2 O.R. 275-280
ONTARIO [COURT OF APPEAL]
AYLESWORTH, MacKAY and McGILLIVRAY, JJ.A.
19th JUNE 1967.
Wills — Construction — Nature of interests bequeathed — Interpretation of will in light of surrounding circumstances.
Testator died in 1932 leaving a wife and eight children under the age of 21. His will provided: “I give all I belong to my wife. I want her to pay my debts — raise the family. All will belong to my wife until the last one comes to the age of 21 years old. If my wife marries again she should have her share like the other children if not, she will keep the whole thing and see that every child gets his share when she dies.” At the time of the testator’s death the estate was valued at $34,892. At the time of the application by two of the children for the advice and direction of the Court as to the proper construction of the will the assets in the widow’s hands were worth $125,000. The widow had carried on the testator’s business until 1960 when she had sold it. She had kept no accounts of the business or the administration of the estate.
Held, the estate vested in the children in equal shares, subject to a life interest in the widow which would be divested on her remarriage in which case she would take an equal share with the children. The widow had the right to postpone realization of assets, to carry on business as she saw fit, and to encroach on capital in her discretion for the support and maintenance of herself and the children until the youngest child was 21. Thereafter she had the right to enroach on capital, if necessary, until her death or remarriage.
[Re Walker (1925), 56 O.L.R. 517, not folld; Lucas-Tooth v. Lucas-Tooth,  1 A.C. 594; Perrin v. Morgan,  A.C. 399, apld]
APPEAL from the judgment of Stewart, J., on an application for advice and direction of the Court as to the proper construction of a will.
B.W. Grossberg, Q.C., for the widow in her personal capacity.
P.S. FitzGerald, Q.C., for the widow as administratrix with the will annexed.
I.H. McNish, for the children of the deceased supporting the appellant.
Terence Sheard, Q.C., for respondents, children of the deceased.
The judgment of the Court was delivered by
MacKAY, J.A.:– This is an appeal by Haja Shamas, the widow and administratrix with the will annexed, of the estate of Michael Albert Shamas, from the judgment of Stewart, J., dated September 19, 1966, on an application made by two of the children of the deceased for the advice and direction of the Court as to the proper construction of the will of the deceased.
Prior to his death the deceased with the assistance of his wife had carried on a retail store business in the Town of Blind River. He died on July 14, 1932, having made his will during his last illness, without the assistance of legal advice, on April 28, 1932. He left him surviving eight children as well as his widow, all of the children being under the age of 21 years. The will is as follows:
This is my last will. I give my Soul to God. I give all I belong to my wife. I want her to pay my debts — raise the family. All will belong to my wife until the last one comes to the age of 21 years old. If my wife marries again she should have her share like the other children if not, she will keep the whole thing and see that every child gets his share when she dies.
Probate of the will was granted on February 1, 1933, to his widow, the appellant herein. She continued to carry on the business until 1960 at which time she sold the store business but retained the property. The assets of the estate as listed on the application for probate were $34,829.07. The widow, under the impression that everything belonged to her has kept no accounts either of the business or of the amounts spent on the children, nor has she drawn any wages from the business.
It appears in the material filed that the value of the assets of the estate in her hands at the present time is approximately $125,000. The widow has not remarried and all eight children are living and over the age of 21 years.
The question propounded was:
Upon the true construction of the will of Michael Albert Shamas deceased, what interests in the estate are respectively taken by his widow and children? The order made by the Honourable Mr. Justice Stewart was as follows:
THIS COURT DOTH ORDER and adjudge that in the true construction of the Will of the said Michael Albert Shamas his estate vested at his death in his children in equal shares subject to a life interest therein to his widow Haja Shamas and subject also to her right until his youngest surviving child attained the age of 21 years to encroach in her discretion upon the capital of the said estate and subject also in the event of her remarriage to the provision made for her out of the capital of the said estate as in the said Will provided and DOTH ORDER AND ADJUDGE the same accordingly.
2. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the costs of all parties to this Motion as between a solicitor and his client shall be paid out of the capital of the said estate forthwith after taxation thereof.
No reasons for jugment were given.
The appellant’s submission is that on the true construction of the will all the estate and interest of the testator devolved at death upon the widow of the testator absolutely. Alternatively, it is submitted that the widow had an unlimited right to encroach until her death.
The submission of the appellant is that the applicable principle is that stated by Middleton, J.A., in Re Walker (1925), 56 O.L.R. 517 at p. 522, as follows:
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.
The relevant portion of the will in Re Walker was as follows [pp. 520-521]:
“I give and devise unto my said wife all my real and personal property saving and excepting [there follows description of certain jewellery] and also should any portion of my estate still remain in the hands of my wife at the time of her decease undisposed of by her such remainder shall be divided as follows …. “
The principle stated in Re Walker was applied in Re Scott, 58 O.L.R. 138,  1 D.L.R. 151, and by a majority of the Court (Laidlaw, J.A., dissenting) in Re Hornell,  O.R. 58,  1 D.L.R. 440.
These cases, together with others in other Canadian appellate Courts are discussed in an article [“Gift by Will to W: At Her Death ‘What Remains’ to the Children”] (1950) 28 Can. Bar Rev. 839, by Professor Gilbert D. Kennedy. Professor Kennedy points out, as did the Nova Scotia Court sitting en banc, in Re McGarry,  1 D.L.R. 715, 25 M.P.R. 121 [affd  4 D.L.R. 523 sub nom. Montreal Trust Co. v. Tutty, M.P.R. loc. cit.] that in Re Walker, the Court had applied the common law rules of repugnancy applicable to property law, to construction of the will. In the case of deeds, it is the form of the grant that establishes the interest conveyed. In construing wills, the entire document and the relevant surrounding circumstances are looked at to determine the interest intended to be granted, so that while one passage in a will taken by itself would appear to grant an absolute interest, other passages may indicate that this was not the testator’s intention, so that the question of repugnancy does not arise.
