Dice et al. v. Dice, Estate Trustee of Dice, deceased, et al. [Indexed as: Dice v. Dice Estate]

111 O.R. (3d) 407

2012 ONCA 468

Court of Appeal for Ontario,

Rosenberg, Simmons and R.P. Armstrong JJ.A.

June 29, 2012

Wills and estates -- Wills -- Interpretation -- "Per stirpes" -- Testator leaving life interest in residue of his estate to his wife and directing that after her death residue was to be divided equally between his son and his daughter "per stirpes" -- Gift to named children "per stirpes" not necessarily creating contradiction in terms -- Phrase "per stirpes" in context of this case most likely conveying testator's intention to benefit his children's children in event either or both of his children predeceased his wife.

The testator left a life interest in the residue of his estate to his wife and directed that, following her death, the residue was to be divided equally between his son and his daughter, per stirpes. The son survived the testator but predeceased his mother, leaving three children. He named his second wife as the sole beneficiary of his estate. On an application to interpret the will, the application judge held that the residue of the estate did not vest in the residuary beneficiaries until the life tenant's death. He found that, construed in accordance with its ordinary meaning, a gift to named children is a gift to a class of a single generation, whereas the phrase "per stirpes" implies at least the possibility of an intergenerational gift. Accordingly, he concluded that, when used in conjunction with a gift to named children, the phrase "per stirpes" creates a contradiction in terms. However, he found that various aspects of the will, including the phrase "per stirpes", revealed an intention to benefit the families of each of the testator's children equally if either of his children predeceased his wife. He declared that the son's children were entitled to the son's share of the residue. The testator's daughter and the son's second wife appealed.

Held, the appeal should be dismissed.

The overall scheme of the will did not provide much, if any, support for the conclusion that the testator intended his son's and his daughter's share of the [page 408] residue to go to their respective children if either of them predeceased the life tenant. At most, what was evident was a general intention to benefit his children more or less equally. It was clear, however, that the testator intended that the words "per stirpes" should have some meaning. Even if used improperly, having regard to the traditional meaning of the phrase "per stirpes" when used in conjunction with the term "issue", the most logical meaning was that the use of the phrase conveyed an intention to benefit, at least, the testator's children's children. In this context, a gift to named children, per stirpes, did not necessarily create a contradiction in terms.

APPEAL from the order of Turnbull J., [2011] O.J. No. 2734, 2011 ONSC 3641, 337 D.L.R. (4th) 499 (S.C.J.) made on application for the interpretation of a will.

Cases referred to Clark Estate, 1993 14744 (BC SC), [1993] B.C.J. No. 1828, [1994] 1 W.W.R. 497, 83 B.C.L.R. (2d) 284, 50 E.T.R. 105, 42 A.C.W.S. (3d) 525 (S.C.); Hegedus Estate v. Paul (Public Trustee of), [1998] A.J. No. 836, 1998 ABQB 631, [1999] 5 W.W.R. 696, 64 Alta. L.R. (3d) 103, 225 A.R. 154, 24 E.T.R. (2d) 176, 81 A.C.W.S. (3d) 398 (Surr. Ct.); Heslop Estate v. Canadian Trust Co., [1994] B.C.J. No. 3066, 6 E.T.R. (2d) 315, 52 A.C.W.S. (3d) 700 (S.C.); Jackson Estate (Re), [1975] B.C.J. No. 723 (S.C.); Karkalatos Estate (Re), 1962 4 (SCC), [1962] S.C.R. 390, [1962] S.C.J. No. 18, 34 D.L.R. (2d) 7; Lau v. Mak Estate, [2004] O.J. No. 3354, [2004] O.T.C. 718, 10 E.T.R. (3d) 152, 132 A.C.W.S. (3d) 1204 (S.C.J.); MacInnes (Re), 1958 117 (ON SC), [1958] O.R. 592, [1958] O.J. No. 618, 15 D.L.R. (2d) 684 (H.C.J.); Martyn v. Taylor, 2003 43893 (ON SC), [2003] O.J. No. 1745, [2003] O.T.C. 381, 50 E.T.R. (2d) 220, 123 A.C.W.S. (3d) 196 (S.C.J.); National Trust Co. v. Fleury, 1965 18 (SCC), [1965] S.C.R. 817, [1965] S.C.J. No. 52, 53 D.L.R. (2d) 700; Simpson Estate (Re), 1928 46 (SCC), [1928] S.C.R. 329, [1928] S.C.J. No. 26, [1928] 3 D.L.R. 773; Sitter Estate (Re), 1977 1488 (SK QB), [1977] S.J. No. 485, [1977] 2 W.W.R. 356 (Surr. Ct.), consd Other cases referred to Brown Estate (Re), 1934 49 (SCC), [1934] S.C.R. 324, [1934] S.C.J. No. 18, [1934] 2 D.L.R. 588; Browne v. Moody, 1936 119 (UK JCPC), [1936] O.R. 422, [1936] O.J. No. 218, [1936] A.C. 635, [1936] 2 All E.R. 1695, [1936] 4 D.L.R. 1, [1936] 3 W.W.R. 59 (U.K.P.C.); Burke (Re), 1959 113 (ON CA), [1960] O.R. 26, [1959] O.J. No. 706, 20 D.L.R. (2d) 396 (C.A.); Foxwell v. Van Grutten, [1897] A.C. 658 (U.K.H.L.); Perrin v. Morgan, [1943] A.C. 399 (U.K.H.L.); Shamas (Re), 1967 303 (ON CA), [1967] 2 O.R. 275, [1967] O.J. No. 1011, 63 D.L.R. (2d) 300 (C.A.); Shelley's Case (1581), 76 E.R. 206, 1 Co. Rep. 93b (U.K.K.B.); Singer v. Singer, 1931 12 (SCC), [1932] S.C.R. 44, [1931] S.C.J. No. 63, [1931] 3 D.L.R. 449; Strittmatter v. Stephens (1983), 1983 1660 (ON SC), 40 O.R. (2d) 463, [1983] O.J. No. 2928, 13 E.T.R. 127, 18 A.C.W.S. (2d) 178 (H.C.J.) Statutes referred to The Wills Act, R.S.O. 1950, c. 426, s. 36 Authorities referred to Feeney, Thomas G., The Canadian Law of Wills, 3rd ed., vol. 2 (Toronto: Butterworths, 1987) Feeney, Thomas G., and James MacKenzie, Feeney's Canadian Law of Wills, 4th ed., looseleaf (Toronto: Butterworths, 2000)

