18 O.R. (2d) 385
ONTARIO COURT OF APPEAL
HOULDEN, ZUBER AND WEATHERSTON, JJ.A.
16TH JANUARY 1978.
Wills — Construction — Repugnant gift — Testator giving house “to the use of my … daughter as she may … appoint” with gift over in default to son — Fair reading of will suggesting testator intended to make gift to daughter for life, remainder to such person as she might appoint, with gift over in default to son.
[Sanford v. Sanford,  1 Ch. D. 939; Re Schumacher (1971), 20 D.L.R. (3d) 487,  4 W.W.R. 644, apld; Thuresson v. Thuresson (1901), 2 O.L.R. 637, refd to]
APPEAL from a judgment of Henry, J., 13 O.R. (2d) 359, 71 D.L.R. (3d) 60, construing a will.
D. Casey, for appellant.
J. Stefoff, for respondent.
The judgment of the Court was delivered by
ZUBER, J.A.:– This is an appeal from a judgment given in Weekly Court following an originating notice of motion asking for the construction of a will and the determination of the rights of the parties.
The facts are as follows: Michael Paithouski, of Sarnia, died on August 5, 1965. During his lifetime he had been the owner of a house at 589 South Vidal St. in Sarnia, which house was the family home of the Paithouski family. It was occupied by Michael Paithouski and also by his daughter, Mary E. Wynne, and her husband, Joseph Earl Wynne.
Michael Paithouski was survived by his son Nicholas and his daughter Mary. His will contained the following paragraph which gives rise to these proceedings:
I give, devise and bequeath my house and lot known as 589 South Vidal Street in the City of Sarnia, together with the household furniture and household contents thereof unto my daughter, Mary E. Wynne, to the use of my said daughter as she may be [sic] deed, mortgage, will or other instrument in writing of [sic] appoint, and in default of such appointment on the death of my said daughter, unto my son, Nicholas J. Paithouski.
The will concluded with a residuary clause which provided that all the rest and residue of the estate must be converted into cash and divided equally between Mary Wynne and Nicholas Paithouski. Nicholas Paithouski was appointed executor of the estate.
After the death of Michael Paithouski, Mary Wynne and her husband continued to occupy the Vidal St. house. Nicholas Paithouski, as executor of his father’s will, retained solicitors and on August 12, 1965, an executor’s deed of the Vidal St. house in favour of Mary E. Wynne was prepared, executed and registered.
Mary Wynne died on May 21, 1970, without having exercised the power of appointment referred to in the will of her father. She was survived by her husband, Joseph Wynne, and he died in May of 1974, leaving a will naming the Lambton Trust Company as executor.
The question that now demands an answer is whether the Vidal St. house is now owned by Nicholas Paithouski or the estate of Joseph Wynne.
There are two preliminary points which can be quickly disposed of. First, there is nothing in the material before us to show a request from Mary Wynne, or concurrence in the deed by her, which would render the executor’s deed an exercise of the power of appointment. Second, it cannot be said that by giving a deed, as executor of the will of Michael Paithouski, Nicholas Paithouski has conveyed away his personal interest in the property.
Mr. Justice Henry, who heard this matter in Weekly Court, was of the opinion that the will conferred an absolute gift of the property on Mary Wynne and, therefore, the words dealing with the power of appointment were inconsistent with the absolute gift and void. He concluded, as a result, that the property passed to the Lambton Trust Company as executor of the estate of Joseph Wynne.
With great respect, I do not agree. I find considerable assistance in the approach taken in a similar case by Joyce, J., in Sanford v. Sanford,  1 Ch.D. 939. Rather than quote from that judgment, I shall simply attempt to use the same reasoning.
In his will, Michael Paithouski obviously intended to accomplish either one of two objectives, namely:
(1) to make an absolute gift of the Vidal St. house to his daughter; or (2) to make a gift of the Vidal St. property to his daughter for life with the remainder to such person as his daughter might appoint and, failing an appointment, to his son Nicholas.
If the testator intended only an absolute gift to his daughter (which object can be simply and briefly stated) one is prompted to ask what then is the purpose of the complex but admittedly poorly drafted language respecting uses and a power of appointment? In my opinion, a fair reading of the whole paragraph clearly indicates that the testator intended to accomplish the second objective.
I recognize the principle that, whatever the wishes of the testator may be, he cannot accomplish the impossible and if, in fact, he has made an absolute gift, he cannot take it away. But this is not such a case. In devising the use to his daughter he has not clearly exhausted the use. The operative words are simply “to the use of my daughter as she may …”. It is significant that the clause does not say “to the use of my daughter and her heirs” or “to the use of my daughter forever”. It is open to a Court to interpret this clause as meaning “to the use of my daughter for life” and then “to such uses as she may by will or deed appoint”, etc., and thereby give effect to the clear intention of the testator.
I find support for this view in the words of Dickson, J.A. (as he then was), in Re Schumacher (1971), 20 D.L.R. (3d) 487 at p. 494,  4 W.W.R. 644:
It seems to me that unless there is an an obvious and clear conflict created by two provisions of a will the Court should not be alert to frustrate the expressed intention of a testator by seeing repugnancy where none truly exists.
This interpretation of the will, coupled with the fact that the power of appointment was not exercised, leads to the conclusion that the property in question passes to the son Nicholas.
Having reached this conclusion, it is unnecessary to determine whether or not the language that gives rise to the difficulty in this case may, in fact, have created a shifting use (cf. Thuresson v. Thuresson (1901), 2 O.L.R. 637). In the result, the appeal is allowed, the judgment of the Court below is set aside and the question asked will be answered as follows: Nicholas Paithouski is the owner of the property in question, and the estate of Joseph Earl Wynne has no interest in the said property.
The next problem is the question of costs. We are here concerned with the estate of Michael Paithouski. The motion was initiated by his son, Nicholas Paithouski, in his personal capacity, seeking the construction of the will and the determination of the rights of the parties. The Lambton Trust Company entered this contest as an adversary on behalf of the beneficiaries of the estate of Joseph Wynne. As a result, the appellant Nicholas Paithouski is entitled to his costs against the Lambton Trust Company of the motion and of this appeal.