O.J. No. 159
56 O.L.R. 517
Ontario Supreme Court – Appellate Division Latchford C.J., Magee, Middleton and Orde JJ.A. January 23, 1925
Will — Construction — Gift to Testator’s Widow of Whole Estate with Specified Exceptions — Direction as to Property “Undisposed of” at Death of Widow — Provision for Distribution among Named Persons — Repugnancy — Rules of Construction in Different Classes of Cases — Aid Derivable from Reported Decisions.
When a testator gives property to one, intending him to have all the rights incident to ownership, and adds to this a gift over of that which remains in specie at his death or at the death of that person, he is endeavouring to do that which to impossible. His intention is plain but effect cannot be given to it. The Court has then to endeavour to give ouch effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention. In one class of cases, the gift to the person first named prevails and the gift over falls as repugnant; in another class, in which the first named takes a life-estate only, the gift over prevails. There is no middle course: cases in which all that is given to the first taker is a life-estate, but the life-tenant is given a power of sale which may be exercised at any time during the currency of his estate, constitute only an apparent exception to the rule-in them there is no conflict upon the face of the gift.
Shaw v. Ford (1877), 7 Ch. D. 669. In re Rosher (1884), 26 Ch. D. 801, and In re O’Hare,  1 I.R. 160, followed.
Shearer v. Forman (1911), Q.R. 40 S.C. 139, Shearer v. Hogg (1912), 46 Can. S.C.R. 492, explained and distinguished.
In general, no aid in the construction of a will can be derived from reported decisions which do not establish a principle but simply seek to apply an established principle to a particular document.
Aspden v. Seddon (1874), L.R. 10 Ch. 397, note, and Foulger v. Arding,  1 K.B. 700, followed.
In this case, the testator gave and devised to his wife all his real and personal property. with the exception of certain chattels which were the subject of specific legacies, and directed that, “should any portion of my estate still remain in the hands of my said wife at the time of her decease undisposed of by her such remainder shall be divided” among certain persons named in the proportions named:
Held, that the words “undisposed of” did not refer to a testamentary disposition by the widow, but to a disposal by her during her lifetime; there was here an attempt to deal with that which remained undisposed of by the widow, in a manner repugnant to the gift to her; the gift to her must prevail, and the attempted gift over be declared repugnant and void.
Motion by the executors of the will of Ellen Fitze Walker, deceased, the widow of John Walker, for the opinion of the Court as to the true interpretation of the will of John Walker.
September 24. The motion was heard by RIDDELL J., in the Weekly Court, Toronto.
E. F. Raney, for the applicants.
Evereft Bristol, for Roland Parkin, one of the heirs of John Walker.
R. H. Sankey, for the trustees of the Women’s Auxiliary of St. Simon’s Church, beneficiaries under the will of Ellen.
F. W. Harcourt, K.C., Official Guardian, for the infants.
September 27, 1924. RIDDELL J.:– The late John Walker made his will, whereby, after appointing his wife executrix, he made the following provision:
“I give and devise unto my said wife all my real and personal property” [with certain exceptions which he disposed of specifically] “and also should any portion of my estate still remain in the hands of my said wife at the time of my decease undisposed of by her such remainder shall be divided as follows” [then is set out the disposition in that event]. There is no power given to dispose by will or any other provision requiring attention.
The widow, Ellen Fitze Walker, survived some nineteen years, dying in 1922, having first made her will, in which she gave, devised, and bequeathed all her estate, both real and personal, to certain named executors upon certain specified trusts.
The executors, finding that her apparent estate included part of what she had received under her husband’s will, are desirous of the opinion of the Court, and apply to have the earlier will interpreted.
The case was very fully and carefully argued; and I have read the cases cited and some others.
In the case of Doe d. Stevenson v. Glover (1845), 1 C.B. 448, mentioned by me on the argument, there was considered a not dissimilar provision-“if he … shall not have disposed of and parted with his interest in …” certain property, then over. Gaselee, Serjt., arguendo at p. 458, says: “If the word used had been ‘disposed’ only, it clearly would have comprehended a disposition by will.” The Court decided against him, largely on the ground that the words “parted with” were explanatory of the prior and more general word “dispose.” Tindal C.J., however, took occasion to say (p. 460): “Even if it had rested upon the word ‘disposed,’ I should have inclined to hold, upon the principle that a will is ambulatory, and speaks only from the time of the testator’s death, that a devise of the estate in question was not a disposing of it within the meaning of this will.”
