les h6ritiers de M. Carter, qui sont les appelants, pr6tendent que cette somme de $25,000 mentionn6e au paragraphe 5 du testament de M. Carter leur appartient et que les mots "revert to my estate" veulent dire "retourne A mes h6ritiers 16gaux." Goldstein, I'intimb, pretend, au contraire, que cette somme devait revenir d'abord A ses enfants sous Ia clause 15 de ce testament et qu'd d6faut d'enfants cette somme devenait la propri~t6 de Madame Carter, et que les repr6sentants de cette dernibre ont le droit de la revendiquer.

M. Carter avait fait son testament dans 1'espoir qu'il aurait des enfants;

aussi il les avait institu6s ses 16gataires universels. En mime tremps, il voulait assurer A sa femme les moyens de vivre et il y avait stipul6 qu'elle aurait la jouissance d'une somme de $25,000 pendant sa viduit6 ou sa vie durante. Si M. Carter edt laiss6 des enfants A son d~cas, il ne peut pas y avoir de doute que la. nue-propri6t6 de cette somme de $25,000 aurait fait partie du patrimoine de ces enfants comme h6ritiers 16gitimes ou comme l6gataires universels de leur phre Mais il n'a pas laiss6 d'enfants et alors le legs universel stipuld en leur faveur devenait cadue et sa femme recueillait la succession comme l6gataire universelle.

Maintenant dans cette succession se trouvait cette somme de $25,000

(art. 596 C.C.)

Malgr6 1'expression un peu 6trange dont se servait M. Carter dans ces mots "revert to my estate," il ne pouvait pas empicher la nue-propri6t6 de cette somme d'appartenir t quelqu'un a son d6chs.

Ce b6n6ficiaire ne pouvait pas etre l'ex6cuteur testamentaire ou le fiduciaire qui n'est "qu'un l6gataire pour la forme", oblig6 de tenir en d6p6t la somme 16gu6e et de l'administrer jusqu'au jour de la remise au "l6gataire r6el." Michaux, Des Testaments, p. 220, no. 1428; Merlin, R6pertoire, vbo. fiduciaire, no. 3; Zachariae, Aubry & Rau, vol. 6, par. 694, texte et note 9.

Cette somme de $25,000, en supposant que M. Carter eiit eu des enfants A son d6cas, aurait donc appartenu en jouissance A sa femme et en nue-propri6t6 A ses enfants. Du moment qu'il n'avait pas d'enfants, la somme appartenait A sa femme en jouissance et en nue-propri6t6, vu qu'elle 6tait institude sa 16gataire universelle A d6faut d'enfants. Elle aurait eu le droit de revendiquer cette somme des l6gataires universels A raison des dispositions de l'art. 479 du Code Civil qui d6clare que l'usufruit qui 6tait stipul6 au testament en sa faveur 6tait 6teint

Ce qui caract6rise le legs universel, c'est la vocation du 16gataire A l'universalit6 des biens qui composent le patrimoine du testateur.

Dans le cas actuel, le testateur, en l6guant le surplus de ses biens A sa femme, a montr6 son intention bien 6vidente d'exclure ses h6ritiers 16gitimes de sa succession.

Laurent, vol. 13, no. 516.

Aubry & Rau, vol. 7, p. 466, parag. 714.

Demolombe, vol. 4, Donations, p. 542.

Cette somme d~s le d6chs de M. Carter est devenue la propri6t6 absolue de Mme Carter; et alors il n'y a pas lieu d'invoquer au soutien de leur pr6tention, comme les appelants l'ont fait, I'article 838 du Code Le transmission de la nue-propri6t6 de cette somme de $25,000 ne devait pas s'accomplir qu'aprbs la mort de Madame Carter, comme le disent les appelants, mais cette transmission s'est produite d6s le ddc~s du testateur; autrement nous serions en pr6sence d'une disposition testamentaire ill6gale parce qu'elle laisserait une partie des biens sans propri6taire au ddcas du testateur.

Le mot succession ou "estate" ne se rapporte pas simplement A l'id6e de la succession lgitime; il couvre aussi la succession testamentaire.

De fait, la succession l6gitime n'a lieu que dans le cas le de cujus n'a pas laiss6 de testament.

S'il y a un testament, et s'il y a institution d'h6r6dit6 on un l6gataire universel de nomm6, alors cette disposition testamentaire 6carte la succession l6gitime.

(Art. 597 C.C.) M. Carter, en donnant le surplus de ses biens A ses enfants et A leur d~faut, A sa femme, a donn6 A cette dernibre la vocation, comme disent les auteurs, A l'universalit6 des biens qui composant son patrimoine. [Beaudry-Lacantinerie, Des Testaments, nos. 2288 & 22981

Je suis done d'opinion que les h6ritiers l6gitimes de M. Carter n'ont pas le droit de recueillir cette somme de $25,000 et qu'elle doit 6tre remise A l'ex6cuteur testamentaire de Madame Carter.

L'appel doit Atre renvoy6 avec d6pens.

Solicitors for the other appellants:

Brown, Montgomery & McMichael.