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4 Chitty's L.J. 57 (1954)
Issue 3

handle is hein.journals/chittylj4 and id is 59 raw text is: February 1954 Chitty's Law Journal the new trusts in such form as they agree that the property should be settled. Another way, but not so clear cut, would be simply a deed from C, D and E empowering the executors to advance capital to B on such terms as they instruct you and a further agreement to ratify and approve whatever the executors do in pur- suance of the deed. If one or other of these devices is not followed, C, D and E must give a written consent to each advance and should one of them die you will have difficulty with representatives who may feel they have no power to consent. ONTARo- Wills - Interpretation - Licence of occupation - Termination. A provides by his will as follows:- To convey to my son B my real estate known as Blackacre, subject to the payment of $1700 to my daughter C to be paid not later than five years after my decease; with interest at 57 payable yearly, with the privilege of paying up to the full amount at any time. My two daughters C and D to have the use of the body of the house situate on Blackaere, as long as they remain unmarried, and as long as they elect to live there, but in the event of my son B desiring to dispose of or use the said premises in full, he may do so upon paying the said C and D a sum not exceeding $1000 to be equally divided between them. A died in 1937. Several years thereafter C married and went to Toronto to live and has continued to live in that city. In 1948 B ob- tained a release of the legacy of $1700.00, the same having been paid, from C and registered same against the title of Blackaere. D remained unmarried and continued after A's death to reside in the dwelling house situated on Black- acre in certain designated rooms with B occupy- ing the remainder of the house. B died in 1954 and by his will directed that his entire estate be converted into money and the proceeds thereof after just debts, funeral and testamentary expenses satisfied be divided in a certain manner. No reference was made in B's will as to the provisions in A's will. Blackaere must he now sold by B's executors and D has raised the point that she is entitled to the full sum of $1000 to the exclusion of her sister C. The Executors are in doubt as to what sum D is entitled to and as to whether C is entirely out of the picture. On first viewing the provi- sions in A's will I was of the opinion that D was only entitled to $500 and C was out of the picture. There is no doubt in my mind that the release signed by C as to the $1700 has nothing to do with the $1000. I might state that to further complicate mat- ters there are infants interested in the disposi- tion of B's estate. Would you give me your opinion as to the herein and whether it will be necessary to apply to the Court for an inter- pretation. ANSWER: The question is simply one of the testator's (A's) intention. The $1,700 payment to C which is charged on the land has nothing to do with the situation that has arisen. The testator's intention in regard to the rest of the clause was clearly that C and D had a licence of occupation of the house (1) while unmarried and (2) if they elected to continue to occupy. But B was given an option to terminate these licences of occupation for a sum not exceed- ihg $1,000, $500 to each of C and D. C having married and elected not to continue to occupy is, as you put it, out of the picture because her licence of occupation being terminated B or rather his executors do not have to terminate it. D's licence of occupation was terminable on pay- ment of an equal share of a sum not exceeding $1,000. The will gives her no right to claim more. That may be the explanation of the use of the phrase sum not exceeding. C and D could always agree to take less than $1,000 be- tween them even if the testator had said a sum of $1,000. The testator might have con- templated the situation that has arisen and intended to provide that in that event B would not have to pay $1,000 but only $500 and so he put a maximum of $1,000 on the payment to both. But whatever his intention in that regard was he clearly showed that he did intend that ) was not to get more than a one-half share of $1,000. Again his intention in saying a sum not exceeding to prevent B from making a bargain with C separate from D is a possibility, so that if less than $1,000 was paid both C and D would have to agree, but even so 1) could never become entitled to more than half of what was agreed upon. In that case, C having passed out of the picture, D's maximum right is $500, because it is perfectly clear that the testator never intended her to get more than that. If 1) will not see it that way a motion to interpret is the only course open. 55

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