Mark Abradjian and Brad Wiseman, for appellant Marlene Marguerite Buck. [page 409] Richard Skibinski and Sean Heeley, for appellants Suzanne Dice, estate trustee of the estate of James Edgar Dice, deceased, and Suzanne Dice. Matt Moloci and Mike Stanton, for respondents.

The judgment of the court was delivered by

SIMMONS J.A.: --

(1) Introduction

[1] The main issue on this appeal is what meaning, if any, should be given to the phrase "per stirpes" as it appears in the will of the late Joseph Wesley Dice ("Mr. Dice").

[2] In his will, Mr. Dice left a life interest in the residue of his estate to his wife ("Mrs. Dice"). Further, he directed that, following his wife's death, his trustees should attend to her burial, pay her funeral expenses and then divide what was left of the residue of his estate "equally, between [his] son, James Edgar Dice, and [his] daughter, Marlene Marguerite Buck, per stirpes".

[3] James Edgar Dice ("Eddie") survived his father but predeceased his mother, the life tenant of his father's estate. After Eddie's death, a question arose as to who would be entitled to Eddie's share of the residue of Mr. Dice's estate upon Mrs. Dice's death. The answer to this question turns largely on what, if any, meaning should be given to the phrase "per stirpes" in the residue clause.

[4] Although Eddie had two children with his first wife and one child from another relationship, he named his second wife as the sole executrix and beneficiary of his estate. Accordingly, the people potentially entitled to Eddie's share of the residue of his father's estate were (i) Eddie's sister, Marlene -- the surviving residuary beneficiary under Mr. Dice's will; (ii) Eddie's second wife, Suzanne -- the executrix and sole beneficiary of Eddie's estate; and (iii) Eddie's three children -- his lineal descendants.

[5] On an application to interpret Mr. Dice's will, Turnbull J. held that the residue of Mr. Dice's estate did not vest in the residuary beneficiaries until the life tenant's death, which occurred in 2010. [page 410]

[6] The application judge acknowledged that in Lau v. Mak Estate, [2004] O.J. No. 3354, 10 E.T.R. (3d) 152 (S.C.J.), a case that involved a will with a similarly worded residue clause, Cullity J. determined that no meaning should be given to the phrase "per stirpes". Cullity J. reached this conclusion because, construed in accordance with its ordinary meaning, a gift to named children is a gift to a class of a single generation -- whereas the phrase "per stirpes" implies at least the possibility of an intergenerational gift. Accordingly, Cullity J. concluded that, when used in conjunction with a gift to named children, the phrase "per stirpes" creates a contradiction in terms.

[7] Nonetheless, in this case, the application judge found that various aspects of the will, including Mr. Dice's use of the words "per stirpes", indicated an intention to benefit the families of each of his children equally if either of his children predeceased his wife. Relying on these factors to interpret the will, the application judge declared that Eddie's children are entitled to Eddie's share of the residue of Mr. Dice's estate.

[8] Mr. Dice's daughter, Marlene, and Eddie's second wife, Suzanne, each appeal from the application judge's decision. Suzanne appeals both in her personal capacity and also in her capacity as trustee of Eddie's estate.

