31 O.R. (2d) 257
118 D.L.R. (3d) 530
ONTARIO COURT OF APPEAL
MACKINNON A.C.J.O., WILSON AND GOODMAN JJ.A.
15TH DECEMBER 1980.
Wills — Construction — Rule in Shelley’s Case — Testatrix devising use of land to son until his death and after his death sum of money to be paid to another son out of land with balance to heirs of first son — Interest of first son made determinable under protective trust — Whether first son has fee simple estate — Wills Act, R.S.O. 1927, c. 149, s. 31.
Wills — Construction — Repugnance — Testatrix devising use of land to son until death and after interim gift to son’s heirs — Later clause in will making son’s life interest determinable — Whether later clause repugnant to original gift.
The testatrix devised the use of certain lands to her son K until his death and directed that after K’s death her son B should be paid a sum of money out of the lands, with the balance to go to the heirs of K. In a subsequent clause in the will, declared to be paramount, K’s life interest was subjected to a protective trust and was thus made determinable. On an application to construe the will to determine whether the rule in Shelley’s Case applied, it was held that the rule did not apply and that K took a life interest only. On appeal, held, the appeal should be dismissed.
Although the rule in Shelley’s Case is a rule of law, before it can apply it must first be determined whether, as a matter of construction, the will uses the word “heirs” in the sense of the whole inheritable issue of the devisee. If it does not, the word is not a word of limitation, but of purchase, and the rule cannot apply. The testatrix used the word “heirs” in the sense only of K’s next of kin living at his death. This was because of the later clause in the will in which K’s interest was clearly limited for life and was made determinable under a protective trust. The testatrix had thus made it clear that K was not to take an estate in fee simple, for it could not be ascertained until his death whether the life estate given to him would be determined.
The subsequent clause in the will was not repugnant to the first clause which conferred the life estate, because the subsequent clause was, by its terms, paramount over all others.
Section 31 of the Wills Act, R.S.O. 1927, c. 149, the Act in force at the time the will was made, which provided that the word “heirs” in a devise meant, absent any contrary intention, the persons to whom the land would descend as on an intestacy, and not the testator’s whole line of issue, had no application. The section did not have the effect of impliedly repealing the rule in Shelley’s Case, but merely negated the principle of primogeniture.
The mere fact that the gift to K’s heirs was a gift of the balance after the payment of a sum of money to B, did not raise a trust for conversion of the real estate so as to prevent the application of the rule in Shelley’s Case.
The rule was not ousted because the interests of K and his heirs were different. Both were equitable since they were both interests arising under the trusts of the will.
[Van Grutten v. Foxwell et al.,  A.C. 658, folld; Re Woods,  O.R. 290,  3 D.L.R. 394; McDonell v. McDonell et al. (1894), 24 O.R. 468, apld; Fetherston v. Fetherston (1834), 3 Cl. & Fin. 67, 6 E.R. 1363, discd; Shelley’s Case (1581), 1 Co. Rep. 93b, 76 E.R. 206; Re Armstrong,  O.W.N. 43; Sparks v. Wolff (1898), 25 O.A.R. 326; affd 29 S.C.R. 585, consd; Tylee v. Deal (1873), 19 Gr. 601; Baldwin v. Kingstone (1890), 18 O.A.R. 63; Re Casner (1884), 6 O.R. 282; Re Thomas (1901), 2 O.L.R. 660; Re Cleator (1885), 10 O.R. 326; Re Gracey (1931), 41 O.W.N. 1, refd to]
APPEAL from an order of Walsh J., 27 O.R. (2d) 619, 107
R.(3d) 443, on a motion for construction of a will.
Terence Sheard, Q.C., for appellants, Kennedy Rynard and Philip Bernard Rynard in his personal capacity.
John H. Gardner, Q.C., for respondents, Lena Glendinning and Margaret Sterling.
Brian J. Roy, for Philip Bernard Rynard in his capacity of executor.
J.E. C. Beatty, Q.C., for Official Guardian.
