Judgment of the Court — DE GRANDPRÉ J.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—By their action appellants are seeking to be declared the owners of eight eighteenths (8/18) (that is, eight ninths (8/9) of the joint share of Bridget Martin in the immovable) of the eastern portion of lots 1 and 2 of the official register of Ancienne Lorette, except for certain parcels which need not be described here.
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The decision of the Court of Appeal is reported in [1973] C.A. 1120. It suffices to note the following facts here:
(1) plaintiffs are six children, and the heirs of two other children, of William Patrick O’Neill, the son of Bridget Martin and Thomas O’Neill;
(2) William Patrick O’Neill was also the father of Thomas John O’Neill, who was the father of defendant-respondents;
(3) Thomas O’Neill and Bridget Martin were married with community of property, in the absence of a marriage contract;
(4) by wills dated September 29, 1894, Thomas O’Neill and Bridget Martin each bequeathed his or her share of the aforementioned immovable to their son William Patrick; the relevant clauses of these wills will be cited below;
(5) William Patrick O’Neill in turn, by a will dated December 21, 1923, bequeathed the immovable to only one of his sons, Thomas John, and this estate devolved of November 28, 1947;
(6) Thomas John O’Neill died on March 10, 1966, having bequeathed the immovable at issue to respondents by will.
Plaintiff-appellants submit that William Patrick O’Neill had the right, under the terms of his father’s will, to appoint any of his children as legatee of this immovable, but that under the terms of his mother’s will he did not have this right, as in the submission of plaintiff-appellants that will established a substitution in favour of all the children of William Patrick O’Neill, without a power of appointment. If plaintiff-appellants are correct, they are clearly entitled, as they allege, to eight ninths of the joint share of Bridget Martin O’Neill in the immovable.
The Superior Court dismissed the action, and the findings of that decision were unanimously upheld on appeal, but for different reasons. In my view, the decision of the Court of Appeal is unimpeachable, and must be affirmed.
Appellants base their action on clause V of the will of Bridget Martin O’Neill:
V I will and direct that my said sons John, James, Francis and William O’Neill shall under no circumstances be authorized to sell, mortgage or in any way alienate the above farms; at the exception of my said
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sons Francis and William, who will be at liberty to sell the piece of land in Valcartier, and also of my son James O’Neill, who is hereby authorized to hypothecate and mortgage that piece of land called the ‘point’ (out of Leclerc’s farm) for the purpose of raising or borrowing money to pay his sister Julia O’Neill what he is bound to pay her according to his father’s will.
They emphasize that this will was signed by the testatrix immediately after that of her husband, that they were both recorded by the same notary before the same witnesses, and that clause VIII of the will of Thomas O’Neill, which deals with the same subject-matter, reads differently, to wit:
VIII I will and direct that my said sons John, James, Francis and William O’Neill shall, not be authorized, on no circumstances, to sell, mortgage or alienate the said farms and that, at their respective death, the said farms or pieces of land shall become the property of their respective legal heirs; but if any of my said sons wish to will and bequeath his farm or land, he or any of them shall be at liberty to give it or any part of it to any of his child or children, as long as it will not be given to strangers. However, should my said sons Francis and William wish to sell the piece of land in Valcartier, they could sell it notwithstanding the present clause; & should my son James O’Neill want to raise or borrow money, to pay his said sister Julia O’Neill, he shall be authorized to mortgage and hypothecate the said piece of land called the “point” being the piece out of Leclerc’s farm.
From this appellants conclude that this difference between the texts represents a difference of intent, and that the right Thomas O’Neill conferred on his legatee William Patrick, to choose between his children, was not conferred on the said William Patrick by Bridget Martin O’Neill.
The point of departure of appellants’ argument is that the prohibition against alienation stated in clause V of the will of Bridget Martin O’Neill necessarily established a substitution. It is this point of departure which I find impossible to accept, as Section V of Chapter IV of Title II of the Civil Code provides, on the contrary, that the prohibition against alienation, though in certain cases it may establish a substitution, does not necessarily lead to that conclusion. On the contrary, as the relevant articles of the Civil Code provide, in particular art. 975, we must look at the
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texts and at the circumstances as a whole in order to determine the extent of the prohibition against alienation.
The Court of Appeal examined the texts and the circumstances and found that:
(1) it is not possible to say definitely from clause V of the will of Bridget Martin O’Neill that she intended to extend the prohibition against alienation to acts mortis causa, or that she wished to limit it to acts inter vivos;
(2) consideration must therefore be given to “the other attending circumstances” (Art. 975 C.C.) in order to determine the extent of the prohibition against alienation expressed by Bridget Martin O’Neill in her will;
(3) in the case at bar, the most important circumstance is the body of provisions contained in the wills of the couple, signed the same day, before the same notary and the same witnesses;
(4) in particular, in the will of Thomas O’Neill, consideration should be given to clause VIII, which expressly extends the prohibition against alienation to acts mortis causa, and creates a substitution in favour of the heirs of William Patrick O’Neill, who at the same time is given a power of appointment;
(5) consideration must also be given to the other clauses in the two wills of the couple, clauses establishing that it was the intent of the two testators to avoid joint control.
Bearing in mind these circumstances the Court of Appeal held unanimously that William Patrick O’Neill, the legatee under his mother’s will of a joint one-half interest in the immovable referred to in the pleadings, became the owner thereof without being subject to any limitation whatsoever as to acts mortis causa, and that his will in favour of his son Thomas John transmitted to the latter full ownership of the immovable, with the result that respondents now enjoy full ownership.
Rinfret J. said the following (at p. 1123):
[TRANSLATION] To me it would appear inconsistent that Dame Bridget Martin, having accompanied her husband to the office of the notary, Roy, and having, together with her husband, indicated in her will her desire to breach the joint tenancy by bequeathing to one of her sons her joint share in the property in question
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here, in the same manner as her husband had done, intended to create a new and multiple joint tenancy in favour of her children, or failing that, of her grand children.
However, this inconsistency would follow from adopting the point of view of appellants.
Montgomery J., for his part, writes (at p. 1123):
I find it most probable that Dame Martin wished to keep the property in the family, as suggested by Appellants, but that she considered that this object was sufficiently assured by the terms of her husband’s will. She may well have considered it unlikely that any of her sons would deliberately complicate the administration of his estate by leaving one-half of the property acquired from his parents to a child, as authorized by his father’s will, and the other half to a stranger. If so, her trust was justified in the case of her son William Patrick, who left the property to one of his sons.
This is a necessary conclusion, since Thomas O’Neill and his wife had arrived at a common understanding before going to see the notary, and had decided that the clauses of their wills would complement each other. Thus, the other bequests of real property made in the two wills confer on each of the three other sons, John, James and Francis, the ownership of three different immovables, with each parent bequeathing to these sons his or her joint share in the immovable. So also, cl. VI of the will of Bridget Martin O’Neill ratifies the testamentary dispositions just made by her husband, as follows:
VI Considering that my husband, in his last will, has bequeathed and otherwise disposed of certains sums of money. I ratify the said legacies and dispositions and I will and direct that, should an inventory of my estate be required or asked for, I should be considered as having contributed for the half of said sums of money and so much will be accounted for as having been bequeathed by me for one half and by my husband for the other half.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the plaintiffs, appellants: Corriveau & Associates, Quebec.
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Solicitors for the defendants, respondents: Flynn, Rivard, Jacques, Cimon, Lessard & LeMay, Quebec.
Footnotes
- [1] [1973] C.A. 1120.