[9] Marlene and Suzanne both argue that none of the factors relied on by the application judge demonstrate an intention to benefit subsequent generations if one of Mr. Dice's children predeceased his wife. Moreover, although they disagree about whether any meaning can be given to the phrase per stirpes, they both argue that the interpretation of the phrase adopted by the trial judge is contrary to the weight of authority.

[10] Relying on Lau, Marlene submits that the phrase per stirpes is a technical term with a precise meaning and that no meaning can be attributed to it if it is used incorrectly.

[11] According to Marlene, properly understood per stirpes refers to a method of distributing testamentary gifts by branch or stock of the family (or "stirps"), and the term is used primarily in relation to gifts that may encompass more than one generation (such as a gift to the testator's issue alive on the testator's death).

[12] A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator's death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child's share of the gift. This is in contrast to a per capita distribution [page 411] under which each lineal descendant of the testator alive at the testator's death would receive one share of the gift.

[13] Moreover, because the term per stirpes implies at least the possibility of a intergenerational gift, when it is used in conjunction with a gift that prima facie designates first generation descendants only (such as a gift to the testator's children or, as here, a gift to the testator's son and daughter, by name), a contradiction in terms arises.

[14] Marlene contends that, in these circumstances, the term per stirpes must be ignored because it would be speculative to attribute any meaning to it. She claims that Eddie was entitled to a contingent vested interest in the residue of the estate and his interest divested because he failed to survive the life tenant. As she is the sole surviving contingent beneficiary and as she survived the life tenant, she is entitled to the whole of the residue of Mr. Dice's estate.

[15] Suzanne relies on the presumption of early vesting and submits that Eddie's share of the residue vested upon Mr. Dice's death. Considered in this context, she argues that a gift to named children of the testator per stirpes implies a gift to succeeding generations, but only if one of the residuary beneficiaries predeceases the testator. As Eddie survived Mr. Dice, the residue vested in Eddie, and not succeeding generations. As Suzanne is the sole beneficiary under Eddie's will, she is entitled to Eddie's share of the residue of Mr. Dice's estate.

[16] For the reasons that follow, I would dismiss the appeals.

(2) Background

[17] Joseph Wesley Dice died on July 20, 1975, leaving a will dated July 14, 1975. Mr. Dice was survived by his wife, Eileen Mary; by his daughter, Marlene, her husband, Ronald, and their three children; and by his son, Eddie.

[18] In his will, Mr. Dice named his son, Eddie, and his daughter, Marlene, as his executors and trustees. In addition to the clause providing for the gift of the residue discussed above, the will includes the following provisions that are significant for this appeal:

-- a direction to transfer his cottage to his daughter, Marlene, "for her sole use absolutely";

-- a direction to deliver to "each of [his] grandchildren alive, at the time of [his] death, the sum of $1,000.00" provided that the sum would be invested by each child's parent until the child reached age 21; [page 412]

-- a direction to hold his house in trust for his wife until she could no longer reside there and then to transfer it to his son, Eddie; and

-- a direction to hold the residue in trust for his wife, Eileen Mary, during her lifetime, and to use for her benefit the income and as much of capital as his executors and trustees consider advisable.

[19] The residue clause, discussed earlier, reads as follows:

Upon the death of my said wife, Eileen Mary Dice, I direct my said Trustees to arrange for the burial of my said wife and to deduct the amount thereof from the residue of my estate. I then direct that my said Executors and Trustees divide the rest, residue and remainder of my estate, if any, after the death of my said wife, Eileen Mary Dice, equally, between my son, James Edgar Dice, and my daughter, Marlene Marguerite Buck, per stirpes. (Emphasis in the original)

[20] Eileen Mary Dice executed a will on December 12, 1975. Her will stipulates that the residue of her estate should be divided equally between her son, Eddie, and her daughter, Marlene. The will also provides that if Eddie should predecease her, his share "shall not lapse but shall be divided equally among his issue, if any, then living at the time of my decease". Further, her will states that if Marlene should predecease her, Marlene's share "shall not lapse but shall be transferred and conveyed to [Marlene's] husband, Ronald Edwin Buck" (emphasis omitted). Finally, her will provides that if both Marlene and Marlene's husband should predecease her, Marlene's share "shall not lapse but shall be divided equally among their issue, if any, then living at the time of [Mrs. Dice's] decease".

[21] Eddie married his first wife in 1979. The couple had two children, Wesley James Dice and Rachel Lindsey Dice. Eddie and his first wife divorced in 1990.

[22] For the purposes of the application, it was alleged, but not admitted, that Eddie had a third child, Serra Jean Butts, from another relationship in 1982.

[23] Eddie married his second wife, Suzanne Dice, in February 1991. He died on July 3, 2000, and in his will named Suzanne as the sole heir of his estate.

