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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.
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-
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.


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