A Simple Legacy: “To My Children”
The Second of Two Parts
by Daniel N. Mettarlin *
Introduction
Chapter I: Limitation by words of Accompaniment ………………… 243
1. The unclear wording of article 980 ……………………………………..
2. W ords of Qualification …………………………………………………….
243
245
3. Theories of Qualification – A study in Scholasticism ………… 247
A ) The Descriptive Theory ………………………………………………..
B) The Substitutional Theory …………………………………………….
C) The Exclusionary Theory …………………………………………….
248
249
251
D) Words of Equivocation and Words of Tautology ……….. 255
256
256
i) W ords of “Equivocation” …………………………………………
ii) W ords of “Tautology” …………………………………………….
G eneral C onclusion ……………………………………..
…………………….. 258
Chapter II: Limitation by Testamentary Scheme …………………….
259
1. T he Com plex w ill ………………………………………………………………….
259
2. Can descendants of “children” who have received their legacy
inherit a legacy to “children” in virtue of article 980 ? ………… 260
* Of the Order of Notaries of the Province of Quebec.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
241
A) The unfortunate term “degree” ……………………………………..
261
B) The Presumption against Graduality …………………………..
264
C) The Strength of the Presumption against Graduality …….. 270
270
D ) Jurisprudence ………………………………………………………………..
E) Conclusion and drafting suggestions ………………………………
272
3. Will the term “children” be limited by the fact that the legacy
to the “children” is not one of absolute ownership ? ………… 275
4. Will the term “children” be limited if the testator provides
for accretion among the “children”? …………….. . . . .. . . . .. . . .. . . . . . 280
5. Will the term “children” be limited by the fact that it is used
not in a disposition but to denote time of division ? ……………. 284
284
A ) T he problem ………………………………………………………………….
285
B ) The Jurisprudence …………………………………………………………
286
……………………………………………………….
C) The A ncient L aw
6. Will the term “children” be limited when used with such
expressions as “grandchildren” or “issue” ? ………………………. 288
Chapter III: Three Rules of Interpretation ………………………………
292
1. The philosophy of article 980 ………………………………………………..
2. The difficulties of achieving the purpose of article 980 in the
com plex w ill …………………………………………………………………………
3. Three suggested rules …………………………………………………………
294
295
295
4. Examples of how these rules may be applied ……………………….
298
5. The presumption against graduality – the enemy of equality.. 303
304
A ) The “new legacy” …………………………………………………………..
B) A modified view of the presumption against graduality…. 306
Chapter IV: Intention Gathered From The Will As A Whole …… 309
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INTRODUCTION
We have seen I that article 980 gives to the term “children” a
special legal meaning encompassing both children in the first degree
and descendants of deceased children in the first degree.
This special meaning is not of public order. The testator always
remains free to use the term “children” to connote only descendants
in the first degree. Article 872 C.C. recognizes this testamentary
freedom when it states,
“The rules concerning
the presumptions of the testator’s
intention, as well as the meaning ascribed to certain terms, give way to
the formal or ortherwise sufficient expression of such intention, given in
another sense or with a view to different effects.” 2
legacies and
and article 980 also recognizes that the term “children” can mean
descendants in the first degree if such is the testator’s intention,
“…the terms children or grandchildren, made use of without qualifi-
cation.., apply to all the descendants.”
However, before a legacy to “children” will be limited to des-
cendants in the first degree, tangible evidence of qualification or of
restrictive intent must be found within the four corners of the will.
Article 980 does create a legal presumption favouring the extended
legal meaning of the term “children” which cannot be summarily
brushed aside.
By presuming the term “children” to include all descendants, but
by allowing the testator to use the term to benefit only descendants
in the first degree, the law has opened a Pandora’s Box of interpre-
tive difficulties. What meaning are we to give the term in such
legacies as “to my surviving children”, “to my beloved children”,
“to my three children”, or in such a legacy as “income to my children
until the youngest child reaches 21 years when the property shall
devolve in ownership to my children then surviving” ? Are we to
favour the presumed legal meaning, or are we to find that the
testator intended to benefit descendants in the first degree ? What
criteria are we to employ in determining when the legal presumption
of article 980 has been overcome ?
In this article, we will examine the courts’ attitudes to such
legacies and attempt to determine whether any meaningful rules of
construction can be formulated. In so doing we will adopt a two-fold
approach.
‘Daniel N. Mettarlin, “A Simple Legacy: ‘To my Children'” Part First,
(1966) 12 McGill Law Journal, p. 65.
2 872 C.C. (emphasis added).
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
First, we will examine the words and phrases which testators
commonly use to modify and accompany the term “children”, and
attempt to formulate rules of construction as to when such accompa-
nying words will be deemed words of qualification. In so doing we
will study such legacies as “to my surviving children”, “to my three
children”, “to my beloved children”, “to the children born of my
marriage with Dame X”, and “to the children of my children, that
is to say to my grandchildren”, all of which have received judicial
consideration.
Second, expanding our horizons, we will examine the will as a
whole, and attempt to determine whether from the legal nature of
the bequest to “children” (that is, whether the legacy to “children”
is a usufruct, a substitution, or a legacy by way of trust) or whether
from the nature of certain types of testamentary schemes (particu-
larly where property is passed to several generations as in a legacy
of “income to children, ownership to grandchildren”, or “income to
such of my children as shall be living from time to time during the
duration of this trust, and on its termination, ownership to my
grandchildren”) meaningful rules of interpretation can be devised ?
Chapter I
LIMITATION BY WORDS OF ACCOMPANIMENT
1. The unclear wording of article 980.
The English and French versions of article 980 conflict. In English
the article reads,
“…the terms children or grandchildren, made use of without qualifi-
cation… apply to all the descendants. . .” 3
However, the French version states,
” … le terme enfants ou petits-enfants, employ6 seul… s’applique A tous
les descendants.. .” 4
The French terminology, “employ6 seul”, suggests that any ac-
companying adjective or phrase, no matter how innocuous, no matter
what its purpose, will limit the term “children”, simply because such
adjective was used together with the term “children”. On this view
3Emphasis added for the expression “without qualification”.
4 Emphasis added for the expression “employ6 seul”.
McGILL LAW JOURNAL
[Vol. 12
even a legacy to “my beloved children” would exclude grandchildren,
because the term “children” was not “employ6 seul”.
However, the English phrase, “made use of without qualification”,
rejects restriction by the mere fact of accompaniment. It suggests
that only accompanying adjectives or phrases which demonstrate an
intent to restrict the degree of the descendants will be words of
qualification.
The English version of article 980 is more compatible with ancient
law than is the French version.5 It
is also more compatible with
common sense. Our courts have long recognized its claim to primacy,
“… il faut que le testateur ait exprim6 en termes clairs et precis pour ater
an mot enfants cette signification que lui donne express6ment la loi.” 0
“I think there can be no doubt that the English version gives the real spirit
and meaning of the law… The word seul, in the French version, must
mean what the English version means by saying without qualification and
that would bring it into line with the immediately preceding art. 979, the
English version of which reads: ‘The term family when it is not limited,
applies…’ There the French version is ‘Le terme famille non limit6…'” 7
and with the Supreme Court decision of Bernard v. Amyot-Forget s
there can no longer be any doubt that it alone represents the law.
Thus before an accompanying adjective or phrase will “qualify”
the term “children”, it must convey a sense of restriction in degree ;0
it is not enough that a phrase or adjective simply modify or be used
together with the term “children”, as in a legacy “to my beloved
children”.9 a
5 Furgole, Traitj des Testaments, (Paris 1779), v. 2, p. 415, No. 126, “J’estime
n~anmoins que cette extension devroit cesser, si le testateur s’6toit servi d’une
expression qui limitat la condition aux enfans au premier degr6…”
6 Marcotte v. Nodl (1880) 6 Q.L.R. 245 h.n.. This statement has been quoted
with approval many times, most recently in Bernard v. Amyot-Forget [1952]
B.R. 89 at 97 (Barclay J. dissenting).
7Drouin v. Hinault (1939) 67 B.R. 101 at pp. 111-112 (Barclay J.). Barclay
J. also states at pp. 113-114, “The qualification to which art. 980 refers is a
qualification as to degree”.
8 [1953] 1 S.C.R. 82.
9 The Codifiers have been extremely inconsistent in their terminology. We
have seen that in article 979 they use the expression “when not limited” whereas
in article 980 they use the expressions “employ6 seul” and “made use of without
qualification”. In their comments on articles 977 and 980 they use yet another
phrase “without other designation”; Reports of the Codifiers, Fifth Report,
p. 199. Whether the Codifiers intended any subtle distinctions by these differences,
or simply had a literary preference for synonyms is of course impossible to
determine.
9a “The addition of an adjective.., to express endearment.., would not…
[have] a qualified effect”: Drouin V. Hinault (1939) 67 B.R. 101 at 109
(Walsh J.).
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
245
2. Words of Qualification.
The most obvious method of qualifying the term “children” is to
leave property to “children in the first degree”.
A second method, less obvious logically, but of equal legal efficacy,
is to name the children. A legacy “to my children John and Henry”
will be restricted to the two named persons. Neither the descendants
of John or Henry will inherit upon the death of their progenitor.
Such was the ancient law,10 and our Code offers no innovation.1
…
in the present case there is a strong qualification of the word “enfants”
namely, the words which relate it in terms to the named children,…”
–
However, aside from naming the children or describing their
degree, what other phrases will limit the term ?
Comtois suggests that no others will,12 but this view, considering
the jurisprudence, is too limited. While it is true that the courts
have held that numbering the “children”, as in a legacy “to my
eight children in equal shares” will not restrict the term, 3 expres-
10 Ricard, Trait6 des Donations entre-vifs et testamentaires, 6d. Bergier
(Riom, 1783), v. 2, p. 387, n. 663:
… les fid6icommis se font ordinairement de deux manires : ou le testateur
appelle nominativement h la succession… certaines personnes… ou bien
la substitution est faite avec des termes collectifs… Au premier cas, et
quand les substitu~s sont tous nomm~s … il n’y a point lieu 4 la representa-
tion, parce que le testateur n’a dirig6 nominativement sa disposition, qu’aux
personnes qu’il a nommdes et ainsi l’une des personnes 6tant d~cde… la
substitution demeure absolument caduque pour lui et pour ses successeurs … :
See also D’Aguesseau, Questions concernant les substitutions avec les r6ponses
de tous les parlemens et cours souveraines, (Toulouse 1770), pp. 301 ff.
n If the “children” are benefited by name, and then described again simply
as “children” without repetition of name, the second use of the term “children”,
although not qualified will be limited to descendants in the first degree, if the
court considers the second and unqualified use of the term “children” as a
shorthand reference to the previously named children. This obvious point was
made in Meinoke v. Brown [1958] S.C. 293 at 297,
c Dans ]a premiere partie de cette clause, la testatrice a d~sign6 ses lga-
taires universels avec un soin tout particulier et de mani~re Z 6carter toute
ambigul t possible.a
and in Auger v. Beaudry [1920] A.C. 1010 at 1015,
12 R. Comtois, “Le sens du terme ‘enfants’ dans les dispositions & titre gratuit”,
(1964) 14 Th6mis 37 at pp. 40-41.
13Plouffe V. Lapierre (1917) 52 S.C. 151; Meincke V. Brown [1958] S.C. 293
at 297 seems to approve this decision.
McGILL LAW JOURNAL
[Vol. 12
sions such as “to my surviving grandchildren”, 14 and to “enfants
leur vie durant” 15 have been held to exclude remote descendants. It
has also been suggested that a legacy “to my children only”, 0 and
a legacy “to all my children except John” 17 should exclude grand-
children.
However, the courts have allowed grandchildren to inherit a
legacy “to the children born of my marriage with Dame X”,’8 and
have permitted great-grandchildren to inherit a legacy “to the children
of my children, that is to say, to my grandchildren”.”0
Thus we are faced with a series of inconsistent and confusing de-
cisions whereby a legacy to chidren described by name is restricted,
but not a legacy to children described by number; whereby a legacy
“to my surviving children” is restricted but not one to “the children
born of my marriage with Dame X”.
14 Drouin v. H.nault (1939) 67 B.R. IGI; contra, however, Glackemeyer V.
Le maire, les conseillers et citoyens de la Cit6 de Quebec (1861) 11 L.C.R. 18
Le mot ‘enfants nes do notro
and Sirois, “Question et R6ponse Institution. –
maniage’, comprend-il les petits enfants ?” 30 R. du N. 1 at 5.
15 Prfontaine V. Dillon (1922) 33 B.R. 314 (Lamothe C.J.; p. 318).
16 Rand, J., in Bernard v. Awyot-Forget [1953] 1 S.C.R. 82 at 88; see also
David et Autres [1963] S.C. 305 at 317 (commenting on Castonguay V. Beaudry
(1860) 1 R.L. 93).
17Plouffe v. Lapierre (1917) 52 S.C. 151; Meredith V. Meredith (1939) 66
B.R. 572 at pp. 574-5. The suggestion that such a legacy as “to all my children
except John” should exclude grandchildren is largely dependent for validity on the
acceptance of the theory that article 980 is based on the rules of intestacy.
(c.f. Daniel N. Mettarlin, op. cit., 65 at 70 ff. and 86 ff.). On this theory the
exclusion of a child from the inheritance would be evidence of a desire not to
follow the rules of intestacy, and hence the term “children” would revert to its
normal meaning. However, if the Furgolian system is adopted, the legacy in
(See D.N. Mettarlin, op. cit., 65 at
question should
pp. 97 ff.)
include grandchildren.
‘5 Marcotte v. Noel (1880) 6 Q.L.R. 245; Beaudin v. Beaudin (1927) 65 S.C.
517; see also the cases cited by Comtois, op. cit. 37 at pp. 39-40. Guyot in his
work, Rdpertoire universel et raisonn6 de jurisprudence, (Paris 1784) v. 6, p. 723,
quotes an ancient decision in the opposite sense. Notary Turgeon has quoted this
ancient decision with approval and suggested that a legacy “to the children born
of my marriage with Dame X” should be limited; H. Turgeon, “Substitution –
sens du mot ‘enfants’ “, 55 R. du N. 111 at pp. 120-121. However, the decision
quoted by Guyot is isolated, and is in conflict with the weight of ancient doctrine.
Marcotte v. Nogl and the other cases in the same vein should be considered as
validly decided; see also Barclay, J. (dissenting) in Bernard v. Amyot-Forget
[1952] B.R. 89 at 97, and Sirois, op. cit., 1 at 11.
19 Bernard v. Amyot-Forget [1953] 1 S.C.R. 82.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Evidently we are in need of a theory to explain this conflicting
and confusing jurisprudence, and to provide a guide for future pre-
diction.
Given the vagaries of human expression and the eccentricities
of draftsmanship, no mathematical formula will ever be devised to
catalogue all possible accompanying expressions as “qualifying” or
“non-qualifying”.
Perhaps the only solution is to throw up one’s hands, admit this
is a question in which there is no philosophy, and anxiously await
the courts quickly cataloguing the most common expressions as “quali-
fying” or “non-qualifying”. On this view, we would trust entirely
to the intuition and common sense of our judges, and will know that
a word is qualifying simply because our courts have said so in the
past.
However, such a solution runs contrary to the law’s policy of
narrowing uncertainty. Consequently, various authors and judges
have suggested several theories to explain the jurisprudence and to
provide a framework for prediction.
After analyzing these theories the reader may well be reminded
of Lord Eldon’s comment on the dispute as to which of several theo-
logical doctrines was closest to the original tenets of the founding
principles of the Secession Church’s Associates Synod,
“… I have had the mortification, I know not how many times over, to
endeavour myself to understand what these principles were, and whether
they [the doctrines of the secessionists] have, or have not, deviated from
them; and I have made the attempt to understand it, till I find it, at least,
on my part to be quite hopeless … [A]fter racking my mind again and
again upon the subject, I really do not know what more to make of it”.
0
Nevertheless some general theory is necessary to at least deter-
mine which criteria the courts should adopt, and which they should
reject, in determining whether a phrase will be qualifying or not.
2
3. Theories of Qualification –
A study in Scholasticism.
In ordinary parlance one does not speak of “children” and expect
the listener to imagine grandchildren. Nor does one refer “to my
three children” or “to the children born to Jane and me” and expect
the listener to exclaim, “Ah, I see you are speaking of the children
of your predeceased children”.
202 Bligh 529; 4 Eng. Rep. 435 (H.L. 1820)
(Scot).
McGILL LAW JOURNAL
[Vol. 12
Yet article 980 states that the term “children… app[lies] to all
the descendants”. Obviously some explanation of what the Codifiers
intended is in order.
a) The Descriptive Theory.
It can be argued that when the Codifiers state in article 980,
that the term “children … app [lies] to all descendants” their inten-
tion was to create a legal fiction that the testator who uses the
term “children” has in mind and is describing all his descendants
and not simply those in the first degree. Or as Comtois puts it,
le mot
“… [art. 980] crde une prfsomption d’intention: en employant
enfants, le disposant a voulu rdfC-rer aux descendants”. 21
Draftsmen and legislators are notoriously free to stipulate special
meanings for words. In article 980, it can be argued that the Codifiers,
desirous of achieving an equitable distribution of property within
a family have exercised this freedom, and stated that a testator who
uses the term “children” will be presumed to be referring to all his
descendants. Borrowing from Alice in Wonderland the Codifiers
have decided that our legislature cannot be deemed to be less omni-
potent than Humpty Dumpty who stated, “When I use a word, it
means just what I choose it to mean – neither more nor less”.2 2
In a simple legacy to “children”, then, according to this theory,
we must assume that the testator had in mind all his descendants.
However in such legacies as “to my two children”, “to my children
John and Henry” and “to my children in the first degree” such
an assumption is not possible. In these latter legacies the testator
has clearly demonstrated that he was thinking of his descendants
21 Comtois, op cit., p. 37.
22 Actually the testator should not be presumed to have in mind all descendants,
but only a picture of descendants of a deceased child in the first degree inheriting
in the latter’s place. As Furgole has indicated, “le mot enfans comprend …
tous
les descendans,… lorsqu’ils sont A la place de ceux du premier degr6 de g~n6ra-
tion, qui sont ddc6d6s” (Furgole, op. cit., v. 2, p. 413, no. 125). Thus one could
conclude that the proper legal definition of the term “children” should not be
“descendants”, but “children in the first degree, and failing a child in the first
degree, the descendants of such deceased child in the first degree”. From this
modified view of the definition of the term “children”, one can conclude, that to
qualify the term “children”, the testator must demonstrate, not that he was
thinking of his descendants in the first degree, but that he was thinking of
excluding the descendants of a deceased child in the first degree. This later
criterion will be discussed under the Exclusionary Theory of qualification. (See
p. 251, infra).
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
in the first degree. If we adopt this theory we should acknowledge
that in such legacies the testator has overcome the presumption of
article 980 and qualified the term “children”.
Unfortunately this theory, although reasonable, cannot be ac-
cepted.
First, it is contradicted by that segment of the jurisprudence
which has held that to number children is not to limit them.
Second, the theory is of little practical use. It does not explain
the rest of the jurisprudence, nor does it provide a predictive model
which can effectively catalogue the yet unlitigated phrases. For
example, how can we say with any conviction that a legacy to “my
beloved children” or a legacy “to the children born to Jane and myself”
was meant to include all the testator’s descendants (as held in Mar-
cotte V. No 123), whereas a legacy to “my surviving children” indi-
cates that the testator clearly had in mind only descendants in the
first degree (as held in Drouin v. Hnault 24). Obviously we cannot.