[24] The life tenant of Mr. Dice's will, his wife, Eileen Mary Dice, died on March 11, 2010.

(3) The Application Judge's Reasons

[25] The application judge began his analysis by referring to the principle that it is necessary to consider the will in its [page 413] entirety in order to ascertain the testator's intention. On this point, he found that the overriding intention of Mr. Dice, the testator, was to look after his wife during her lifetime and "then treat his two children relatively equally".

[26] In reaching this conclusion, the application judge relied on the following three factors: (i) Mr. Dice left his house to his son once his wife could no longer live in it and he left his cottage to his daughter; (ii) Mr. Dice named both of his children as his executors and trustees; and (iii) Mr. Dice left the residue of his estate to both his children "per stirpes".

[27] In addition, although he said it was not determinative, the application judge reviewed a will made by Mrs. Dice shortly after Mr. Dice's death. He observed that Mrs. Dice also created a scheme of equal treatment for the couple's two children, but that she used clearer language to do so. Rather than using the phrase per stirpes, Mrs. Dice stipulated that if Eddie predeceased her, his share of the residue of her estate should go to his issue.

[28] Although the application judge acknowledged the presumption of early vesting, he found that the language of the residue clause rebutted this presumption. Specifically, the clause indicated Mr. Dice's intention that the gift of the residue should not vest until his wife's death and until "her burial had been fully effected and paid for".

[29] To this effect, the application judge relied on two sets of words in the residue clause. First, he emphasized the use of the words [at para. 4]: "[u]pon the death of my wife . . . I direct my said Trustees to arrange for the burial . . . and to deduct the amount thereof from the residue" (emphasis added by the application judge). Second, he noted the words: "I then direct that my said Executors and Trustees divide the rest, residue and remainder of my estate" (emphasis added by the application judge).

[30] In effect, the application judge found that the specific language used by Mr. Dice indicated that, after his wife's death, Mr. Dice wished his trustees to proceed in certain steps (burying his wife, deducting the costs from the residue and then dividing the residue between the residuary beneficiaries). The application judge concluded that these specific expressions of Mr. Dice's intention rebutted the presumption of early vesting.

[31] Finally, the application judge determined that the words per stirpes were included in the will because Mr. Dice realized [page 414] that one or both of his children could predecease his wife. In light of this possibility, the phrase was included as part of Mr. Dice's effort to treat his children equally.

[32] In particular, the application judge found that Mr. Dice "wanted each branch of his family, Eddie's and/or Marlene's, to be treated equally". He observed that [at para. 50]:

If [Mr. Dice] had intended that Eddie's share should pass to Marlene or vice versa in the event that one of them predeceased his/her mother, the will could easily have been drafted to say that by use of the words "per capita".

[33] In the result, the application judge declared that Eddie's children are entitled to Eddie's share of the residue of Mr. Dice's estate.

(4) Issues

[34] Marlene and Suzanne raise the following issues on appeal: (i) the application judge erred in his findings concerning Mr. Dice's testamentary intentions; (ii) the application judge erred in relying on Mrs. Dice's will to construe Mr. Dice's intentions; and (iii) the application judge erred in failing to find that the phrase "per stirpes" in the residue clause should be ignored or given a restricted meaning.

[35] Suzanne raises the following additional issue: (i) the application judge erred in failing to find that Eddie's share of the residue vested in Eddie indefeasibly on the testator's death.

(5) Analysis

A. Principles to be applied in interpreting the will

[36] The parties agree on the proper approach to the interpretation of a will. First, and foremost, the court must determine the intention of the testator when he made his will. The golden rule in interpreting wills is to give effect to the testator's intention as ascertained from the language that was used: National Trust Co. v. Fleury, 1965 18 (SCC), [1965] S.C.R. 817, [1965] S.C.J. No. 52, at p. 829 S.C.R.; Brown Estate (Re), 1934 49 (SCC), [1934] S.C.R. 324, [1934] S.C.J. No. 18, at p. 330 S.C.R.; Singer v. Singer, 1931 12 (SCC), [1932] S.C.R. 44, [1931] S.C.J. No. 63, at p. 49 S.C.R. Underlying this approach is [page 415] an attempt to ascertain the testator's intention, having regard to the will as a whole.

[37] Where the testator's intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he made his will -- the so-called "armchair rule": Burke (Re), 1959 113 (ON CA), [1960] O.R. 26, [1959] O.J. No. 706 (C.A.), at p. 30 O.R.; Shamas (Re), 1967 303 (ON CA), [1967] 2 O.R. 275, [1967] O.J. No. 1011 (C.A.), at p. 279 O.R., citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21 A.C.

[38] Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when [making] his last will and testament.

