1908 Hudson RE HUDSON. to be co-educator (sic) of this my last will and testament, hereby revoking all former wills by me made." It was stated in the affidavit of the applicant that the testator left personal estate other than household goods of about the value of $1,000. The motion was heard by BOYD, C., in the Weekly Court, on the 2nd April, 1908. W. E. Middleton, K.C., for the applicant. W. M. Sinclair, for William Charles Hudson. A. B. Macdonald, for the other children of the testator. No one appeared for the executor. April 3. BOYD, C.:-The will is short, and is framed by one not a lawyer who uses large words not very aptly, but the intention of the whole is apparent with reasonable certainty. The first clause is: "I give, devise and bequeath all my real and personal estate which I may die possessed of or interested in, in the manner following, that is to say." That clause by itself carries all the estate of the testator at his death, but does not say to whom. The clause "that is to say," in the phrase of the old reporter and Chief Justice, Hobart, is "a kind of handmaid or interpreter to particularize that that is before general, but it must neither increase nor diminish, for it is not the nature of it to give of itself:" Stukeley v. Butler (1615), Hob. R. 168, 171, 172. my farm to my which is my present Then the testator enumerates thus: "I give son William residence, and all appurtenances connected therewith, with all my household goods." Herein no explicit reference is made to "money, farm stock, and farm implements," and it is said there is an intestacy as to these. The modern rule of construction, as expressed by Lord Westbury, is that the entirety which has been expressly and definitely given shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars: West v. Lawday (1865), 11 H.L.C. 375, 384. And by the application of this rule the modern doctrine is settled, that when a testator gives his property generally by the words "all my property," etc., when he uses words sufficient to pass everything, and then proceeds to enumerate particulars this enumeration does not abridge or cut down the effect of the general words. This conclusion, as thus expressed by Malins, V.-C., in King v. George (1876), 4 Ch.D. 435, 439, was adopted and approved by the Court of Appeal in S. C. (1877), 5 Ch.D. 627, 629. Besides this aspect of the will, I think it may be inferred from its contents that the intention of the testator was to benefit his son, who is sole beneficiary, by the farm stock and farm implements. These things the draftsman understood were comprehended in the word "appurtenances." This, no doubt, is a word of large and flexible meaning, and, apart from its legal conveyancing sense, it has a popular meaning, and may be applied to personalty. One of its meanings in the Oxford Dictionary is, "things which naturally and fitly form a subordinate part of and belong to a whole system— contributory adjuncts." Thus, as applied to a whaling ship, it will comprise harpoons and all the outfit of fishing stores: The "Dundee" (1823), 1 Hagg. Adm. R. 109, 126. As applied to a silver kettle and lamp, it will carry the stand or frame that supports the kettle: Hunt v. Berkley (1728), Mosely (Ca. 32) p. 47. I would doubt the sufficiency of the words "my farm and residence with all appurtenances connected therewith" per se to pass the farm stock and implements, but, having regard to the context and the whole will, I think they may be eked out by the general words carrying all his estate, real and personal: see Gulliver d. Jeffereys v. Poyntz (1770), 3 Wils. 141; Doe d. Lempriere v. Martin (1777), 2 W. Bl. 1148; Doe d. Clements v. Collins (1788), 2 T.R. 498; see also Swinfen v. Swinfen (1860), 29 Beav. 207, which also decides that money in the house will pass under bequest of "household goods," and on the same point Mahony v. Donovan (1863), 14 Ir. Ch. 262. Costs out of estate. Boyd, C. 1908 RE HUDSON. E. B. B. 1908 April 1. [IN CHAMBERS.] RE REITH ET AL. V. REITH ET AL. Surrogate Courts-Removal of Cause into High Court-Will-Undue Influence— Upon an application under sec. 34 of the Surrogate Courts Act to remove a MOTION by the defendant J. G. Reith for an order transferring the action from the surrogate court of the county of Dufferin into the High Court. The motion was heard by BoYD, C., in Chambers, on the 31st March, 1908. A. McLean