WestlawNext Canada insight Blog

Digest of the Week—A Classic Digest on Perpetuities

Inspired by last week’s CED entry, a digest from a classic Canadian case on the Rule Against Perpetuities.

1878 CarswellOnt 246
Ferguson v. Ferguson
Supreme Court of Canada
Judgment: June 4, 1878

Estates and trusts Perpetuities and accumulations | Rule against perpetuities | Principles of construction
Gift over following restraint upon alienation.

A testator's will read in part as follows: "It pleased the Lord to give me two sons equally dear to my heart; to give them equal justice, I leave all my land to the first great-grandson descending from them by lawful ordinary generation in the masculine line, to him I bequeath it, and to him I will that it pass free of any encumbrance, except the burying ground and the quarter of acre for a place of worship. To D.F., my son, I bequeath my family Bible, and five shillings over and above what I have done for him... To P.F., my son, I bequeath my implements belonging to my farm, and to occupy the farm and answer State dues and public burdens himself, and the lawful male offspring of his body until the proper heir are come of age to take possession, but P. himself and all are restricted and prohibited from giving any wood or timber whatsoever kind away off the land, or bringing any other family on to it but his own. But if he leaves a situation so advantageous, and cannot maintain himself upon it... I appoint P.M., my grandson, to take charge of the whole place — farm, and all that pertains to it — and occupy the same for his own benefit and advantage, according to the forementioned restrictions and conditions, until the heir be of lawful age, as aforesaid." The testator died, leaving him surviving two sons, D.F. and P.F., and three daughters, and one grandson, P.M., the son of one of the testator's daughters. When the testator died, the property was subject to a lease, which expired some 8 years later. At the expiration of the lease, P.F. went into occupation of the land, and, shortly after entry, conveyed his interest to P.M., and left the place. Subsequently, J.F., son of D.F. and heir-at-law of the testator took a conveyance from P.M., and thereupon D.M.F., son and heir-at-law of P.F. brought an action in ejectment, claiming that under the will his father took an estate tail which descended to him. At the trial, judgment was entered for plaintiff on the ground that the devise to P.F. created an estate in tail male in him, that the estate tail had not been barred, and that defendant had not made out his defence under the Statute of Limitations. A rule nisi was obtained to enter a verdict for defendant, and this was made absolute by the Court of Queen's Bench. Plaintiff then appealed to the Court of Appeal, which reversed the judgment of the Court below. Held: On appeal to the Supreme Court of Canada, the appeal should be allowed with costs. The devise by the testator to his first great-grandson being void for remoteness, and there being no intention to give to P.F. any estate or interest independent of, or unconnected with, the devise to the great-grandson, there was no valid disposition to disinherit the heir-at-law, and therefore plaintiff was not entitled to recover.

© Copyright WestlawNext Canada, Thomson Reuters Canada Limited. All rights reserved.