B. Discussion

[39] The central question on this appeal is whether the application judge erred in holding that use of the phrase "per stirpes" in the residue clause demonstrated an intention by Mr. Dice to treat his children's "stocks", or branches of the family, equally in the event that either of them predeceased their mother.

(a) Other evidence relied on by the application judge

[40] As I have noted, Marlene and Suzanne also argue that the application judge erred in relying on other factors to support his conclusion that Mr. Dice intended to treat Eddie and Marlene's branches of the family equally.

[41] In particular, they say that the trial judge erred in taking Mrs. Dice's will into consideration in interpreting Mr. Dice's will. Further, they point out that the gifts of real property to Marlene and Eddie were not gifted over to their respective children if either of them predeceased Mr. Dice; nor did the trusteeship granted to Marlene and Eddie under the will pass to their children.

[42] I am inclined to agree that the overall scheme of Mr. Dice's will does not provide much, if any, support for the conclusion that Mr. Dice intended Eddie and Marlene's share of the residue to go to their respective children if either of them predeceased their mother, the life tenant.

[43] Although Mr. Dice's will treats his two children more or less equally, that tells us very little about his intentions in the event that one of his children should predecease his wife. For [page 416] example, did he want the deceased's child's share to go to the deceased child's estate, which might imply a gift to the deceased child's spouse, or did he want the deceased child's share to go to the deceased's child's children? The fact that Mr. Dice treated his two children relatively equally does not address this question. Moreover, while treating his two children relatively equally might suggest that Mr. Dice would not want a deceased's child's share to go to Mr. Dice's surviving child if the deceased child had a spouse or children, it is hardly conclusive of the issue.

[44] I also agree that because Mrs. Dice made her will after Mr. Dice died, her will is of little, if any relevance, in interpreting Mr. Dice's will.

[45] More importantly, however, I note that while Mrs. Dice directed that Eddie's share of her estate should go to his issue in the event he predeceased her, she also directed that Marlene's share should go to Marlene's husband in the event Marlene predeceased her. When considered in this light, I conclude that Mrs. Dice's will is of no assistance at all.

(b) The interpretation of the phrase per stirpes in the residue clause of Mr. Dice's will is not determined by existing case law

[46] However, assuming the application judge erred in taking these additional factors into account, the central question still remains: Did the application judge err in holding that use of the phrase "per stirpes" in the residue clause demonstrated an intention on Mr. Dice's part to treat his children's branches of the family equally in the event that either of them predeceased their mother?

[47] In my view, apart from the words per stirpes, the overall scheme of Mr. Dice's will and Mrs. Dice's will tell us very little about Mr. Dice's intentions in the event one of his children predeceased his wife.

[48] If the trial judge was correct, and per stirpes demonstrates an intention to treat he children's branches of the family equally, none of the other errors relied on by Marlene and Suzanne ultimately affect the outcome of this appeal.

(i) Marelene's argument

[49] In support of her position that the use of the phrase "per stirpes" does not make sense in the context in which it was used and should therefore be ignored, Marlene relies heavily on Lau.

[50] As I have said, in Lau, Cullity J. was required to construe the words "per stirpes" in a will that contained a residue clause worded similarly to that at issue in this appeal. [page 417]

[51] In Lau, the testatrix left a life interest in a share of her estate to one of her children, Cecilia. On Cecilia's death, the testator directed that Cecilia's share be divided between the testator's son, Jackie, and her other daughter, Shirley, "as his or her own property absolutely, in equal shares per stirpes".

[52] The questions for the court were (1) whether the interests of Jackie and Shirley were vested indefeasibly upon the death of the testatrix; or (2) whether the words "in equal shares per stirpes" qualified the gift such that their interests in the remainder would be subject to divestment in favour of their children and unborn descendants if either of them predeceased Cecilia, the life tenant.

[53] Cullity J. noted that since the gifts to Jackie and Shirley were not conditional on them surviving Cecilia, there is a presumption of early vesting: Browne v. Moody, 1936 119 (UK JCPC), [1936] O.R. 422, [1936] O.J. No. 218, [1936] A.C. 635 (U.K.P.C.). However, he also observed that the "principal difficulty in giving effect to the presumption lies in finding a meaning to be given to the words 'per stirpes'". He concluded, at para. 7, that unless those words "were intended to make the gifts [to Jackie and Shirley] equivalent to stirpital gifts to them and their issue living at the death of either the [testatrix] or [the life tenant,] Cecilia . . . no effective meaning [could] be attributed to them".

[54] Cullity J. explained, at para. 8, that the words "per stirpes" have a long established and precise legal meaning. They do not describe or identify beneficiaries. Rather, they describe a method of distribution in a will under which each stock or branch of the family receives one share of the gift. This contrasts with, for example, a per capita distribution under which each beneficiary receives one share of the gift.

[55] According to Cullity J., the most familiar use of the term per stirpes is found in gifts to a class that could comprise more than one generation -- such as gifts to the testator's issue. However, he noted that this is not always the case.

