Down, Re, 68 D.L.R. (2d) 30

  • Document:
  • Date: 2018

Re Down

[1968] 2 O.R. 16-23

ONTARIO [COURT OF APPEAL]

MACKAY, KELLY and LASKIN, JJ.A.

21st MARCH 1968.

 

 

Wills — Construction — Gift to son when he “arrives at the age of 30 years, providing he stays on the farm” — Whether contingent on son attaining 30 — Whether proviso precatory and of no effect, or condition subsequent — Whether, if condition subsequent, void for uncertainty.

A gift in a will to a son when he “arrives at the age of thirty years, providing he stays on the farm” is contingent on the son attaining 30. The proviso as to staying on the farm is not a precatory direction having no legal effect, but a condition subsequent, which, however, is void for uncertainty. On attaining 30 the son will have an indefeasible vested interest.

[Re Brace, [1954] 2 All E.R. 354, distd; Moloney v. Moloney and Conden, [1938] O.R. 73, [1938] 1 D.L.R. 654; Re Ross (1904), 7 O.L.R. 493; Oliver v. Davidson (1882), 11 S.C.R. 166, refd to; Clavering v. Ellison (1859), 7 H.L.C. 707, 11 E.R. 282; Re Sifton, [1938] O.R. 529, [1938] 3 D.L.R. 577, [1938] A.C. 656, [1938] 2 W.W.R. 465, apld]

 

APPEAL from an order of Richardson, J., construing a will.

J.M. Dillon, for appellant, applicant, Harold Russell Down.

W.E. Bell, Q.C., for respondent, Stanley Linton Down.

 

The judgment of the Court was delivered by

LASKIN, J.A.:– An application for the construction of the will of the late David George Stanley Down came before Richardson, J., on December 1, 1967.  Five questions were set out in the application, of which the first, if it was properly included, begs the issues that arise under the other four.                          It is the second question that, in its various parts poses the problems of construction that lie at the base of the application; the succeeding questions are merely consequential upon the answers to the alternatives specified in question two. The first question asks whether the applicant, Harold Russell Down, a son of the testator, has an interest under the will, and, particularly, under para. 5 thereof.

The second question is as follows:

2.  If the answer to question 1 is that Harold Russell Down has an interest in the testator’s estate, what qualification is placed on this interest by the use of the words in paragraph 5, “provided he stays on the farm” —

(a)  do the said words import a precatory trust only?

(b)  if the said words do not import a precatory trust only, do they import a condition upon the gift?

(c)  if the said words import a condition on the gift, is the condition a condition precedent or a condition subsequent?

(d)  if the said words import a condition, is the condition void for uncertainty?

Richardson, J., gave very short reasons for judgment on December 6, 1967; they are in one paragraph which I quote in full:

Having reviewed the material before me and considered the cases referred to by counsel for the parties, I think the answer to the first question in the application must be in the negative.  It is my opinion that the devise to the applicant under para. 5, is conditional upon him staying on the farm and I think the words, “provided he stays on the farm” are clear, particularly when read along with paras. 3 and 4 of the will. He thereupon directed issue of an order “declaring that the applicant has no interest in the farm under paragraph 5 of the Will”.  As is evident from the terms of the will set out below, the matter in dispute is not whether the applicant has an interest in a farm but rather whether he has an interest in the testator’s real and personal estate.

The testator died on or about November 15, 1954, survived by two sons, the applicant and an older brother Stanley Linton Down, and by a sister Mary Elizabeth Down. The latter two, along with a nephew (not otherwise included in the will) were named executors.  The applicant was 13 years of age when his father died.   By reason of the terms of the will, it was important for him to know, he having attained his majority and, indeed, having passed his 26th birthday at the time of the application in this matter, what his position was if he should reach 30 years of age.  The scheme of the will, as an aid to its construction, can best be shown be setting out its nine dispositive clauses and the concluding residuary clause, which are in these words:

 

I GIVE, DEVISE ANB DEQUEATH all my Real and Personal Estate of which I may die possessed in the manner following that is to say:

1.  I give and bequeath unto my sister, Mary Elizabeth Down the use and occupation of our home place where we now reside on the South half of Lot Nine in the Fifth Concession of the Township of Ekfrid for and during the term of her natural life together with the use of all the furniture and household goods of every kind now in the said home and together with a small plot of ground used for garden and free right-of-way over and upon the property for all purposes as she now has.

2.  It is my desire that my son, Stanley Linton Down, shall have the use of all my farm property consisting of two hundred and twenty-five acres of land in the Township of Ekfrid subject to the payment to my said sister, Mary Elizabeth Down of the sum of Three Hundred dollars per year for and during the term of her natural life and subject also to the payment of Two Hundred dollars per year to my son, Harold Russell Down, until he arrives at the age of twenty- one years.

3.  My said son, Harold Russell Down, is to have a home with my said sister, Mary Elizabeth Down, and my said son Stanley Linton Down, shall supply to my said son Harold Russell Down and my said sister, Mary Elizabeth Down, butter, eggs and milk and any meat he slaughters on the farm, sufficient for their requirements.

