In re Roach

In re Roach

The named children (Martin, George and Mary) took vested beneficial interests in the contingent corpus at the testatrix's death subject to the prior life maintenance; the power to divide and apportion was a discretionary bare joint power given nominatim to Thomas and Mary (not a trust, not annexed to office) and therefore could not be exercised by the surviving donee alone; s.25 Trustee Act did not render the survivor capable of executing it; as the power became incapable of execution a resulting trust arose and the residue is held in equal shares for the three persons or their estates after payment of specified legacies.

Citation
[1931] SCR 512
Parties
Appellant / Plaintiff: George Roach; Respondent / Surviving Executor of the Will of Cecilia Roach, Deceased: Thomas Roach; Respondent / Executor of the Will of Mary Rosella Kormann, Deceased: Arthur Joseph Holmes; Respondent / Executor of the Will of Martin Roach, Deceased (representative): Fanny King Roach; Respondent / Executor of the Will of Martin Roach, Deceased (representative): Frederick S. King
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
26 May 1931
Procedural Posture
Appeal From Appellate Division of the Supreme Court of Ontario / Final Decision by Supreme Court of Canada on Appeal (interpretation of Will)
Outcome
Appeal dismissed with costs.
Legal Topics
Vesting of Remainder Interests, Powers of Apportionment/division, Construction of Wills, Executor Duties, Resulting Trust, Survivorship of Powers
Source Language
English
Estates Wills Trusts Property Law Vesting of Remainder Interests Powers of Apportionment/division Construction of Wills Executor Duties +2 more

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Parties

George Roach

Appellant / Plaintiff

Thomas Roach

Respondent / Surviving Executor of the Will of Cecilia Roach, Deceased

Arthur Joseph Holmes

Respondent / Executor of the Will of Mary Rosella Kormann, Deceased

Fanny King Roach

Respondent / Executor of the Will of Martin Roach, Deceased (representative)

Frederick S. King

Respondent / Executor of the Will of Martin Roach, Deceased (representative)

Procedural Posture

Appeal From Appellate Division of the Supreme Court of Ontario / Final Decision by Supreme Court of Canada on Appeal (interpretation of Will)

Legal Issues

  1. 1 Whether beneficiaries (Martin, George, Mary) acquired vested interests at testatrix's death
  2. 2 Whether the power to divide and apportion given to two named donees was a trust or a bare power
  3. 3 Whether the surviving donee could exercise the joint power

Ratio Decidendi

The named children (Martin, George and Mary) took vested beneficial interests in the contingent corpus at the testatrix's death subject to the prior life maintenance; the power to divide and apportion was a discretionary bare joint power given nominatim to Thomas and Mary (not a trust, not annexed to office) and therefore could not be exercised by the surviving donee alone; s.25 Trustee Act did not render the survivor capable of executing it; as the power became incapable of execution a resulting trust arose and the residue is held in equal shares for the three persons or their estates after payment of specified legacies.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • After payment of the legacies to Thomas Roach and William J. Roach, the residue of the estate of Cecilia Roach is to be divided equally into three shares and one‑third is to be paid to George Roach, one‑third to the estate of Martin Roach, and one‑third to the estate of Mary Rosella Kormann.