[56] For example, Cullity J. observed that a gift to the testator's grandchildren in equal shares per stirpes, "would, prima facie, not include [the testator's] great-grandchildren", citing Karkalatos Estate (Re), 1962 4 (SCC), [1962] S.C.R. 390, [1962] S.C.J. No. 18. Rather, in Karkalatos Estate, the stocks or branches of the family were found in the grandchildren's ancestors. Accordingly, each of the testator's children constituted one stock -- the single child of one of the testator's two children was to receive one-half of the gift, and the three children of the testator's other child were to share the other half. Moreover, there would be no representation by, or implied gifts over to, great-grandchildren [page 418] in the event that any of the grandchildren predeceased the life tenant.

[57] Accordingly, taking account of the traditional meaning of the words "per stirpes", Cullity J. determined, at para. 10, that a gift to the children of the testator, particularly where they are named, is a contradiction in terms. In his view, that is the case because it is essential to have more than one stirps or branch of the family represented in the description of the beneficiaries of the will.

[58] In the result, Cullity J. declined to give any meaning to the words "per stirpes". Further, he noted that his conclusion is consistent with the decisions in Simpson Estate (Re), 1928 46 (SCC), [1928] S.C.R. 329, [1928] S.C.J. No. 26; Karklatos Estate; and Clark Estate, 1993 14744 (BC SC), [1993] B.C.J. No. 1828, 83 B.C.L.R. (2d) 284 (S.C.). Accordingly, he found that the gifts of the remainder to Jackie and Shirley vested indefeasibly upon the death of the testatrix.

[59] In my opinion, the danger in relying on Lau is that it appears to lay down a rigid rule concerning the meaning of the words "per stirpes" in a similarly worded will. However, the rules of construction require that the court strive to ascertain the intention of the testator in each particular case. As this court stated in Burke (Re), at p. 30 O.R.:

The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only in so far as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavour to place himself in the position of the testator at the time when the will was made. . . . He should then study the whole of the contents of the will and, after full consideration of all of the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[60] On my reading of the decisions relied on by Cullity J., none of those courts attempted to lay down a rigid rule of construction.

[61] In Simpson Estate, the testator left life estates in several properties to various nieces and nephews, with the remainder interest in each property to go to the particular beneficiary's "children in equal shares per stirpes" following the beneficiary's death. The testator also directed that if any of the persons to whom he had left a life interest in land died without issue, his trustees should sell the land and divide the proceeds "among the sons and daughters of [the testator's] brother Frank Simpson in equal shares per stirpes". [page 419]

[62] The question for the court was whether the rule in Shelley's Case (1581), 76 E.R. 206, 1 Co. Rep. 93b (U.K.K.B.) applied to convert the life interests to an estate tail. The rule in Shelley's Case converts a gift of what appears to be a life interest to an estate in fee or in tail where the terms designating the gift of the remainder "includes the whole line of succession capable of inheriting", rather than designating a particular individual or class: see Foxwell v. Van Grutten, [1897] A.C. 658 (U.K.H.L.), at p. 677 A.C.

[63] In Simpson Estate, the Supreme Court of Canada approached the issue as a question of construction of the language of the particular will. Focusing on the wording of the gift over in the event that a life tenant died without issue, the court held that a gift of money to "sons and daughters" should be read "according to the primary import of the words" and not as "embracing the whole line of descendants capable of inheriting" (at p. 332 S.C.R.).

[64] It therefore followed that the gift over "was to take effect not on an indefinite failure of issue, but on the death of the life tenant, without having had a child in whom an interest could vest under the terms of the devise to the children" (at pp. 332-33 S.C.R.). Taking into account the intentions of the testator, as read from the will as a whole, the court concluded, at p. 333 S.C.R., that the phrase "children per stirpes" should not be read as the equivalent of "issue per stirpes".

[65] Similarly, in Karkalatos Estate, the Supreme Court of Canada approached the task of interpreting a gift to "grandchildren, per stirpes, in equal shares" as an exercise in determining the intention of the testator from the language of the will as a whole.

[66] In Karkalatos Estate, the testator left succeeding life interests in the income from his estate to his wife and then to his two daughters. Upon the death of one of his daughters, the testator directed his trustees to distribute one-half of his estate "to among and between [his] grandchildren, per stirpes, in equal shares". The testator died in 1953. He was survived by his wife, who died later in 1953, and by two daughters: (i) Evaggelia Gettas, who died in 1959, leaving one child; and (ii) Maria Karavos, who was still living at the time of the application and who had three children.

[67] The issue on appeal was -- for the purpose of the stirpital division -- who constituted the "stocks" or stirps. Specifically, the question was whether the grandchildren were the stocks, such that each grandchild would receive a share of the amount distributed, or whether the daughters were the stocks, such that [page 420] Evaggelia's child would receive one share and Maria's three children would receive the other share.