It is evident that this theory is a poor and confusing guide. We must
search elsewhere for a meaningful theory.
b) The Substitutional Theory.
Several judges have formulated a more mechanical test to de-
termine when words of accompaniment should be deemed to be
words of qualification. These judges have suggested that since in
law the term “children” is synonymous with the term “descendants”,
it would be a proper method of interpretation to substitute the term
“descendants” for the term “children”, (and the term “descendants
other than those in the first degree” for the term “grandchildren”)
and so read legacies to “children” and “grandchildren” as if the
testator had originally used the terms “descendants” and “de-
scendants other than those in the first degree”, instead of the terms
he did use.
Applying this substitutionary method, a legacy “to my children
John and Henry” will be interpreted as if the testator had left the
property “to my descendants John and Henry”, and so be limited;
similarly a legacy “to my three children” will be interpreted “to
my three descendants”, and likewise be restricted. A legacy “to my
surviving children”, however, will read “to my surviving descendants”,
and so include grandchildren; and a legacy “to the children of my
23 Marcotte v. Noel (1880) 6 Q.L.R. 245.
24 Drouin v. Hinault (1939) 67 B.R. 101.
McGILL LAW JOURNAL
[Vol. 12
children that is to say to my grandchildren” will become a bequest
“to the descendants of my descendants, that is to say to my de-
scendants other than those in the first degree”, and so include great-
grandchildren.
This substitutionary method has received some judicial support.
In the Supreme Court of Canada Rinfret C.J., and Taschereau J.,
both approved it; 25 and Barclay J. in Drouin v. Hjnault likewise
advocated its adoption,
“… I consider that art. 980 contains a general rule as to what the word
grandchildren without qualification means, that is, it is equivalent to descen-
dants. If to that collective expression descendants we add the word surviving,
is it not merely a condition upon which that collective group is to receive the
benefit of the disposition, and not restricting the degree of the descendants
who are to receive ?” 26
There are, however, serious difficulties with this substitutionary
method. First, it is sanctioned neither by the history nor by the
wording of article 980 which states not that the term “children”
means descendants, but that the term applies to descendants. Second,
this system is too rigorous and inflexible; it creates an automatic
rule with automatic results which can in many instances frustrate
the testator’s true intentions. Automatism in this area is no virtue.
Third, the system produces results contrary to the jurisprudence.
It leads to a limitation of a legacy “to my eight children” whereas
the jurisprudence has held otherwise; it results in a legacy “to my
surviving children” not being limited, whereas Drouin v. Hgnault 27
has held the opposite. These difficulties seem to warrant a rejection
of this method. The author would agree with the conclusion of Mar-
chand J. in Charette v. Lapierre,
25 [1953] 1 S.C.R. 82. Note that Rinfret C.J. and Taschereau 3. both suggested
that the proper substitutional synonym for the term “grandchildren” should be
“descendants” rather than “descendants other than those in the first degree”,
probably on the view that article 980 C.C. states that “the terms children or
grandchildren.., apply to all the descendants”. If one substitutes the term
“descendants” for the term “grandchildren” the legacy litigated in Bernard v.
Amyot-Forget, namely, “to the children of my children, that is to say to my
grandchildren” would read “to the descendants of my descendants, that is to say
to my descendants”, and obviously be limited. However, the author would suggest
that the expression “descendants other than those in the first degree” would be
a more fitting substitutional synonym for the expression “grandchildren”, than
the term “descendants”. If the substitution the author suggests is made, then
the legacy in Bernard V. Amyot-Forget would read “to the descendants of my
descendants, that is to say, to my descendants other than those in the first
degree”, and so not imply a desire to exclude great-grandchildren.
26 (1939) 67 B.R. 101 at 114 (emphasis added for the word “means”).
27Ibid.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
“Je ne puis voir la 16galit6 de remplacer les termes ‘enfants’ et ‘petits-en-
fants’ par le terme ‘descendants” et de faire dire au testateur: ‘Je lZgue des
biens en usufruit h mes descendants et en propri6t6 A mes descendants”. 28
c) The Exclusionary Theory.
The obvious purpose of article 980 is to prevent the disinheritance
and possible impoverishment of the families of deceased children
under certain circumstances.
The difficulties lie in attempting to determine under what circum-
stances the law permits such families to be disinherited.
The traditional theories have suggested that grandchildren be
excluded from legacies to “children”, if it can be shown that the
testator was thinking of and referring to his descendants in the
first degree when he used the term “children”.
These theories, as we have seen, do not adequately explain the
jurisprudence, nor do they provide a meaningful basis for prediction.
Their most serious failing, however, is that they permit the disinher-
itance and possible impoverishment of whole branches of the tes-
tator’s family in instances where this was not his intention at all.
The fact that a testator may have been thinking of his descendants
in the first degree when he drafted his will does not mean that he
wished to exclude the descendants of a child in the first degree who
might predecease him.
The testator who leaves property to his “two children” has failed
to state what is to happen should a child in the first degree pre-
decease him. If asked, he might state that he intended the share of a
predeceased child in the first degree to accrue to the surviving child in
the first degree; or he might state that he had intended the pre-
deceased child’s share to devolve to the deceased’s family. It is also
possible he might state that he did not realize that a child might
predecease him, and therefore had unfortunately failed to draft a
proper will.
In any event what he did intend, or what he would have intended,
had he directed his mind to the problem, is not evident from the
wording he did use. Nevertheless one point is evident. Many a tes-
2
8 Charette V. Lapierre, [1953] B.R. 687 at 699. Note that Marchand J. suggests
that the proper substitution for the term grandchildren is “descendants” rather
than “descendants other than those in the first degree”. The author has earlier
indicated his disapproval of this type of substitution. (See footnote 25, supra).
McGILL LAW JOURNAL
[Vol. 12
tator who leaves property to “my two children” or to “the children
born to Jane and myself” had no intention of disinheriting the family
of a predeceased child.
The “descriptive” and “substitutional” theories, if adopted, would
encourage a disinheritance and possible impoverishment of whole
branches of the testator’s family in the situations outlined above,
where such might not have been the testator’s intention at all; and
they will do so on evidence that is less than conclusive.
A proper theory of qualification should not arrive at these
results. To this author, a proper theory of qualification should demand
evidence that the testator intended to exclude a deceased child’s family
before disinheriting them. It should ensure that if there is any doubt
as to whether the testator directed his mind to the question of who
was to inherit a predeceased child’s share, the law’s desire to en-
courage family equality should prevail. While in certain cases such
an interpretation may violate the testator’s true intentions, it is
more in keeping with the spirit of article 980 that, in cases of doubt,
families of deceased children be provided for rather than disinherited.
Certainly such a conclusion seems consonant with the wishes
of most testators.
If a person were to confide to us in ordinary conversation that
he intended to leave his property to his “two children” we would
be strongly inclined to inquire what would happen if no children were
to survive him, and on hearing his answer, to ask what would happen
if only one child survived him. While it is possible he might state,
“I thought I had pretty clearly indicated that only children in the
first degree are to inherit”, it is more probable that he would say,
“I hadn’t considered the possibility of a child predeceasing me. Of
course in such circumstances I would like to see that my child’s
children are provided for”.
It is this latter answer that article 980 should presume.
Thus, to this author, before a legacy to “children” should be
restricted to descendants in the first degree, the testator should
demonstrate by specific wording that he was aware of the fact that
a child might predecease him, and that he wished to exclude the
deceased child’s children in such event.2
9
29 Of course if article 980 is deemed introductive of the rules of intestacy to
wills one could phrase this proposition in another way. One could state that the
testator should demonstrate some intention to exclude the equality which the
laws of intestacy wish to achieve.
NTo. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
This approach I have termed the Exclusionary Theory.
The Exclusionary Theory would ensure that legacies such as “to
my two children”, “to the children born to Jane and myself” and
“to the children of my children, that is to say to my grandchildren”
will not be limited. In none of these legacies has the testator given
any indication what should happen should a child predecease him.
Indeed he has not even indicated that he was aware of the fact that
a child might predecease him. Faced only with non-conclusive doubts
whether the testator wished to exclude grandchildren on the death
of a child, or whether he even foresaw the problem, and armed with
a presumption of law which encourages an equitable distribution of
property among families, we should opt for the extended meaning.
Nevertheless this theory does present certain difficulties.
First, a legacy “to my children in the first degree” indicates
no awareness of the fact that a child in the first degree might pre-
decease the testator. Yet not even the most foolhardy jurist would
suggest that such a legacy should include grandchildren. One could
formulate a theory of implied intent to exclude grandchildren, but
once one admits implied exclusion one rides an unruly horse; why
then would a legacy “to the children born to Jane and me” not also
imply exclusion of grandchildren ? All one can say is that the express
mention of the degree of the “children” who are to inherit should
restrict legacies to “children”, without further evidence of any aware-
ness of predecease on the part of the testator30
Second, there is the difficulty of determining to what extent
obvious concern with the death of a child coupled only with an implied
exclusion of grandchildren should qualify the term. In a legacy to
“my surviving children” the term “surviving” clearly indicates that
the testator realized a child might predecease him and strongly
suggests that he wished to exclude the deceased child’s children in
such event. However the testator’s failure to expressly state that
he wished to exclude grandchildren is troublesome. It can be argued
that in legacies such as “to my surviving children” and “to my
children with accretion in favour of the survivors”, the testator in-
tended the legal meaning of the term “children” to prevail, and in-
3o Of course legacies to named children must also be restricted to descendants
in the first degree (see page 245, supra). However, the restriction of children
by naming them is not an exception to the Exclusionary theory. Article 980 only
applies to legacies to children not described by name. The question of whether
grandchildren could inherit legacies to “children” only arose at ancient law
when the “children” were not named.
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tended accretion to occur only if a child in the first degree die
without leaving children; otherwise he would have expressly excluded
grandchildren. In other words, accretion would only take place
amongst those persons legally defined as “children”. On this view the
above legacies would be interpreted as follows :
to my children in the first degree. If a child in the first degree dies with
children the legal meaning of the term “children” will ensure that his children
inherit in his place. However if a child in the first degree dies without
children his share will accrue to the remaining “children” (as defined in
article 980).
Such an interpretation is logical although it runs contrary to the
holding in Drouin V. HMnault.31 However, Drouin v. Hknault may
have to be reconsidered in view of the fact that the main reasoning
on which it was based has since been rejected by the Supreme Court
of Canada in Bernard v. Amyot-Forget.32
Since the term “children” can have two meanings, we are in
need of some criteria other than intuition to decide which meaning
is to apply.
A theory which encourages equality of division whenever pos-
sible, and prevents the disinheritance of the families of deceased
children when there is no evidence that the testator did not intend
otherwise is a theory which our courts should look upon with favour.
It is difficult to find a theory of qualification which can speak
for the silent testator, and which does so in a manner at once reliable,
harmonious with the spirit of article 980 C.C., and beneficial to the
family as a social institution. The Exclusionary Theory best fulfills
these requirements.
While this theory cannot provide an automatic rule of interpret-
ation, no automatic rule will ever be possible or indeed desirable.
The vagaries of human expression will always leave some legacies
in doubt.sea
31 Drouin v. Hinault (1939) 67 B.R. 101.
32 [1953J 1 S.C.R. 82. The decision in Drouin v. Hinault, supra, was reached
almost solely on the reasoning that the term “surviving” had to be given some
meaning, and that the only effective meaning it could have would be that of
qualification. The Supreme Court of Canada, in Bernard v. Amyot, supra, reached
the conclusion that a word should not be held to be qualifying simply because it
would otherwise be redundant. It would seem therefore that there are grounds
for reconsidering the decision reached in Drouin V. Hgnault.
32a For example, the theory really cannot catalogue a legacy “to my children
only” which Rand, J. has suggested should be restricted (Bernard V. Amyot-
Forget [1953] 1 S.C.R. 82 at 88). One might also argue that the theory does not
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
However, it is necessary to formulate some theory to limit the
areas of uncertainty as much as possible and the Exclusionary Theory
seems to accomplish this result.
Thus the author would suggest that to restrict a legacy to
“children” the testator must either name the children, describe them
as being of a certain degree, or indicate that he was aware of the
fact that a child might predecease him and intended to exclude
grandchildren in such event.
d) Words of Equivocation and Words of Tautology.
We have suggested various theories which the courts might adopt
to determine when words should be qualifying, and when not. We
have also shown that each theory has a penumbral area where analysis
leaves off and intuition begins. Determining whether an accompany-
properly catalogue a legacy “to the children born immediately of my marriage
with Dame X”. Most persons would deem such a legacy to be restricted, and this
was the conclusion reached by Furgole, (Furgole, op. cit., v. 2, p. 415, no. 125).
The Exclusionary Theory, however, would suggest that such a legacy should not
be restricted. It is evident that the testator who leaves property “to the children
immediately born of my marriage with Dame X” has not indicated what he
would wish to happen should a child “immediately born” of his marriage pre-
decease him. Since such a legacy contains no evidence that the testator was
aware of the fact that a child might predecease him, and contains no indication
what the testator would have wished to happen in such event, the Exclusionary
Theory would conclude that such a legacy should not be limited. From the point
of view of the Exclusionary Theory there is no more evidence of desire to exclude
grandchildren in a legacy “to the children born immediately of my marriage with
Dame X”, than there is to exclude grandchildren in a legacy “to my three
children”; in both legacies, while the emphasized words demonstrate that the
testator was thinking of his descendants in the first degree, they do not demon-
strate that he intended to disinherit grandchildren on the death of a child –
the
latter, of course, being the criterion demanded by the Exclusionary Theory to
permit qualification. The author would favour the result reached by the Exclu-
sionary Theory since he favours its adoption. However, such a result, it must be
admitted, would run contrary to the reactions of most will interpreters, and is
in conflict with Furgole’s opinion, supra.
The above legacies severely test the validity of the Exclusionary Theory.
However, they are extremely rare, and the author does not consider the Exclu-
sionary Theory a failure, because it cannot unfailingly catalogue with mathema-
tical certainty every bizarre expression that every draftsman, well learned in the
law or not, may use.
No theory could ever accomplish this result. The value of the Exclusionary
Theory is that it catalogues the most common accompanying expressions in a
manner consonant with the wishes of most testators, and in a manner beneficial
to the family as a social institution.
McGILL LAW JOURNAL
[Vol. 12
ing word is one of “equivocation” or “tautology” will provide an
additional interpretive tool which may occasionally be employed to
complement the foregoing theories and to narrow their respective
penumbral areas.
i).. Words of “Equivocation”.
Words of “equivocation” are words which possess a clear purpose
other than qualification, but suggest possible restrictive intent as
well. For example in a legacy to “the children born of my wife Jane
and myself” the expression “born of my wife Jane and myself” has
the obvious paramount purpose of limiting the beneficiaries to those
of a certain marriage, 33 but further suggests limitative intent as
well. In a legacy “to my wife and then to such of my children as
survive her” the expression “to such of my children as survive her”
has the obvious object of indicating which of several persons (the
testator or his wife) the beneficiaries must survive to inherit, but
also indicates possible restrictive intent.
It is the author’s view that words which are equivocally qualify-
ing at best should not be held to be qualifying at all. If words of
accompaniment which suggest a possible intent to exclude grand-
children can be found to possess an obvious purpose other than
qualification they should be endowed only with this other purpose.
The testator who wishes to overcome a presumption of law should
not equivocate; he should leave no doubt as to his intentions.
ii) Words of “Tautology”.
Words of “tautology”, in contrast to words of “equivocation”,
are words which suggest a possible limitative intent but otherwise
have no alternate purpose. The court must find that these words
have been added for no purpose at all, or the court must endow
them with the only possible or effective purpose they can have –
namely, that of qualification.
Some judges have suggested that if a word suggests qualification
and can have no other possible purpose it should be given a qualifying
effect. If such was not the testator’s intention they ask, why was
the word added ?
33 Beaudin v. Beaudin (1927) 65 S.C. 517 at 519.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
257
In Drouin v. Hgnault 3
4 the testator left his property to his sons
and daughter, and on the death of the survivor to his “surviving
grandchildren”. The majority of the court found the expression
“surviving” to be redundant in view of the fact that the law itself
makes survivorship a condition of inheritance, without the necessity
of a testamentary provision to that effect (901 C.C.). The court,
faced with the expression “surviving”, which strongly suggested
limitation, and which, if not deemed to be qualifying would have no
effective meaning, adjudged the term “surviving” to be restrictive
in intent.
“Since the.., word [surviving] was used, some effect must be given to it;
the intention of the testator was to establish a limitation.., he went beyond
the Code (980), qualified and restricted the class of grandchildren to those
surviving…
… If it was the testator’s intention to provide for … [great-grandchildren]
why refer to surviving grandchildren or descendants ? And why a special
provision to exclude non-survivors ? The law attends by itself to these (901
C.C.).” 35
In Bernard v. Amyot-Forget, the testator bequeathed his property
“aux enfants … de mes enfants, c’est-h-dire A mes petits-enfants”. 36
The Quebec Court of Appeal held that the phrase “c’est-h-dire
A mes petits-enfants” had been added to the expression “enfants de
mes enfants” to restrict the legacy to descendants in the second degree;
otherwise, the Court suggested, the expression would have no ef-
fective purpose.
“It appears to me that unless these words be so read they simply repeat what
has already been said, in which case they add nothing and are quite useless.
If, on the other hand, they were inserted for a purpose, then the only apparent
purpose is the qualification of ‘enfants de mes enfants’. If they are susceptible
of these two meanings they must be interpreted in such a way as to give
them an effect. This, as I understand it, is the rule of C.C. 1014 which applies
to wills … a3
However the Supreme Court of Canada reversed the Court of
Appeal and permitted great-grandchildren to share in the legacy.
Rand J. stated,
“No doubt we endeavour to give all words in an instrument effective mean-
ing; but tautology is too universal a weakness or, as sometimes, strength,
to give rise to a rule of interpretation that controls what would otherwise be
the proper construction of the language used”.3 8
34Drouin v. Hgnault (1939) 67 B.R. 101.
35 Ibid., at p. 109.
30 [1952] B.R. 89.
87 [1952] B.R. 89 at 95.
38 [1953] 1 S.C.R. 82 at 89.
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Rand’s views echoed those of Barclay J. (dissenting) in the Court
of Appeal,
“… the mere fact that it may be tautological is not sufficient to change
the legal meaning of the words”.39
Thus the Supreme Court opted for the view that words of accom-
paniment should not be deemed qualifying simply because they would
otherwise be repetitive or redundant.
The decision of the Supreme Court is wise. The fact that a
testator has chosen to accompany the term “children” with a phrase
of no effective meaning is no reason to overcome a legal presumption
and disinherit and possibly impoverish a branch of a family. The
fact that the testator was dealing with the question of survivorship
even though unnecessarily, does not mean that he was attempting to
limit beneficiaries to descendants in the first degree. The fact that
a draftsman, for reasons best known to himself, has chosen to repeat
the law on a subject, or emphasize a point by repetition, is no reason
to obviate the legal meaning of the term “children”.
