McQuarrie et al. v. Eastern Trust Co. et al.

McQuarrie et al. v. Eastern Trust Co. et al.

The court held that the phrase 'my next of kin of the name "Forbes" then living' required the class to be ascertained at the time of distribution (death of the last surviving brothers and sisters) and that 'of the name "Forbes"' meant persons bearing the surname 'Forbes' at that time; therefore the nieces who had...

Source-derived case information.

Citation
[1928] SCR 13
Parties
Appellant (defendant): Josiah H. MacQuarrie; Appellant (defendant): James M. Milne; Appellant (defendant): McKenzie Forbes; Respondent (plaintiff): The Eastern Trust Company; Respondent (defendant): Maria F. Perley; Respondent (defendant): Isabel F. Ruddick
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
16 December 1927
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of Nova Scotia En Banc to Supreme Court of Canada
Outcome
Appeal allowed; judgment of Mellish J. restored.
Legal Topics
Construction of Will, Ascertainment of Beneficiary Class, Time of Vesting and Distribution, Meaning of 'name' in Bequest, Interpretation to Avoid Intestacy
Source Language
english
Estates Wills Trusts Succession Property Construction of Will Ascertainment of Beneficiary Class Time of Vesting and Distribution +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Josiah H. MacQuarrie

Appellant (defendant)

James M. Milne

Appellant (defendant)

McKenzie Forbes

Appellant (defendant)

The Eastern Trust Company

Respondent (plaintiff)

Maria F. Perley

Respondent (defendant)

Isabel F. Ruddick

Respondent (defendant)

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of Nova Scotia En Banc to Supreme Court of Canada

Legal Issues

  1. 1 Whether the class 'my next of kin of the name "Forbes" then living' is to be ascertained at the testator's death or at the period of distribution (death of last surviving brothers and sisters)
  2. 2 Whether persons who bore the surname 'Forbes' at the testator's death but changed it by marriage before distribution qualify
  3. 3 Whether the word 'name' in a bequest denotes literal surname or may be construed as meaning stock/lineage

Ratio Decidendi

The court held that the phrase 'my next of kin of the name "Forbes" then living' required the class to be ascertained at the time of distribution (death of the last surviving brothers and sisters) and that 'of the name "Forbes"' meant persons bearing the surname 'Forbes' at that time; therefore the nieces who had changed their surname by marriage before distribution were excluded.

Court Disposition

Appeal allowed; judgment of Mellish J. restored.

Orders

  • Appeal allowed
  • Judgment of Mellish J. restored