[68] The Supreme Court found, at p. 396 S.C.R., that the stirps were the parents of the grandchildren. In reaching this conclusion, the court relied on the primary meaning of the word "grandchildren" (meaning children of my daughters) together with the scheme of equality as between the two daughters created by the will, as well as the use of the words "to among and between my grandchildren, per stirpes, in equal shares". Accordingly, Evaggelia's child received one share of the amount distributed and Maria's three children received the other share.

[69] Finally, in Clark Estate, the application judge made it clear that "every will is distinct". To this effect, he observed that it was necessary that he attempt to determine the intention of the testatrix from the language of the will and from the evidence of surrounding circumstances admissible under the armchair rule.

[70] The issue in the case related to the proper interpretation of a direction in the will for the trustee to hold a one-half share of the testatrix's residuary estate in trust for her grandson, Robert Clark, and upon the death of Robert Clark, "to divide the remainder of the one-half (1/2) of [her] residuary estate . . . into to [sic] equal parts or shares and transfer one such part or share to each of the children of my son, George Edward Clark, per stirpes".

[71] The application judge was reluctant to attribute no meaning to the phrase "per stirpes". Ultimately, however, he did so because he found that the will read as a whole indicated that the testatrix did not intend to benefit any of the children of her grandchildren.

(ii) Suzanne's argument

[72] In support of her position that the phrase "per stirpes" should be given a very restricted interpretation, Suzanne relies on Strittmatter v. Stephens (1983), 1983 1660 (ON SC), 40 O.R. (2d) 463, [1983] O.J. No. 2928 (H.C.J.). In that case, the testatrix left a life interest in her estate to her husband and directed that upon the death of her husband, whatever then remained should be divided "equally amongst [her] children per stirpes".

[73] Relying on Browne v. Moody, the court concluded, at pp. 465-66 O.R., that, upon the death of the testatrix, the residue vested immediately in the testatrix's nine children who were alive at her death, subject to "postponement of enjoyment" until the death of the life tenant. On behalf of the infant grandchildren and potential unborn grandchildren, the official guardian argued that the phrase "per stirpes" indicated an intention that [page 421] the vested interests of the nine children would be subject to divestment in favour of their issue if any of them predeceased the life tenant.

[74] Particularly, in the light of prior decisions suggesting that divestment should be avoided unless there was clear language indicating that it was the testator's intention that there be divestment, the court rejected the official guardian's argument. Instead, the court concluded, at pp. 467-68 O.R., that the purpose of the phrase per stirpes was to prevent the operation of the anti-lapse provision in The Wills Act, R.S.O. 1950, c. 426 [See Note 1 below] in the event that one of the children predeceased the testatrix. The phrase did not indicate that the vested interests of the nine children were subject to divestment.

[75] Respectfully, in my view, this reasoning does not assist in interpreting the phrase "per stirpes" as it appears in Mr. Dice's will. In particular, there is nothing in Mr. Dice's will to suggest that he intended to address what would happen if any of his children predeceased him. Nor, if he did, is there anything to suggest that he intended to benefit his grandchildren if one or more of his children died the day before he died, but that he did not intend to do so if one or more of his children died the day after he died.

(iii) Other decisions

[76] In addition to the authorities referred to above, the parties cited or referred us to several other decisions in which the phrase "per stirpes" was used in a context that did not necessarily reflect its traditional meaning or use: MacInnes (Re), 1958 117 (ON SC), [1958] O.R. 592, [1958] O.J. No. 618 (H.C.J.); Jackson Estate (Re), [1975] B.C.J. No. 723 (S.C.); Sitter Estate (Re), 1977 1488 (SK QB), [1977] S.J. No. 485, [1977] 2 W.W.R. 356 (Surr. Ct.); Heslop Estate v. Canadian Trust Co., [1994] B.C.J. No. 3066, 6 E.T.R. (2d) 315 (S.C.); Hegedus Estate v. Paul (Public Trustee of), 1998 ABQB 631, [1998] A.J. No. 836, 225 A.R. 154 (Surr. Ct.); [page 422] Martyn v. Taylor, 2003 43893 (ON SC), [2003] O.J. No. 1745, 50 E.T.R. (2d) 220 (S.C.J.).

[77] I am not persuaded that any of these cases is of assistance in determining the meaning of the phrase "per stirpes" as it appears in Mr. Dice's will. More specifically, none of these cases constitutes binding authority for the proposition that a particular interpretation must be attached to the phrase as it appears in the will.

(c) The interpretation of the phrase per stirpes in the present case

[78] For reasons that I will explain, I conclude that, in this case, the mostly likely meaning of the phrase "per stirpes" is that it conveys the testator's intention to benefit, at least, his children's children in the event either or both of his children predeceased his wife.

