Milburn v. Grayson and the Executors and Administrators Trust Company

Milburn v. Grayson and the Executors and Administrators Trust Company

Majority held the codicil did not operate to revoke the $800 legacies because its condition required a total failure of the two-policy fund (the court must respect the conjunctive 'and'); legatees of the residuary personalty are entitled to interest accrued on personalty despite the phrase 'without interest'; the direction to convert real estate was for payment of funeral expenses, debts and legacies only and surplus proceeds do not pass under a residuary bequest limited to personal estate (surplus results in partial intestacy); the refusal to award executors costs in the Court of Appeal was a matter of discretion not to be disturbed on this appeal.

Citation
(1921) 62 SCR 49
Parties
Appellants (defendants): William Milburn and Others; Plaintiffs / Respondents: William Grayson and P. A. Reilly; Defendants / Respondents (executors): The Executors And Administrators Trust Company And Others; Deceased / Testator: William Walsh (deceased)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
11 March 1921
Procedural Posture
Appeal From Court of Appeal for Saskatchewan on Construction of Will (originating Summons Below) / On Appeal to Supreme Court of Canada; Judgment Delivered
Outcome
Appeal allowed in part (majority): legacies to Milburns not revoked; residuary legatees take interest on personalty; surplus proceeds of converted real estate do not pass under residuary personalty. Cross-appeal by executors dismissed (costs)
Legal Topics
Revocation of Legacies, Condition Precedent, Residuary Bequest, Conversion of Realty Into Personalty, Interest on Delayed Legacies, Executor Costs
Source Language
English
Estates Wills Trusts Probate Intestacy Insurance Law Civil Procedure (costs) Revocation of Legacies +5 more

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Parties

William Milburn and Others

Appellants (defendants)

William Grayson and P. A. Reilly

Plaintiffs / Respondents

The Executors And Administrators Trust Company And Others

Defendants / Respondents (executors)

William Walsh (deceased)

Deceased / Testator

Procedural Posture

Appeal From Court of Appeal for Saskatchewan on Construction of Will (originating Summons Below) / On Appeal to Supreme Court of Canada; Judgment Delivered

Legal Issues

  1. 1 Whether codicil revoked $800 legacies to Milburn nephews/nieces when one of two insurance policies did not vest in estate
  2. 2 Whether residuary legatees of 'personal estate and effects' are entitled to interest/income despite words 'without interest'
  3. 3 Whether proceeds of real estate converted for payment of debts and legacies pass into residuary personalty or result in partial intestacy

Ratio Decidendi

Majority held the codicil did not operate to revoke the $800 legacies because its condition required a total failure of the two-policy fund (the court must respect the conjunctive 'and'); legatees of the residuary personalty are entitled to interest accrued on personalty despite the phrase 'without interest'; the direction to convert real estate was for payment of funeral expenses, debts and legacies only and surplus proceeds do not pass under a residuary bequest limited to personal estate (surplus results in partial intestacy); the refusal to award executors costs in the Court of Appeal was a matter of discretion not to be disturbed on this appeal.

Court Disposition

Appeal allowed in part (majority): legacies to Milburns not revoked; residuary legatees take interest on personalty; surplus proceeds of converted real estate do not pass under residuary personalty. Cross-appeal by executors dismissed (costs)

Orders

  • Appeal allowed in part: $800 legacies to Milburn appellants are not revoked (majority judgment)
  • Residuary legatees of personal estate are entitled to interest/income accruing on residuary personalty notwithstanding words 'without interest'