D. C. 1908 IN RE March 10. MEREDITH, C.J.:-I think I am bound by Re Cheesborough (1897), 30 O.R. 639, and Re Harkness (1904), 8 O.L.R. 720, to hold that the policy in question or the moneys payable under it have been well appointed by the provisions of the testator's will, subject to the question whether the bequest to Lily Meredith, C.J. Cochrane can take effect. I am unable to distinguish these cases, especially the Harkness case, from the present case. In the Cheesborough case the language was more easily fitted to the provisions of the statute, because there the provision of the will was "all my policies or certificates of insurance." In this will there is no reference to policies; the language is "insurance fund," and in the Harkness case similar language was used. I do not see that I can distinguish these cases upon the ground urged by Mr. Lawrence that in them there were no preferred beneficiaries outside of those that were created by the will. I do not see how that would make any difference. There is nothing in either of the cases, as far as the judgments have been read to me, which indicates that the fact that the bequests were made to preferred beneficiaries would have made any difference in the result. Then it is said that, because the testator speaks of the subject of his bequest as "my life insurance fund," that cannot include these insurance funds, because they were subject to a trust; that the testator had no power of disposition, except a disposition by will, and, therefore, that they did not come within the description "my life insurance funds." I think that is too technical a view of the matter. While, perhaps, in a technical sense they were not his life insurance funds, they were his-in the event of the death of his wife, who was the beneficiary, they would have been absolutely free for any disposition of them he might choose to make, and, therefore, I think, might well be described as his life insurance fund. No doubt the provision in the second paragraph of the will by which the $200 is appointed to his sister, Lily Cochrane, is invalid, because she was outside of the preferred class, but by the Wills Act, R.S.O. 1897, ch. 128, sec. 27, unless a contrary intention appears by the will, such real estate or interest therein as is comprised or intended to be comprised in any devise, in such will contained, which fails or becomes void by reason of such devise 22-VOL. XVI. O.L.B. COCHRANE. D. C. 1908 IN RE COCHRANE. being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will." That was always the law as to personal property, and so I Meredith, C.J. think this disposition of the residue is an effectual disposition of the whole of the proceeds of the policy in question in favour of Christina C. Burnett. Then, in regard to the other question raised by the widow, that the testator was not of sound mind at the time he made his will, so long as the probate stands that question is not open to be litigated. If Mr. Lawrence desires to raise that question, the order that I make upon this motion declaring the rights of the parties will not take effect for a month, to enable him in the meantime to take such steps as he may be advised for the purpose of getting rid of the probate and establishing that the testator was not of sound and disposing memory at the time he made his will, and, if such a proceeding is brought, and so long as it is prosecuted with diligence, the order will be stayed. Mr. Lawrence: If the widow were to instruct me sooner, I suppose, upon my notifying my learned friend, it need not delay him issuing his order. Chief Justice MEREDITH: Oh, no; not if you withdraw that claim. As far as this application is concerned, it seems to me it is a proper case that the costs should be paid out of the fund. Jean M. Cochrane appealed from the above judgment, upon the following grounds, as set out in her notice of motion: (1) That the will of the said Andrew J. Cochrane, deceased, does not, by its terms, identify the policy in question, in accordance with the requirements of sec. 160 of the Ontario Insurance Act, R.S.O. 1897, ch. 203, so as, by its provisions, to transfer the benefits of the policy from the testator's wife, Jean M. Cochrane, the beneficiary named in the policy, to the testator's sister and daughter, or either of them, the beneficiaries attempted to be named in his said will. (2) If the will of the said Andrew J. Cochrane, deceased, does sufficiently identify the policy in question in accordance with the requirements of sec. 160 of the Ontario Insurance Act, that part of the said will which purports to transfer $200 of the moneys payable under the said policy to the testator's sister, Lily Cochrane (who is not one of the preferred class of beneficiaries) is void against the original declaration in the policy in favour of the testator's wife, Jean M. Cochrane (who is one of the preferred class of beneficiaries), being contrary to the provisions of the Ontario Insurance Act in that regard. The moneys payable under said policy form no part of the testator's estate. The declaration in respect of $200 of said insurance moneys, in favour of the testator's sister, being void, the provisions of the Wills Act do not operate to pass the said $200 under the residuary clause in said will, as stated by the learned Chief Justice in giving his reasons for the order now appealed from. (3) That part of the said will which purports to transfer the residue and remainder of the said insurance moneys payable under the said policy from the testator's wife to the testator's daughter, Christina C. Burnett, by its terms blends the said insurance moneys with the residue of the testator's general estate, and renders it subject to the claims of the testator's creditors, and is, therefore, void as being repugnant to the terms of the Ontario Insurance Act in that regard. The appeal was argued on March 16th, 1908, before BOYD, C., MAGEE and MABEE, JJ. A. G. F. Lawrence, for the appellant, referred to Re Cheesborough, 30 O.R. 639; Re Harkness, 8 O.L.R. 720; MacLaren v. MacLaren (1907), 15 O.L.R. 142; Webb v. Honnor (1820), 1 Jac. & W. 352; Mattingley's Trusts (1862), 2 J. & H. 426; Re Duncombe (1902), 3 O.L.R. 510; R.S.O. 1897, ch. 203, secs. 159, 160. F. Aylesworth, for the executor. March 23. The judgment of the Court was delivered by BOYD, C.