The judgment of the Court was delivered by
WILSON J.A.:– This appeal reminds us that the roots of some of our law are deeply embedded indeed. It concerns the application of the rule in Shelley’s Case (1581), 1 Co. Rep. 93b, 76 E.R. 206, to a will made in 1933. The matter came before us by way of appeal from an order of Mr. Justice Walsh answering certain questions on a motion for construction of the will of the late Margaret Rynard of the Village of Cannington, in Ontario.
The testatrix, Margaret Rynard, died on January 8, 1934, and was survived by her husband Philip Rynard and her two sons Bernard and Kennedy. These three are the sole beneficiaries of her estate which was apparently modest, the main asset being a farm in Scott Township which she inherited from her father in circumstances which will be referred to later. It is submitted by the respondents that these circumstances have a bearing on the issues in this appeal.
The testatrix’s husband, who was the residuary legatee under her will, died on April 23, 1960. Her two sons are the present executors of her will which is very short. After revoking all former wills and appointing her executors, she gives all her property to her executors upon the following trusts:
To carry on and conduct my Estate for three years after my death in the same manner as prior to my death.
To pay my just debts, funeral and testamentary expenses as soon after my death as possible.
From and after three years after my death my beloved son, Kennedy Rynard shall have the use of my farm being the east half of lot No. twenty-seven in the sixth concession of the Township of Scott in the County of Ontario, until the death of his father, Philip H. Rynard and shall pay to his father annually for such use the sum of One Hundred and sixty dollars of lawful money of Canada, and out of such annuity my beloved husband shall pay to my sister, Mrs. Jessie McKnight the annuity of fifty dollars if she is entitled to it.
And after my beloved husband’s death my son, Kennedy shall continue to have the use of said lands until his death, subject to the annuity, if any, payable to Mrs. Jessie McKnight, and after my son Kennedy’s death, my son Dr. Bernard Rynard shall be paid the sum of fifteen hundred dollars out of the said lands and the balance shall go to the heirs of my son, Kennedy.
The provisions in this clause shall prevail notwithstanding anything to the contrary contained in this Will. My son, Kennedy Rynard, shall not have the right to sell or Mortgage his interest in the said lands or dispose of it in anyway and my Executors shall have full discretion to grant or withhold his life estate in the said lands, and should any creditor attempt to seize, attach or sell his life estate, then his said life estate shall cease and be determined and shall be null and void and his said life estate shall become possessed by my son Dr. Bernard Rynard and his heirs, executors administrators and assigns absolutely forever. My desire and intention is that my son Kennedy, shall have a means of livihood [sic] but his said life estate shall not be anticipated, seized, attached or be taken under execution by any creditor of the said Kennedy Rynard.
All the Residue of my Estate shall be conveyed, assigned and assured to my beloved husband, Philip H. Rynard absolutely forever.
It is immediately apparent that the major part of the will is given over to the specific devise of the farm contained in cls. 3, 4 and 5. It is on the language of these clauses that the appellant’s counsel, Mr. Sheard, submits that the rule in Shelley’s Case applies to vest the farm absolutely in his client, Kennedy Rynard.
The rule provides that where the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, in such cases the words “to his heirs” are words of limitation of the estate and not words of purchase. While this language was perfectly intelligible to conveyancers in the days of Edward II when the rule first made its appearance in the Year Books, it requires some explanation today.
The rule had its origins in an even more ancient rule of law that whenever an ancestor received an estate for life, his heir could not under the same conveyance receive an estate “by purchase” but only “by descent”. The reason for this was that in feudal times the lord of the manor received the fruits of his seigniory only when there was a descent of land upon the heir. If this descent were avoided by a purported direct gift to the heir on the death of the life tenant, the lord was viewed as having, in effect, been defrauded. Accordingly, the rule in Shelley’s Case denied the effect of a remainder gift to the heirs of A and treated the gift of a life estate to A with remainder to his heirs on his death as a gift to A absolutely, his heirs taking only by descent on his death. Thus were the incidents of feudal tenure preserved to the lord of the manor and the invidious intent of the conveyancer frustrated.