Barclay J. in a well-reasoned dissent in Drouin v. Hgnault30
provides an excellent summation of the case against limitation by
tautology,
“It
is argued that the word surviving is superfluous… that would not be
a sufficient reason for taking the word grandchildren out of the ordinary
rule imposed by art. 980. The qualification to which art. 980 refers is a
qualification as to degree, and I cannot see that the use of the word
surviving of necessity clearly means a qualification of degree. If there be
any doubt in the matter, I would resolve that doubt against the contention of
the respondents, upon whom lay the burden of proof”.
GENERAL CONCLUSION
In this chapter the author has indicated various theories of quali-
fication of which the preferable one is the Exclusionary Theory.
There is no doubt that the draftsman who uses the term “children”
should clearly indicate what degree of descendant he is referring to.
For the interpreter, however, faced with a legacy to “children”
accompanied by words of modification, the author would like to sug-
gest the following framework for interpretation :
1. Legacies to named children, or children described as being
“of the first degree” should always be interpreted restrictively.
39 [1952] B.R. 89 at 99.
39a (1939) 67 B.R. 101 at pp. 113-114.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
2. All other words of accompaniment, before being held to be
qualifying, should demonstrate in some fashion that the testator
realized a child could predecease him and that he intended in such
event to exclude the children of such predeceased child.
3.
In cases where there is reasonable doubt as to whether the
testator intended to exclude grandchildren, if the word in question
has a definite effect other than that of qualification it should be
given this alternative effect solely; moreover no word should be
deemed qualifying simply because it would otherwise be tautological.
Chapter 2.
LIMITATION BY TESTAMENTARY SCHEME.
1. The Complex Will.
We have hitherto been dealing with the question of which ac-
companying words will qualify the term “children”.
However, a legacy to “children” may be qualified even though
the term “children” is used alone, unaccompanied by any expression.
Such qualifications will occur in the “complex will” where property
is kept in the family, often for generations, through usufructs, life-
rents, substitutions, and trusts, bequeathed to “children”, “grand-
children” and “issue”.
Suppose a legacy of “usufruct to my children, ownership to
Charity”. What is the meaning of the term “children” in such a
legacy ? Can grandchildren share in the usufruct to “children” in
virtue of article 980, and if so for how long ? Is there any rule of
law that the extended meaning of “children” does not apply to
usufructs ? Similarly suppose a legacy of “income to my children
until the youngest child is 21 years, when the property will belong
in ownership to my children then surviving”. Can the descendants
of a child who predeceases the testator share in the income until
the youngest child reaches 21 years of age ? Suppose a child survives
the testator but dies before the youngest child is 21, will such
deceased child’s children be able to enjoy part of the revenues until
the youngest child becomes 21 ? What does the expression “youngest
child” mean; would this meaning differ in a legacy of “my farm to
my youngest child” ? Lastly, suppose a substitution of “my property
McGILL LAW JOURNAL
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to my children for 20 years and then to my grandchildren”. Can a
grandchild share in the legacy to “children” or does the use of the
term “grandchildren” preclude this result ?
It is evident that in the complex will, because of the very nature
of the bequests and of the legal institutions created, and because of
the constant use of the terms “children” and “grandchildren”
to
describe the beneficiaries, an unreflective application of article 980
is extremely difficult.
Can any rules of construction be formulated to determine when
the extended meaning of the term “children” should apply to such
legacies ? Can we state that the extended meaning of the term
should apply only in legacies of absolute ownership to “children”
and not in legacies of less than absolute ownership to “children”,
such as usufructs and the like ? Can we state that once a child has
enjoyed his legacy and then died, his descendants will be unable to
continue his enjoyment on the theory that article 980 only permits
descendants of children who die prior to receiving a legacy to step
into their parents’ shoes ? Can we formulate a theory to the effect
that the term “grandchildren” will qualify the term “children” in
such legacies as “usufruct to my children, ownership to my grand-
children” ?
It is to these questions I should now like to turn; first, by exam-
ining what answers the doctrine and the jurisprudence have given,
and second, (since the answers are few and the field uncharted)
by offering certain suggestions as to how the courts might consider
these problems in the future.
2. Can descendants of “children” who have received their legacy
inherit a legacy to “children” in virtue of article 980 ?
Suppose a testator leaves his property to trustees with instructions
to pay the income to his “children” until the youngest child is 21
years, and then to deliver the property in ownership to charity.
Further suppose that the testator is survived by three children in
the first degree who enjoy the revenues for several years, and then
one of such children dies prior to the time fixed for the delivery of
the property to charity, leaving a son. Can the son continue to enjoy
his father’s share of the revenues in virtue of the bequest to “children”,
until the youngest child is 21 ?
The answer is no, and the reason is to be found in that part of
article 980 which states,
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
“… the terms children or grandchildren, made use of without qualification
… apply to all the descendants,… without the effect of extending to more
than one degree according to the terms of the act”.40
a) The unfortunate term “degree”.
The statement that “the term children.., app [lies] to all the
descendants,… without the effect of extending to more than one
degree” could, ex facie, mean that only grandchildren, but not great-
grandchildren or more remote descendants, can inherit a legacy to
“children”. In other words, the term “degree” could mean a branch
in genealogical descent, a generation. The term is used in this sense
in many areas of the Civil Code. Article 615 C.C. states,
“Proximity of relationship
each generation forming a degree”.41
is determined by the number of generations,
and article 978 C.C. indicates,
“La prohibition d’ali~ner hors de la famille,… n’emp~che pas l’alination…
en faveur de ceux de la famille qui sont en degr6 plus gloign6”. (The English
translation for the emphasized phrase is, “the more distant members of the
family”) .42
However, this is not the meaning of the term “degree” as used
in article 980 C.C.
The term “degree” has two legal meanings. In article 615 C.C.
the term is used in one sense. However, in article 980 C.C. the term
is used in the sense of its other meaning.
“Degree” as used in article 980 has the same meaning as when
used in article 932 C.C. Article 932 C.C. states,
“Substitutions created by will or by gifts inter vivos cannot extend to more
than two degrees exclusive of the institute”.43
“Degree” as used in article 932 C.C. is a technical expression
used only in the substitution; it refers to the number of substitutes
it is possible to have in a substitution. Thus when article 932 C.C.
states that “Substitutions… cannot extend to more than two degrees”
the article means that one cannot have a substitution with more
40 Emphasis added for the expression “without the effect of extending to more
than one degree”.
41 Emphasis added for the expression “each generation forming a degree”.
42 Emphasis added.
43 See also 927 C.C. “…. When there are several degrees in the substitution
… ” (emphasis added).
262
McGILL LAW JOURNAL
[Vol. 12
than two substitutes. The article does not mean that the substitution
is limited to two generations.
44
“Qu’entend-on par degrg ? Les auteurs r6pondent que c’est la place occup6e
par le substitu6. En d’autres termes, chaque t6te de substitu6 forme un degr6.
On ne compte jamais le grev”.
Although article 932 C.C. is expressly concerned only with sub-
stitutions, the jurisprudence and the doctrine have applied the article
to usufructs and to trusts; in so doing they have had to expand the
meaning of the term “degree” to make it relevent to legacies other
than substitutions. The expression “two degrees” in Article 932 C.C.
has come to refer to the number of beneficiaries whom the law permits
to successively enjoy property in virtue of any legacy, before the
property must vest in absolute ownership.
Thus in regard to trusts the courts have stated,
“The policy of the law upon which the rule in regard to substitutions enun-
ciated in art. 932 C.C. is based, would seem to require that a similar restric-
tion should be placed upon such a fiducie or trust as that with which we
are now dealing. By the application of such a rule, the beneficiary who, if
the duration of the trust were unlimited, would actually come into the en-
joyment of a portion of the revenue after two other beneficiaries had suc-
cessively received revenue derived from the same fund or property, would
become the absolute owner of that part of such fund or property, from
which the portion of revenue, which he would otherwise enjoy, would be
derived.” 45
44 P.B. Mignault, Le Droit Civil Canadien, (Montreal 1901), v. 5, p. 24; c.f. also
Thevenot d’Essaule, Traitg des Substitutions fidgicommissaires, ed. Mathieu
(Montreal 1888), p. 116, nos. 347-8. “Le degri, en matilre de substitution, est
la place occup~e par le substitu6… Quand il y a une personne substitu6e au
substitu6, il y a deux degr6s; puisqu’il y a deux places destines successivement
A chacun de ces deux substituds”; c.f. also C.-H. Lalonde, Traitd de Droit Civil do
Quebec (Montreal 1958), v. 6, p. 111. Another way to define the term “degree” is
to state that it refers to the number of transmissions it is possible to have in a
substitution. A substitution of one degree has one substitute and hence one
transmission (from the institute to the substitute); a substitution of two degrees
has two substitutes and hence two transmissions (from the institute to the first
substitute and then to the second substitute). Thus Marcad6 defines “degree” as
“l’obligation… de rendre”; Marcad6, Explication thmorique et pratique du Code
Civil, (Paris 1873), v. 4, p. 160, 7th ed., and Dub6, Droit Civil Succession, (Quebec
n.d. privately printed) p. 226 states, “Ce n’est pas le degr6 de parent6 qui d6ter-
mine le nombre de substitutions mais plut6t le nombre de transmissions d’un
grev6 A un autre”. However, in view of the wording of article 932 C.C., the more
technically correct definition is that of Mignault and d’Essaule.
45 Masson v. Masson (1913) 47 S.C.R. 42 at 90; c.f. also M. Faribault, Traitg
Thiorique et Pratique de la Fiducie, (Montreal 1966), p. 190 ff., no. 173.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Similarly ancient doctrine held that one could not have more
than two usufructuaries before the property vested in absolute owner-
ship in the naked owner; 46 to permit more usufructuries it was
argued would violate the principles of article 932 C.C. which should
apply to all legacies as a rule of public order.
Assuming then that the term “degree” has the same meaning in
article 980 as in article 932 C.C., what exactly does article 980 mean
when it states “the term children… app [lies] to all the descendants…
without the effect of extending to more than one degree” ? 47
Much light is thrown on this question by the French version of
article 980. In French the article reads,
“….
The expression “gradualit”
le terme enfants,… s’applique h tous les descendants … sans gradualit6″.
is a technical expression applicable
to the law of substitutions. One of the traditional divisions of sub-
stitutions is the one which divides all substitutions into “simple
substitutions” and “gradual substitutions”. A simple substitution is
a substitution of one degree; that is, one in which there is only one
substitute. A legacy “to X and then to his children” would be a
simple substitution. A gradual substitution, in contrast, is one of
more than one degree. A gradual substitution is one “to X and then
his children and then to their children”.
“Les substitutions se divisent encore en simples et graduelles. Les premires
sont celles qui n’ont qu’un degr6: Ainsi le testateur donne h Pierre et il le
charge de rendre h ses enfants.
Les secondes sont celles qui ont plus d’un degr6, par exemple, le testateur,
apr~s avoir donn6 h Pierre et l’avoir charg6 de rendre h ses enfants, ordonne
h ces derniers de restituer la chose A leurs enfants. Uine substitution gra-
duelle ne peut, dans notre droit, s’6tendre h plus de deux degr~s outre l’insti-
tu6 (art. 932).”48
Thevenot d’Essaule, whom the Codifiers cite as one of the “sour-
ces” of article 980, is quite clear on this point,49
“La substitution est graduelle, quand le testateur… a substitu6 PLUSIEURS
PERSONNES LES UNES AUX AUTRES, pour recueillir successive-
ment, … ”
46 Pothier, Oeuvres de Pothier, (Paris, 1861), v. 8, p. 532, no. 223, ed. Bugnet;
F. Bourion, Le droit commun de la France et la Coutume de Paris (Paris, 1770),
v. 2, p. 185, no 24; Lamothe, C.J., in Pr6fontaine v. Dillon (1922) 33 B.R. 314 at
320, agrees with this view; but see however Dorion, J. (dubitante) at pp. 326-7
of the same case.
47 Emphasis added.
4 8 Mignault, op. cit., v. 5, p. 4.
49 D’Essaule, op. cit., p. 115, no. 344 (quoting Ricard). See also Pothier, op. cit.,
v. 8, p.456, no. 5, and Bourjon, op. cit., v. 2, p. 169, no. 1.
McGILL LAW JOURNAL
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Once we understand the term “gradualit6” article 980 begins
to make sense. What the article is saying is that in a “simple sub-
stitution”, for example, “to X and then to his children”, the fact that
the term “children… app[lies] to all the descendants” does not
mean that the substitution should be interpreted to read, “to X and
then to his children and then to their children”. The extended meaning
given to the term “children” by law, does not permit us to create
extra degrees in substitutions to “children”; or put differently, to
turn simple substitutions into gradual ones.
“La substitution 6tant faite au profit des enfants ou descendants … ne forme
pas une substitution graduelle”.o
When article 980 states that a legacy to “children” does not permit
“graduality”, is the article only making a statement applicable to
the substitution, or does the prohibition of graduality apply to other
legacies as well ?
In the author’s opinion, just as the term “degree” has been
extended in article 932 C.C. to apply to all legacies, so the terms
“degree” and “gradualit6” in article 980 must be given a broader
meaning. There is little doubt that the presumption against gradual-
ity stipulated in article 980 will apply to all legacies whether sub-
stitutions, usufructs, bequests of absolute ownership, or attributions
of benefits from trust funds. The presumption will prevent the mean-
ing of the term “children” being extended in any legacy whether
substitution, usufruct or trust, and so will prevent the descendants
of a “child” who has received his legacy from inheriting in the child’s
place after the child’s death.
b) The Presumption against Graduality.
The early law of substitutions was often a battle between those
who wished to keep valuable property in their family for generations
(so ensuring its prestige and power) and between the courts (moved
50 Bourjon, op. cit., v. 2, p. 169, no. 3; the connection between the expressive
and clear term “gradualit6” and its translation, the more obscure “the effect of
extending to more than one degree”, can be seen in the following section sub-
heading of Pothier (Pothier, op. cit., v. 8, p. 469) :
-Des
“Art. II.
termes qui expriment ou non qu’une substitution est gra-
duelle, et quand doit-on supposer un degr6 de substitution qui n’est pas
exprim6 ?”
Obviously the Codifiers should have translated the expression “gradualit6” to
mean “. . without the effect of implying an additional degree in a substitution”.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
by reasons of public policy), and the descendants (desirous of raising
money on the security of the family property) who wished to en-
courage commerciality. 51
It was long controverted whether legacies such as “to X, his
heirs, and his assigns”, or “to X and his descendants” or “to X
and his heirs” created substitutions with X as institute and the heirs
or descendants as substitutes, or whether such legacies should con-
sidered as simple legacies in absolute ownership, the first two to X,
and the third to X and his descendants in joint absolute ownership.
The doctrine unanimously agreed that legacies “to X, his heirs and
assigns” and “to X and his descendants” would be legacies of absolute
51 It is traditional to view the problem of the commerciality of property as a
class struggle in which the aristocracy and the rising middle class (abetted by
the spendthrift descendants of the nobility) battled over the amount of land
which could be put on the market, with the king lurking in the background hoping
to destroy the power of the aristocracy. This view from the point of view of the
development of, the law of substitutions is too superficial. See A. W. B. Simpson,
An Introduction to the History of the Land Law, (Oxford 1961) pp. 195 ff.
The desire to protect and aggrandize a family is a common human trait which
occurs not only in feudalistic society. Parents in any society wish to keep valuable
assets in their family and similarly wish to prevent spendthrifts or incompetent
family members from having the power to sell land. It is doubtful if the opinion
of an author or the decision of a judge relating to the law of substitutions could
be deduced conclusively from the fact that the judge or author was a member
of the middle class or a member of the aristocracy.
A judge or author who was a supporter of the king’s party or a proponent
of the commerciality of land would in certain areas be hostile to the substitution.
However in other areas moved by a desire to be consistent with the principles
of Roman law (which were favourable to the substitution) and by a desire to give
effect to the reasonable desires of testators to protect their families, (a desire
which judges or authors as fathers would surely recognize and approve), judges
and authors might favour interpretations which would restrict the commerciality
of land. However it is evident that a policy hostile to the creation of substitutions
by implication had begun to spread throughout French doctrine even before
d’Aguesseau used the maxim “les fidficommis ne presume pas” as one of the
cornerstones of the Ordonnance des Substitutions.
52 D’Essaule, op. cit., p. 72, nos. 202 and 205; Pothier, op. cit., v. 8, p. 468, no. 44.
While ancient doctrine agreed that a legacy “to X and his descendants” did not
create a fiduciary substitution, there was some controversy as to whether the
legacy should be deemed to belong to X in absolute ownership, with his descendants
being considered as vulgar substitutes, or -whether the legacy should be deemed
a joint legacy of absolute ownership, one-half to X and one-half to his descendants.
Montvalon, TraitM des Successions, (Paris 1786), v. 2, pp. 123 ff., and Despeisses,
Oeuvres, (Toulouse 1778), v. 2, p. 73, n. 20, both stated that X should be the
absolute owner and the descendants only vulgar substitutes. However, d’Essaule
and Pothier stated that the descendants should be considered joint absolute owners
with X.
266
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[Vol. 12
ownership, 2 but the effect of a legacy “to X and his heirs” remained
controverted. 53
However, whatever early doubts may have existed as to whether
a legacy to “descendants” or “enfants” should be deemed creative
of a substitution with the descendants who survived the testator
as institutes and their descendants as substitutes, were quickly dis-
pelled, and it was agreed that a legacy to “enfants” or “descen-
dants” vested in absolute ownership in those descendants who sur-
vived the testator.
“. . la vocation collective des enfans n’en forme qu’un seul, qui est rempli et
6vacu6 par le premier qui recuejlle,…,,4
These victories for the commerciality of property were trans-
lated into the rule, “Le fid6icommis ne se presume pas”. The tes-
tator who wished to create a substitution in favour of his family
was compelled to be explicit; to create a substitution he would have
to leave his property “to my descendants and then to their de-
scendants”.
An identical question, which, for some reason was treated by the
doctrine as creating a separate problem, was the question of whether
the testator in a substitution “to X and then to his descendants”
intended to create a “simple” substitution of one degree or, a “gradu-
al” substitution, in which, the descendants who survived X were
obliged to deliver the property on their death to their descendants.
Oddly, while there was no doubt that a simple legacy to “descendants”
did not create a substitution there was some controversy whether a
substitution to “descendants” implied a continuous substitution.
However, again French law opted for the commerciality of
property.
53 D’Essaule, op. cit., p. 72, no. 204, stated, “…si je dis, j’institue un tel ET
SES HERITIERS, il y aura fid~icommis au profit des h6ritiers”, whereas Pothier
indicated, (Pothier, op. cit., v. 8, p. 468, no. 43) “Lorsqu’on donne et lRgue quel-
que chose A quelqu’un, et a ses hairs, ces termes, et & ses hairs, n’expriment aucune
substitution”. Montvalon, op. cit., pp. 123 ff., agreed with Pothier as apparently
did Bourjon (Bourjon, op. cit., v. 2, p. 165, no. 57); It is not quite clear whether
Bourjon is referring to a legacy to “X, his heirs and assigns” only, or to “X and
his heirs and assigns” as well). In Quebec, the case of Phillips V. Bain (1886)
M.L.R. 2 S.C. 300 has held that a legacy to “X and his heirs” created a fiduciary
substitution with X as institute and his heirs as substitutes.
