that had caused the interruption. He was just as much at home with the modern languages. He spoke French fluently and frequently interrupted an interpreter at a trial if he did not translate the answers correctly. He also had a fair knowledge of Spanish, Italian and German, and the services of no other interpreter were required to master the foreign correspondence of the office while he was in practice. He wrote the introduction to the Canadian Edition of the works of Edmund Burke, published by Morang in 1901. Being an extensive reader himself, he encouraged the practice in others and devoted a good deal of his time to the Toronto Public Library, being many years a member of the Board and for some time its President. He was a keen sportsman and was widely known as a skilful and enthusiastic fisherman. It was always with undisguised eagerness that each spring he looked forward to the opening of the fishing season. His zeal as a sportsman was recognized by his election as President of the Ontario Fish and Game Protective Association. All charitable and philanthropic movements received his sympathetic and generous support, and during the Great War he was President of the Ontario branch of the Secours National and the success of the society was largely due to his energetic work.

He died on the 8th February, 1920, a little more than a week after he had presided at the Toronto Assizes. Although nearly seventyfour years of age, he was never regarded as an old man, and will be remembered as he appeared at the last court over which he presided, the same erect pleasant gentleman who captivated the inquisitive law student on Church Street some forty years ago. He is survived by his widow, one son, John D. Falconbridge, K.C., Dean of the Law School, and four daughters, three or whom are married to lawyers.

As was most fitting, the funeral was held in the atrium of Osgoode Hall, amid the familiar surroundings where he had spent the best years of his life. The impressive service of the Church of England. was read by Canon Plumptre, the Rector of St. James Cathedral. As the remains were carried from the Hall a deep silence fell upon the members of the Bench and Bar who had assembled in full force in their robes to pay their last tribute of respect to the last Chief Justice. of the King's Bench, for by his death the title was extinguished. It was described as the largest gathering of the profession ever seen in Osgoode Hall, and as the vast crowd melted away few words were spoken but many a moistened eye and quivering lip bore eloquent. testimony to the affectionate place he had in the hearts of those who knew him best.

Napanee.

W. S. HERRINGTON.

WILD'S CASE.

Sir Edward Coke in the preface to the Second Part of his reports says "the greatest questions arise not upon any of the rules of the common law but sometimes upon conveyances and instruments made by men unlearned; many times upon wills intricately, absurdly and repugnant, set down by parsons, scriveners and such other imperites"; and this remark made over three hundred years ago is as true to-day as it was then. Most of our decisions upon abstruse points of real property law arise out of the interpretation of badly drawn wills or conveyances. The well-drawn instrument rarely deliberately creates an out of the way estate or if it does so it uses appropriate language and leaves nothing for dispute. The fool, however, rushes in where experts fear to tread and often manages to tempt some strange old precept from its lair. In Thuresson v. Thuresson,' an apparently innocent but not very artistic power to appoint to uses revived the controversy respecting scintilla juris which had exercised conveyancers a century before and it just as completely destroyed unanimity amongst the judges in 1900.

In Henderson v. Fraser, a codicil drawn for a Canadian temporarily in California, evidently by a Californian lawyer, engaged the attention of ten judges in three Courts and divided them five to five.

There is no end to such cases, but the purpose of this note is to draw attention to Re Haig, just decided by an Ontario Appellate Court, which if not regarded merely as an attempt to interpret the precise words before it, might have far-reaching and disquieting results. The will in question is unusually ambiguous and is the last word in addlepated drafting. The following is taken from the dissenting judgment of Mr. Justice Hodgins:

"The devise which creates the difficulty deals with four parcels of land and is as follows:

"I give devise and bequeath all my real estate of which I may die possessed in the manner following that is to say to my nephew Alexander Clark Haig, son of the late Irwin D. Haig my brother," (then follows an enumeration of four parcels of land)

""for his natural lifetime at his death the said property will go to his sons and daughters, in the event of his Alexander Clark Haig not

1 (1899) 30 O.R. 501, 2 O.L.R. 637.

2 (1923) S.C.R. 23.

28 0.W.N. 147.

having any sons or daughters the said property will revert to my nephews at the death said Alexander Clark Haig absolutely. The executors to have control over this property until the said Alexander Clark Haig attains the age of twenty-one years Providing he thrifty and Industrious if the executors does not think he is steady enough. to manage the place at Twenty one years he does not get full possession till he is twenty five years The Executors will then give him full possession of the property herein mentioned. The household goods that is to say the things that is in the house and also the farming utensils and machinery goes with the place The said Alexander Clark Haig has to pay to the executors the sum of Five thousand dollars for this property to help pay the legacies mentioned in this will. If the said Alexander Clark wants to work the place till he is twenty one years he is to have the privilege to do so. If he works it to the satisfaction of the executor he is to get the stock that is the horses, cattle and other stock that is on the farm at my death to work with (that is the place) If he goes on the place and works satisfactory and does what is right till he is twenty one years the said Alexander Clark Haig will then at the age of of twenty one years pay to the executors Seven hundred and fifty dollars so soon after he is twenty one as he is able. If he does not go on and work the place till he is twenty one years the stock is to be sold and the said Alexander Clark Haig is to get from the executors the sum of seven hundred and fifty dollars to start him farming as soon as the executors think he is steady enough to manage the place.'"

