Thulin v. Butler

2003BCCA0225

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Thulin v. Butler et al, 2003 BCCA 225 Date: 20030404 Docket: CA029102 RE: ESTATE OF MELBA SOPHIA RENDALL, DECEASED Between: Trevor Thulin Appellant (Petitioner) And James T. Butler, Alan Austin Simpson, Lorna Clair Buhr and Ian Whitney Earl Simpson Respondents (Respondents Before: The Honourable Madam Justice Southin The Honourable Madam Justice Ryan The Honourable Mr. Justice Hollinrake Oral Reasons for Judgment T.G. Keast D. Goodfellow Counsel for the Appellant D.E. McCabe Counsel for the Respondent, J.T. Butler K. Ducey Counsel for the Respondents, A. and I. Simpson, L. Buhr Place and Date: Vancouver, British Columbia April 4, 2003 [1] SOUTHIN, J.A.: This is an appeal by a great-nephew of the testator from the judgment of Mr. Justice Singh pronounced 27 September 2001. The judgment, as drawn up, was this: THIS COURT ORDERS that: 1. Letters of Administration of all the estate which by law devolves to and vests in the personal representative of Melva Sophia Rendall, deceased, late of 509-2562 Departure Bay Road, Nanaimo, British Columbia, who died, intestate, on the 4th day of September, 2000, at Nanaimo, British Columbia, be granted to Trevor Thulin and James T. Butler, without bond.

2. The persons who are entitled to share in the estate of Melba Sophia Rendall, deceased, as her heirs-in-law, are her sister, Grace Mildren Thulin, as to one-third interest, the children of Gladys Robina Butler, namely James T. Butler and George R. Butler, as to one-third interest, and the children of Bernice Marjorie Simpson who survived Melba Sophia Rendall, the whereabouts of whom has not been ascertained, as to one-third interest.

3. If Trevor Thulin and George R. Butler, the Administrators of the estate of Melba Sophia Rendall, deceased, are unable to locate any child or children of the late Bernice Marjorie Simpson, the said Administrators shall be at liberty to apply to this Court for an Order that the share of the estate which would have been payable to the children of Bernice Marjorie Simpson be divided into two equal shares, one of which shall be payable to Grace Mildred Thulin (or her estate) and the other of which shall be payable to James T. Butler (or his estate) and George R. Butler (or his estate) in equal portions.

4. Counsel for the Petitioner, Trevor Thulin, and Counsel for the Respondent, James T. Butler, be paid from the estate of Melba Sophia Rendall, as special costs, their fees and disbursements incurred in this matter to the date of this Order. [2] There are some comments to be made about the terms of this order but, before I come to them, I shall deal with the fundamental issue. Mrs. Rendall's will, which was made on 26 February 1985, having made the usual provisions for her trustees, said as the operative portion: To transfer the residue of my estate to my sister, Jean Eleanor Butling, provided she survives me for a period of thirty (30) days. If she should fail to survive me for a period of thirty (30) days, the residue shall be transferred to Michael Clinton Thulin. [3] Michael Clinton Thulin was a nephew of the deceased. Both he and Ms. Butling, her sister, predeceased Ms. Rendall. There being no gift over upon Mr. Michael Clinton Thulin's death, the rule applicable is that the gift lapses. As I mentioned to counsel during the course of argument in this Court, in Topliss v. Baker (1789), two Ch. cases, 118 at 121 the Lord Chief Baron said: Now no rule is more established than that a testamentary disposition must lapse by the death of the party to whom the benefit is given in the lifetime of the testator. [4] In the 19th century, by the Wills Act of 1833, Parliament at

Westminster enacted a provision against lapse in the case of gifts to children or issue. That provision came into force in British Columbia. It has been amended from time to time until it is now s. 29 of our present statute, which reads thus: 29 (1) Unless a contrary intention appears by the will, if a person dies in the lifetime of a testator either before or after the testator makes the will and that person (a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in property not determinable at or before his or her death, and (b) leaves issue any of whom is living at the time of the death of the testator, the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if the person had died intestate without leaving a spouse and without debts immediately after the death of the testator. (2) Unless a contrary intention appears by the will, if a person dies in the lifetime of a testator either before or after the testator makes the will and that person (a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in

property not determinable at or before his or her death, and (b) leaves a spouse but does not leave issue any of whom is living at the time of the death of the testator, the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if the person had died intestate and without debts immediately after the death of the testator. [5] Mr. Keast has put forward an argument that Mr. Michael Clinton Thulin, the testator's nephew falls within the words "or other issue". In my opinion, nothing can be clearer than he does not. "Issue" bears in this section of the statute its longstanding meaning, and that is offspring or progeny of the testator. It is a word that will carry a gift down to a great-grandchild and beyond. What it will not bear is an extended meaning to include someone who, is properly called a collateral descendent. That is exactly what Mr. Thulin was, a collateral descendent. [6] Therefore this appeal must fail. [7] I wish to make some comment, however, about the terms of the order pronounced below before I come to the question of the costs in this Court. I do so because I would not wish anything like this to happen again. [8] First of all, it is not so, despite what Clause 1 says, that Melba Sophia Rendall died intestate. She did not die

intestate. She left a will. The residuary gift lapsed. Clause 1 should have been a declaration that the gift to Michael Clinton Thulin lapsed because of his predeceasing the testatrix, or words to that effect. [9] Clause 2 is at least of doubtful merit. The proper way to deal with a point of this kind is for there to be an inquiry ordered before the Registrar, or the Master, as to who are the persons entitled to take upon an intestacy as to the residuary gift. That, of course, properly done requires a production of birth certificates and death certificates. If the Simpsons had not been found, it would have been necessary for an inquiry as to their whereabouts, whether they were alive or dead at the death of the testatrix and a great many other things. A proper pedigree would have been necessary. [10] As to the third clause, "If Trevor Thulin and George R. Butler are unable to locate any of the children they shall be at liberty, etc.", it is quite bad. Being unable to locate does not entitle the beneficiaries, the next of kin of equal rank, to just scoop the lot. Any suggestion of that kind is quite outrageous. It would have been necessary to show that they were dead, these other children. If it could neither be shown whether they were dead or alive the money would have had to be held and, if they were not proven to have predeceased the testatrix, the money would have to go to

the Crown. Having said that, for technical reasons, and now that they have been ascertained, but so that nobody will ever do this again it is my view that this appeal should be allowed for the purpose of only striking out paragraph 3 of this Order. [11] I do not want it to be thought that I think that the next of kin, who were known at the time, were up to no good. But I would not wish in any other estate those who are charged with administering an estate to think that if you do not find somebody with equal right it follows that you can have the lot. It does not follow. [12] As to the question of costs, it is my view that the submission made by counsel for the respondents is correct. This appeal, as a matter of law, was without merit, and it follows that the respondents are entitled to their costs against the appellant. [13] I would order accordingly. [14] RYAN, J.A.: I agree. [15] HOLLINRAKE, J.A.: I agree. "The Honourable Madam Justice Southin"