54 Furgole, op. cit., v. 2, p. 412, no. 125.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Thus Bourjon stated,
“La substitution 6tant faite au profit des enfans ou descendans… ne forme
par une substitution graduelle.” 55
and Pothier indicated,
” On ne doit supposer qu’une substitution est graduelle, que lorsqu’il y a des
termes qui expriment qu’elle l’est… celles qui sont faites au profit d’une
famille, d’une post~rit6 … ne do[ivent] point passer pour une substitution
graduelle, mais pour une substitution simple qui est consommde, lorsque ceux
de la famille qui se sont trouv~s les plus proches lors de l’ouverture, Pont
une fois recueillie. C’est l’avis de Ricard… qui, quoique contraire h
‘avis
commun des anciens docteurs, me parait le mieux fond6… on ne doit point
supposer plusieurs degrds dans une substitution,… par cela seul qu’il est
fait A une famille en termes collectifs.” 56
This rule was referred to by d’Essaule as the presumption against
6a
graduality.5
Thus under French law the use of the term “children” was
neither presumptive of graduality nor creative of a substitution.
Our law does not innovate in this respect. Although article 980
speaks only of the presumption against extending an existing sub-
stitution,57 there is no doubt that our law prohibits a simple legacy
to “children” from being transmogrified into a substitution.”
55 Bourjon, op. cit., v. 2, p. 169, no. 3.
56 Pothier, op. cit., v. 8, pp. 469-70, nos. 47-49; c.f. also Furgole, op. cit., v. 2,
p. 413, no. 125, “1… la valeur et la signification du mot enfans… est collectif
de tous les degr6s de gdndration, pour ne produire n6anmoins qu’un seul et unique
degr6 de fiddicommis”.
rwa D’Essaule, op. cit., p. 118, no. 357. “…
la gradualit6 ne peut plus s’admettre
sans une preuve certaine et proprement dite”.
57 Thus in commenting on article 977 C.C., (which corresponds to article 233
of the Codifiers Reports)
the Codifiers state, “… article 233 in particular is
partly designed to prevent substitutions from being extended by mere implication”
(emphasis added). Reports of the Codifiers, Fifth Report, (Quebec 1865), p. 199.
58 We have seen that a distinction can be drawn between the question of whether
the term “children” in a simple legacy to “children” is creative of a substitution,
and between the question of whether the nomination of “children” as substitutes
in a substitution is presumptive of a gradual substitution. Article 980 only pro-
hibits graduality; however there is no doubt that it cannot be argued that the
Codifiers by only expressly prohibiting graduality in article 980, intended article
980, by implication, to permit the term “children” when used in a simple legacy
to be creative of a substitution. Such an interpretation would repeal centuries
of legal experience by mere conjecture, and establish an unreal distinction between
creating a substitution, and extending an existing one.
268
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[Vol. 12
The purpose of article 980 is to permit representation, not to
create transmission. 59
In view of the fact that article 980 speaks only of prohibiting
the extension of substitutions, it becomes an extremely difficult
question as to whether the presumption against graduality should
apply only to substitutions, or whether it should be extended by
analogy to usufructs, bequests of revenue, attributions from trust
funds, institutions under substitutions, and the like.
To this author, there is no doubt, that the presumption is not
to be limited to substitutions. The presumption should prevent the
descendants of a child who has received any legacy (whether a legacy
in absolute ownership, or a usufruct, or a life-rent, or an institution
under a substitution, or an attribution of benefits from a trust)
from enjoying the legacy after the child has died.00 On this view,
in a legacy of “usufruct to my children for 20 years [or for their
lifetimes] and ownership to charity” the children of a “child” who
survived the testator, enjoyed the revenues for several years, but
died prior to the expiry of the 20 year period should be unable to
share in the usufruct. 61
Ancient French law did not analyse with any degree of intensity
the relationship of usufructs and life-rents to wills; in the few cases
it did so, it applied the general principles of substitutions, such
as the rule against having more than three successive interests
in property (932 C.0.). There is little doubt that once a usufruct
has been extinguished article 980, in spirit, would prevent a court
59 By representation I mean the right of descendants to step into the shoes of
their parent either because article 980 introduces the rules of intestacy to wills,
or is based on the Furgolian system (c.f. D. N. Mettarlin, op. cit., 60 at pp. 70 ff.
and at pp. 97 ff.).
60 Some basis for this view may be found in article 977 C.C. which uses the
term “gradualit”
to apply to the institute under a substitution,
“La prohibition d’ali6ner, . . . ne s’6tend, h moins d’expressions qui indiquent la
gradualit6, qu’h ceux auxquels elle est adress~e; ceux de la famille qui recueillent
apr~s eux n’y sont pas assujettis.
Si cette prohibition d’ali6ner n’est adress6e h personne en particulier, elle est,
… r6putde adress~e seulement A celui qui est gratifi6 le premier” (“gradualit6”
is translated in the English version of this article by the expression “extend to
others”.
61 An argument can be made that a person bequeathed a usufruct for 20 years
has not received his legacy if he dies prior to the expiry of the 20 year period.
However, once a person accepts a bequest he is deemed by law to have received
the legacy even though he does not enjoy it for its full duration. There is a
distinction between receiving a legacy and enjoying a legacy.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
finding a new usufruct or a substitution of the old one in favour
of the descendants. 62 Just as the term “degree” in article 932 C.C.
has been extended in meaning to prevent more than three successive
beneficiaries inheriting any legacy, so too the term “degree” in article
980 should be extended to prevent successive enjoyment of any legacy
to “children” without express command. This view has been adopted
by Dorion J. (Allard J. concurring) in Pr~fontaine v. Dillon ; 13 and
the general introductory language of the article 980 suggests that the
codifiers did not intend to create one rule for substitutions and
another rule for all legacies other than substitutions.
Furgole makes this quite clear when he states,
“… . le mot enfans, comprend… tous les descendants, A quelque degr6 qu’ils
soient, lorsqu’ils sont & la place de ceux du premier degr6 de g~n6ration, qui
sont d~c~d6s sans avoir reCueilli”.64
The purpose of article 980 is to permit representation not trans-
mission. To create a new usufruct or trust in favour of a child’s
children after the death of a “child”, the testator must expressly
so provide.
Therefore, just as the term “children” does not create a sub-
stitution or extend an existing one, so the term should not enable a
person who received a usufruct or any other legacy, and then died,
to pass on the enjoyment to his descendants, on the theory that the
term “children” permits the creation of a new legacy or a sub-
stitution of the old one in the descendants’ favour.
Article 980 only permits descendants to inherit in default of a
child, not after him.
62The jurisprudence and doctrine have divided on the question of whether it
is possible to have a substitution of a usufruct. While some Quebec judges have
seen no objection to its validity, it has been argued that a usufruct is by nature
unable to extend beyond the life of a person and is extinguished by his death;
if the testator orders a usufructury on his death to hand over the property to
another person who is then to enjoy the usufruct, this second usufruct it is argued
is a new usufruct rather than a substitution of the old one. C.f. d’Essaule, op. cit.,
p. 46, nos. 117-118 and Proudhon, TraitM des droits d’usufruit, (Dijon 1856),
2nd ed., v. 1, p. 517 ff. Proudhon suggests that a substitution of a usufruct
created for a period certain (such as a usufruct for five years) is possible, but
that a usufruct created for life cannot be substituted.
63 (1922) 33 B.R. 314 at 325 ff.
64 Furgole, op. cit., v. 2, p. 413, no. 125 (emphasis added).
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c) The Strength of the Presumption against Graduality.
While article 977 copies the old law, and clearly and expressly
creates a presumption against graduality,
“La prohibition d’alifner… ne s’6tend, h moins d’expressions qui indiquent
la gradualit6, qu’h ceux auxquels elle est adress6e; … ”
article 980 is more equivocal in its exclusion of graduality.
Article 980, instead of stating that the term “children” will not
permit graduality without clear testamentary command, simply
states that graduality will or will not occur, “according to the terms
of the act”. Moreover, while the Codifiers in discussing article 977
state that it is “intended to prevent substitutions from being extended
by mere implication to subsequent degrees” 05 they make no such
statement for article 980 C.C.
Thus it can be argued that article 980 C.C. creates no presumption
against graduality but allows the courts to examine each particular
will with an open mind. However, this author suggests that article
980 intended no breach with ancient law on so important and so well
settled a question, and that article 980 does create a presumption
against graduality. We have indicated at great length that in ancient
law a substitution to “children” did not permit graduality. The
Codifiers state in regard to Article 980 that “the rules adopted are
regarded… as actual law”. 60 The actual law prior to 1867 presumed
against graduality 6 7 and obviously the Codifiers intended no in-
novation.
To this author Article 980 C.0. clearly suggests that there must
be some term or expression in the document creating the legacy,
which permits graduality. If there is none, the extended meaning of
the term “children” will not permit the descendants of a child who
received his share to inherit after his death.
d) Jurisprudence.
There is but one case that deals with the problem of graduality,
namely Prifontaine v. Dillon. The testator therein left a life-rent
to his daughters “leur vie durant… et au d6c~s respectif de chacune
, leurs enfants”. After making various other bequests he
d’elles,…
65 Reports of the Codifiers, Fifth Report, p. 199.
66 Ibid., p. 199.
67Bourjon, op. cit., v. 2, p. 170, nos. 4 and 5; Ricard, op. cit., p. 336 ff., nos.
512 ff. [see also p. 369].
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
bequeathed the residue of the revenues of his estate, in the same
manner, namely, to his daughters for life, and “aprbs leur d~c~s
respectif & leur enfants”. The ownership of the estate was bequeathed
to his great-grandchildren.
The testator’s daughters survived him and enjoyed both the life
rent and the general revenues for several years. Then one daughter
died, leaving children, who continued to receive and enjoy both
the life rent and the general revenues. However, one of these grand-
children in turn died leaving children, and raising the question as
to whether the testator’s great-grandchildren could receive the life-
rent and the general revenues the grandchildren had already enjoyed
in virtue of the legacy to the testator’s daughters’ “children”.
Justice Dorion (Justice Allard concurring) stated that in regard
to the life rent,68
“Il ne peut pas 6tre question de descendants ici, puisqu’il s’agit d’une rente
viag~re lgu~e aux petits-enfants, et que les petits-enfants ont recueilli le legs.
Leurs descendants ne peuvent donc pas recueillir ce legs A leur place, ou
par representation, m~me si l’expression ‘petits-enfants’ voulait dire descen-
dants.”
As to the general revenues he found that these did belong to the
great-grandchildren, not because the great-grandchildren were in-
cluded in the legacy of the revenues under the term “children”, but
because they were the owners of the property.
However, Justices Lamothe (C.J.) and Martin, while disposing
of the life rent and general revenues in the same manner as Dorion
J., disagreed with him entirely on the question of article 980; Chief
Justice Lamothe stated that the great-grandchildren were entitled
to the general revenues not because they were owners, but in virtue
of article 980,
“Les mots ‘enfants n~s et . naitre’, dans cette clause, comprenuent-ils les
petits-enfants ? L’art. 980 C. civ., entre ici en jeu … On n’a aucune raison
juridique de mettre cet art. 980 C. civ., en oubli sur ce point.” 69
and Justice Martin agreed with him,
“The general rule of interpretation of the word ‘enfants’ is contained in art.
it
980 C.C., that where the term is made use of without qualification..,
applies to all descendants, and this rule applies whether it relates to a
substitution, a gift or a legacy…
As Ricard points out, it is as if the testator had used the word ‘descendants’…
I do not find in the will of the testator any manifest intention, express or im-
GsPrgfontaine v. Dillon (1922) 33 B.R. 314 at 327 (emphasis added).
69 Pr fontaine v. Dillon, loc. cit., at p. 319.
McGILL LAW JOURNAL
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plied, to give another meaning to the word ‘enfant’ than that contained in our
Code…”70
Oddly in the case of Charette v. Lapierre 71 which concerned the
right of grandchildren to take after their parent had enjoyed his
legacy under the general term “children”, the problem was not dis-
cussed at all.
e) Conclusion and drafting suggestions.
Article 980, in this author’s opinion, lays down the rule that in
any legacy to “children”, the descendants of a deceased child can
inherit only in default of their parent receiving his legacy, not after
he has received it. This presumption against graduality should apply
whether the legacy to “children” is one of absolute ownership, or
one of a limited interest granted for life, or for any other period.
Thus in a legacy “to my children for five years and then to X”,
or “income to my children until the youngest child is 21, when the
principal shall vest in ownership in my children then living”, if a
child in the first degree dies after having accepted the legacy but
before the period of distribution, his descendants will be unable to
step into his shoes in virtue of article 980.72 In such instance the
70 Pr fontaine v. Dillon, loc. cit., at p. 323. However, Justice Martin went on
to state that “… the testator did not intend to exclude his great-grandchildren
from any participation in the revenues of this estate of which they own the
capital…” It is unclear whether the basis of his decision is the ownership of
the great-grandchildren or their inclusion in the legacy of the revenues under
article 980 C.C. Oddly both Justices Martin and Lamothe held that the life-rent
did not pass to the great-grandchildren because of its nature “viagbre” and
because of the qualifying expression “leur vie durant”. It is difficult to understand
why Justices Martin and Lamothe distinguished between the usufruct and the
life-rent and why the term “la vie durant” which merely redundantly suggests
that the life-rent is to be for life should make any difference unless the expression
“la vie durant” is regarded as being a phrase of qualification for some reason.
71 [1953] B.R. 687.
72 A distinction must be drawn between “receiving” a legacy and “enjoying” a
legacy. In a substitution “to my children for 5 years, and then to X”, once a
child accepts his legacy, he has received it, even should he not enjoy it for the
full 5 year period. In such a case the presumption against graduality would
prevent a new substitution in favour of his children. In the legacy “to my children
for 5 years, and then to X”, upon the death of a child after 3 years, the substitu-
tion of such child’s share would either open in favour of X, or the child’s heirs
would continue his enjoyment for a further 2 year period, dependent on whether
the court found the substitution to be pure or conditional (for the distinction
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
income may pass to the testator’s heirs, or to the heirs of the
deceased child, or may accrue to the surviving co-legatees, or may
devolve to the owners of the property, dependent on how the court
between pure and conditional substitutions see d’Essaule, op. cit., pp. 102 ff. nos.
280 ff. and pp. 104 ff., nos. 300 ff.). However, there is no doubt that the court
could not find a transmission or a new substitution in favour of the child’s
children. Similarly in a usufruct to “children for 5 years” once the child has
accepted his legacy he has received the usufruct. Should he die prior to the expiry
of the 5 year period, the court should find no new usufruct in favour of his
children, but should find, either that the naked owner may take possession of
the child’s share, or that the usufruct should pass to the other usufructuries by
way of accretion.
There is one difficulty with this conclusion in regard to usufructs. If a legacy
is not received, it of course, lapses. In the cases where accretion is possible there
can be no accretion once a legacy has been received (a concept similar to the
presumption against graduality in that it prevents a legacy to “A and B” from
being interpreted as a substitution with “A” and “B” as institutes and the sur-
vivor as the substitute). Thus article 868 C.C. states, “Accretion takes place…
in the case of lapsed legacies” (Emphasis added). However, doubt has been ex-
pressed as to whether in the case of the usufruct, accretion may take place in
favour of the co-usufructuries upon the death of a usufructury even after the
deceased usufructury had received his legacy. In Roman law the usufruct was
an exception to the principal “No accretion without lapse”. Thus in Roman law
if the testator left a legacy of “usufruct to A and B, with ownership to charity”
and if “A” survived the testator, received the revenues for a period of time, and
then died, accretion would take place in favour of “B” even though “A” had
received his legacy and there was therefore, no lapse.
Apparently the ancient French authors never settled the question of whether
the usufruct was an exception to the general rule that accrual could not occur
without lapse.
The case of Fraser v. Fraser (1907) 16 B.R. 304, has raised the question of
whether in our law the condition of lapse enacted in Article 868 C.C. applies to
all legacies, or whether the usufruct is exempted from the condition of lapse.
If the usufruct is an exception to the condition of lapse demanded in article 868
C.C., then it can be argued that the usufruct should be an exception to the
presumption against graduality stipulated in article 980 C.C. However, this possi-
ble analogy is without foundation. It is difficult to imagine a court interpreting
a legacy of “usufruct to children, ownership to grandchildren” or “usufruct to
children, ownership to charity” so as to allow grandchildren to share in the usu-
fruct after the death of a child who had enjoyed his legacy.
An interesting question also arises in regard to such legacies as “to my trustees
to pay so much or all of the net income as they deem wise to such one or more or
all of my children as may be living from time to time during the existence of this
trust”.
When is a child deemed to have received the legacy of income bequeathed to
him ? Is it when the trustees accept the trust, or when the child receives an income
payment ? Or is each income payment to be considered as a separate and complete
legacy, independent from the other income payments and fulfilled completely upon
payment ? On this latter view, the beneficiaries who could share an income pay-
McGILL LAW JOURNAL
[Vol. 12
interprets the bequest, but it will not pass to the descendants of a
deceased child in virtue of article 980 C.C.7
How strong a presumption against graduality the codifiers in-
tended, in view of the hesitant language of article 980, as compared
with the strong direction of article 979, is uncertain; however, in
view of the history of the problem, the general presumption of law
favouring early vesting, and the natural presumption that substitu-
tions or new usufructs should not be easily inferred, it appears that
there must be some strong suggestion in the wording of the legacy
to permit graduality.
The draftsman who wishes to introduce graduality to a legacy
to “children” cannot of course rely on “strong” suggestions. It is
his duty to be explicit.
Many draftsmen who wish the descendants of children who have
received their legacies and then died to inherit a legacy to “children”
often execute their clauses in the following manner:
“Income to such of my children [or issue] as may be living from
time to time during the duration of this trust”.
Since article 980 creates a presumption that descendants of a
deceased child cannot inherit a legacy to “children” if the child has
received his legacy, it can be argued that the only remote descendants
who can inherit such legacies would be those whose parents pre-
deceased the testator. Or put differently , the presumption against
graduality might encourage an interpretation that the legacy “to
such of my children as may be living from time to time” means, “to
such of my children as survive me and as may be living from time
to time”. On such a view, the words from “time to time” would be
ment to “children” would be determined at the time of each income payment and
would have to be differently determined for each income payment. Thus the fact
that a “child” had received one income payment would not mean that he had
received the next income payment which would be a separate and independent
legacy. On this view the term “children” would be a shifting class of persons to
be determined upon each payment of income. The author does not favour this
latter view. See infra p. 305 ff.
73 If the legacy were deemed to be a substitution the property would pass to
the substitute if the court deemed the legacy to be a pure substitution (see d’Es-
saule, op. cit., p. 148, no. 494) or to the institute’s heirs if the court considered
the substitution to be conditional. If the legacy were deemed a usufruct, it would
either be deemed extinguished, in which case the naked owner would enjoy
the revenues, or it would be held that the revenues would accrue to the co-usu-
fructuaries of the deceased child; Mignault, op. cit., v. 2, p. 628; Mazeaud, Legons
de Droit Civil, (Paris, 1956) v. 2, p. 1275, no. 1649.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
275
interpreted as having been added to provide for accretion among
those descendants who survived the testator rather than to include
persons who were not entitled to inherit upon the testator’s death.