وو

Had it not been for the words "the said Alexander Clark Haig has to pay the executors the sum of five thousand dollars for this property to help pay the legacies in this will," there might have been less difficulty in interpreting the words of gift. Minor difficulties can

be suggested, but if we ignore them we find in effect a devise for life to A. C. Haig, remainder to his "sons or daughters," contingent remainder to the testator's nephews in default of sons or daughters of A. C. Haig. The main difficulty, however, lay in the fact that the lands and certain chattels accompanying them were worth only $7,650, plus $258 minus succession duties and expenses, so that Alexander for a life interest in about $8,000 must find and pay $5,000 or disclaim. Mr. Justice Orde, held that Alexander did not take an estate tail but merely a life estate, but he treated the provision for payment of $5,000 as an option to purchase the absolute interest for that sum. Whether intended by the testator or not, this probably effectuated his intention as nearly as the ambiguous lan

26 O.W.N. 59.

guage of the will permitted, without laying down any general principle altering or subverting existing rules of interpretation. In appeal, this judgment was reversed, a majority of the Court deciding that " the testator used the words 'sons or daughters' as words of limitation" and that "applying the rule in Wild's case," Alexander "took an estate tail," as he had no son or daughter at the date of the will or the death of the testator. Mr. Justice Hodgins dissented. By this judgment Alexander can bar the entail and turn the property entirely to his own account.

If full effect is given to this decision the result is that a devise of lands to A for life and after his death to his sons or daughters creates an estate tail if A has no children when the gift takes effect. As there are probably hundreds of cases where lands are devised for life with remainder to non-existent children of the life tenant the effect on gifts of land alone is exceedingly important. What the effect may be upon similar bequests of personalty is uncertain, but if they are treated as absolute gifts, which is hardly likely, there will follow a great recasting of wills drawn upon a different assumption. Under Shelley's case, where a life estate is given to A followed by gifts to A's "heirs," "heirs of the body" or "issue" (in a will) then, as these are technical words of limitation, the apparent life estate and remainder are treated as a gift in fee to A. This is a rule of law and governs even though it defeat the testator's intention, which it generally does. If the effect of Wild's case as interpreted by Re Haig is to treat gifts to unborn children following a life estate to the parent as mere words of limitation, then we shall have an enormous extension of the rule in Shelley's case with its implacable refusal to defer to the intention of the testator.

It is submitted, however, that Wild's case is not authority for the proposition that in a devise for life with remainder to children the word "children" is a word of limitation. Wild's case was one that "for difficulty was argued before all the judges of England." It arose out of a devise in remainder to "Rowland Wild and his wife and after their decease to their children." Wild and his wife had one son and all three died before the prior estates terminated the son leaving a daughter. The decision was that Wild and his wife took life estates only, that the son had a life estate only in remainder and so the granddaughter took nothing. At that time, of course, a devise of land without words of limitation conferred only a life estate; since the Wills Act of Victoria the son would take in fee simple. 5 See Van Grutten v. Foxwell (1897) A.C. 658; Re Kendrew (1918) 43 O.L.R. 185. 9 (1599) Vol. 3. Pt. 6 Co. R. 288.

This decision is itself authority for the view (a) that "children" is not a word of limitation where it follows a life estate and there are children at the time of the gift. Besides this decision, however, two other propositions were laid down (b) "that if A devises his lands to B and to his children or issues and he hath not any issue at the time of the devise that the same is an estate tail for the intent of the devisor is certain that his children or issues shall take and as immediate devisees they cannot take because they are not in rerum natura and by way of remainder they cannot take for that was not his intent for the gift is immediate." Therefore A is treated as a devisee in tail. (c) "That if a man, as in the case at bar, devise lands to husband and wife and after their decease to their children or the remainder to their children in this case, although they have not any child at the time, yet every child which they shall have after may take by way of remainder, according to the rule of the law, for his intent. appears that their children should not take immediately but after the decease of Rowland and his wife."

It will be seen, therefore, that there are really three "rules" in Wild's case and that the one so described by text writers such as Mr. Vaughan Hawkins is merely proposition (b) which governs when lands are devised to A and his children concurrently and A has no children at the time. In that case, because the lands cannot vest according to the very tenor of the will, the Court administers the gift cy près and turns it into an estate tail. The true principle governing gifts to parents for life with remainders to non-existent children is found in proposition (c), which maintains the separate existence of a life estate and remainder even where the life tenant has no children when his life estate vests in him. Applying these propositions to the Haig will, we find an estate to A. C. Haig "for his life. time at his death" "to his sons or daughters." Here we have a life estate with remainder to children not yet born as in proposition (c) and while Wild's case governs, it is respectfully submitted that it is this rule and not the rule relied upon by the majority of the Court which applies. If these three "Rules in Wild's Case" are borne in mind, it seems hardly necessary to cite further authority in opposition to Re Haig; but it may be pointed out that Chandler v. Gibson and Grant v. Fuller, cited by Mr. Justice Hodgins (who dissents) illustrate in effect proposition (c) of Wild's case, though Re Chandler does not cite it and Grant v. Fuller refers to proposition (b) as "the" rule in Wild's case and distinguishes it.