In re Estate of Brown (deceased)

In re Estate of Brown (deceased)

The clause 5 language contains no present gift and directs the fund to remain invested and income paid to the son until his death; the capital is disposed of only on the death of the son and clause 7 confirms that beneficiaries take only if they survive both the testatrix and her son. Therefore the legacies did not vest on the testatrix's death.

Citation
[1934] SCR 324
Parties
Testatrix/deceased: Katherine Hamilton Browne (deceased); Appellant/beneficiary: Enid Browne; Appellant/beneficiary: Florence Yoda Moody; Appellant/beneficiary: Constance Emma Kinnear; Appellant/beneficiary: Helen Smith; Executor/life Tenant: William George Hamilton Browne; Executor: Thomas Cameron Urquhart; Respondent/representative of Infants and Unborn Children: Official Guardian
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 March 1934
Procedural Posture
Appeal to Supreme Court of Canada Concerning Construction of a Will / Final Hearing on Special Case (appeal Per Saltum)
Outcome
Appeal dismissed.
Legal Topics
Vesting of Legacies, Construction of Wills, Testamentary Intention, Contingent Gifts, Survivorship
Source Language
English
Estates Wills Trusts Probate Succession Vesting of Legacies Construction of Wills Testamentary Intention +2 more

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Parties

Katherine Hamilton Browne (deceased)

Testatrix/deceased

Enid Browne

Appellant/beneficiary

Florence Yoda Moody

Appellant/beneficiary

Constance Emma Kinnear

Appellant/beneficiary

Helen Smith

Appellant/beneficiary

William George Hamilton Browne

Executor/life Tenant

Thomas Cameron Urquhart

Executor

Official Guardian

Respondent/representative of Infants and Unborn Children

Procedural Posture

Appeal to Supreme Court of Canada Concerning Construction of a Will / Final Hearing on Special Case (appeal Per Saltum)

Legal Issues

  1. 1 Whether legacies under clause 5 vested on the testatrix's death
  2. 2 Whether clause 7 could divest any vested legacy
  3. 3 Proper construction of clause 5 and effect of survival proviso in clause 7

Ratio Decidendi

The clause 5 language contains no present gift and directs the fund to remain invested and income paid to the son until his death; the capital is disposed of only on the death of the son and clause 7 confirms that beneficiaries take only if they survive both the testatrix and her son. Therefore the legacies did not vest on the testatrix's death.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed with costs.
  • Questions in special case answered: (a) legacies did not become vested on the death of the testatrix; (b) consequential question on divestment under clause 7 does not arise.