To avoid any doubt the testator should be specific; if he wishes
to include the descendants of children who die after him he will
find it prudent to state so expressly. The author would like to sug-
gest the following clause,
Income to such of my issue as may be living from time to time
during the existence of this trust. The issue entitled to an income
distribution hereunder shall be those as defined below in Article
Blank of this Will
and shall, for greater certainty but without
prejudice to the generality of the foregoing, include issue living at
the time of the income distribution in question, even though such
issue are descendants of issue who accepted, or accepted and received
benefits hereunder, but who died prior to the time of the income
distribution in question.
3. Will the term “children” be limited by the fact that the legacy
to the “children” is not one of absolute ownership ?
Suppose a testator leaves the usufruct of his property to his
“children” and the ownership to charity.
We have noted in the previous section that the presumption
against graduality will prevent the descendants of a child who re-
ceived his share of the usufruct and then died, from inheriting in
the deceased child’s place. However, what if a child in the first
degree did not receive the legacy at all, but predeceased the testator ?
Would the descendants of such predeceased child be able to inherit
in his place in virtue of the fact that article 980 states that the term
“children… app [lies] to all the descendants”, or is there any pre-
sumption of law which prevents the legal meaning of “children”
from applying to usufructs and to other legacies of less than abso-
lute ownership ?
This problem is not, of course, limited only to legacies of less
than absolute ownership to “children” in which the presumption
against graduality applies.
Thus suppose a legacy of “income to such of my children as may
be living from time to time during the existence of this trust with
74 See D. N. Mettarlin, op. cit., 65 at p. 120 for a suggested clause defining
the term “issue”.
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ownership to charity”. Will the extended meaning of the term “chil-
dren” be applicable, assuming that if it were applicable, the court
would conclude that the presumption against graduality had been
overcome and that, therefore, the descendants of children who re-
ceived income could share in the bequest of income ? Or, can we
state that the term “children” in such a legacy will be limited to
descendants in the first degree because the extended meaning of
the term “children” is only properly applicable to legacies of abso-
lute ownership ?
At first blush there appears to be no reason why the extended
meaning of “children” should not apply to usufructs, life-rents, trusts
or any other kind of legacy. Article 980 states that the legal meaning
of the term “children” applies to “legacies in general” without ex-
cepting usufructs or other legacies of less than absolute ownership.
There are no conclusive precedents in ancient French law for so
limiting such legacies; and indeed the few ancient authors who did
discuss the problem did suggest that the extended meaning of the
term “children” should apply to legacies of less than absolute owner-
ship. Moreover article 980 in suggesting that graduality can occur in
legacies to “children” certainly envisages the application of the
extended meaning of “children” to legacies of less than absolute
ownership.
However, in the case of Auger v. Beaudry, the Privy Council
stated,
“…it is … impossible to say that the word [children] is intended to mean
the families of the children when the gift that follows is a gift for life,
wholly inapplicable if the word included descendants.” 75
This view was supported somewhat by Lamothe, C.J. and by
Martin, J. in Pr6fontaine v. Dillon.7 Justices Lamothe and Martin
both suggested that “tine rente viag6re” bequeathed to “children”,
“leur vie durant”, would not include grandchildren. However, the
basis of their reasoning is difficult to follow since the same judges
found that a usufruct to “children” would include grandchildren77
75 1920 [A.C.] 1010 at 1015.
76 (1922) 33 B.R. 314 (Lamothe C.J. at pp. 318-319 and Martin, J. at pp. 323-5).
These judges of course only discussed whether the descendants of a child who
received a life-rent could inherit after their parent’s death. However, since they
both held that the descendants could inherit a usufruct after their parent had
received it, in virtue of the term “children”, their objection to the descendants
inheriting the life-rent seems based not on the fact that the “child” had already
received the legacy but on the ground that article 980 does not apply to life-
rents; see pp. 270 ff. supra, for a discussion of this case.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Why a life-rent to “children” would be limited, but not a usufruct,
was not explained.
However, in the case of Charette v. Lapierre78
(also dealing
with a usufruct to “children” “leur vie durant”) although the court
did not explicitly discuss the question of whether the extended
meaning of “children” would apply in such a legacy it obviously
assumed that it would. Barclay, J. in Bernardi v. Amyot-Forget has
also expressly stated that article 980 C.C. should apply to a usufruct,
even one for life,
“… I do not consider that the 4th paragraph which leaves a usufruct to
‘les enfants issus de mon mariage avec ma dite 6pouse’ obviously limits the
usufruct to his own children.”7 9
Ancient French law did not consider the problem explicitly. How-
ever, a few authors seem to have assumed that the extended mean-
ing of the term “children” could be applied in legacies of less than
absolute ownership. Thus Bourjon states,
“Plusieurs substitu~s 6tant appelds conjointement pour jouir en m~me temps
des biens substitu6s, par exemple, si un p6re substitue b son fils tous les
enfans, petits-enfans de lui testateur, et qu’il ait port6 ensuite la substitution
plus loin, tous ces petits-enfans du testateur venant A recueillir la substitu-
tion, ne sont tous ensemble qu’un seul degr6; ils sont tous conjointement
appelds; ils ne forment donc tous que le premier degr6; ce qui, par la minme
raison, auroit lieu dans le cas mgme que des arri~res-petits enfans, par re-
presentation de leur p~re, concourroient avec leurs oncles, pour recueillir
l’effet et le b~ndfice de la premire ouverture d’une telle substitution; c’est
toujours premier degr6, nonobstant le nombre et la qualit6 ou proximit6 de
ceux qui la recueillent.”8 o
and Ricard does give an example in which the term “children” al-
though used to describe the institutes in a substitution was deemed
to include grandchildren.”‘
It can be argued that if article 980 does introduce the rules of
abintestate successions to wills, 82 it does so only for legacies of
absolute ownership which vest absolutely, as do the benefits of
77 Lamothe, C.J. seems to suggest that the words “leur vie durant” should be
considered as words of qualification. Since these words were found in the life-
rent and not in the usufruct, he declared the life-rent to be restricted, but not
the usufruct. However, this proposition seems doubtful since it is in the nature
of a usufruct or life-rent to be for the lifetime of the person benefited, and to
simply express this nature by the term “leur vie durant” should not suggest
qualification.
78 [1953] B.R. 687.
79 [1952] B.R. 89 at 97.
80 Bourjon, op. cit., v. 2, p. 188, no. 51 (emphasis added).
8’ Ricard, op. cit., v. 2, p. 391, no. 690.
82 D. N. Mettarlin, op. cit., 65 at pp. 70 ff. and pp. 86 ff.
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abintestate successions. The rules of intestacy, it can be argued,
have no application in legacies such as usufructs, attributions of
revenues from trust funds, institutions in substitutions, and other
legacies which vest only for limited periods of time and are then
extinguished or passed to other persons.
However, it is the author’s view that no rule can be formulated
to the effect that the extended meaning of “children” is to be applied
only in legacies of absolute ownership. Article 980 draws no distinc-
tions between legacies of absolute ownership, and legacies of usu-
fruct and the like. The article expressly states that the extended
meaning of “children” is to apply to “legacies in general” without
exception. Moreover logically and equitably, it is difficult to under-
stand why, if in legacies of absolute ownership, presumed familial
affection will enable the descendants of a deceased child to inherit,
the same familial affection should not apply to legacies of less than
absolute ownership. The testator cannot be presumed to be less family
minded in usufructs or trusts than in bequests of absolute owner-
ship. Thus there appears to be no good reason why legacies of
“income to my children for 20 years”, or of “usufruct to my children
until my youngest child reaches 21” should exclude grandchildren.
In fact no court or judge has gone so far as to suggest that
article 980 should not apply to usufructs and the like. What has
been suggested is that the article should never apply to legacies
of less than absolute ownership which are bequeathed “for life”.
This view, while agreeing that there is no rule against applying
article 980 to such legacies as “income to my children for 10 years”,
or “income to my children until my youngest child is 21” does state
that a “usufruct to my children for life” will never be able to in-
clude grandchildren. Thus the Privy Council in Auger V. Beaudry
has stated that article 980 is “wholly inapplicable” in “a gift for
life”,83 and Lamothe, C.J. who favours this view, has stated,
“Le surplus des revenues annuels est donn6 aux… ‘enfants n~s et A naltre…
comprennent-ils les petits-enfants?’ L’art. 980 C. civ., entre ici en jeu. II
ne s’agit pas d’une lib6ralit6 viag~re.”8 4
s3 [1920] A.C. 1010 at p. 1015 (Emphasis added).
84 Prdfontaine v. Dillon (1922) 33 B.R. 314 at 319. Lamothe, C.J. in this case
stated that a life-rent “.h leurs enfants” could not include grandchildren because,
“cette lib~ralit6 est ‘viagre'” but found that a usufruct “A leurs enfants” could
include grandchildren on the grounds that Article 980 C.C. could apply since the
usufruct was not “viag~re”. Actually Lamothe, C.J. is incorrect; the usufruct
was “viag~re”, as a reading of the will will indicate. (See record number 1430 of
the Superior Court of Montreal). As indicated earlier, (supra, fns. 70 and 77),
for this reason it is difficult to determine exactly what the ratio decidendi of
Lamothe, C.J.’s judgment is.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Certainly a legacy of “usufruct for life to my children, ownership
to charity” strongly suggests, that if a child predeceases the tes-
tator, his descendants should not enjoy the revenues during their
lifetimes. However, the author suggests that grandchildren should
not be excluded on the grounds that the legacy is “for life”, but
for other reasons which make the application of the extended mean-
to such a legacy. These
ing of “children”, “wholly inapplicable”
other reasons will be discussed in chapter 3.
For the moment suffice it to say that there is nothing illogical
or arbitrary in principle in allowing grandchildren to enjoy legacies
to “children for life” especially in view of the fact that the law
presumes the term “children” to mean descendants. Some legacies
to “children for life” should of course be limited; some should not.
But the testator should not a priori be presumed to be less family
minded in bequests granted “for life” than in bequests granted for
other periods.
There is a compelling intuitive desire to restrict a legacy of
“usufruct to my children for life, ownership to charity” to des-
cendants in the first degree. However this desire should not lead
us to the hasty conclusion that the legacy is to be limited because
it is a “usufruct” or because it is bequeathed “for life”.
Barclay J. (although by way of obiter dictum) in Bernard v.
Amyot-Forget 85 has held that a legacy to “children for life” can
include grandchildren.
“.. I do not consider that the 4th paragraph which leaves a usufruct to
‘les enfants issus de mon mariage avec ma dite 6pouse’ [leur vie durant]
obviously limits the usufruct to his own children… ‘il faut des termes clairs
et prdcis pour 6ter au mot enfants, cette signification que lui donne express6-
ment la loi’-.86
and we have already noted that Bourjon 87 and Ricard 88 also agreed
that grandchildren could inherit a bequest to “children for life”.
Indeed there are several legacies to “children for life” which
do not instinctively lead to the conclusion that grandchildren should
be excluded. For example in a legacy to “my children for life and
on the death of the last child to my grandchildren” there is nothing
illogical or arbitrary in applying article 980 and permitting grand-
children to share in the revenues prior to the death of the last child
in the first degree.
85 [1952] B.R. 89.
86 [1952] B.R. 89 at 97.
87 Bourjon, op. cit., v. 2, p. 188, no. 51.
88 Ricard, op. cit., v. 2, p. 391, no. 690.
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Thus the author would strongly suggest that no rule can be
formulated to the effect that the extended meaning of the term
“children” cannot apply in legacies of less than absolute ownership
whether bequeathed for life or for any other period of time.
In thus concluding, the author does not wish to suggest that a
legacy of “usufruct to children, ownership to charity” will include
grandchildren. Indeed, as will be seen, it will not. What is suggested,
is that the term “children” is not to be limited simply because it is
contained in a usufruct or a legacy “for life”; other grounds must
be found. These grounds and the rules of construction which flow
from them will be discussed in chapter 3.
4. Will the term “children” be limited if the testator provides for
accretion among the “children”?
Suppose a legacy “to my children for life [or for 20 years] with
accretion in favour of the surviving children,89 and on the death of
the last child [or after the 20 year period] to charity”. Does the
provision for accretion among the testator’s children prevent the
descendants of a predeceased child from sharing either in the original
legacy or in the accretion ? 89a
89 Note that the expression “surviving children” may have two meanings. The
phrase “surviving children” may be intended to describe only those “children”
who survive the testator, or the phrase may be intended to describe those “children”
who are surviving upon the death of each child who dies before the ultimate
distribution of the property. On the first interpretation if the testator is sur-
vived by three children in the first degree who accept the legacy and then one
child dies leaving children, the property would accrue only to those “children”
who were living at the time of the testator’s death, namely the two children in
the first degree. If the second interpretation is adopted, the term “surviving
children” might include the grandchildren since they are among the “children”
surviving upon the death of the child in the first degree. In the first case the
class of persons who can inherit is closed upon the death of the testator and can
never increase; it can decrease as the original members die. In the second case
the class may always be increased to include descendants of deceased children.
While both interpretations are linguistically sound, the presumption against
graduality and the technical meaning of the term accretion (see fn. 89a infra
and pp. 303 ff. infra) militate against the second interpretation.
89a “Accretion” is a word of many meanings. Properly speaking, there can be no
accretion without lapse (except perhaps in the case of the usufruct; see fn. 72
supra). Thus article 868 C.C. states,
“Accretion takes place… in the case of lapsed legacies…
However testators customarily order accretion in cases in which there is no
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
It should be emphasized that we are concerned here only with
the descendants of a predeceased child. Should a child receive his
legacy and then die before the delivery of the property to charity
his descendants would be excluded in virtue of the presumption
against graduality. The only question raised here is whether the
provision for accretion prevents the descendants of a child who did
not receive his legacy from stepping into his shoes in virtue of
article 980.
lapse. Thus testators often leave property to “A, B, C, and D, with accretion
in favour of the survivors, and on the death of the last one of them, to E”.
The courts have suggested that there is nothing to prevent a testator from
ordering accretion in these circumstances even though the accretion will be of
a legacy which has not lapsed, but has been received.
et son application aux cas oii le legs a
“Chez nous, l’extension du droit d’accroissement au delb des cas de cadu-
cit,…
td recueilli, oii le l~gataire en
a ddji profit6, ne seraient pas illicites,.. .” (Barclay’s Bank Ltd. v. Paton
(1934) 56 B.R. 481 at pp. 494-5, Rivard, J. dissenting).
“Even if this be termed ‘accretion’, the result is the same in my opinion.
It is quite true that the Civil Code, by article 868, provides specifically for
accretion in the case of lapsed legacies; but I do not consider this to prohibit
accretion in other cases, for accretion may result from the terms of the will
itself. A testator is nowhere prohibited from making such a provision.”
(Ibid., at p. 486 (Bond, J.)). See also Bourgeau v. Bourgeau [1934] S.C.R.
512 at 517.
However, the question arises whether the right of the survivors to inherit such
legacies is, properly speaking, “accretion”?
The best view is that the use of the term “accretion” in these circumstances
is improper, and that what the testator has really done by ordering accretion in
favour of the co-legatees of a person who has received his legacy and then died,
is to either,
a) create a substitution in favour of those to whom the legacy is to accrue
“Chez nous, l’extension du droit d’accroissement au delh des cas du caducit6…
et son application aux cas oii le legs a Wt6 recueilli,… ne seraient pas illicites,
mais cette extension constituerait une substitution tacite. Elle serait l6gitime,
mais il n’y aurait pas moins transmission de l’une h l’autre des institutes,
et par consequent degr6 de substitution.” (Barclay’s Bank Ltd. v. Paton
(1934) 56 B.R. at pp. 494-5, Rivard, J. dissenting).
or,
b) create a class gift in which “A”, “B”, “C” and “D” form a “class” and
in which the varying mutations within the class resulting from the death of the
individual members of the class do not constitute transmissions, since the whole
class itself forms one degree which is not used up until all the individuals in the
group are dead.
plusieurs d’eux eussent succd6 en concurrence comme une seule tate,
“‘…
auquel cas ne seront compt~s que pour un seul degr6’… dans le cas oii un
legs comportant substitution est fait conjointement a plusieurs personnes
qui viennent en concurrence, toutes ces personnes, non seulement ne consti-
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[Vol. 12
The concepts of accretion and of the vulgar substitution are
mutually exclusive. If a testator leaves his property “to A and B”,
accretion will take place should either A or B fail to survive the
testator. However, if the testator were to specifically state that if
A did not survive him the property should pass to C, the vulgar
substitution in favour of C would exclude accretion in B’s favour.
Article 980 provides an institution similar to the vulgar sub-
stitution. The article states that in a legacy to “children”, if a child
in the first degree predeceases a testator, his share will accrue not
to the surviving children in the first degree but will pass to the
descendants of the deceased child. If then, the testator leaves his
property to his “children” but states that accretion will take place,
is he not attempting to avoid the vulgar substitution of article 980 ?
Does not the fact that he has envisaged the death of a child and
made provision for such event evidence an intent to exclude grand-
tuent qu’un seul degr6, aussi longtemps qu’elles jouissent concurremment des
biens l6gu6s, mais que m~me si la part de l’un de ces l~gataires conjoints est
transmise par d6c~s aux autres l~gataires conjoints survivants, cette part
est ainsi transmise au groupe survivant, sans que par cela soit constitu6 un
nouveau degr6 de substitution pour ladite part ainsi transmise.” (Ibid., at
p. 505 St. Germain dissenting).
“…I should say that transmission from this group is not piecemeal.., but
as a whole. In other words there is not a gradual substitution of the shares
of individuals dying to the surviving members of that group, but a redis-
tribution among the surviving members…
… the testator created a substitution of which a group of five individuals
was named as institute, ….” (Ibid., at pp. 486-7),
Or, as McDougall, J. in Tiffin v. Budyk (1937) 75 S.C. 367 at 369 and at 371,
states,
“..the bequest… to a class subsists as long as any member of the class
subsists… The class does not die until every member thereof has disappeared.
… The testator… vests them as undivided owners of the entire legacy. It
is then a matter of law that those who survive do not take under a fresh
benefit, but the enjoyment given by the original bequest to them becomes
merely enlarged.”
It would appear from the holdings in Barclay’s Bank Ltd. v. Paton, supra, and
Tiffin v. Budyk, supra, that the courts will view a legacy in which accretion is
ordered to take place after one of the co-legatees has received his bequest, as a
class legacy, rather than as a bequest in which the testator has created a series
of substitutions. The wise draftsman should avoid the use of the term “accretion”
when he wishes to benefit a group of surviving co-legatees, after the death of
one of the co-legatees who has received a share in the bequest, and then died. He
should either expressly create a class gift, or expressly create a series of substitu-
tions. He should not leave any doubt as to which of these two institutions he
wishes to create by using the equivocal term “accretion”.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
children ? Does not article 980 C.C. apply only when the testator
has made no contrary provision for the death of a child ?
This view is certainly supported by Drouin v. Hnault 90 which
held that a legacy to “surviving grandchildren” should be limited.
If a legacy to “surviving grandchildren” is to be limited, it would
appear that a legacy to “my children for 20 years with accretion
in favour of the survivors and then to charity” should also be limited.
However, while this argument appears convincing a strong argument
can be made for the proposition that a provision for accretion should
create no presumption that the testator intended to exclude the ap-
plication of article 980 C.C.
A testator who leaves property to “children”, and orders ac-
cretion to take place, certainly raises the question whether the ac-
cretion is to occur if a child dies leaving children, or, whether
the accretion is to occur, only if a child dies without leaving children.
