ENID BROWNE Vs. FLORENCE YODA MOODY

JUDGEMENT

(1.) In this appeal their Lordships have to determine the interpretation and effect of certain provisions in the will of the late Mrs. Katherine Hamilton Browne of Toronto. The testatrix died on 17 March 1930. She was survived by a son, William George Hamilton Browne, and three daughters, Mrs. Florence Moody, Mrs. Constance Kinnear and Mrs. Helen Smith; she was also survived by a grand-daughter, Enid Browne, the daughter of her son, William George Hamilton Browne. By her will, which was dated 16 December 1929, the testatrix appointed executors and after certain specific bequests in favour of her son she gave directions with regard to a sum of $100,000 in the following terms, which it is necessary to quote textually, as the arguments in the appeal turned largely upon the precise language employed : 5. Whereas I have now the sum of $100,000.00 invested in the name of E. H. Watt, of the said firm of Watt and Watt, in trust in the form of a call loan, I hereby direct that the said fund is to be continued to be invested in call loans by the said E. H. Watt during the lifetime of my said son William George Hamilton Browne and the income arising therefrom is to be paid to my said son during his lifetime. In the event of the death of the said E. H. Watt during the lifetime of my said son I direct that the fund now invested by him in the form of a call loan shall be invested by my executors in such securities as are authorized by the laws of the Province of Ontario as trustee investments, and the income therefrom is to be paid to my said son during his lifetime. On the death of my said son William George Hamilton Browne I direct that the said fund of $100,000.00 is to be divided as follows : One half of the said fund to my grand-daughter Enid Browne, daughter of my son William George Hamilton Browne, and the remainder of the said fund to be divided equally between my daughters Florence Yoda Moody, wife of Robert E. Moody, now of Los Angeles, California ; Constance Emma Kinnear, wife of Harold Kinnear, of the City of Detroit in the State of Michigan, and Helen Smith, wife of Herbert P. Smith, of Jamaica, Long Island, New York, share and share alike.

(2.) By the sixth purpose of her will the testatrix gave, devised and bequeathed all the rest and residue of her estate, both real arid personal, to her grand-daughter Enid and her three daughters, Florence, Constance and Helen, to be divided amongst them equally, share and share alike. The seventh clause, the only other clause which need be considered, reads as follows: 7. In the event of my grand-daughter Enid Browne or any of my said daughters predeceasing me or predeceasing my said son leaving issue, I direct that the child or children of the person so dying shall take the interest to which their mother would have been entitled had she survived.

(3.) It will be observed that all the beneficiaries mentioned in the fifth, sixth and seventh purposes of the will survived the testatrix. They are all still alive. Each of the three daughters is married and has issue. The items specifically bequeathed by the testatrix to her son and the fund of $ 100,000 00 as to which she gave the directions above quoted constituted the bulk of her estate and their Lordships were informed that the residue is negligible in amount.