[79] The application judge relied on two factors to distinguish this case from Lau. First, he relied on the fact that, in this case, the testator did not use the words "as his or her own property absolutely" in directing that the residue of his estate be divided "equally between [his] son, James Edgar Dice, and [his] daughter, Marlene Marguerite Buck, per stirpes".

[80] Second, he rejected Cullity J.'s view that the following statement, found at p. 260 of Thomas G. Feeney, The Canadian Law of Wills, 3rd ed., vol. 2 (Toronto: Butterworths, 1987), is incorrect:

Normally, a gift in remainder to "my children per stirpes" will be construed as a gift to all the testator's children and to the issue per stirpes of children who died between the testator's death and the death of the life tenant.

[81] I do not find either of these factors particularly compelling. Concerning the first factor, while it is clear from his reasons that Cullity J. took the words "as his or her own property absolutely" into account in his reasons, in my view, it is equally clear that he would have reached the same conclusion had those words not been present.

[82] Concerning the second factor, as Cullity J. notes, no authority is cited for this proposition where it appears in para. 11.148 of the fourth edition of Prof. Feeney's book: Thomas G. Feeney and James MacKenzie, Feeney's Canadian Law of Wills, 4th ed., looseleaf (Toronto: Butterworths, 2000).

[83] I acknowledge that no persuasive authority exists to specifically support the conclusion that the direction to divide the residue of his estate "equally, between [his] son, James Edgar Dice, [page 423] and [his] daughter, Marlene Marguerite Buck, per stirpes" means that Eddie's share of the estate should go to his children.

[84] In my view, however, none is required. Rather, the governing principle is that the court must strive to ascertain the intention of the testator.

[85] In this case, neither the other provisions of his will nor the evidence of surrounding circumstances that was adduced provide much help in assessing the intention of the testator concerning the meaning of the residue clause. At most, what is evident is a general intention to benefit his children more or less equally.

[86] What does seem clear, however, is that the testator intended that the words "per stirpes" should have some meaning. If that were not the case, he could have omitted them. Had he done so, Eddie's share would have gone to his estate if the presumption of early vesting applied. Or if, as the application judge found, the presumption of early vesting was rebutted by the other language of the residue clause (apart from the phrase per stirpes) and the residue did not vest until after the life tenant's death, [See Note 2 below] Marlene contends that the gift to Eddie would have lapsed and the entire residue would have passed to her.

[87] The question thus remains: What did the testator intend by the words "per stirpes"?

[88] Absent any other indicators of intent, it seems to me that, at a minimum, these words reflect an intention that the gift neither passes to Eddie's estate nor to Marlene. Even if used improperly, it seems to me that, having regard to the traditional meaning of the phrase "per stirpes" when used in conjunction with the term "issue", the most logical meaning is that the use of the phrase conveys an intention, to benefit, at least, the testator's children's children.

[89] Viewed in this way, I do not agree that a gift to named children, per stirpes, necessarily creates a contradiction in terms. Rather, in the context of Mr. Dice's will, which provides no other indication of the testator's intention, both aspects of this disposition can be viewed as an elaboration of his intention. That is, the disposition reflects both an intention to benefit each of the testator's children, as well as intention to benefit, at least, [page 424] each child's children in the event that either or both of the named children fail to survive the life tenant.

[90] Unlike the decisions relied upon by Cullity J., in this will, there is not a contrary intention evident, which would suggest a need to disregard the phrase "per stirpes".

[91] Whether the residue vested contingently in Marlene and Eddie upon Mr. Dice's death or, as the application judge held, vesting was postponed until the life tenant's death, the result is the same. Eddie's share of the residue passes to his children.

[92] Despite my conclusion, I agree with Cullity J. that terms such as "per stirpes", if used at all, are best used in their traditional sense -- otherwise, the testator runs the risk of having his or her words ignored.

(6) Disposition

[93] Based on the foregoing reasons, I would dismiss the appeal.

[94] As the issues on appeal arose from the wording of the will, I would order that the costs of all parties in relation to the appeal be paid by the estate.

[95] The issue of costs on the application below has yet to be resolved. If the parties are unable to resolve this issue, I would remit the matter to the application judge to consider in the light of the outcome of the appeal.

Appeal dismissed.

Notes

Note 1: Section 36 of the The Wills Act, R.S.O. 1950, c. 426 provided, in part, as follows:

(1) Where any person, being a child or other issue or the brother or sister of the testator to whom any real estate or personal estate is devised or bequeathed . . . dies in the life-time of the testator . . . leaving issue, and any of the issue of such person are living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will.

Note 2: Based on Browne v. Moody, I am sceptical that the application judge's finding in this respect is correct. However, in the light of my conclusion concerning the meaning of the term "per stirpes", it is unnecessary that I finally determine this issue.