Cowan v. Allen

Cowan v. Allen

Where a testator devises land in fee to a son and provides that if he dies without issue the residue shall revert to named brothers, the plain meaning of 'die without lawful issue' is death at any time, creating an executory devise over to the brothers; such a gift over to named brothers is valid and not void for repugnancy, the widow retains dower and the $50 annuity (not inconsistent) and the Devolution of Estates Act does not give the widow a distributive share of lands devised; a mortgagee improperly added in the master’s office may object later.

Citation
(1896) 26 SCR 292
Parties
Appellant Plaintiff: Samuel George Cowan; Appellant Defendant: Albert Wilberforce Cowan; Appellant Added Party (mortgagee): Sarah MacPherson; Respondent Administrator: W.F. Allen; Respondent Widow: Jeanne Cowan
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
18 May 1896
Procedural Posture
Appeal From Court of Appeal for Ontario Concerning Administration Action and Construction of Testator's Will / Final Appeal to Supreme Court of Canada; Judgment on Construction and Remitted Directions
Outcome
Appeal allowed; master’s report varied and construction of will declared in favour of appellants on the executory devise point
Legal Topics
Will Construction, Executory Devise, Dower, Annuity, Restraint on Marriage, Devolution of Estates Act, Practice Parties Added in Master's Office
Source Language
English
Estates Succession Property Civil Procedure Will Construction Executory Devise Dower Annuity +3 more

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Parties

Samuel George Cowan

Appellant Plaintiff

Albert Wilberforce Cowan

Appellant Defendant

Sarah MacPherson

Appellant Added Party (mortgagee)

W.F. Allen

Respondent Administrator

Jeanne Cowan

Respondent Widow

Procedural Posture

Appeal From Court of Appeal for Ontario Concerning Administration Action and Construction of Testator's Will / Final Appeal to Supreme Court of Canada; Judgment on Construction and Remitted Directions

Legal Issues

  1. 1 Whether devisee (Alexander) took absolute fee or fee defeasible by executory devise to brothers on dying without issue
  2. 2 Proper construction of phrase 'die without lawful issue' (confined to testator's lifetime or at any time)
  3. 3 Whether gift over to brothers was void for repugnancy

Ratio Decidendi

Where a testator devises land in fee to a son and provides that if he dies without issue the residue shall revert to named brothers, the plain meaning of 'die without lawful issue' is death at any time, creating an executory devise over to the brothers; such a gift over to named brothers is valid and not void for repugnancy, the widow retains dower and the $50 annuity (not inconsistent) and the Devolution of Estates Act does not give the widow a distributive share of lands devised; a mortgagee improperly added in the master’s office may object later.

Court Disposition

Appeal allowed; master’s report varied and construction of will declared in favour of appellants on the executory devise point

Orders

  • Motion to vary the master’s report ought to have been allowed
  • Construction declared: devise to Alexander subject to executory devise over to brothers on his death without lawful issue at any time; widow entitled to dower and to $50 annuity so long as she remains unmarried; Devolution of Estates Act does not give widow a distributive share of devised lands