4.  When my said son, Harold Russell Down, arrives at the age of twenty-one years and is desirous of farming, he may do so on the said farm but my siad son, Stanley Linton on Down, must pay him wages which are the going rate in that section of the country.

5.  When my said son, Harold Russell Down, arrives at the age of thirty years, providing he stays on the farm, then I give, devise and bequeath all of my estate both real and personal of every nature and kind whatsoever and wherever situate unto my said sons Stanley Linton Down and Harold Russell Down to be divided between them equally share and share alike.

6.  In the event of my said sister, Mary Elizabeth Down, dying any time before my said son Harold Russell Down arrives at the age of thirty years then all nursing, medical attendance and burial expenses shall be paid out of her estate and any deficiency shall be made up by my said son Stanley Linton Down.    If my said son, Harold Russell Down, is beyond thirty years of age then any deficiency must be shared equally by my said sons Stanley Linton Down, and Harold Russell Down.

7.  My said farm of two hundred and twenty-five acres shall not be sold or encumbered in any way for and during the term of the natural life of my said sister and in no event until Harold Russell Down arrives at the age of thirty years.

8.  I hereby instruct and authorize my said son, Stanley Linton Down to pay for Hydro, Telephone, Insurance and Taxes on the Home Place where my said Sister resides and to provide my said son, Harold Russell Down with medical, hospital and nursing care until he arrives at the age of twenty-one years.

9.  I give and bequeath unto my said son, Harold Russell Down, my piano for his own absolute use forever.

All the residue of my Estate not hereinbefore disposed of I give, devise and bequeath unto my said son Stanley Linton Down, including my truck and my automobile.

 

Before turning to the matters raised by Q. 2, I can deal shortly with a contention advanced by the appellant applicant outside of the ambit of that question. The contention was that the qualification of age 30 did not in itself prevent an immediate vesting of whatever interest the younger son was given under para. 5; or, at least, did not prevent a vesting on attaining his majority, subject to a divestiture on dying before reaching age 30. There is no substance to this submission. Attainment of age 30 is, apart from other considerations, clearly spelled out as a qualifying circumstance if the applicant is to take at all.The substantial issue is the force of the contingency represented by the words “providing he stays on the farm”. There is the question whether this phrase introduces a condition precedent or a condition subsequent, and the question whether, in either event, it is void for uncertainty or is so void only if it is properly construed as a condition subsequent. Over and above these issues is the question whether the quoted words are merely precatory, expressive of a wish or hope but without limiting force in law.                  In support of a precatory construction, counsel for the applicant urged the reasoning in Re Brace, [1954] 2 All E.R. 354. The material before the Court discloses that the testator’s sister is still alive and lives (pursuant to the terms of the will) in what was the testator’s home on the farm forming part of his estate.

The older son, who is the respondent to the application and in the appeal in his personal capacity as a beneficiary, lives with his wife and children in another house on the farm.

Although affidavit evidence is before us respecting the goings and comings of the applicant after he reached 17 or 18 years of age (involving, inter alia, his leaving the farm to work elsewhere and his returning thereto daily, and later on week- ends), it is unnecessary to dilate upon it to resolve the legal issues in this case.

It is advisable to consider first whether the words “providing he stays on the farm” are precatory; because, if they are, nothing will stand in the way of the applicant’s right to a half interest in the estate save attainment of age 30.  Certainly, they are not ex facie precatory, and there is nothing in any other part of the will to put a precatory gloss upon them. Paragraph 4 does not do so since it makes the applicant’s desire and not that of the testator a prerequisite of benefit:    see Moloney v. Moloney and Conden, [1938] O.R. 73, [1938] 1 D.L.R. 654.     Indeed, I think that the precatory argument, based on such a construction in Re Brace, supra, is misconceived here.        It is one thing to say that precatory words may or may not create a trust, obliging a beneficiary to apply certain property in a particular way; it is a different thing to say that words, couched in terms of a condition of a person taking or enjoying an interest, do not have that effect at all but should be construed as entitling him to take or enjoy without meeting its terms.     I would note, further, that the contested words in Re Brace, “on condition that she will always provide a home for my daughter”, concern an alleged benefit to a third person out of property given to another; and there is not, as here, a question whether the intended beneficiary qualifies. This is apart from the fact, which was material in Re Brace, that there was no gift over.

A precatory construction being rejected, I address myself to the question whether the words “providing he stays on the farm” introduce a condition precedent or a condition subsequent.  The main contention of the appellant is that the words prescribe a condition subsequent which is void for uncertainty. The respondent’s position is that they introduced a condition precedent which, if void for uncertainty, results in defeating the gift to the parties under para. 5; and, if certain, defeats the gift on the facts disclosed in the affidavits.   The respondent submitted in this connection that the condition was operative only until the applicant reached age 30, basing himself principally on the provision in para. 7 of the will forbidding sale of the farm until the applicant reached age 30.