If the testator were to leave the income of his property to “my
descendants”, and then provide for accretion among them, there
could be no suggestion that the children of a predeceased child could
not inherit the legacy or participate in the accrual. Since the term
“children” is by law assumed to mean descendants, a provision for
accretion among “children” should have no more effect than a
provision for accretion among descendants. To argue otherwise is
to forget the legal meaning of the term.
In view of the statement that the term “children… app [lies]
to all the descendants” cannot one argue that a testator who leaves
property to “children” and provides for accretion among them, in-
tends the term “children” to have its legal meaning and only intends
accretion to occur if a child in the first degree dies without children ?
If a testator were to leave his property to his “children”, and
then to state that if no “children” survived him, the property was
to pass to X, we would not exclude grandchildren from such a legacy.
Consequently if a testator leaves property to his “children, with ac-
cretion among them” cannot one argue that the testator did not wish
to exclude grandchildren, but only wished to provide for accretion
in favour of the remaining family branches if a child died without
children ? Certainly if we argue that the testator is fully cognizant
of the legal meaning of the term “children”, such an interpretation
is reasonable. Article 980 C.C. on this view, would write into every
legacy to “children” the tacit condition that before a legacy to a
00 (1939) 67 B.R. 101.
284
McGILL LAW JOURNAL
[Vol. 12
“child” will lapse or accrue, the child must have died without any
descendants.
This reasoning strikes at the holding of Drouin v. Hgnault,9’
which held that the term “surviving” would be a word of quali-
fication. However, it should be realized that the term “surviving”
was held to be limitative by a strongly divided court largely on the
grounds that the term would otherwise be tautological. Since the
Supreme Court has since rejected the concept that a phrase should
be limiting simply because it would otherwise be tautological,9 2 it
is possible that Drouin v. H6nault may be reconsidered or severely
limited in scope.
Moreover if the testator had left his property “to such of my
children as may be living from time to time during this trust” there
would be a strong inclination to include grandchildren. Is not a legacy
“to my children with accretion in favour of the survivors” sufficiently
similar to lead to the same conclusion ?
In this author’s opinion a provision for accretion among “children”
should not create any presumption that the testator did not intend
the legal meaning of the term “children” to apply.
In thus concluding the author does not wish to argue that legacies
such as “usufruct to children, with accretion in favour of the sur-
vivors, ownership to charity” should include grandchildren.
What is suggested is that if such a legacy is to be limited, it
must be on the basis of rules of construction other than the in-
correct suggestion that a provision for accretion qualifies the term.
These rules will be discussed in Chapter 3.
5. Will the term “children” be limited by the fact that it is used
not in a disposition but to denote time of division ?
a) The problem.
Thus far we have been considering the term “children” as used
to describe the beneficiaries of a legacy. However, the term “children”
can be used in a will other than to describe beneficiaries. Suppose
a testator leaves his property to X but provides that if X dies without
91 (1939) 67 B.R. 101.
92 Ber rd v. Amyot-Forget [1953] 1 S.C.R. 82; see pp. 256 ff. supra.
93 Article 936 C.C. states, “Children who are not called to the substitution, but
are merely named in the condition without being charged to deliver over to others,
are not deemed to be included in the disposition”.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
“children” the property is to pass to Y. In this legacy the “children”
are not legatees. 93 However, article 980 makes it quite clear that in
this case the term “children” will have the extended meaning of
descendants, such that if X dies survived by only a great-grand-
child, Y will not inherit,
“the terms children or grandchildren made use of without qualification either
in the disposition or in the condition apply to all the descendants”. 94
In this respect article 980 follows the ancient law.95 Thus a legacy
such as,
“income to my children until the youngest child is 21 when the principal
shall belong to my children”,
should be interpreted in view of article 980 as,
“income to my descendants until the youngest descendant is 21 when the
principal will belong to my descendants”,
and a legacy such as,
“income to my children living at the time of my death and upon the death
of my last surviving child the principal shall belong to my grandchildren”,
would mean by the same interpretation,
“income to my descendants who are living at the time of my death, and upon
the death of the last descendant who is living at the time of my death, to
my descendants then surviving”.
There is, however, something disturbing about these two inter-
pretations; in the first case does the testator really intend to keep
the property from his children until the youngest grandchild is 21,
or in the second case does he intend one grandchild to enjoy the
entire property until his death to the exclusion of the testator’s
other family branches ?
b) The Jurisprudence.
The only case dealing with the problem is Trahan v. Cardinal.96
The testatrix therein left her property as follows:
“I give and bequeath to all my children.., all my goods, … to be divided
between them in equal portions …. but to take possession only at the age of
majority of the eldest of my said children, up to which date my property will
remain in the hands and under the administration of my testamentary
executrix,…”
94 Emphasis added for the expression “either in the disposition or in the con-
dition”.
95 Furgole, op. cit., v. 2, pp. 409-410, no. 123; even after 1747 the term children
when used in the condition included grandchildren; c.f. Pothier, op. cit., v. 8,
p. 477, no. 66.
96 (1913) 43 S.C. 144.
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Only one grandchild survived the testatrix, all her children in the
first degree having predeceased her. At the time the will was exe-
cuted only one child in the first degree (the parent of the testatrix’s
surviving grandchild) was living; that child died before the testatrix
but after attaining the age of 21, leaving the said grandchild sur-
viving her. It was agreed by the parties that the grandchild would
inherit. The only question was whether the executrix could continue
in office until the grandchild was 21; in other words, whether the
expression “eldest of my children” could include grandchildren. The
Court held, over-ruling the lower court, that the adjective “eldest”,
qualified the term “children”, and that the grandchild was the ab-
solute owner free of the testatrix’s administration. Oddly, this con-
clusion meant that the term “children” when used in the disposition
“to all my children” and when used in establishing the date for
dividing the property (“when the eldest of my children reaches 21”)
had different meanings.
c) The Ancient Law.
The view that the expression “eldest” should qualify the term
“child”, appears contrary to a long historical tradition. The term
“eldest child” has an ancient lineage. Primogeniture was, of course,
intimately linked with feudalism, and when freedom of willing was
became common in
introduced, the substitution “de l’an & l’ain ‘
aristocratic France. “L’ain6” generally meant the first born, and
failing him, his first born; as d’Essaule 97 put it, “ainesse de branche”.
97 D’Essaule, op. cit., pp. 306 ff., nos. 975 ff. The Procureur de Paris, however,
suggests a somewhat more complicated system, d’Aguesseau; op. cit., p. 303.
We have been concerned with the meaning of the term “child” in such expres-
sions as “eldest child” or “youngest child”. In such expressions, in addition to the
meaning of the term “child” being in doubt the adjectives “eldest” and “youngest”
themselves offer interpretive difficulties.
In Trahan v. Cardinal (1913) 43 S.C. 144, the court suggested that the term
“eldest” meant the eldest “child” living at the time the will was executed. How-
ever, in Reynar v. Reynar (1932) 53 B.R. 338 (c.f. also (1931) 59 S.C. 311 and
it was suggested that the term “eldest” referred to the
(1932) 70 S.C. 309)
eldest person living at the time the will took effect. Ancient law generally held
that the term “youngest” meant last-born and the term “eldest” meant first-born;
d’Essaule, op. cit., pp. 306 ff., nos. 975 ff.
Thus the expression “youngest child” or “eldest child”, may each have six
possible meanings in view of the fact that the term “child” may mean “child in
the first degree” or “descendant”, and in view of the fact that the terms
“youngest” and “eldest” each have three possible meanings.
The case of Reynar V. Reynar supra, suggests a further complication in that
it states that all three meanings of the term “eldest” are valid, and that ancient
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
In the author’s opinion d’Essaule’s view should be adopted by
our law. However, the author would draw the following distinction.
In the case of a disposition the testator should be presumed to
to include grand-
have
children 8 However, when the testator uses the expression to denote
the time of division, he should be presumed to mean only children
in the first degree. Archibald J., in Trahn v. Cardinal seems to
approve this distinction,
intended the expression “eldest child”
“In this instance, the words used are ‘the eldest of my children’, and they
are used, not for the purpose of making a disposition, but for the purpose
of establishing a date when the execution of the will will cease.” 99
The reason for this suggested distinction is the desire of the law
to encourage the early vesting of property.
Civil law generally wishes to encourage the commerciality and best
use of property by preventing its being tied up too long; in the case
of doubt any interpretation which prevents property from being
passed on to an extra generation or which prevents the divorce of
the administration or enjoyment of property from ownership should
be encouraged. 00 Thus the same spirit which prevents substitutions
from being found by implication and which limits substitutions to two
degrees, should find that the term “child” when used to indicate
law created no presumption favouring any one meaning. According to Reynar v.
Reynar each court is free to choose that meaning it finds most applicable to that
particular will without being governed by any presumption of law. This view
however appears to be erroneous.
In summary there are two problems involved in interpreting a legacy to
“youngest child” or “eldest child”,
a) whether the expression “child” includes descendants,
and
b) whether the terms “youngest” or “eldest” means youngest or eldest at the
time the will is executed or at the time the right opens or whether these
phrases mean first or last born.
It is evident that the draftsman should use the expression “youngest child” or
“eldest child” with the greatest of care. For the question of whether the expression
“youngest grandchild” includes grandchildren born after the testator’s death see
Privost V. Fraser [1957] S.C. 35.
9sIt may be argued that since primogeniture has been abolished by our law,
a legacy to the eldest child should not include his eldest grandchild. However, such
a view would be at variance with historical precedent. Primogeniture was abolished
in France for the succession of non-feudal property yet even after such abolition,
the term “eldest child” in non-feudal successions continued to mean eldest grand-
child. Our law is historically bound to adopt the same view.
99 (1913) 43 S.C. 144 at 147.
100 Mignault, op. cit., v. 2, p. 531.
288
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the time of division or vesting, and especially when used in conjunc-
tion with such expressions as “eldest”, “youngest” or “surviving”,
should be limited to descendants in the first degree.
Thus it is suggested that in a legacy,
“to my children and upon the death of the surviving child [or eldest child]
to my grandchildren”.
the expression “surviving child” [or “eldest child”] be interpreted
to mean child in the first degree.
It can, of course, be argued that the distinction suggested by
the author between the term “child”, when used in a disposition, and
when used to denote the period when property is to vest is neither
sanctioned by history (although there does not appear to be any
historical precedent to the contrary) nor by the broad language of
article 980. Further it can be argued that such an interpretation
would often give the term “child” two different meanings in the
same sentence, such that the above legacy would read,
“to my descendants and upon the death of the surviving child in the first
degree ownership to my descendants then living”.’ 0
However, it is suggested that neither of these reasons seems suf-
ficient to over-turn what appears to be a rule of common sense,
and of public policy. It should be noted that Trahan v. Cardinal,102
found no difficulties in giving the term “children” two different
meanings in the same legacy.
6. Will the term “children” be limited when used with such
expressions as “grandchildren” or “issue”?
Legacies such as “usufruct to my children, ownership to my
grandchildren” and “income to my children until my youngest child
is 21 when the property shall belong to my grandchildren” are
common.103 There is no doubt that the term “grandchildren” in such
101 It is, of course, possible to argue that if the term child when used in the
time of division means child in first degree, this meaning should influence the
term children when used throughout the rest of the will; however, such an inter-
pretation would, in effect, mean that article 980 is not to apply to bequests of
less than absolute ownership, since the division of a class gift to children in most
cases will be ordered upon the death of one of its members, or upon one of its
members reaching a certain age.
102 (1913) 43 S.C. 144 at 147.
103 The above legacies are merely illustrative examples of many kinds of similar
legacies, such as “to my children, and then to their children”, or “to my children,
and then to their issue”. The term “grandchildren” is used for brevity’s sake as
a synonym for such expressions as “children of children”, and “issue”.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
legacies will include great-grandchildren. 10 4 However, does the use of
in these legacies mean that the term
the term “grandchildren”
“children” is to be restricted to descendants in the first degree ?
Can one formulate a general rule of construction that the use of the
term “grandchildren” in such circumstances will qualify the term
“children”?
Several judges have dealt with this question, but the matter has
never been settled.
In Charette v. Lcpie?-re, Marchand J. stated,
‘de-
“Les termes ‘enfants’ et ‘petits-enfants’ ne signifient pas seulement
scendants’ gdndralement. Par leur opposition et la distinction de l’objet des
lib~ralit~s aux uns et aux autres, ils marquent des degr~s diff~rents de g~n6-
ration que le testateur a voulus, a marquds, et que nous devons respecter.”’10 5
However, in Pr6fontaine v. Dillon, Lamothe C.J. held,
“L’appelant dit que le mot ‘enfants’ n’est pas employ6 seul, vu que le testa-
ment contient d’autres clauses quant aux petits-enfants et aux arrires-petits-
enfants. L’argument ne vaut pas, car la clause cit~e constitue un legs parti-
culier distinct des autres, et que, dans ce leg, le mot ‘enfants’ est employ6
seul.lOSa
Barclay J. in Bernard v. Amyot-Forget 0 0 found no reason to
restrict a usufruct to “enfants” to children in the first degree because
the ownership of the property had been left to “petits-enfants”; and
in the case of Charette v. Lcpierre,10 7 Barclay J. (McDougall J. con-
curring) suggested that the opposition of the terms “children” and
“grandchildren” to describe the recipients of two different bequests
was by itself an insufficient reason to restrict the term “children”.
Something more was necessary to indicate conclusively that when the
testator “used the term ‘children’ in parts of his will, and grand-
children in another part he was indicating two different categories
and had no intention of allowing the general rule to apply.” The
104 Bernard v. Amyot-Forget [1953] 1 S.C.R. 82.
105 [1953] B.R. 687 at 699.
105a (1922) 33 B.R. 314 at 318. The legacy in question was a life-rent to “en-
fants de mes enfants”. However, the testator had bequeathed the ownership of
the property subjected to the life-rent to his “arri6res-petits-enfants”. The
legacies of the life-rent and of the ownership of the property were effected in
different clauses. However, the fact that the legacies appear in different clauses
is obviously not important. If the testator had left the life-rent to his grand-
children and the ownership to his great-grandchildren in the same sentence, La-
mothe C.J., would obviously have come to the same conclusion.
106 [1952] B.R. 89 at 97.
107 [1953] B.R. 689 at 693-4.
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“something more” was the fact that the testator ordered a by root
division among the “grandchildren”, and a division “in equal shares”
among the “children”. 08
However, all these judicial statements are obiter dicta. One can
only conclude that the question has not yet been judicially settled.
Once a testator makes specific provision for grandchildren
it
can be argued that he wishes his grandchildren to inherit only the
particular legacy bequeathed to them, and only at the time it is
bequeathed to them. If a testator leaves a legacy of ‘income to
my children for 20 years, with ownership to my grandchildren”
it can be argued that he did not wish his grandchildren to receive
any income for 20 years. If he had wished them to do so he
would have so stated. Certainly it can be argued that when he wishes
to benefit his grandchildren he knows how to do so. According to this
view a testator who leaves one bequest to “children” and another to
“grandchildren” does not wish grandchildren to inherit the bequest
to the “children”.
However, this argument fails to take into account the fact that
testators fail to foresee the future. A testator who leaves property
to “X and Y” obviously does not wish X to enjoy the whole bequest.
Yet if Y predeceases the testator this is exactly what will happen.
If Y predeceases the testator his undivided share must devolve to
someone. Since the testator has given no indication to whom it is to
devolve, the law is forced to step in and enact a rule as to its devo-
lution. In such a case article 868 C.C. states that Y’s share will pass
to X. One must ask in such circumstances, not if the testator intented
X to inherit a bequest given to “X and Y” but whether the testator
intented X to inherit the bequest if Y died prior to inheriting.
Similarly, a testator who leaves property ” to my children for 20
years and then to my grandchildren” has failed to make any provision
as to what will happen if a child does not inherit his legacy. Article
10 The reasoning upon which Barclay, J. found the term “children”
to be
restricted, namely, that the legacy to “grandchildren” was to be divided “by root”,
and the legacy to “children” was to be divided “into equal shares”, is not entirely
convincing (see D. N. Mettarlin, op. cit., 65, at pp. 120 ff. for the proposition
that the division of a legacy to “children in equal shares” will not exclude grand-
children). It would seem, that Barclay, J. in this case, did place great importance
upon the use of the term “grandchildren” indicating that the testator wished
only descendants in the first degree to inherit a legacy to “children”. Indeed on
p. 693, Barclay, J. states “when he intends to gratify grandchildren he says so
in specific terms”.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
980 C.C. states that if a child does not inherit his legacy, his des-
cendants are to inherit in his place. Does the fact that the testator
made no provision as to what is to happen if a child does not inherit
his legacy, but does state that in 20 years the property is to pass to
grandchildren mean that a child’s family is to be deprived of all
support for 20 years, and the legal meaning of the term “children”
overcome ? Is this the testator’s intention ? Or can it be said that the
testator did not conceive of the possibility of a child’s death, or provide
for it, and that, therefore, the legal meaning of the term “children”
should be applied ?
Certainly no logical deduction can be made that because the term
“grandchildren” means descendants other than those in the first
degree that the term “children” must mean descendants in the first
degree. Certainly the fact that the testator bequeathed property to
grandchildren does not mean that the term ‘children” when used in
a different bequest, to take effect at a different time, should have a
different effect than the equitable effect given it by law.
Moreover, once we decide that article 980 C.C. is to apply to
usufructs, life-rents, attributions of revenues from trust funds, and
other bequests of less than absolute ownership, no other solution seems
reasonable. The most common and indeed almost the only method of
passing property to different generations successively is to leave
property to “children” and then to “grandchildren”, and so on. If the
terms “grandchildren” or “children of my children” or “issue” will
be automatically deemed to qualify the term “children”, then article
980 C.C. will, for all practical purposes, cease to apply to legacies of
other than absolute ownership, and the legal meaning of the term
“children” will cease to have its equitable effects in such legacies.
As we have already noted Bourjon saw no difficulty in allowing
great-grandchildren to inherit a legacy to “grandchildren”, although
the grandchildren were institutes and the great-grandchildren had
been specifically given the property as substitutes,
“…. par exemple, si un p~re substitue A son fils tous les enfans, petits-enfans
du testateur, et qu’il ait port6 ensuite la substitution plus loin, tous les petits-
enfans du testateur venant A recueillir la substitution, ne sont tous ensemble
qu’un seul degr6, ils sont tous conjointement appel6s, ils ne forment done
tous que le premier degr6; ce qui, par la mgme raison, auroit lieu dans le cas
mme que des arrires-petits-enfans, par representation de leur pare, con-
courroient avec leurs oncles, pour recueillir l’effet et le b6n~fice de la pre-
mire ouverture d’une telle substitution…”
Thus to this author it appears that no rule can be formulated, nor
any presumption created, that the term “grandchildren” when used
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[Vol. 12
in a dispositive provision together with the term “children” will qualify
the latter term.
In so arguing it is not the author’s intention to suggest that a
legacy “to children and then to grandchildren” should not be restricted.
As will be demonstrated such a legacy should be limited. What is
suggested is that such restriction will have to be based on rules of
construction other than the incorrect suggestion that the term
“grandchildren” qualifies the term “children”.
Chapter 3
THREE RULES OF INTERPRETATION
In the previous chapter we have dealt with the use of the term
“children” in the “complex will” –
that is, a will which passes
property to various generations through the usufruct, the life-rent,
the substitution and the trust.