I do not find any case of a will in the precise language of this. but there are numerous cases not dissimilar.
The argument of the executors of the widow is twofold:
There is an express gift of an absolute estate to the widow, and no gift over can be grafted upon it.
The will of the widow is an effective disposal within the meaning of the will.
Such cases as In re Jones,  1 Ch. 438, are cited-and, no doubt, if an absolute interest be once given, there can be no gift over.
But here the gift to the widow is “saving and excepting thereout as follows namely” the specific articles named “and also should any portion … still remain in the hands of my said wife at the time of her decease undisposed of by her such remainder shall be divided as follows. …”
The gift is not absolute but subject to this latter exception as to the earlier. The case is not identical with In re Sanford,  1 Ch. 939, but is nearer to it than to In re Jones, and I adopt the reasoning of Mr. Justice Joyce in the former case.
Roman Catholic Episcopal Corporation of Toronto v. O’Connor (1907), 14 O.L.R. 666, contains an expression of opinion in the same sense (p. 670).
So, too, in Constable v. Bull (1849), 3 DeG. & Sm. 411; Bibbens v. Potter (1879), 10 Ch. D. 733; In re Pounder (1886), 56 L.J.N.S. Ch. 113; and many other cases.
Of course I am not at all denying that a gift may be so made as to prevent a gift over.
I think that the will, by the use of the words “undisposed of” and “such remainder” clearly contemplates that the widow will during her lifetime dispose of-that is, put out of her hands and power-part of the estate at least, but not necessarily all; and that there may be a remainder not so disposed of still in her hands. It is this remainder which at the time of her decease she has not disposed of in her lifetime that is affected by this provision.
I cannot reconcile this language with the intention that the widow could dispose by will of the existing property in her hands.
Of the many cases cited, none is conclusive against this view, and I give effect to it.
There will be a declaration that the widow’s estate does not include any part of her husband’s estate at the time of her death still in her hands.
Costs of all parties out of this part of the property.
The executors appealed from the judgment of RIDDELL J.
December 16, 1924. The appeal was heard by LATCHFORD C.J., MAGEE, MIDDLETON, and ORDE JJ.A.
Raney, for the appellants.
Sankey, for the beneficiaries under the will of Ellen Fitze Walker. Craig McKay, for the beneficiaries under the will of John Walker.
The following authorities were referred to by counsel: Halsbury’s Laws of England, vol. 15, para. 837; vol. 28, paras. 1408, 1409, 1455; Parnell v. Boyd,  2 I.R. 571, at pp. 578, 579, 594, 602; Gulliver v. Vaux (1746), 8 DeG.M. & G. 167; In re Walker, Lloyd v. Tweedy,  1 I.R. 5; In re Dunstan,  2 Ch. 304; Bowes v. Goslett (1857), 27 L.J. Ch. 249; Parnall v. Parnall (1878), 9 Ch. D. 96; Ferry v. Merritt (1874), L.R. 18 Eq. 152; Farwell on Powers, 3rd ed., p. 75; Shaw v. Ford (1877), 7 Ch. D. 669, at p. 673; Watkins v. Williams (1851), 3 Macn. & G. 622; Jarman on Wills, vol. 1, pp. 362-4, 463; Theobald on Wills, 7th ed., p. 514; In re Jones,  1 Ch. 438, distinguished in Osterhout v. Osterhout (1904), 7 O.L.R. 402; In re Sanford,  1 Ch. 939; Constable v. Bull, 3 DeG. & Sm. 411; Bibbens v. Potter, 10 Ch. D. 733; Roman Catholic Episcopal Corporation of Toronto v. O’Connor, 14 O.L.R. 666; Be Cutter (1916), 37 O.L.R. 42; Halsbury’s Laws of England, vol. 28, para. 1397; Re Richer (1919), 46 O.L.R. 367; Re Gouinlock (1915), 8 O.W.N. 561; Wilson v. Graham (1886), 12 O.R. 469; In re Ashton,  2 Ch. 481.
January 23, 1925. MIDDLETON J.A.:– An appeal from the judgment of Mr. Justice Riddell pronounced on the 27th September, 1924, declaring that the estate of the late Ellen Fitze Walker does not include any part of the estate of the late John Walker undisposed of by her at the time of her death.