If the required period on the farm ends at age 30, when does it begin? Paragraph 2 of the will gives the use of the farm to the respondent, subject to certain payments to the testator’s sister and to the applicant until he reaches his majority. By para. 4, the applicant, if at that time “desirous of farming”, may do so on the farm, and his older brother comes under an obligation to pay him at current rates.  Then comes para. 5 stating that when the applicant reaches age 30, “providing he stays on the farm”, he and his brother shall share equally in the whole estate. It is an arguable conclusion from this that the testator put it up to his younger son to come to a decision on reaching his majority whether he wished to farm; and if he so determined and “stays on” the farm to age 30, he would share in the estate equally with his brother.         The fact that the particular verb with which we are concerned is in the present tense must, on this argument, be viewed in the context of all the relevant clauses touching the farm; and there is the supporting submission that significance must be given to the phrase “stays on” (as contrasted with “stays at”) as reflecting a continuation of a way of life chosen at age 21.

If this is the construction of the contingency, being therefore a condition precedent operative until age 30, then on the facts (unless it be the case that the respondnet was at fault in the matter), the applicant has no claim under para. 5. I take this to be the conclusion of the Judge of first instance.

Two other constructions suggest themselves.  There is the view that the proviso is corrrelated in time with the attainment of age 30, and should be read as requiring the applicant to come at that time or within a reasonable period thereafter to stay on the farm; and having done so he has satisfied the contingency.  There is also the view that the contingency begins to operate from the attainment of age 30, and requires the applicant to stay on the farm thereafter (at the most, for his lifetime) to avoid a divestiture. Both of these views look upon the proviso as a condition subsequent. One problem which these views (and especially the second one) raise is whether the divesting on breach of condition subsequent would effect the interests of both the applicant and the respondent under para. 5 or only that of the applicant. The answer to this question is bound up with the preliminary issue whether the proviso should be construed as a condition subsequent; and this, in my view, is influenced by whether the will provides for a gift over on failure to meet the terms of the proviso: see Re Ross (1904), 7 O.L.R. 493.  The relevant consideration here is the relation of the residuary clause (following para. 9 of the will) to para. 5.

In a sense both are residuary clauses; but the contingencies in para. 5 make it reasonable to read them together, and to view the later clause as taking effect (with respect to the estate not otherwise specifically disposed of) upon the failure of the applicant to meet the contingencies. I have already expressed the view that attainment of age 30 is a prerequisite to any taking by the applicant under para. 5. The fact that the proviso as to staying on the form follows the age prescription (as well as being couched in the present tense) is an indication that it is susceptible of being a condition of retention rather than another condition of acquisition.

Paragraph 7 is also consistent with this view in its prohibition of a sale of the farm during the sister’s lifetime and “in no event until Harold Russell Down arrives at the age of thirty years”. This paragraph does not relate retention of the farm as an asset of the estate to any desire of the applicant to work thereon, but only to his attainment of an age at which he will qualify for a half interest in the whole estate “providing he stays on the farm”.  It is as reasonable to read para. 7 in support of a condition subsequent construction as in support of a condition precedent construction of the proviso in para. 5.

There is also the consideration that difficulties of construction such as are posed by the will in this case should be resolved in favour of all the objects of the testator’s bounty, especially where they are two sons, rather than be allowed to produce a result unfair to one of them, unless the language leaves no reasonalbe alternative.   In the present case, I do not think that any more violence is done by reading the proviso as a condition subsequent than would be done by reading it as a condition precedent.  I am fully aware of the preference for a vesting construction that the case law exhibits; and this fortifies me in concluding that the condition in question should be read as one of defeasance.

The remaining issue is that of certainty.  I do not find this difficult of resolution, having regard to the well-known principles reflected in Clavering v. Ellison (1859), 7 H.L.C. 707, 11 E.R. 282, and Re Sifton, [1938] O.R. 529, [1938] 3 D.L.R. 577, [1938] A.C. 656, with which I agree. I would refer particularly to the following passage in Clavering v. Ellison, at p. 725:

. . . where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.

The various meanings of “stay” as a verb, including “to remain”, “to reside”, “to sojourn”, “to dwell upon”, found in the standard dictionaries, manifest the uncertainty of what is demanded of the applicant; and even if a context is provided by the earlier reference, in para. 4 of the will, to “farming”, there is still a question of the degree or extent, having regard especially to the division of the estate between the two brothers. Moreover, no period or duration is indicated (contrast, in this respect, Oliver v. Davidson, (1882), 11 S.C.R. 166), unless it be taken as a life commitment.  I need not, however, rest my decision on this element but point out that the present case differs in this respect from Re Sifton which was concerned not with a capital gift made once and for all subject to a defeasance provision but with periodic payments which were subject to an abrogating condition.

I hold that the proviso as a condition subsequent is void for uncertainty and does not therefore trammel the applicant’s interest under para. 5 once he qualifies for it by attaining age 30.

The appeal must therefore be allowed, the order below set aside, and in its place there will be an order declaring that the answer to Q. 1 is that the applicant has a half interest in the estate, pursuant to para. 5, contingent upon his attaining age 30; and that the answer to Q. 2 is that the words in dispute constitute a condition subsequent which is void for uncertainty. It is unnecessary to answer the other questions.

As to costs, I think this is a case in which both parties should have their costs of the application and of the appeal out of the estate.    I would fix the costs of each on the application at $250, and allow each their costs of the appeal.

Appeal allowed.