Mr. Sheard submits that the rule applies to cl. 4 of the testatrix’s will. He says that, in effect, the farm is devised to Kennedy Rynard for life (subject to the payment of certain annuities) with the remainder “to the heirs of my son” on his death. This, says Mr. Sheard, is the classic language for the application of the rule. Mr. Gardner, for the respondents, the next of kin of Kennedy Rynard, says that it is very clear from cls. 3, 4 and 5 of the will that Kennedy Rynard’s interest in the farm was very carefully circumscribed by the testatrix. He was to have “the use” of the farm until the death of his father. After that he was to “continue to have the use” of the farm until his own death. He was not to be able to sell or mortgage ”his interest in the said lands” and, indeed, his interest was to be the subject of a protective trust for his benefit. How then, Mr. Gardner asks, can the rule apply in the face of such a clear expression of testamentary intention so as to give the farm absolutely to Kennedy? The testatrix, he submits, must have intended his heirs (next of kin) to take the remainder interest beneficially. The words “to the heirs of my son, Kennedy” must be words of purchase and not words of limitation. Mr. Beatty, representing infant, unborn and unascertained members of the class of Kennedy Rynard’s next of kin, takes the same position.
Much of the argument on this appeal dealt with the relevance of the testatrix’s intention in determining whether or not the Rule applies. Mr. Sheard says it has no relevance. The rule is a rule of law, he submits, and not a rule of construction. It may, and frequently does, fly in the face of the testator’s intention. Mr. Gardner and Mr. Beatty agree that it is a rule of law but they submit that there is a threshold question of construction which must be dealt with first, namely, when the testatrix used the word ”heirs”, did she mean the whole inheritable issue of her son down through the line of succession or did she merely mean her son’s next of kin, those who would take under the Devolution of Estates Act, R.S.O. 1970, c. 129, in force at the time of his death as if he had died intestate?
All counsel relied in their factums on Lord Davey’s analysis of the rule in Van Grutten v. Foxwell et al.,  A.C. 658. I quote what I consider to be the relevant part of his analysis at pp. 684-5:
In my opinion the rule in Shelley’s Case is a rule of law and not a mere rule of construction–i.e., one laid down for the purpose of giving effect to the testator’s expressed or presumed intention. The rule is this: that wherever an estate for life is given to the ancestor or propositus, and a subsequent gift is made to take effect after his death, in such terms as to embrace, according to the ordinary principles of construction, the whole series of his heirs, or heirs of his body, or heirs male of his body, or whole inheritable issue taking in a course of succession, the law requires that the heirs, or heirs male of the body, or issue shall take by descent, and will not permit them to take by purchase, notwithstanding any expression of intention to the contrary. Wherever, therefore, the Court comes to the conclusion that the gift over includes the whole line of heirs, general or special, the rule at once applies, and an estate of inheritance is executed in the ancestor or tenant for life, even though the testator has expressly declared that the ancestor shall take for life and no longer, or has endeavoured to graft upon the words of gift to the heirs, or heirs of the body, additions, conditions, or limitations which are repugnant to an estate of inheritance, and such as the law cannot give effect to. The rule, I repeat, is not one of construction, and, indeed, usually overrides and defeats the expressed intention of the testator; but the question always remains, whether the language of the gift after the life estate properly construed is such as to embrace the whole line of heirs or heirs of the body or issue, and that question must be determined apart from the rule, according to the ordinary principles of construction, including those which I have already referred to.
The testator may conceivably shew by the context that he has used the words “heirs,” or “heirs of the body,” or “issue” in some limited or restricted sense of his own which is not the legal meaning of the words–e.g., he may have used the words in the sense of children, or as designating some individual person who would be heir of the body at the time of the death of the tenant for life, or at some other particular time. If the Court is judicially satisfied that the words are so used, I conceive that the premises for the application of the rule in Shelley’s Case are wanting, and the rule is foreign to the case. But I repeat, that in every case the words are to be interpreted in their legal sense as words of limitation, unless it be made plain to the mind of the Court that they are not so used, and in what sense they are used by the testator.
