



COURT OF APPEAL FOR ONTARIO

CITATION:
Dice v. Dice
    Estate, 2012 ONCA 468

DATE: 20120629

DOCKET: C54003 & C54197

Rosenberg, Simmons and Armstrong JJ.A.

BETWEEN

Rachel Lindsey Dice, Wesley James Dice and Serra
    Jean Butts

Applicants (Respondents)

and

Suzanne Dice, Estate
    Trustee of the Estate of James Edgar Dice, deceased
, Marlene Marguerite
    Buck, Estate Trustee of the Estate of Joseph Wesley Dice, deceased, Eileen Mary
    Dice,
Marlene Marguerite Buck
,
Suzanne Dice
and Stacey Dice

Respondents (
Appellants
)

Mark Abradjian and Brad
    Wiseman, for the appellant Marlene Marguerite Buck

Richard Skibinski and Sean
    Heeley, for the appellants Suzanne Dice, Estate Trustee of the Estate of James
    Edgar Dice, deceased, and Suzanne Dice

Matt Moloci and Mike
    Stanton, for the respondents

Heard: January 4, 2012

On appeal from the order of Justice James R.H. Turnbull
    of the Superior Court of Justice, dated June 14, 2011, with reasons reported at
    2011 ONSC 3641, 337 D.L.R. (4th) 499.

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
    wifes 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 fathers estate. After Eddies death, a question
    arose as to who would be entitled to Eddies share of the residue of Mr. Dices
    estate upon Mrs. Dices 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 Eddies
    share of the residue of his fathers estate were:

(i)      Eddies sister,
    Marlene  the surviving residuary beneficiary under      Mr. Dices will;

(ii)      Eddies second
    wife, Suzanne  the executrix and sole beneficiary of   Eddies estate; and

(iii) Eddies three children
     his lineal descendants.

[5]

On an application to interpret Mr. Dices will, Turnbull J. held
    that the residue of Mr. Dices estate did not vest in the residuary
    beneficiaries until the life tenants death, which occurred in 2010.

[6]

The application judge acknowledged that in
Lau v. Mak Estate
(2004), 10 E.T.R. (3d) 152 (Ont. S.C.), 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. Dices 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
    Eddies children are entitled to Eddies share of the residue of Mr. Dices
    estate.

[8]

Mr. Dices daughter, Marlene, and Eddies second wife, Suzanne,
    each appeal from the application judges decision. Suzanne appeals both in her
    personal capacity and also in her capacity as Trustee of Eddies 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. Dices 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 testators
    issue alive on the testators 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 testators death
per
    stirpes
, this would mean the children of a deceased child of the testator
    would share the deceased childs share of the gift. This is in contrast to a
per
    capita
distribution under which each lineal descendant of the testator
    alive at the testators 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 testators children, or, as here, a gift to the
    testators 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. Dices estate.

[15]

Suzanne relies on the presumption of early vesting and submits
    that Eddies share of the residue vested upon Mr. Dices 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 Eddies will, she is entitled to Eddies share of the
    residue of Mr. Dices 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 childs parent until the child reached age 21;

·

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. [Underlining 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, Marlenes share shall not
    lapse but shall be transferred and conveyed to [Marlenes] husband, Ronald
    Edwin Buck (underlining omitted). Finally, her will provides that if both
    Marlene and Marlenes husband should predecease her, Marlenes share shall not
    lapse but shall be divided equally among their issue, if any, then living at
    the time of [Mrs. Dices] 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. Dices will, his wife, Eileen Mary Dice,
    died on March 11, 2010.

(3)

The Application
    Judges Reasons

[25]

The application judge began his analysis by referring to the
    principle that it is necessary to consider the will in its entirety in order to
    ascertain the testators intention. On this point, he found that the overriding
    intention of the 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. Dices
    death. He observed that Mrs. Dice also created a scheme of equal treatment for the
    couples 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. Dices intention that the
    gift of the residue should not vest until his wifes 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: 
[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 wifes 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. Dices 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 that one or
    both of his children could predecease his wife. In light of this possibility,
    the phrase was included as part of Mr. Dices effort to treat his children
    equally.

[32]

In particular, the application judge found that Mr. Dice wanted
    each branch of his family, Eddies and/or Marlenes, to be treated equally. He
    observed that:

If [Mr. Dice] had intended that Eddies 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 Eddies
    children are entitled to Eddies share of the residue of Mr. Dices estate.

(4)

Issues

[34]

Marlene and Suzanne raise the following issues on appeal:

(i)      the application judge erred in his
    findings concerning Mr. Dices                              testamentary
    intentions;

(ii)      the application judge erred in
    relying on Mrs. Dices will to construe                        Mr. Dices
    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 Eddies share of the                        residue vested
    in Eddie indefeasibly on the testators 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 testators intention as ascertained from the language that
    was used:
National Trust Co. Ltd. v. Fleury
, [1965] S.C.R. 817 at p.
    829
;
Brown Estate (Re)
,
    [1934] S.C.R. 324, at p. 330;
Singer v. Singer
, [1932] S.C.R. 44, at
    p. 49. Underlying this approach is an attempt to ascertain the testators
    intention, having regard to the will as a whole.