John Walker died on the 27th March, 1903, and first made his will, bearing date the 17th November, 1902, which was in due course admitted to probate, his widow being his sole executrix. At the time of his death his estate amounted to approximately $16,000. By his will he provided as follows:
“I give and devise unto my said wife all my real and personal property saving and excepting thereout as follows namely my gold watch and chain I give to my nephew John Noble Walker non of my brother William Walker and all other jewellery I may have at the time of my decease I give to my nephews William Craig Walker and Percy Dugald Walker brothers of the said John Noble Walker share and share alike and also should any portion of my estate still remain in the hands of my said wife at the time of her decease undisposed of by her each remainder shall be divided as follows. …”
The widow survived until 1922. Her will has been duly admitted to probate. Her estate, including all that remained of her husband’s estate, was valued at $38,000.
Those claiming under the husband’s will seek to have some portion of this estate earmarked as being an “undisposed of” portion of the husband’s estate. Those claiming under the wife’s will contend that under the provision of the husband’s will the widow took absolutely. Mr. Justice Riddell decided in favour of those claiming under the husband’s will. From this decision an appear is now had.
From the earliest times the attempt has been made to accomplish the impossible, to give and yet to withhold, to confer an absolute estate upon the donee, and yet in certain events to resume ownership and to control the destiny of the thing given: By conveyance this is impossible. Where there is absolute ownership, that ownership confers upon the owner the rights of an owner and restrains an alienation; and similar attempts to mould and control the law are void: In re Rosher (1884), 26 Ch. D. 801.
As long ago as 1498 (13 Hen. VII. 22, 23, pl. 9), Bryan C.J., interrupted counsel arguing before him that a condition on a fee simple not to alien was good, saying that the Court “would not hear him argue this conceit, because it is simply contrary to common learning and is now, so to speak, a principle … because in this way we should transpose all our old precedents. Therefore speak no more of this point:” Gray’s Restraints on the Alienation of Property, 2nd ed., pp. 9, 10.
By an executory devise testators succeed in many cases in attaining that which would have otherwise been impossible- creating a future right which would on the happening of certain events come into existence and terminate a preexisting estate in fee simple, but limits have been placed upon this right constituting exceptions to the general rule that an estate given by will may be defeated on the happening of any event.
“One of these exceptions may, in my opinion, be expressed in this manner, that any executory devise, defeating or abridging an estate in fee by altering the course of its devolution, which is to take effect at the moment of devolution and at no other time, is bad. The reason alleged for that is the contradiction or contrariety between the principle of law which regulates the devolution of the estate and the executory devise which is to take effect only at the moment of devolution, and to alter its course. … Another exception to the general proposition which I have stated is this, that any executory devise which is to defeat an estate, and which is to take effect on the exercise of any of the rights incident to that estate, is void; and there again the alleged reason is the contrariety or contradiction existing between the nature of the estate given and the nature of the executory devise over. A very familiar illustration is this, that any executory devise to take effect on an alienation, or an attempt at alienation, is void, because the right of alienation is incident to every estate in fee simple as to every other estate. Another illustration of the same principle is that which arises where the exercise of the executory devise over is made to take effect upon not alienating, because the right to enjoy without alienation is incident to the estate given.”
I quote Fry J. (Shaw v. Ford (1877), 7 Ch. D. 669, 673, 674), and as complementary to this quotation I would refer to the learned discussion of this case in the decision of O’Connor, M.R., in an Irish case, In re O’Hare,  1 I.R. 160.
When a testator gives property to one, intending him to have all the rights incident to ownership, and adds to this a gift over of that which remains in specie at his death or at the death of that person, he is endeavouring to do that which is impossible. His intention is plain but it cannot be given effect to. The Court has then to endeavour to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it. rejecting the subordinate intention as being repugnant to the dominant intention.
So the cases fall into two classes: the first, in which the gift to the person first named prevails and the gift over fails as repugnant; the second, in which the first named takes a life-estate only, and so the gift over prevails. Subject to an apparent exception to be mentioned, there is no middle course, and in each case the inquiry resolves itself into an endeavour to apply this rule to the words of the will in question. The sheep are separated from the goats; and, while in most instances there is not much doubt, in some instances the classification is by no means easy.
Speaking generally, no aid can be derived from reported decisions which do not establish a principle but simply seek to apply an established principle to a particular document. Nothing can well be added to the statements of Jessel M.R., in Aspden v. Seddon (1874), L.R. 10 Ch. 397, note, and of Collins M.R., in Foulger v. Arding,  1 K.B. 700. These being readily accessible, I refrain from quoting at length, only extracting a few words from the earlier decision (p. 397):
“I think it is the duty of a Judge to ascertain the construction of the instrument before him, and not to refer to the construction put by another Judge upon an instrument, perhaps similar, but not the same.”