It seems to me that what Lord Davey is saying is that, while the rule is a rule of law, and when applicable, may well defeat the testator’s intention, nevertheless it first has to be determined whether it is applicable and this involves a preliminary question of construction. The rule can only be applied if the words “to his heirs” are words of limitation and not words of purchase. This in turn hinges upon whether the testator in using these words was thinking of the whole line of inheritable issue of the tenant for life. If he was, then the tenant for life will take absolutely. But if the testator when he used the word “heirs” meant simply the children or issue or next of kin of the tenant for life then the tenant for life is confined to his life estate and his children or his issue or his next of kin take beneficially a remainder interest in the property. They are, in other words, “purchasers”.
So, following the course charted by Lord Davey, the Court is required to determine through the application of ordinary principles of construction what the testatrix had in mind when she devised the farm to her son Kennedy for life (subject to the payment of the annuities) with remainder “to the heirs of my son” on his death.
Mr. Justice Walsh concluded that, if the devise to the heirs of Kennedy Rynard was a devise of real estate, he could not construe the word “heirs” in cl. 4 of the testatrix’s will as meaning the whole line of Kennedy’s inheritable issue because the Wills Act, R.S.O. 1927, c. 149, in force at the time she made her will contained a directive as to how the word “heirs” was to be construed in such a devise. Section 31 provided:
31. Where any real estate is devised by any testator, dying on or after the 5th day of March, 1880, to the heir or heirs of such testator, or of any other person, and no contrary or other intention is signified by the will, the words “heir” or “heirs” shall be construed to mean the person or persons to whom the real estate of the testator, or of such other person as the case may be, would descend under the law of Ontario in case of an intestacy.
The learned Judge concluded therefore that the rule in Shelley’s Case could not be applied to the testatrix’s will. The statute, in effect, compelled a construction of “heirs” which made the words “to the heirs of my son” words of purchase and not words of limitation.
With respect, I think Mr. Justice Walsh was in error in giving to s. 31 of the Wills Act the effect of an implied repeal of the rule in Shelley’s Case. I do not think the Legislature intended to repeal the rule by this section. I think it intended merely to negate the principle of primogeniture.
At common law “heir” had a very technical meaning. It referred to the eldest son who, upon an intestacy, alone could inherit his ancestor’s real property. When used in the plural, as in the phrase “to A and his heirs”, the heirs encompassed the eldest son of each successive generation of lineal descendants of A. Accordingly, a devise of real property “to A and his heirs” was absolute. The principle of primogeniture was, however, abolished in Upper Canada in 1852 by the Act of 14-15 Victoria, c. 6; (C.S.U.C., c. 82) commonly known as the Act Abolishing Primogeniture. Initially there was some confusion as to whether that Act applied only to determine who the heirs were upon an intestacy or whether it applied also to determine who the heirs were in the case of a testamentary devise to “heirs”: see Tylee v. Deal (1873), 19 Gr. 601. This issue was resolved by the passage of the Act of 1880 (43 Vict., c. 14), which made it clear that the principle of primogeniture was abolished with respect to testamentary devises also. “Heirs” as used by the testator in his will no longer had reference to the eldest son but to his brothers and sisters as well: see Baldwin v. Kingstone (1890), 18 O.A.R. 63.
However, in none of the case-law dealing with the effect of these legislative provisions is it suggested that the Act of 1880 was intended to have a more far-reaching effect, namely, to require the words “to his heirs” when used in a testamentary devise of real estate to be construed always as words of purchase. There is no suggestion that one of the purposes of the Act of 1880 was to repeal, either expressly or impliedly, the rule in Shelley’s Case by precluding the use of the words “to his heirs” as words of limitation. Rather, it seems to have been assumed that all the section was intended to accomplish was that the word “heirs” when used as a word of purchase would not be confined to the common law heir or eldest son. The weight of the early authority following the enactment of the 1880 legislation seems to indicate that the rule in Shelley’s Case was still very much a part of our law: see Sparks v. Wolff (1898), 25 O.A.R. 326; affirmed 29 S.C.R. 585. Quoting from the judgment of Maclennan J.A. in the Ontario Court of Appeal at pp. 335-6:
… the word “heirs” may still be used technically, to limit or define an estate in fee simple or in fee tail as formerly, either in a deed or in a will. But here the word is not used as a word of limitation at all. It is a word of purchase. It is intended, not to limit or define the extent of the estate which is being devised, but to designate the person or class of persons to whom the estate is given.