[37]

Where the testators 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:
Re Burke
, [1960] O.R. 26 (C.A.), at p. 30;
Re
    Shamas
, [1967] 2 O.R. 275 (C.A.), at p.279, citing
Perrin v. Morgan
,
    [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

[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 make 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 childrens 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 Marlenes branches of the family
    equally.

[41]

In particular, they say that the trial judge erred in taking Mrs.
    Dices will into consideration in interpreting Mr. Dices 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 pre-deceased 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. Dices will
    does not provide much, if any, support for the conclusion that Mr. Dice
    intended Eddie and Marlenes share of the residue to go to their respective
    children if either of them predeceased their mother, the life tenant.

[43]

Although Mr. Dices 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 example, did he want the
    deceaseds childs share to go to the deceased childs 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 deceaseds childs 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 deceaseds childs share to go to Mr. Dices 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. Dices 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. Dices will is of no assistance at all.

(b)

The interpretation of the phrase
per
    stirpes
in the residue clause of Mr. Dices 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. Dices part to treat his
    childrens 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. Dices will and Mrs. Dices will, tell us very little
    about Mr. Dices 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 childrens branches of the family equally,
    none of the other errors relied on by Marlene and Suzanne ultimately affect the
    outcome of this appeal.

(i)

Marelenes 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.

[51]

In
Lau
, the testatrix left a life interest in a share of
    her estate to one of her children, Cecilia. On Cecilias death, the testator
    directed that Cecilias share be divided between the testators 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] 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 testators 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
Re Karkalatos Estate
,
    [1962] S.C.R. 390. Rather, in
Karkalatos Estate
, the stocks or
    branches of the family were found in the grandchildrens ancestors.
    Accordingly, each of the testators children constituted one stock  the single
    child of one of the testators two children was to receive one half of the gift,
    and the three children of the testators other child were to share the other
    half. Moreover, there would be no representation by, or implied gifts over to,
    great-grandchildren 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] S.C.R.
    329,
Karklatos Estate
, and
Clark Estate
(1993), 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
Re Burke
, at p. 30:

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 beneficiarys children in equal shares
per
    stirpes
 following the beneficiarys 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 testators] brother Frank Simpson in equal shares
per
    stirpes
.

[62]

The question for the court was whether the rule in
Shelleys
    Case
(1581), 76 E.R. 206 (U.K. K.B.), applied to convert the life
    interests to an estate tail. The rule in

Shelleys 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, at
    p. 677 (U.K. H.L.).

[63]

In
Simpson Estate
, the Supreme Court of Canada approached
    the issue as a question of construction of the language of the particular will.
    Focussing 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).

[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 p. 332-33). Taking into account the intentions of the
    testator, as read from the will as a whole, the court concluded, at p. 333, 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. Th
e
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 Evaggelias child would
    receive one share and Marias three children would receive the other share.

[68]

The Supreme Court found, at p. 396, 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, Evaggelias
    child received one share of the amount distributed and Marias 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
    testatrixs 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)

Suzannes 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), 40 O.R. (2d) 463 (H.C.). 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,
    that, upon the death of the testatrix, the residue vested immediately in the testatrixs
    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 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 testators intention that there be divestment, the court rejected the
    Official Guardians argument. Instead, the court concluded, at pp. 467-68, 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,
[1]
in the event that one of the children pre-deceased 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. Dices
    will. In particular, there is nothing in Mr. Dices 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:
Re
    MacInnes
, [1958] O.R. 592 (H.C.);
Jackson Estate (Re)
, [1975]
    B.C.J. No. 723 (S.C.);
Re Sitter Estate
, [1977] 2 W.W.R. 356 (Sask.
    Surr. Ct.);
Heslop v. The Canadian Trust Co
.
(1994), 6 E.T.R.
    (2d) 315;
Hegedus Estate v. Paul (Public Trustee of)
(1998), 225 A.R.
    154 (Surr. Ct.);
Martyn v. Taylor
(2003), 50 E.T.R. (2d) 220 (Ont.
    S.C.).

[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. Dices 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 testators intention to benefit, at least, his childrens 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
, 3
rd
ed., (Toronto: Butterworths, 1987) vol. 2, is
    incorrect:

Normally, a gift in remainder to my children
per stirpes

    will be construed as a gift to all the testators children and to the issue
per
    stirpes
of children who died between the testators 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,
Feeneys
    Canadian Law of Wills
, 4
th
ed., (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, 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 tenants death
[2]
,
     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
    Eddies 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
    testators childrens 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. Dices will, which provides no other indication of the
    testators 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 testators children, as well as intention to
    benefit, at least, each childs 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. Dices death or, as the application judge held, vesting was postponed
    until the life tenants death, the result is the same. Eddies 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.

Signed:        Janet Simmons J.A.

I agree M. Rosenberg J.A.

I agree Robert P. Armstrong
    J.A.

Released:
MR June 29, 2012





[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.



[2]

Based on
Browne v. Moody
, I am sceptical that the application judges 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.