No better illustration of the danger of relying upon earlier decisions and disregarding the document under consideration can be found than in the cases dealing with this very subject. Constable v. Bull, 3 DeG. & Sm. 411, always cited, is a most unsatisfactory case, because the Court, while recognizing the true rule, did great violence to the words of the will. Be Sheldon and Kemble (1885), 53 L.T.R. 537, followed, and instead of seeking to apply the rule to the will there in question the Court tried to distinguish between the words of the will in the case in hand and the words of the will in the earlier case. An Australian case, Wright v. Wright,  Vict. L.R 358, points out the unsatisfactory result.
To quote again from Sir George Jessel’s judgment (L.R. 10 Ch. at p. 398), already referred to, “And so the construction has gone on until we find a document which is in totally different terms from the first, and which no human being would think of construing in the same manner, but which has by this process come to be construed in the same manner.”
A note in 40 L.Q.R., 393-395, discusses this principle and refers to other cases.
I have referred to an apparent exception to the rule which might be regarded as constituting a third class of cases into which some fall. These are cases in which all that is given to the first taker is a life-estate, but the life-tenant is given a power of sale which may be exercised at any time during the currency of his estate. There is no doubt that this may be validly done. It is not uncommon in cases where property is held in trust. In such cases power of sale is frequently vested in trustees who are empowered to sell and pay the purchase-money to the life-tenant for his maintenance. Re Johnson (1912), 27 O.L.R. 472, is a good example. These cases constitute only an apparent exception to the rule because in them there is no conflict upon the face of the gift. Whether a case can be brought within this class is altogether a matter of construction, and the will here in hand plainly does not fell within it.
The case of Shearer v. Hogg (1912), 48 Can. S.C.R. 492, affirming the judgment in Shearer v. Forman (1911), Q.R. 40 S.C. 139, is sometimes referred to as in conflict with these views. It is a case governed by the Civil Law, which recognises substitution “de residuo” or “de eo quod supererit,” something quite unknown to the English law. The Court was endeavouring to ascertain the intention of the testator to determine if there was a valid substitution. The remarks as to the similarity of the law of the two Provinces must be taken as directed to the duty of the Court to ascertain the intention of the testator and when it is possible so to do to give effect to it. The Supreme Court decision is more readily understood when the judgment in the Court below is read.
Turning now to the will before the Court. I agree with the judgment in review that the words “undisposed of” do not refer to a testamentary disposition by the widow but refer to a disposal by her during her lifetime. I am, however, unable to agree with the construction placed upon the will otherwise. It appears to be plain that there is here an attempt to deal with that which remains undisposed of by the widow, in a manner repugnant to the gift to her. I think the gift to her must prevail and the attempted gift over must be declared to be repugnant and void.
I would therefore allow the appeal and declare the construction of the will accordingly. Costs may well come out of the wife’s estate.
LATCHFORD C.J., and ORDE J.A., agreed with MIDDLETON J.A.
MAGEE J.A.:– The will of John Walker appointed his wife sole executrix, and then proceeded thus: “I give and devise unto my said wife all my real and personal property saving and excepting thereout as follows namely my gold watch and chain I give to my nephew John Noble Walker … and all other jewellery … I give to my nephews … and also should any portion of my estate still remain in the hands of my said wife at the time of her decease undisposed of by her such remainder shall be divided as follows one-half of same to my brother William two-sixteenths thereof to Abel Fitze two-sixteenths to John Fitze three-sixteenths to Annie F. Perkin brothers and sister of my said wife and one-sixteenth thereof to George Warren.” My brother Riddell construed the will as giving to the wife all the testator’s property except the watch and chain and jewellery and also except what property would not be disposed of by her, and the wording would lend itself to that interpretation-and it would have the merit of meeting the obvious wishes of the testator which he could readily have effected by different wording. It would be desirable that his intention should be carried out. But to treat the property given over as excepted from the gift to the wife would allow her only an implied power of disposition and give her no life-interest, which obviously also it was intended she should have. The gift of realty to her would not necessarily carry the fee simple.
On the whole I agree in the conclusion that there was an absolute gift to the wife and that what was undisposed of by her, if it can be said that there was any, was her property and not affected by the gift over. I may add that the order appealed from, as drawn up, hardly expresses the idea intended by the learned Judge.
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