Berwick v. Canada Trust Co.

Berwick v. Canada Trust Co.

Because the will made the second half of the residue payable only if the son survived the testatrix by ten years and gave him only a limited power of appointment exercisable by will, the son's interest was not an absolute vested gift and he could not demand immediate payment; distinguish cases where the power is exercisable by deed or will, which may produce vesting.

Citation
[1948] SCR 151
Parties
Appellant (beneficiary/son): Alexander Raymond Berwick; Respondent (trustee/plaintiff): The Canada Trust Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 March 1948
Procedural Posture
Wills and Estates Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Saskatchewan
Outcome
Appeal dismissed.
Legal Topics
Contingent Gift, Power of Appointment, Vesting of Interests, Immediate Payment of Future Gifts, Construction of Wills, Saunders V. Vautier Rule
Source Language
English
Wills Trusts Estates Succession Law Contingent Gift Power of Appointment Vesting of Interests Immediate Payment of Future Gifts +2 more

Case Brief

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Parties

Alexander Raymond Berwick

Appellant (beneficiary/son)

The Canada Trust Company

Respondent (trustee/plaintiff)

Procedural Posture

Wills and Estates Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Saskatchewan

Legal Issues

  1. 1 Whether a gift contingent on the legatee surviving the testatrix by ten years constitutes an absolute vested interest
  2. 2 Whether a power of appointment exercisable only by will (a limited power) prevents vesting of the gift
  3. 3 Whether the legatee can demand immediate payment of the corpus prior to the ten year period

Ratio Decidendi

Because the will made the second half of the residue payable only if the son survived the testatrix by ten years and gave him only a limited power of appointment exercisable by will, the son's interest was not an absolute vested gift and he could not demand immediate payment; distinguish cases where the power is exercisable by deed or will, which may produce vesting.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed with costs.
  • Respondent entitled to solicitor and client costs out of the estate after credit for party and party costs.