Maclennan J.A. first resolved the preliminary question of construction as to whether the word “heirs” was used as a word of limitation or a word of purchase and then, having concluded that it was a word of purchase, he proceeded to apply the statutory definition.
I am confirmed in the view that s. 31 of the Wills Act was not intended to effect a repeal of the rule in Shelley’s Case by two considerations, firstly, the fact that the Legislature in England, despite the existence of a comparable section, found it necessary to abolish the rule expressly by the Law of Property Act, 1925 (U.K.), c. 20; and secondly, the fact that our Courts continued to treat it as part of our law long after the enactment of the statutory definition of “heirs”: see Re Casner (1884), 6 O.R. 282 (Ch. D.); Re Cleator (1885), 10 O.R. 326 (C.A.); Re Thomas (1901), 2 O.L.R. 660. Indeed, in Re Gracey (1931), 4 O.W.N. 1, Masten J.A. was reluctantly forced to the conclusion that the rule in Shelley’s Case applied even although it probably defeated the testator’s intention. He drew attention to the fact that the Legislature in England had abolished the rule in 1925 and expressed the hope that some day it would meet a similar fate in Ontario. This has not yet happened.
Given then that the rule in Shelley’s Case is still part of the law of Ontario and that s. 31 of the Wills Act applies only when it has first been determined that the words “to the heirs of my son” are words of purchase and not words of limitation, the preliminary problem of construction must be resolved. And it must be approached, as Lord Davey pointed out, on the basis that “the words are to be interpreted in their legal sense as words of limitation, unless it be made plain to the mind of the Court that they are not so used, and in what sense they are used by the testator”. Has it been made plain to the Court that the testatrix did not mean the whole line of inheritable issue of her son Kennedy? And if so, has the testatrix made plain to the Court in what sense she did use the word “heirs”?
I think the testatrix has made it plain that she was not referring in cl. 4 to the whole line of inheritable issue of Kennedy, but rather to his next of kin living at his death. This is the only conclusion that can be drawn from a consideration of cl. 5 of her will and, in particular, the opening words of that clause. In my view, these opening words distinguish this case from those in which subsequent clauses inconsistent with an earlier devise have been disregarded as repugnant. In this will the testatrix states in cl. 5: “The provisions in this clause shall prevail notwithstanding anything to the contrary contained in this Will.” She then goes on to make it clear that not only does she not intend her son Kennedy to take the farm outright under cl. 4 but even his life estate is to be determinable in certain circumstances.
Mr. Sheard submits that, despite the opening words of cl. 5, we should disregard the clause on the repugnancy principle. I do not think we can. The doctrine of repugnancy is premised on the fact that certain interests in property must, of their very nature, confer upon anyone to whom they belong the right to do certain things. Accordingly, if a testator gives a person such an interest in property and, at the same time, by imposing a condition on the gift attempts to deprive him of a right which the law considers to be an essential characteristic of that interest, the condition is void as repugnant to the interest given. The principle, however, has no application to determinable interests. It does not prevent a testator from giving an interest the duration of which will be determined by certain events. I think this is what the testatrix has done here by giving cl. 5 paramountcy over cl. 4. This case is, in my view, clearly distinguishable from Re Armstrong,  O.W.N. 43, in which Kelly J. found that the subsequent clause was merely an expression of desire on the part of the testator and not intended by him to limit the inheritance expressed in the earlier clause.
