HUGH CRAWFORD MAGEE Vs. CHARLES W MAGEE

JUDGEMENT

(1.) This is an appeal from a judgment of the Court of Appeal of British Columbia which declared the true intent and meaning of the will of one Hugh Magee, who died on 9 March 1909. The testator devised certain lands and bequeathed all his personal property to his wife. No question arises in regard thereto. It is only in relation to his residuary real estate that controversy has arisen. This he devised to trustees upon trusts declared in the following words:

(2.) Upon trust to retain, manage, lease, sell or otherwise dispose of the whole or any part thereof as to them may seem fit with the discretion of absolute owners and after paying my funeral and testamentary expenses and debts to invest the proceeds of the said moneys of my real estate in or upon any public stocks, funds, shares or securities of whatsoever nature or kind as to them may seem fit.

(3.) Upon trust to pay the income of the trust premises first thereout discharging all liabilities in respect to my estate as follows: One-half thereof to my wife during her life in manner hereinafter described and the rest as follows: To such of my children including the said George P. Magee from time to time as to my executors shall appear to be most in need the payments to be at the absolute discretion of my executors. If at any time it appears to my trustees that none of my children are in need of assistance but are all unembarrassed financially, then after the death of my wife my trustees may divide the estate among my children then living in such proportions as to them shall seem fit, my desire being that as far as possible the division shall be made so as to give the larger shares to those of my children who are not so well off as the others; nevertheless this desire is not to affect the absolute discretion hereby vested in my trustees. The money hereinbefore directed to be paid to my wife shall be paid by my executors only and when they are satisfied the money is required for her maintenance and support and I give them absolute discretion as to the times when payments shall be made and these payments may be made direct to her or to the others for her support or for necessaries of life supplied or to be supplied to her as to my trustees shall seem fit.