The principles applicable in construing wills are stated in 39 Hals., 3rd ed., pp. 973-5, paras. 1474 and 1475, in part as follows:
1474. Leading principle of construction. The only principle of construction which is applicable without qualification to all wills, and overrides every other rule of construction, is that the intention of the testator is collected from a consideration of the whole will taken in connexion with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention.
. . . . .
1475. Unimportance of form of intention shown. A will is, as a rule, generally construed in the same manner as any other document except that, in the case of a will, if the intention is shown, the mode of expression of that intention, and the form and language of the will, are unimportant ….
Of the many cases establishing and applying these principles, I propose to refer to only two of the more recent decisions.
In Lucas-Tooth v. Lucas-Tooth,  1 A.C. 594, Lord Birkenhead, L.C., at p. 601, said:
Indeed, in approaching a problem of this kind it is important never to lose sight of the true principle of construction in such cases — that it is the duty of the Court to discover the meaning of the words used by the testator, and, from them and from such surrounding circumstances as it is permissible in the particular case to take into account to ascertain his intention. For this purpose, it is important to have regard not only to the whole of the clause which is in question, but to the will as a whole which forms the context to the clause.
Unless this is done, there is grave danger that the canons of construction will be applied without due regard to the testator’s intention, tending thereby to ascertain his wishes by rules which, in the particular case, may produce consequences contrary to that intention.
This passage was adopted by my brother Schroeder in Re Fleury,  2 O.R. 129 at p. 135, 44 D.L.R. (2d) 393 at p. 399 [affd sub nom. National Trust Co. Ltd. v. Fleury et al.,  S.C.R. 817, 53 D.L.R. (2d) 700]. In Perrin v. Morgan,  A.C. 399, Lord Romer, at pp. 420-1, said:
My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said
— that he was, in fact, one of those persons of whom Knight Bruce L.J. said that they spoke as if the office of language were to conceal their thoughts. In many of the cases to be found in the books the court is reported to have said that the construction it has put on a will has probably defeated the testator’s intention. If this means, as it ought to mean, that the court entertains the strong suspicion to which I have just referred, no sort of objection can be taken to it, but if it means that the court has felt itself prevented by some rule of construction from giving effect to what the language of the will, read in the light of circumstances in which it was made, convinces it was the real intention of the testator, it has misconstrued the will.
My Lords, I do not, of course, intend to suggest that well- settled rules of construction are to be disregarded. On the contrary, I think that they should be strictly observed, but they ought to be applied in a reasonable way. It is, no doubt, of great importance to lawyers and others engaged in the preparation of wills that they should have the certainty of knowing that certain wellknown word and phrases will receive from the court the meaning that the court has for generations past attributed to them. Much confusion and uncertainty would be caused if this were not so. The rules of construction, in other words, should be regarded as a dictionary by which all parties, including the courts, are bound, but the court should not have recourse to this dictionary to construe a word or a phrase until it has ascertained from an examination of the language of the whole will, when read in the light of the circumstances, whether or not the testator has indicated his intention of using the word or the phrase in other than its dictionary meaning
— whether or not, in other words, to use another familiar expression, the testator has been in his own dictionary. I have thought it desirable to make these remarks, however elementary, and obvious they may seem to be, as I have noticed in some of the reported cases on wills a tendency on the part of the court to pay more attention to the rules of construction than to the language of the testator.
I am of the opinion that a reading of the will in question as a whole expresses the intention of the testator Michael Albert Shamas that his estate vest in his children in equal shares subject to a life interest therein to his widow (subject to that interest being divested on her remarriage, and that in such case she would take an equal share with the children) with the right to postpone realization of the assets of the estate, to carry on the business as she saw fit and to encroach, in her discretion, upon the capital of the estate for the support and maintenance of herself and the children, until the youngest child should reach the age of 21 years.
When the will is considered in the light of the circumstances existing at the time it was made, I also think it sufficiently clearly expresses the intention that the widow should also have the right to encroach on capital if necessary, for her maintenance and support from the time the youngest child attained the age of 21 years until her death or remarriage.
The circumstances to which I refer are these. The testator had a wife and eight young children. The value of the estate at that time was such that if the estate were realized and invested the widow could not hope to live and raise her family on the income from the estate. The only way in which proper provision could be made for his wife and family would be to make a disposition that would enable his wife to carry on the business which he and she had, up until that time, jointly carried on, and if necessary, to encroach on the capital for the maintenance of herself and the maintenance and education of the children.
The deceased could not have anticipated that the estate would appreciate in value to the extent that the income after the youngest child attained the age of 21 would be sufficient to maintain the widow, and as counsel for the respondents admitted, the wording of the will was open to the interpretation that the widow was entitled to encroach on capital after the youngest child attained the age of 21, if necessary, for her proper maintenance.
Subject to the variation I have indicated, that the widow is entitled to encroach on capital for her maintenance after the youngest child became 21 years of age and during her widowhood, I would confirm the judgment of Stewart, J. Costs of all parties to be paid out of the estate, those of the widow on a solicitor-and-client basis.
Trial judgment affirmed with variation.