-The fund in question consists of moneys paid into court, $1,000, to represent the value of a beneficiary certificate issued by the Ancient Order of United Workmen of the Province of Ontario to the deceased, Andrew J. Cochrane, on November 15th, 1900, and made payable to his wife, Jean, the D. C. 1908 IN RE COCHRANE. Meredith, C.J. D. C. 1908 now appellant. He was married to her on September 19th, 1900, having children by a former wife, and he separated from her on March 13th, 1905. He made a will on June 10th, 1907, and died COCHRANE. November 10th of the same year. The will contains these IN RE "(2) I give and bequeath out of my life insurance funds the sum of $200 to my sister, Lily Cochrane." "(3) All the rest, residue and remainder of insurance funds, real and personal estate of what kind so ever, I give and bequeath to my daughter, Christina C. Burnett." The question is this: Does the will change the certificate as to the beneficiaries? That depends upon the meaning of sec. 160 of the Insurance Act, R.S.O. 1897, ch. 203, and evidence that its directions have been complied with. It reads that the assured may by instrument in writing attached to or endorsed on or identifying the policy by its number or otherwise vary a policy previously made so as to restrict, extend, etc., the benefits... and may by instrument in writing attached to or endorsed on the policy or referring to the same alter the apportionment; he may also by his will make or alter the apportionment of the insurance money and whatever the assured may under this section do by an instrument in writing attached to or endorsed on or identifying the policy or a particular policy or a policy by number or otherwise, he may also do by a will identifying the policy or a particular policy or policies by a number or otherwise. The manner of identification of the policy is very explicitly and pointedly provided for. It may be by instrument in writing attached to or endorsed on the policy or apart from actual attachment or endorsement, it may be identified by something equivalent in the way of specific reference by the number of the policy "or otherwise." That would, of course, include reference by date and amount and other means of incorporating one document with the other. Should the words "or otherwise" be extended further to cases where extrinsic evidence is required to complete the identification? Two cases are relied on as going this length. Re Cheesborough, 30 O.R. 639: the testator had five policies, of which two had been designated to beneficiaries, his son and his other children; the other three were payable to himself. As to these three, it was held that, under general words, "all my property, including life insurance policies and certificates," to trustees in trust for his children, they passed to the beneficiaries, and were not subject to creditor's claims as part of his estate. These three policies, payable to himself, and existing at the date of his will, were deemed to be identified by the general words when all the policies were given. The two policies which were designated to his one son and the other to his children beneficiaries were not included in this decision, and it does not appear to have been suggested that the words of the will would have any effect upon them. They were, in truth, not the property of the testator, but were payable as a trust fund to the beneficiaries, and so not within the words of the will. Again, as to this case, it is to be observed that there was a sixth policy made after the date of the will, and payable to the testator; it was held that the will did not effect any apportionment in respect to this policy, and that it stood payable to the testator himself, and was simply part of the personal estate: see p. 644. The effect of this decision, therefore, is that the general language of the will did not affect policies theretofore designated to beneficiaries; nor did it operate on a policy made to the testator after the date of the will. The meaning of this must be that there was, as to this last, no policy existing at the date of the will, by reference to which it could be identified. The will was thus treated, in regard to this section of the Insurance Act, as speaking not from the death of the testator, but from its date. The other case was Re Harkness, 8 O.L.R. 720, where the testator had one policy payable to his order or heirs, and by his will he gave the residue of his property, including life insurance, to his wife and children. It was held that these words made it as certain and clear as in the Cheesborough case what policy of insurance was meant, and that there was complete identification. Both cases, therefore, apply to a situation where the policies dealt with and referred to are part of the testator's estate, and not to policies which are not his, but are held subject to a trust for the designated beneficiary, and as to which he has power to alter the designation by his will. The will, as to these, operates not quoad his estate, but as to property over which he has and may exercise an appointing power. It is one remove from the D. C. 1908 IN RE COCHRANE. Boyd, C. |