The relevance of the determinable nature of Kennedy Rynard’s life estate to the applicability of the rule in Shelley’s Case is by no means clear-cut but it seems to me that an estate of inheritance cannot be executed in Kennedy under the rule when it will not be known until the death of Kennedy whether or not his life estate will be determined under cl. 5. I say that because of the underlying premise of the rule that, as soon as the ancestor is seized of his life estate, the inheritance limited to his heirs has the effect of turning his life estate into a fee simple absolute with all the incidents that adhere in law to such an interest. This interpretation of cl. 4 is totally inconsistent with cl. 5 to which the testatrix has in clear and unequivocal language given paramountcy. I appreciate that the rule, when applicable, may defeat the intention of the testatrix but, as Lord Davey pointed out, the first question to be determined is whether it applies at all and this must be ascertained by applying the ordinary principles of construction.
I do not believe that the testatrix, when she used the word “heirs” in cl. 4, could have intended to refer to the whole line of inheritable issue of Kennedy when in the next clause she went on to specify the circumstances in which he would be deprived of his life estate and it would pass to his brother. There is no doubt about the fact that she intended her son Kennedy’s life estate to be determinable. She makes this perfectly clear in the concluding sentence of cl. 5. And, in my view, by giving cl. 5 paramountcy over cl. 4 she succeeded in doing so. The Court cannot, as Mr. Sheard suggests, discard cl. 5. We must look to it to discern the nature and extent of Kennedy’s interest.
In Re Woods,  O.R. 290,  3 D.L.R. 394, the testator gave each of his daughters a share of his estate for life but with a restraint on alienation during coverture. The daughters were also given general powers of appointment over their shares and, in default of exercise of their powers, each daughter’s share was to go to “her right heirs”. Chief Justice McRuer held that the restraint on alienation during coverture made the rule in Shelley’s Case inapplicable because the daughters did not have “complete life interests”. He said at p. 294 O.R., pp. 398-9 D.L.R.:
The premises for the application of the rule in Shelley’s Case would require that there exist in the daughters a complete equitable life interest and in those who would in the due course of law take by descent in default of appointment a complete equitable interest in remainder.
In such a case there would be a coalescence or merger of interest, so as to vest in each daughter an absolute equitable vested interest. However, I have been unable to find, in the legion of decided cases dealing with the rule in Shelley’s Case in the English courts, authority for the proposition that where on a careful reading of the whole will there appears to be in the ancestor something less than a complete life interest, coalescence or merger can take place so as to vest in the ancestor an absolute interest. And, again, at p. 295 O.R., p. 399 D.L.R. he says:
In this case, the testator did not, by his will, vest in the daughters a complete life interest in the shares in question. The shares were given to the trustees and the income only was payable to the daughters, without power of alienation during coverture. They were restricted by the very terms of the gift from full enjoyment of an absolute life interest during coverture. Had the subject of the gift been real property, beyond question the daughters could not have disposed of their life estate during coverture. That being true, I cannot see how the rule in Shelley’s Case can be applied to defeat the express terms of the trust imposed upon the trustees.
It seems to me that Kennedy Rynard has something less than a complete life interest in this case. He has, in fact, a determinable life interest and it cannot on the basis of cls. 4 and 5 be said that Kennedy and his “heirs” together have the entirety. Accordingly, apart altogether from the question whether or not the testator intended when she used the word “heirs” to refer to the whole inheritable issue of Kennedy, the rule would be inapplicable on this ground. The two grounds are, however, in my view interrelated because cls. 4 and 5 have to be read together in order to determine the precise nature of the interest conferred on Kennedy and his heirs. In effect, the testatrix has made cl. 4 subject to cl. 5.
In Fetherston v. Fetherston (1834), 3 Cl. & Fin. 67, 6 E.R. 1363, referred to in Van Grutten v. Foxwell et al., supra, Lord Brougham discussed when words which appear prima facie to be words of limitation will, in the larger context of the will, be construed as words of purchase. He said at p. 1366:
I take the principle of construction as consonant to reason, and established by authority, to be this, that where by plain words, in themselves liable to no doubt, an estate tail is given, you are not to allow such estate to be altered and cut down to a life estate unless there are other words which plainly show the testator to have used the former as words of purchase, contrary to their natural and ordinary sense, or unless in the rest of the provisions there be some plain indication of a general intent inconsistent with an estate tail being given by the words in question, and which general intent can only be fulfilled by sacrificing the particular provisions, and regarding the expressions as words of purchase … So again, if a limitation is made afterwards, and is clearly the main object of the will,–which never can take effect unless an estate for life be given instead of an estate tail,–here again the first words become qualified, and bend to the general intent of the testator, and are no longer regarded as words of limitation, which, if standing by themselves, they would have been.