We have indicated that there is nothing intrinsic in the nature of
the complex will which should qualify the term “children”. Neither
the fact that the testator has bequeathed a legacy of less than absolute
ownership, whether for life or for a period certain, to his “children”,
nor the fact that he has provided for accretion among them, nor the
fact that he has indicated that on their death the property is to pass
to “grandchildren”, will limit the term. We have seen that the juris-
prudence has wisely refused to adopt any rules based on the above
criteria.
Does this mean that we must reach the unhappy conclusion that
a testator who leaves property to “children” in most instances creates
an uncertain will, or can meaningful rules of construction be formulat-
ed to determine when the presumption of article 980 should apply and
when it should be rejected ?
It is the author’s opinion that meaningful rules can be formulated.
It is true that the complex will raises many problems which cannot
be solved with a book of mathematics and a slide rule; such legacies
as “to my children for life with accretion in favour of the surviving
children with ownership to my grandchildren”, or “income to children
until the youngest child attains the age of majority, when the property
shall belong to my children” present difficult problems. However, these
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
problems do not entitle us to discard all attempts at rule formulation
nor permit us to examine each will as a separate and independent
curiosity which provides a pleasant diversion from the duties of legal
analysis and precedent creation. Unfortunately, the courts have fallen
victim to the siren call of the “testator’s intention”. Having wisely
disregarded any suggestions that any criteria for limiting the term
“children” may be found in the nature of the legacy or in the use of
the terms “children”, “grandchildren” or “issue” in the same will,
they have carried this rejection to the opposite extreme and refused
to formulate any guide lines at all as to how article 980 is to apply
to the complex will.
Thus the few cases that do consider the complex will, instead of
attempting to formulate rules for the application of article 980, abound
with statements that the testator in this case “clearly intended article
980 to apply” or that he “definitely intended to include only des-
cendants in the first degree”; but what the basis of such clarity is,
is a secret to which we are not made privy.
This refusal of the courts to provide any guide-lines other than
the “intention of the testator” has unfortunate results. Will inter-
pretation must provide some certainty to society. The title examiner
must be able to state who can deal with the property if its com-
merciality is not to be uselessly destroyed; the draftsman must be able
to explain the testator’s last wishes with some assurance that a
thoughtful use of a common expression will lead to the desired
result; and a solicitor must be able to reduce litigation to a minimum
by advising his clients with some degree of prediction as to the out-
come. Every will must not leave a flock of possible claimants born
and unborn hovering over it. Even if a case does not provide perfect
justice to the litigants involved, it will do more justice in the long
run by providing certainty for the countless testators who will rely
upon it in the future, and thus be able to leave their property as they
intend, and by ensuring that the beneficiaries will not be plagued by
easily avoidable litigation which diminishes the family patrimony.
Certainly the courts should do something to diminish the “group of
dissatisfied testators” who according to a late chancery judge, “wait
on the other bank of the River Styx to receive the judicial personages
who have misconstrued their wills”.
The author would like to suggest that meaningful rules of inter-
pretation can be formulated to determine the meaning of the term
“children” when used in “complex” wills. These rules, however, should
not be based on arbitrary categories but on the spirit and purpose of
article 980.
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[Vol. 12
1. The philosophy of article 980.
A society’s laws of intestacy are intimately related to its social and
economic goals, and its feelings of what is just. To certain societies
the importance of the rules of intestacy is so great that these rules
cannot be derogated from; in such societies freedom of willing is
forbidden. Such was the case of early Roman law and European
pre-feudalistic law. However, even when a society does not prohibit
absolute freedom to will, it may restrict it. Today in most jurisdictions,
“Family Maintenance Laws” or institutions such as “la r6serve”
prevent complete disinheritance of certain family members. More-
over, where freedom of willing, whether restricted or absolute is
permitted, it is a common rule of testamentary interpretation that
when doubt arises as to the meaning of a will, a construction which
follows the rules of intestacy will be favoured.
The essence of our intestacy laws is to provide equality within the
deceased’s family; if the de cujus dies leaving children they will share
equally; if one of these children predeceases him leaving children, such
grandchildren of the de cujus will take their deceased parent’s share.
Article 980 imports this same equality to wills. For those who base
articles 937 and 980 upon the rules of intestacy this point is obvious.
However, for those who adopt the Furgolian system 109 it is arguable
that article 980 C.C. is a simple definitional section, and that the
court need only replace the term ‘children” mechanistically with the
term descendants, without regard to achieving equality among the
testator’s descendants.
However, the author disagrees with this latter view. Granting the
validity of Furgole’s theory, the above conclusion does not follow. The
article is more than a dictionary for jurists. It is a legal institution
whose purpose is to ensure that if a child dies without receiving the
legacy intended for him, his family will take his share and inherit
equally with the other families. Both its origins and its purpose sug-
gest that the article is intended to achieve the equality which our
intestacy laws regard as “fair” and which in case of doubt are to
be applied to wills. It should be remembered, that until the mid-
eighteenth century, the extended meaning of the term “children”
was based on the theory that the term was introductive of the rules
of intestacy to wills. It was only after a century of doctrine and
jurisprudence had laid bare the fact that in the substitution the
importation of the rules of intestacy would cause inequalities among
the testator’s family, that Guyot and Furgole suggested their theory
109 D. N. Mettarlin, op. cit., 65 at pp. 97 ff.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
which resulted in greater familial equality in the substitution. Neither
of these authors discussed the application of their theory to the
problems of the “complex will”; and their view that grandchildren
take in their own right should in no way detract from the main
purpose of article 980, evident in its origins, to ensure a fair and
equal sharing among descendants.
2. The difficulties of achieving the purpose of article 980 in the
complex will.
In a simple legacy of absolute ownership to “children”, it is a
simple matter to achieve the equality of the intestate succession by
permitting the descendants of a predeceased child to inherit in the
latter’s place. However, in legacies of less than absolute ownership
“to children”, contained within “the complex will”, an unrestricted
application of the extended meaning of “children” will often cause
inequality rather than equality.
Take the following example. Suppose a testator leaves his property
to “my children for life with accretion in favour of the surviving
children, and on the death of the survivor to my grandchildren by
roots”. Let us assume that the term “children” is to be given its
extended legal meaning. If a child in the first degree predeceases the
testator, his children will take his share; however, if another child in
the first degree dies after receiving the legacy bequeathed to him, his
children will not be able to take his share in virtue of article 980 C.C.,
because of the presumption against graduality.
In this case, the application of article 980 C.C. creates an arbitrary
distinction between families, based on the accident of the time of
death. Moreover, in virtue of the provision for accretion the fortunate
children of the predeceased child will, if the normal course of events
occurs, eventually enjoy the entire property of the testator for their
lifetimes, to the exclusion of the families of all the testator’s children
who died after the testator.
It is evident that in applying article 980 to the “complex will” we
are in need of rules of construction to regulate its application.
3. Three suggested rules.
The author would like to suggest three rules of interpretation
which he believes flow logically from the purposes of the article 980
C.C., and which provide a framework for analysis and prediction.
These rules are not put forth as inflexible axioms which will
unravel the meaning of the term “children” in every will; rather
McGILL LAW JOURNAL
[Vol. 12
they are suggested as presumptions of meaning which should not be
readily overcome. They will provide a logical framework whereby
consistent and orderly solutions may be found. Their adoption should
cause the uncertainty presently inherent in a legacy “to children”
to be pushed from the standard will, where in a proper legal system
no such uncertainty belongs, to the bizarre, the homemade, and the
poorly drafted will which should be its only home.
The three rules which the author would like to put forth may
be briefly stated as follows:
1. The presumption in favour of equality.
2. The presumption in favour of early vesting.
3. The presumption against graduality.
Rule One. The presumption in favour of equality.
As indicated earlier, the basic purpose of article 980 is to ap-
proximate and achieve the equality of the intestate succession, and
ensure that a testator’s family share equally, in the manner our
intestacy laws consider “fair”. Article 980 C.C. is more than a
simple article of definition. It is a legal institution whose purpose
is to ensure that should a testator fail to provide for the death of
a child in the first degree, the deceased child’s children will take
their deceased parent’s share, and so inherit equally with the other
branches of the family.
It is suggested that if this familial equality can be achieved by
giving the term “children” its extended meaning, the term “children”
should always be given an extended meaning; if, however, because
of the diverse provisions of the complex will the extended meaning
results only in inequality, or in fortuitously benefiting one family
while disinheriting another, then the natural meaning should be
adopted. In other words the term “children” should be given its
natural or technical meaning depending on which interpretation leads
to equality or avoids inequality in a family. The application of this
rule will be discussed below.
Rule Two. The presumption in favour of early vesting.
As indicated earlier,110 the policy of our law is to encourage the
commerciality of property by preventing its being tied up too long.
When neither the technical nor the natural meaning of the term
“children” will lead to a more equitable division among a family,
110 See p. 287 supra.
.No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
then that interpretation which prevents property being tied up too
long should be favoured. Along these lines, when the term is used
to denote the period when property is to vest or administration end,
the natural meaning should prevail, since it will result in early
vesting.
Rule Three. The Presumption against graduality.
This presumption has been discussed earlier at great length.”.’
It prevents the descendants of a child who has received his legacy
from inheriting in virtue of the term “children”. Unlike the other
two rules this rule is sanctioned by the express wording of article
980 C.C., so that if any conflict arises between the rules, this third
rule must prevail.
It is this third rule which prevents the complex will from achiev-
ing the equality of the intestate succession, and which will often
result in the meaning of children being limited to descendants in the
first degree.
Let us take an example.
Suppose a legacy of “income to my children, with ownership to
vest in them only when the youngest child attains the age of 21”.
Further suppose that one child in the first degree predeceases the
testator leaving children and that one child in the first degree sur-
vives the testator, but dies before the ownership is to vest, (that is,
before the youngest child is 21) leaving children. The presumption
of equality suggests that the term children should mean descendants;
each family would share the income equally until the time the owner-
ship vests, and the perfect equality of the abintestate succession would
be achieved.
However, the presumption against graduality prevents this result,
and in view of its primacy there is no choice but to apply it.
Let us assume that the term “children” does mean descendants.
If the presumption of graduality is to apply to this legacy, and it
must, then of course the descendants of a child in the first degree
who died after receiving his legacy will be unable to inherit the
legacy of income to “children”. However, since we have decided that
the term “children” is to mean descendants, and since the presumption
against graduality prevents this broader meaning from applying to
the descendants of children who have received their legacies, the
extended meaning will only permit the descendants of deceased
Ill See pp. 264 ff. supra.
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children who did not receive their legacies to inherit. However, if
we permit the descendants of children who did not receive their
legacies to inherit, in virtue of Article 980 C.C., but exclude the
descendants of children who have received their legacies and then
died, this will mean that not all the testator’s familial descendants
will share equally, but only the fortuitous descendants of a pre-
deceased child who will share to the exclusion of the testator’s other
families. Moreover, should the testator have provided for accretion,
the right of the descendants of a predeceased child to exclude the
descendants of children who died after the testator could last a
very long time.
Such a result violates the presumption in favour of equality, and
it is evident that if the presumption in favour of equality and the
presumption against graduality are both to be satisfied, the term
“children” can only mean children in the first degree.
Article 980 states that “the terms children and grandchildren…
apply to all the descendants”; 112 the descendants of one child cannot
be excluded while the descendants of another child inherit without
violating the purposes of the article. It is as if the Codifiers had
hearkened to the cry of d’Artagnan, “All for one, and one for all”.
Article 980 cannot permit some descendants to inherit and others to
be excluded.
4. Examples of how these Rules may be applied.
A few examples drawn from customary legacies will explain
how these three rules, the presumption of equality, the presumption
of early vesting, and the presumption against graduality will apply.
Example A. Usufruct – no accretion
A Testator leaves a usufruct to his children with ownership to grandchildren.
We will assume that this legacy is interpreted to mean that each
child is to enjoy a separate and equal share in the usufruct, and
that on the death of a child only the children of suck child and not
all the testator’s grandchildren are to enjoy the absolute ownership
of such share.113
112 Emphasis added for the word “all”.
113 Another possible interpretation of this legacy would be that the usufruct
is bequeathed to all the children and that on the death of a child the absolute
ownership of his share will vest in all the testator’s grandchildren. However,
for the purposes of this example this possible meaning will be discarded. See
D. N. Mettarlin, op. cit., 65 at p. 104, fn. 89.
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In such a legacy the application of the three rules can give the
term “children” but one meaning, namely, descendants in the first
degree.
If the term “children” is held to mean descendants in the first
degree, whether a child in the first degree predeceases the testator,
or survives the testator, and then dies, the absolute ownership of
such child’s share shall belong to his children. This will be so for
every family. The equality of the intestate succession is thus achieved.
If, however, the term “children” is held to mean “all the des-
cendants”, and a child predeceases the testator, the usufruct will
then pass to his children and the absolute ownership will only vest
in great-grandchildren. 114 Certainly no greater equality among fami-
lies is achieved by this result. All that is accomplished by giving
the term “children” an extended meaning is to restrict the com-
merciality of the property for an extra generation.
In view of the fact that neither interpretation creates greater
equality of division, the presumption in favour of early vesting
should ensure that the term “children” in this instance will mean
children in the first degree.
Example B. Substitution – no accretion
A testator leaves his property to his children, and then to his grandchildren
by way of substitution.
The application of these three rules should result in the term
“children” being limited to children in the first degree. If the term
“children” means children in the first degree, all branches of the
testator’s family will benefit equally, whether a child in the first
degree dies before or after receiving his legacy. However, by inter-
preting the term “children” to mean “all descendants” and so enabling
the children of a predeceased child to inherit as institutes, and the
great-grandchildren of the testator to inherit as substitutes, the
cause of equality is not advanced. The only effect of giving the term
“children” an extended meaning is to tie up the property unneces-
sarily for another generation, without achieving any greater equality
of division.
Thus the presumption in favour of early vesting should limit
the meaning of the term “children” in this legacy to children in
the first degree.
114 If, of course, a child in the first degree enjoyed the usufruct and then died
the absolute ownership would vest in the deceased child’s children. The presump-
tion against graduality would prevent any interpretation that a new usufruct
had been created in favour of grandchildren.
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Example C. – Substitution – with accretion.
A testator leaves his property to his children with accretion in favour of
the surviving children, and then to his grandchildren by way of substitution.
Let us assume that the term “children” is to be given its extended
meaning.
The presumption against graduality would, of course, prevent
the children of the child who died after receiving his legacy from
inheriting in the place of their deceased ancestor. If the extended
meaning of the term were applied, the result would be, that if a child
predeceased the testator, his children would inherit, whereas the
families of children who died after the testator would not inherit;
moreover, in view of the provision for accretion, the fortunate
children of the predeceased child would enjoy the entire property
for their lifetimes to the exclusion of the descendants of children
who died after the testator. Indeed, these latter unfortunate grand-
children would not be able to inherit at all until after the death of
the children of the predeceased child.
In this case the presumption in favour of equality combined with
the presumption against graduality should prevent the term “children”
from meaning anything other than children in the first degree.
Example D. Trust.
A testator leaves his property in trust to trustees to pay income to such of
his children as are living from time to time during the existence of the trust,
and when the youngest child is 21, to divide the property among his children
in ownership.
As indicated earlier, the presumption favouring early vesting
suggests that the term “youngest child” when used to denote the
time of division should be interpreted to mean, “youngest child in
the first degree”. 115
We have indicated that the fact that the testator intended the
term “child” in the expression “youngest child” to mean “child in
the first degree” does not mean that he intended the term “children”,
when used in the bequest of income, to mean “children in the first
degree” I’l or, put differently, one should say that we cannot conclude
that the testator intended to disinherit the families of the deceased
children, from the fact that he ordered the trust to terminate when
a child in the first degree reached the age of 21.
15 See pp. 287-8 supra.
116 See p. 288 supra.
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A SIMPLE LEGACY: “TO MY CHILDREN”
The statement that the income would belong to those children
“as are living from time to time during the existence of the trust”
could be regarded as an attempt to overcome the presumption against
graduality. If this is so, and if the term “children” is given its ex-
tended meaning, then perfect equality of distribution will be achieved.
Thus, if the court finds an intention to overcome the presumption
against graduality, the term “children” should mean descendants.
If, however, the court finds no intention to overcome the presumption
against graduality, then, of course, the presumption in favour of
equality would be violated if the term “children” were to be given
its extended meaning. It is the author’s view that the courts should
find no intention to overcome the presumption against graduality
in this legacy. The reasons for this opinion will be given on pp. 305-6
infra.
Example E. Provision for the death of a child without children.
The testator leaves his property:
(i) to his children, and on the death of a child, to such child’s children, but
(ii) should a child die without children, such child’s share shall belong to
all the testator’s children then surviving and then to their children.
The above will creates two substitutions: one if a child dies
leaving children; one if he dies without leaving children. We have
discussed the first substitution under Example B and concluded that
the term “children” therein, should be limited to descendants in the
first degree. However, in this Example E, if one child survives
the testator, and then dies leaving children, and then a second child
dies without children, the problem will arise whether the term
“children then surviving” will include the children of the first de-
ceased child.
It can be argued that the term “children”, in the expression
“children
then surviving”, has the same meaning as the term
“children” when used in the first substitution, where it means de-
scendants in the first degree.
However, an interpretation more in keeping with the spirit of
the three rules would be that descendants of a deceased child can
inherit under the expression “to my children then surviving”. If
we find that the term “children” in this expression has a different
meaning than the term “children” when used in the first substitution,
and if we find an intention on the part of the testator to overcome
the presumption against graduality, there is no reason to exclude
grandchildren from the legacy “to my children then surviving”.
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The presumption against graduality of course, only prevents the
descendants of a child who has received a legacy from inheriting
the same legacy after the deceased child. The presumption will not
prevent the descendants of a deceased child inheriting a new and
different legacy which is to take effect after his death. Thus, for
example, in a legacy of “income to my children until the youngest
child is twenty-one when the ownership shall belong to my children”,
the fact that a child has received income but died before the youngest
child attains the age of twenty-one will not prevent the deceased
child’s children sharing in the legacy of ownership to “children”
upon the youngest child reaching twenty-one. Similarly, in the legacy
discussed above, namely,
i) to my children and on the death of a child to his children, but,
ii) should a child die without children, to my children then surviving
and then to their children,
the fact that a child enjoyed the substitution to “children” in (i),
and then died leaving children, will not prevent such deceased child’s
children enjoying the separate and new legacy “to the children then
surviving” in (ii) which will come into effect only upon the death
of a child. The grandchildren inherit the legacy “to my children then
surviving” as a new bequest and not as a continuation of the old
bequest “to my children”.
Thus the author would conclude that the presumption against
graduality should not prevent grandchildren from inheriting the
legacy “to my children then surviving”.
Another possible interpretation of this legacy and of the phrase
“to my children then surviving” which is also based on the spirit
of these three rules, would permit the descendants of the deceased
child to inherit the share of an uncle and/or aunt who died without
children, immediately upon the death of such uncle and/or aunt but
as substitutes rather than as institutes; in other words, in the legacy
“should a child die without children… to my children then surviving
and then to their children”, upon the death of a child in the first
degree without children, the descendants of any other child then
deceased would inherit the legacy “to my children then surviving
and then to their children”, not in virtue of the expression “children
then surviving” but in virtue of the expression “and then to their
children”. On this latter interpretation, the legacy would read,
to my children in the first degree and on the death of a child in the first
degree to his children (of course, should a child in the first degree not sur-
vive me the property would immediately upon my death pass to his children
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A SIMPLE LEGACY: “TO MY CHILDREN”
303
in virtue of Article 926) ,138 but should a child in the first degree die without
children, his share shall belong to my surviving children in the first degree,
and on the death of a child in the first degree, to his children (but upon the
death of a child in the first degree without children should another child in
the first degree not be then surviving but have left children then surviving,
his children shall immediately inherit, as substitutes, the share their parent
would have inherited, in virtue of article 926).
