DATE: 20000912

DOCKET:C33412

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF THE ESTATE OF HORACE W.D. FOSTER,

Late of the City of Toronto, in the Province of Ontario, Deceased

RE: CANADA TRUST (Applicant (Respondent in Appeal)) – and – PATRICK STEPHEN BURDEN, ANTOINETTE PAULINE FLEMING and JAMES ALFRED LENNOX BROWN (as Executors and Trustees of the Estate of Margaret Josephine Off); PAULINE OLIVIA BURDEN; NANCY FOSTER; and MAUREEN WOODS (Respondents (Appellants in Appeal))

APPLICATION under Rule 14.05(3)(a), (b) and (d) of the Rules of Civil Procedure and the Trustee Act, R.S.O. 1990, c. T. 23

BEFORE: CATZMAN, ABELLA AND ROSENBERG JJ.A.

COUNSEL: Timothy G. Youdan and Jennifer A. Pfuetzner

For the appellant

Douglas G. Garbig and James B. Gold

For the respondent

HEARD: September 7, 2000

On appeal from the judgment of Justice Donna J. Haley dated November 24, 1999.

E N D O R S E M E N T

[1] In our view, the devise to the testator’s sister, Margaret Off, was, in the words of s.27 of the Wills Act, “incapable of taking effect” because she died before the testator’s widow. Pursuant to that section, the devise is therefore included in the residue unless a contrary intention appears in the will.

[2] We see no such contrary intention. Looking at the will as a whole, the testator had a restricted intention with respect to his widow, that is, a right to occupy 38 Burton Road only during her lifetime. His overriding intention, in our view, was that his sister, if she survived for 10 days, receive the property after his widow died, and that when the sister died, her daughter’s heirs would benefit. The testator did not provide for the possibility that his sister would predecease both him and his widow, but we believe it to be clear that he intended that the ultimate beneficiaries of his estate, including the property, would be his sister and her heirs.

[3] In accordance with the intention of the testator, therefore, the remainder interest in the property should be “swept up” into the residue of the testator’s estate by virtue of paragraph 4 of the will (the residuary clause) and by operation of s.27 of the Wills Act.

[4] The appeal is therefore allowed with costs, paragraphs 1 and 2 of the judgment of Haley J. are set aside, and in its place an order will issue directing and declaring that the property passed to the estate of Margaret Josephine Off. We would not disturb the order for costs made by Haley J. of the application before her.

“M.A. Catzman J.A.”

“R.S. Abella J.A.”

“M. Rosenberg J.A.”