THE REV. JOHN FERGUSON............APPELLANT; 1878 AND DONALD MCGREGOR FERGUSON..... RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Will-Construction—Remoteness—Estate tail—Heir-at-Law. him P. F., senr., proprietor of 180 acres of lot 13, 10 concession of the *PRESENT_Sir William Buel Richards, Knt., C. J., and Ritchie, Strong, Taschereau, Fournier and Henry, J. J. *Feb'y. 5, 6. June 3, 4. 1878 FERGUSON บ. FERGUSON. Subsequently the Appellant, son of D. F., and heir-at-law of P. F., senr., took a conveyance from P. McV., and thereupon the Respondent, heir-at-law of P. F., junr., brought an action in ejectment, claiming that under the will his father took an estate tail which descended to him. The Court of Queen's Bench gave judgment (1) in favor of the heir-at-law, which judgment was reversed by the Court of Appeal for Ontario (2). Held, On appeal, that the devise by the testator to his first great grandson being void for remoteness, and there being no intention to give to P. F., junr., any estate or interest independent of, or unconnected with, the devise to the great grandson, there was no valid disposition to disinherit the heir-at-law, and therefore the Plaintiff was not entitled to recover. (Strong, J., dissenting). Per Ritchie, J.-Where the rule of law, independent of and paramount to the testator's intentions, defeats the devise the proper course is to let the property go as the law directs in cases of intestacy. APPEAL from a judgment of the Court of Appeal for This was an action of ejectment, and was commenced by writ issued on the 23rd July, A. D. 1875, to obtain possession of lot 13, in the 10th concession of the township of Drummond, in the County of Lanark. The Plaintiff claimed title to the premises as heir of entail of Peter Ferguson, devisee in tail male under the last will and testament of Peter Ferguson, his father, deceased. The Defendant, besides denying the title of the Plaintiff, claimed the land as heir-at-law of Peter Ferguson, senior, his grandfather. The Defendant further claimed title by length of possession and by conveyance from Peter McVicar, who derived title as devisee under the will of Peter Ferguson, deceased. It was admitted that Peter Ferguson died seized of (1) 39 U. C. Q. B. 232. (2) 1 App. R. Ont. 452. the land in 1849, and that the Defendant was his heirat-law. The portion of the will in controversy between the parties reads as follows: 'It pleased the Lord to give me two sons equally dear to my heart; to give them equal justice. I leave all my land to the first great grandson descending from them by lawful ordinary generation in the masculine line, to him I bequeath it, and to him I will that it pass free of any encumbrance, except the burying ground and the quarter of acre for a place of worship. To Duncan Ferguson, my son, I bequeath my family bible, and five shillings over and above what I have done for him * * * To Peter Ferguson, my son, I bequeath my implements belonging to my farm, and to occupy the farm and answer State dues and public burdens himself, and the lawful male offspring of his body until the proper heir are come of age to take possession, but Peter himself and all are restricted and prohibited from giving any wood or timber whatsoever kind away off the land, or bringing any other family on to it but his own. But if he leaves a situation so advantageous, and cannot maintain himself upon it, * * * I appoint Peter McVicar, my grandson, to take charge of the whole place-farm, and all that pertains to it—and occupy the same for his own benefit and advantage, according to the forementioned restrictions and conditions, until the heir be of lawful age, as aforesaid." When the testator died in 1849, Duncan was the elder son, Peter was the second son, and Peter McVicar was the son of a sister; the land at the time was subject to a lease, which expired in 1857. At the expiration of the lease, Peter Ferguson, the son of the testator, went into occupation of the land. On the 24th August, 1857, he conveyed to Peter McVicar, the grandson, who is named in the will. 1878 FERGUSON v. FERGUSON. RHODES 1878 v. The Defendant, son of Duncan Ferguson, besides being FERGUSON the heir-at-law of the testator, proved a deed to himself of the land from Peter McVicar. FERGUSON. HOUSE *CXF PD* LIBRARY Peter Ferguson, junr., died in 1864, leaving as his only child the Plaintiff. At the trial (Fall Assizes, 1875) before Patterson, J., without a jury, a verdict for the Plaintiff was entered on the ground that the devise to Peter Ferguson, junr., created an estate tail male in him, that the estate tail had not been barred, and that the Defendant had not made out his defence under the Statute of limitations. A rule nisi was obtained to enter a verdict for the Defendant, which was afterwards made absolute by the Court of Queen's Bench. The Plaintiff then appealed to the Court of Appeal for Ontario, which reversed the judgment of the Court of Queen's Bench. Mr. MacLennan, Q.C., and Mr. Burdett, for Appellant: There was no great grandson at the death of the testator, so the will is void either as a lapsed devise or for remoteness. The will reads as follows:-"To Peter Ferguson, my son, I bequeath my implements belonging to my farm, and to occupy the farm, and answer State dues, &c., and the lawful male offspring of his body until the proper heir are come of age, &c." These are the words relied on by the Respondent as giving to his ancestor the estate tail. The central object of the testator was to give the estate to his great grandchild and the other directions were merely ancillary to, and not in substitution for, the principal devise, the one having failed the other necessarily failed along with it. The effect of this is that the testator died intestate. If the child had been in being when the testator died, he would have taken the estate as a vested estate in fee; not having been born, however, the devise was execu v. FERGUSON. tory, to take effect when the child was born: Jarman on 1878 Wills (1). It is not limited to take effect during or at FERGUSON the determination of the supposed estate tail. Suppose the alleged estate tail to terminate to-day, the child's estate would not arise because he is not yet in being, but the estate, if good, must wait till then and be tied, and we have an estate infringing the rule of perpetuities and incapable of being barred. It follows that the estate to the child is void. Moreover, the devise to the grandson being a present gift, it follows that there can be no present gift to Peter Ferguson, otherwise there would be two gifts of the same property to the same person to take effect concurrently, which is impossible and repugnant. The provisions with respect to Peter Ferguson and Peter McVicar are made upon the supposition that the gift to the grand child has taken effect, which makes it clear that these persons were to take no estate, but were to be made guardians or caretakers of the property of another during his minority. To hold that the devise to the grandson is executory, is to change and invert the whole frame and structure of the will, to invert and re-arrange its parts to contradict the plainly expressed intention, and to put a fanciful construction upon it. The Appellant contends, therefore, that the result is that testator's scheme with regard to his property has fallen, and the subsequent provisions in the will, being solely to carry into effect the main object of the will, cannot be given primary importance, so as to make a will the testator never intended. The learned counsel referred to Christie v. Gosling (1); Countess of Harringlon v. Earl of Harrington (2); Marcon v. Alling (3); Mc Kidd v. Brown (4); and Shaver v. Jamieson et al (5). (1) Vol. 1, p. 820 (Ed. 1861). (4) 5 Grant 562. (5) 5 Grant 633. (6) 25 U. C. Q. B. 156. |