While such an interpretation seems unreasonable at first blush,
our reluctance to accept it is due only to our unwillingness to put aside
the natural meaning of the term “children” and rigorously apply the
legal meaning of the term so as to achieve the equality among families
which is the purpose of article 980 C.C.
If we are unwilling to formulate any rules to interpret article
980 C.C., we will always be faced with the question whether the
technical meaning of “children” or the “natural” meaning is to be
preferred, with no rules for solution other than our own “feelings”
in each particular will. We have suggested that the most appropriate
manner of decision is to lay down certain rules based on the purposes
of 980 C.C. If we do not adopt these rules, but give the term that
meaning which happens to suit our linguistic fancy in each will, we
will achieve neither justice nor certainty, but will continue to apply
a “method” of interpretation whose only fruit has been that 100
years after the enactment of the Civil Code, the testator who uses
the term “children” creates an uncertain will.
5. The presumption against graduality –
the enemy of equality.
The application of these rules will prevent the extended meaning
of “children” from applying to many legacies contained within the
complex will.
The villain in the piece is the presumption against graduality. It
is the rigorous application of this rule which will prevent grand-
children from inheriting income in virtue of article 980 C.C.,u 9 in
such legacies as “income to my children until the youngest child is
twenty-one, when the property will belong in absolute ownership to
my children”, and “income to my children for twenty years, ownership
to charity”.
I’s Article 926 C.C. “Fiduciary substitutions include vulgar substitutions without
any expressions to that effect being necessary.”
119 The fact that grandchildren will be unable to inherit a legacy to “children”
in virtue of article 980 C.C. does not necessarily mean they will be excluded from
304
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a) The “new legacy”.
There is one type of legacy in which the presumption against
graduality will not apply, and in which grandchildren will be able to
inherit income or property in virtue of the term “children”, after
their parent had previously received the same income or property in
virtue of a legacy to “children”. This will occur if the legacy to
“children” under which the grandchildren inherit is deemed to be a
new legacy which is independant of, and not a continuation of, the
legacy to “children” under which their parent inherited.
Thus we have seen that in a legacy to,
i) my children and on the death of a child to his children, but
ii) should a child die without children to my children then sur-
viving and then to their children”
the children of a deceased child will be able to inherit the legacy to
the “children then surviving” in (ii) even though their parent had
received and enjoyed benefits in virtue of the term “children” under
(i), because the legacy to “children then surviving” in (ii) is a new
legacy and not a continuation of the first legacy to “children” in (i).
As we have seen, the presumption against graduality only prevents
the descendants of a child who received a legacy from continuing the
legacy after their parent’s death; it does not prevent the descendants
of a deceased child inheriting another legacy after his death.
However, the number of bequests in which the courts will be able
to find the right of “children” to take after the death of a child to be
in virtue of a new legacy to ‘children” rather than in virtue of a
continuation of the old one, are extremely rare. The rarity of such
bequests may be seen from the following example.
the legacy. They may be entitled to inherit in virtue of some other article of the
Civil Code. Thus it is possible that in a legacy “to my children for ten years,
ownership to charity” the children will be entitled to share in the income as
heirs of a deceased child in virtue of article 963 C.C. (Article 963 C.C. states: “If,
by reason of a pending condition or some other disposition of the will, the opening
of the substitution do not take place immediately upon the death of the institute,
his heirs and legatees continue, until the opening, to exercise his rights, and
remain liable for his obligations”.
However, this possibility is extremely unlikely. The courts have applied article
963 C.C. in only the rarest of circumstances. (Thus, see Tiffin v. Budyk (1937)
75 S.C. 367). In fact, if grandchildren cannot inherit a legacy to “children” in
virtue of article 980 it is unlikely if any other article of our Code will permit
them to inherit, except in the rarest of circumstances.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Suppose a legacy “to such of my children as may be living from
time to time during the existence of this trust”.
It is possible to argue that such a legacy contains a series of
independant gifts, each of which opens upon the death of a child in
the first degree during the existence of the trust. On this view, on
the death of a child in the first degree, the right of the “children”
previously enjoying income, to enjoy future income benefits will
terminate, and a new legacy will open in favour of all the “children”
living at the time of the death of the deceased child. The descendants
of the deceased child in the first degree who had enjoyed the income
will be able to inherit income after his death in virtue of the term
“children”, not on the grounds that they were continuing the en-
joyment of their deceased parent or stepping into his shoes, but on
the grounds that they were inheriting a new bequest which opened
upon his death.
However such an interpretation cannot be accepted. Our law
considers such legacies as “income to such of my children as may be
living from time to time”, “income to my children with accretion in
favour of the survivors”, and “income to my children until my
youngest child reaches twenty-one years” to be bequests to a “class”. 20
A bequest to a class consists not of a series of legacies each of which
opens upon the death of each member of the class, but of one single
legacy to a group of persons in which the members of the class entitled
to inherit are determined upon the death of the testator. Each child
who survives the testator and becomes a member of the class receives
a legacy. On the death of a child the other members of the class do
not receive a new legacy, but simply increase the size of the benefit
which they have already received. On the death of a child the whole
gift does not terminate, and a new class gift spring forth, but rather
the gift to the class continues, although with a modified membership.
As McDougall J. states in Tiffin v. Budyk, 12
“It is then a matter of law that those who survive do not take under a fresh
benefit, but the enjoyment given by the original bequest to them becomes
merely enlarged.
… ‘there is no gradual substitution…’
1
120 Paton v. Barclay’s Bank Ltd. (1934) 56 B.R. 481; Tiffin v. Budyk (1937)
75 S.C. 367.
121 (1937) 75 S.C. 367 at 371 and at 372; in Bourgeau v. Bourgeau [1934]
S.C.R. 512 at 517 the Supreme Court of Canada hit upon an extremely illuminating
way of explaining the concept. The Court stated that in a legacy such as “to my
children with accretion in favour of the survivors and then to X” each child
would be burdened with a “condition r~solutoire en faveur des colgataires”.
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Any attempt to regard the substitution as opening in part upon the death
of a member of the class: [and the author would add, any attempt to consider
the legacy to the remaining members of the class as a new legacy] cannot
recommend itself to the court as interpretative of the testator’s wishes”.
This view was confirmed by Bond J. in Barclay’s Bank Ltd. V.
Paton,
“…I reach the conclusion that.., the testator created a substitution of
which a group of five individuals was named as institute.., the gain to the
diminishing number of survivors being merely an incident of that provision
and not constituting a transmission from a deceased member of such group
who had merely an undivided interest in the whole of the revenue for the
period of her lifetime.”1 22
Thus there is no doubt that in such legacies as “to my children
until the youngest child is twenty-one, when the property shall belong
to my children” and “to such of my children as may be living from time
to time for twenty years” the presumption against graduality will
prevent grandchildren from inheriting the bequests of income therein.
b) A modified view of the presumption against graduality.
Such a conclusion, however, seems to violate the spirit of article
980, and result in the disinheritance and possible impoverishment of
the families of deceased children in circumstances where there is no
evidence that the testator realized that a child might die prior to the
termination of the legacy, or that the testator would have intended
to disinherit grandchildren in such event.
It is possible, therefore, that the courts may, as a policy decision
decide to moderate the ubiquity of the presumption against graduality
and to state that it should apply only in certain types of legacies.
There are valid arguments in favour of applying the presumption
against graduality only to certain types of legacies.
First, the ancient French authors only discussed the application
of the presumption in regard to certain legacies –
namely sub-
stitutions in which the “children” were the final substitutes, and
legacies of absolute ownership to “children”. The ancient French
authors did not discuss at all to what extent, and in what manner,
the presumption against graduality would apply to such legacies as
“to my children for twenty years and then to their children” or “to
my children until the youngest child is twenty-one, when the property
shall belong to them in absolute ownership”.
It is true that statements such as “enfans… forme… un seul
[degr6] qui est rempli et 6vacu6 par le premier qui recueille,123 and “le
122 (1934) 56 B.R. 481 at 487.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
mot enfans comprend… tous les descendans … lorsqu’ils sont A la pla-
ce de ceux… qui sont d~c6d6s sans avoir receuiIli”,12 suggest that
the presumption against graduality applied to all legacies without
exception. However, the silence of the ancient French authors in
regard to the applicability of the presumption against graduality to
certain legacies, does not entitle us to conclude that the ancient
authors would have rigourously applied the presumption to those
legacies which they did not discuss. It would appear that their silence
does grant us some room for creativity, and does provide us with
grounds for an honourable retreat from applying the presumption with
unmitigated zeal.
Second, while the Codifiers in discussing article 977 C.C. state
that the article was intended “in particular to prevent substitutions
from being extended by mere implication to subsequent degrees” 125
they make no such statement in regard to article 980. Further, while
they state that article 977 C.C. contradicts Roman law, which permit-
ted graduality by implication, they do not indicate that article 980
C.C. contradicts Roman law. Moreover article 980 C.C. unlike article
977 C.C. does not expressly prohibit graduality, but simply states
that it may or may not occur depending upon the terms of the legacy
to “children”.
These arguments can form the basis of an honourable retreat from
an absolute presumption against graduality.
It is possible then, that the courts may decide to limit the applica-
bility of the presumption to certain types of legacies only. To those
legacies to which the presumption against graduality would not apply,
the courts would then apply only the presumption in favour of equality
and the presumption in favour of early vesting in interpreting the
term “children”.
The author would suggest that if the presumption against gradua-
lity is to be limited to certain legacies it should be done on the basis of
the following two rules. Any justice achieved by modifying the rigour
of the presumption will only be purchased at the price of some un-
certainty. However,
it is suggested that the following rules will
minimize the resulting uncertainty.
First. In legacies for life and in legacies to a class in which the legacy
to the class terminates on the death of all the members, the pre-
sumption against graduality should apply.
‘ 23 Furgole, op. cit., v. 2, p. 412, no. 125 (emphasis added).
124 Ibid., p. 413, no. 125, (emphasis added).
125 The Codifier’s Reports, op. cit., p. 199.
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Second. However, in legacies to “children” for a period certain or in legacies
to a class which terminate after a specific time (i.e. not upon the
death of all its members), the presumption against graduality should
not apply, and grandchildren should be able to inherit after their
parent unless the presumption against early vesting is violated or
unless the testator clearly indicates that he was perfectly aware of
the fact that a child might die and that in such event he wished
to exclude grandchildren.
Thus on this modified view, in legacies of “income to my children
until the youngest child is twenty-one when the property shall belong
to my children”, or “income to my children for twenty years, owner-
ship to charity”, “income to such of my children as may be living
from time to time during the existence of this trust” grandchildren
should be able to share the income. Whereas in such legacies as
“income to my children with accretion in favour of the survivors,
ownership to grandchildren”, they should be unable to do so. 120
The author does not strongly favour a modification of the rigorous
application of the presumption against graduality. However, if the
courts do decide to modify the presumption and so permit the des-
cendants of children who have received certain types of legacies to
inherit after the death of their parent, so as to achieve equality of
division, the above two rules would seem to accomplish this result in
an orderly fashion.
126 Another possible theory upon which to base a modification of the presump-
tion against graduality so as to permit a greater equality of distribution
among families would be that the presumption against graduality would apply
only to legacies in which the “children” had received the full benefits bequeathed
them (whether or not they received the legacy) rather than to bequests in which
the “children” received their legacies but died before enjoying all the benefits
bequeathed to them. Thus in a legacy “to children for life” it would be argued
that if a child died after accepting the bequest, the presumption against gradu-
ality would apply, since he had received the entire benefit bequeathed to him, –
namely the right to enjoy the income for life; however, in a legacy of “income
to my children for ten years” should a child die after receiving income for five
years, the presumption against graduality would not be violated if his descend-
ants inherited the income after him, since he did not receive the full benefit
granted to him, namely the right to enjoy income for ten years. Of course, if
such a theory was adopted question would arise as to what was the full benefit be-
queathed to a child. Thus in a legacy of income “to my children with accretion
in favour of the survivors, ownership to X” would the full benefit bequeathed
to a child be the right to enjoy income for life, or the right to enjoy income for
life, plus the right to share in the income of any child who died before him ?
The author is of the opinion that this theory while logical cannot be accepted
since ancient law quite clearly drew a distinction between receiving a legacy and
receiving the benefits from or enjoying the legacy.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Chapter 4
INTENTION GATHERED FROM THE WILL AS A WHOLE
In Chapter 1 of this Second Part we have indicated that the term
“children” may be qualified by the use of certain words to which the
courts have given a restrictive meaning. In Chapter 3 we have sug-
gested certain rules to determine when the term “children”, when used
in the “complex will” will be limited to the descendants in the first
degree. However, will interpretation is not an exact science. Not
every will may be interpreted by enumerating words of qualification
or by formulating scientific rules of construction. Certain wills will
always demand the common sense and the intuition of a judge; in
these wills even if the testator does not qualify the term “children”,
or even if no rule of interpretation can be found to suggest a restrictive
meaning, a court may still find the term “children” to mean descen-
dants in the first degree. It may arrive at this result by examining
the testator’s intention as a whole and by considering a legacy to
“children” in the context of his entire testamentary scheme,
“… the paramount duty of the Courts in construing wills is to ascertain and
give effect to the intention of the testator or testatrix, to be collected from
the whole will, and not from any particular word or expression which may
be contained in it.1’27
In the case of Martin v. Lee,128 the testatrix left her property in
ownership to her “children” without qualifying that term. However,
she provided that if a “child” was under 21 her husband was to
maintain, house and educate such child, and be his tutor. The court
held that the testatrix could not expect or wish her husband to do the
same for her grandchildren, and so interfere with their parents’
control. The provision for tutorship indicated to the court that when
the testatrix used the term “children”, she had in mind only her
children in the first degree.
In Charette v. Lapierre 129 the testator left the income from his
property to his “children”. However, in another section of his will
he indicated that if a daughter entered a convent, she would lose her
127 Martin v. Lee, 11 L.C.R. 84 at 87; see also Charette v. Lapierre [195S] B.R.
687 at 692, “The will must be read as a whole” (Barclay, J.).
12s Martin v. Lee, 11 L.C.R. 84.
129 Charette v. Lapierre [1953] B.R. 687.
McGILL LAW JOURNAL
[Vol. 12
rights to the revenues. 30 Two judges held that the testator’s specific
concern with his daughters, and his failure to make any specific
provision for his granddaughters indicated that he only intended
daughters ‘3’
to inherit the legacy. For this reason these judges
concluded that the term “children” should be restricted to descendants
in the first degree. 132 However, in Marcotte V. No6l,133 although the
testator left his property to his children in such proportions as his
wife should appoint, with the stated wish (but not direction) that
the property be divided equally among his sons and daughters, the
court held that grandchildren could share, and that the testator’s
obvious preoccupation with his children in the first degree did not
overcome the presumption of article 980 C.C.
13oThe testator also provided that if a daughter married, her husband would
have no control over her revenues, but failed to make any similar provision for
his granddaughters.
131 The term “daughter” can only mean daughter in the first degree, see D. N.
Mettarlin, op. cit., 65 at p. 132.
132 To this author, the results arrived at in Martin V. Lee, supra, and Charetto
V. Lapierre, supra, do not flow from the wills therein considered with any irre-
futable conclusiveness. The fact that the term children when used in one part
of the will may mean children in the first degree, does not mean that it should
have the same meaning when used in another part of the will. Article 980 C.C.
is in some respects a definitional article, but it is more than that; it is a legal
institution fulfilling the same function for the will, that representation fulfills in
the intestate succession. If states how property will devolve if a child in the
first degree dies without the testator having made provision for such death;
it is as much a legal institution as accretion or lapse. The fact that the testator
has used the term “children” in a non-dispositive part of the will should not
overcome the presumption of article 930. Article 980 states that the term “chil-
dren” made use of without qualification “in the disposition, or in the condition”
means descendants; the article does not state that the term “children” wherever
used in a will means descendants. If the term were used in the section appointing
executors it would not mean that the descendants of a deceased child in the first
degree would be executors; hence the fact that the testator may have used the
term in a non-dispositive section of the will, such as in the appointment of a
tutor, does not mean that the term when used in a dispositive provision should
be limited to descendants in the first degree. In short, the fact that the testator
in dealing with certain problems has made specific provisions for sons or daugh-
ters, or used the term “children” as meaning descendants in the first degree,
does not mean that this meaning should prevail in regard to another problem,
that is, whether or not the descendants of a deceased child should inherit his
share. This is not to say that wills should not be interpreted and read as a whole;
but the author would suggest that the equitable and substantive purposes of
article 980 should not be lightly cast aside; too much should not be made of hints
drawn from other provisions of the will.
’33 (1880) 6 Q.L.R. 245.
No. 3]
A SIMPLE LEGACY: “TO MY CHILDREN”
Some wills, such as those in Martin v. Lee, Mcrcotte V. Nol,
and Charette v. Lcpierre will always possess a hovering uncertainty
which will never be solved by simply enumerating words of qualifi-
cation, or enacting canons of construction. In such wills, “rules” of
construction will be of little help. The decision in the last analysis will
depend on the judge’s intuition, his feeling of what the testator “was
getting at”, and the experiences and the prejudices he shares with
his fellow men.
In these wills, testamentary interpretation will still remain an art,
and the “intuitive” approach a necessity.
However, in many more areas than in the past, will interpretation
must become a science. The courts have applied the “intuitive ap-
proach” to wills where it does not belong. The wills to which it can
be properly applied are the limited few, the causes X’esp~ces. Most
wills containing legacies “to children” fall into fairly standard cate-
gories. The court should interpret such standard wills by adopting
a “rule-oriented approach”, one which will achieve the equitable
purposes of article 980 and, at the same time, provide order and
certainty.
This article has been a plea for the adoption of the “rule-oriented
approach” as against an “intuitive approach”. The reason is that
wills must be certain. Uncertain wills inhibit the commerciality of
property, encourage litigation, and frustrate the will making process.
However, most important, wills must be certain because the courts
must keep faith with the countless testators who will draw their wills
in the future. They must realize that a “system”, which 100 years
after Codification states that a testator who leaves his property to
his children has created an uncertain will, is a poor judicial system.
The courts must provide guidelines so that the draftsman may use
certain expressions in full confidence that the results will be as desired.
While a rule oriented system may disappoint the occasional testator
who makes his own will, or the occasional draftsman who has not
learned the rules, it will, in the long run, result in fewer misconstrued
wills, and a greater measure of justice for those who leave their
property based on such rules. Order in this area is the ally of justice,
not its foe.
Thus if our decisions are not to be “one way excursions, good for
this day and this trip only”, and if order and justice are to prevail
in the law of property and wills, the courts will have to analyze the
philosophy, and the logic and the results of article 980 much more
rigorously than in the past; they will have to relegate the “intuitive
approach” to the cause d’esp~ce, and apply a rule-oriented analysis
to the standard will.