To sum up, the key issue facing the Court on this appeal is whether, as Mr. Sheard suggests, the Court must discard cl. 5 on the basis that the rule applies to cl. 4 and cl. 5 is therefore repugnant to Kennedy’s absolute interest under the rule in Shelley’s Case, or whether the Court must look to cls. 4 and 5 together to discern the nature and extent of Kennedy’s interest and then conclude that the combined effect of these two clauses renders the rule inapplicable. I have found no case on point but the approach taken by Kelly J. in the Armstrong case commends itself to me and compels me to the conclusion, applying ordinary principles of construction, that the testatrix has effectively limited Kennedy Rynard’s interest to a determinable life estate. This being so, it is not open to the Court to apply the rule in Shelley’s Case so as to convert his determinable life estate into a fee simple absolute.
I made reference earlier to the circumstances in which the testatrix herself came to acquire the farm. In fact, she acquired it pursuant to the following provision in her father’s will:
… I give and devise to my daughter Maggie Rynard for her use and benefit during the term of her natural life, and after the decease of my said daughter Maggie Rynard to the heir or heirs of her body her surviving and failing such heir or heirs to my heirs surviving my said daughter Maggie Rynard.
There was no question on that language that the rule in Shelley’s Case applied and accordingly it was necessary for the testatrix to execute a disentailing deed and have the lands reconveyed to her in order that she become the absolute owner. It would appear reasonable to conclude that in light of this experience the testatrix might be a little gun-shy of the rule in Shelley’s Case. While I think the circumstances in which the testatrix herself acquired the farm are a legitimate and admissible guide to her intention as expressed in her own will, I would not attach as much weight to them as counsel for the respondents suggested.
Having concluded on the preliminary question of construction that the rule does not apply to Mrs. Rynard’s will, it is not necessary for me to deal at length with the alternative grounds on which Mr. Justice Walsh supported his conclusion that it did not apply. His primary basis for rejecting its application was s. 31 of the Wills Act. In this I think he was in error for the reasons already given.
His second basis was that the remainder interest bequeathed to Kennedy Rynard’s heirs was not a bequest of realty but a bequest of personality to which the rule does not apply. The learned Judge pointed out that the bequest to them was of “the balance” after a lump-sum payment had been made to his brother. The use of the word “balance”, he felt, disclosed an intention on the part of the testatrix that the farm be sold on Kennedy’s death. I am not persuaded that the language of cl. 4 is strong enough to give rise to a direction or trust for conversion of the real estate so as to preclude the application of the rule if the other conditions for its application are present.
In McDonell v. McDonell et al. (1894), 24 O.R. 468, Street J. held that the direction of the testator to “pay” to each child his or her share of the residue on the life tenant’s death, the residue consisting of realty, was not enough to require a conversion of the realty into personalty. Street J. stated the rule at p. 471 as follows:
The rule is that in order to work a conversion of realty into personalty an imperative trust or direction to sell must be gathered from the terms of the will, not necessarily express, but at all events to be necessarily implied from its terms: Hyett v. Mekin, 25 Ch. D. 735. I have gone carefully through the cases cited to me upon this question and many more, and I can find no case in which a mere power of sale has been construed as a trust for conversion unless the duties imposed upon the trustee were inconsistent with the presumption that the real estate should continue to retain that character.
Nor can I accept the learned Judge’s third ground for rejecting the application of the rule, namely, that the interests of Kennedy and his heirs are not of the same kind or quality. I would have thought that they were both equitable being part and parcel of the trusts to which the entire estate is made subject in the hands of the trustees.
For the reasons given I would dismiss the appeal and direct the costs of all parties except the respondent executor (who, having regard to his status as an appellant in his personal capacity, has taken no position on this appeal qua executor) to be paid out of the estate.