Macdonell, K.C., for the applicant. A. A. Hughson, for the plaintiffs. F. W. Harcourt, K.C., for the infants. Grayson Smith, for the other defendants. April 1. BOYD, C.:-The High Court has special jurisdiction by statute to try the validity of wills and to pronounce them to be void for fraud and undue influence and otherwise: R.S.O. 1897, ch. 51, sec. 38. No doubt, the surrogate courts have, when the will is to be proved in solemn form, concurrent jurisdiction, but in contentious matters as to the grant of probate, or in which disputed questions of law or fact may be raised, the cause shall be removable by any party into the High Court by order of a Judge, to be obtained after notice and on summary application supported by affidavit: R.S.O. 1897, ch. 59, sec. 34; subject to this proviso, that no such removal shall be had unless the cause is of such a nature and of such importance as to render it proper to withdraw it for the disposal of the High Court, and that the property exceeds $2,000 in value: sec. 34 (2). The importance of the case and its nature are not to be tried on counter-affidavits: it is enough if it appears from the nature of the contest and the magnitude of the estate that the higher Court should be the forum of trial. No doubt, much is left to the discretion of the High Court Judge as to the disposal of each application. In Re Wilcox v. Stetter (1906), 7 O.W.R. 65, my brother Mabee was influenced by the comparatively small value of the estate-just at the statutory limit; and that was also the guiding element in the case before my brother Riddell of Re Graham v. Graham (1908), 11 O.W.R. 700. The pleadings here disclose what is to be at issue upon the facts and the law-chiefly that the testatrix, a widow, was unable to protect herself against undue influence of the chief beneficiaries, her two sons-she being illiterate and not versed in business. It appears that her husband died in 1905, leaving her an estate valued at over $27,000, and that her whole estate left at her death in 1907 was $5,850. One of the sons, the executor, is said to have acquired a large part of the father's estate by an arrangement, in which he claimed as partner, that is sought to be brought into question. Considerable payments, $13,000 in all, are said to have been made (over one-half to the two sons) about twelve days before the death. These are some of the salient matters that appear to be involved, and they are of such character and importance as to justify, in my opinion, an order for transfer to be made. Costs will be disposed of by the Judge at the trial. Boyd, C. 1908 RE REITH V. REITH. E. B. B. 1908 March 23. [IN CHAMBERS.] ROBERTSON V. ROBERTSON. Foreign Judgment—Alimony-Arrears-Writ of Summons-Special Indorsement Summary Judgment-Rules 138, 603. An action lies for arrears of alimony past due upon a foreign judgment, and Swaizie v. Swaizie (1899), 31 O.R. 324, applied and followed. MOTION by the plaintiff for summary judgment under Rule 603 in an action upon a foreign judgment for alimony. The motion was heard by Mr. JAMES S. CARTWRIGHT, K.C., the Master in Chambers, on the 20th March, 1908. A. R. Clute, for the plaintiff. A. R. Hassard, for the defendant. March 23. THE MASTER IN CHAMBERS:-On the 25th September, 1905, the plaintiff obtained judgment in one of the Courts of the State of Ohio, which gave her (with other relief) alimony at $6 a week, commencing apparently on the 30th December, 1905, and payable "so long as they may live." The plaintiff commenced an action on this judgment on the 3rd March instant, claiming arrears of alimony from the 23rd June, 1906, until the 29th February, 1908, being for 88 weeks, at $6 a week, amounting to $528. There is also a claim for a judgment for future alimony. The defendant has appeared, and the plaintiff has moved for judgment under Rule 603. The plaintiff makes the necessary affidavit, and produces a properly certified copy of the foreign judgment. No affidavit is filed in answer to the motion. Both parties apparently now reside in Toronto. The case relied on by Mr. Clute, Swaizie v. Swaizie (1899), 31 O.R. 324, is an authority in favour of the motion, so far as the arrears are concerned. But it is not so clear that Rule 603 can be applied on the other branch, and the jurisdiction must be clear and unqualified before a judgment can be obtained except on application to a Judge of the High Court. |