SEIZLN IN THE QUEBEC LAW OF SUCCESSIONS
Jerome C. Smyth*
“Le mort saisit le vif, son hoir plus proche et habile i lui succ~der”,
stated article 318 of the Coutume de Paris. This maxim forms the basis of
article 607 of the Quebec Civil Code, which reads:
“The lawful heirs, when they inherit, are seized by law alone of the
property, rights and actions of the deceased, subject to the obligations of dis-
charging all the liabilities of the succession; but the Crown requires to be
judicially put in possession in the manner set forth in the Code of Civil
Procedure.”
Seizin has received many definitions during the past. Simmonet calls it:
“….
une fiction de la loi qui suppose que le de cujus, i l’article de la mort,
a remis i son successible, la masse h6rditaire. La saisine, dans son accepta-
tion le plus gnfiral, est le charactfre l6gal sous lequel se manifeste -la pos-
session.”1 Mignault defines it as:
l’anticipation 16gale de la possession et des avantages qui en rfsul-
tent.”2
And Beaudant expresses it in this manner: “La saisine hir~ditaire, c’est la
l’hritier, par le fait de l’ouverture de la succession, de la
transmission
possession des droits et biens qui appartenaient au dffunt.’ ‘3
For present purposes, let us call seizin a legal fiction, by virtue of which the
successor is deemed, from the moment of the deceased’s death, to be in pos-
session of the property and rights of the succession without the necessity of
material apprehension or judicial proceeding. Seizin therefore, in this article,
connotes the immediate transmission of possession, or, the state of legal pos-
session resulting from such transmission.
ORIGIN OF THE MAXIM
“L’origine de ]a saisine est restfe trfs obscure, et les travaux les plus r6-
” 4 The first appearance of -the concept of
cents n’ont pas r~ussi A ‘1lucider.
seizin in the old French law, was during the thirteenth century. We find
mention of it in an arr~t of the Parlement de Paris in 1259, and in 1270, les
Etablissements de Saint-Louis said: “Et li usages d’Orl~nois si est que li morz
saisit le vif.”‘5 As to where it began, three theories have been expressed. Some
say that the notion of seizin came from the Roman law. Others trace it to
*Of the Montreal Bar.
1Simmonet, Histoire et Thiorie de la Saisine, p. 4.
2Mignault, Droit Civil Canadien, vol. 3, p. 274.
3Beaudant, Droit Civil Franjais, 2nd. ed., vol. 5, No. 421.
4Baudry-Lacantinerie et Wahl, Successions, 2nd ed., vol. 1, no. 139.
5Livre 2, Ch. 4.
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the Germanic tradition. And a third group sees it as a creation of the medieval
jurists.
The theory of :Roman law origin, as espoused by Planiol, is difficult to
uphold. The normal mode of succession in Rome was testamentary, and
testamentary, heirs fell into two categories, necessary and voluntary. The
necessary heir acquired the succession from the moment of its opening, since
by a fiction of the law, he was deemed to continue the person of the deceased.
Since the law conceived of this continuation of the deceased’s person by the
necessary heir, to be a religious duty, he could not refuse the succession,
and his investiture was instantaneous. The voluntary heir, to the contrary,
could refuse, and thus did not acquire the succession until he made an aditio
hereditatis, a formal manifestation of his will to accept.6 Until this was ac-
complished the hereditatis remained iaccns, that is, vacant.
However the investiture of the necessary heir by fiction of law, and the
aditio of the voluntary heir, dealt only with the ownership of the succession.
Possession, in Roman law, required two essential factors: the material ap-
prehension of the property, and the intention to hold it as proprietor.7 A
possession divorced from reality was a legal impossibility. Neither heir
became invested by law alone with the possession of the property; both were
still required to fulfill the two requisites of Roman possession.
Therefore since material apprehension was required of the heir, and since
fictitious possession was unknown, we must agree with Pothier’s statement:
“Cette r~gle soit diamtralement oppos~e aux principes du droit romain.” s,
and seek the origin of seizin elsewhere.
The proponents of the Germanic theory see the word seizin coming from
the old Gothic verb “sasjan” and claim with some justification that the feudal
law, as Montesquieu phrased it: “. .. plonge ses racines dans les forts de ]a
Germanie.” What could be more logical they contend than that the principle
of seizin, so akin to the transfer of property in Germanic successions should
have come to the customary law from the barbarian codes. However this
explanation also must fall.
The early Germanic tribes lived in a very tight family society, in which
the family, as a unit, owned all the property acquired by its individual
members. Thus upon the death of the head of the clan, there could be no
hiatus in the ownership or possession. The property continued to vest in the
family as represented by its new head. There was a compIlete continuity of
ownership and possession from generation to generation. There was no
transfer of property involved when the head of the family died; indeed the
idea of transmission was meaningless, for the heirs merely continued an
ownership and possession which they had shared all their lives, and which
OBuckland, A Text-Book of Roman Law, 2nd ed., p. 305.
7Buckland, op. cit., p. 199.
8Pothier, Successions, ed. I. Bugnet, 2nd ed., ch. 3, sect. 2.
No. 2]
SEIZIN IN QUEBEC LAW
would continue to be shared, unbroken, by successive generations. This
was the essence of the Germanic condominium. It was therefore unnecessary
to have any theory of succession or seizin as we know it, for as Baudry
says: “Bien que Tacite dit qu’aprts le d&cs du chef de famille, les biens
appartenaient au proximus gradus in possessione, 6videmment il entendait
seulement par l, que les personnes ayant une jouissance commune avec le
difunt, recueillant ces biens, sans trancher la question de savoir si une appr&
hension 6tait ou non n~cessaire.” 9
It must be concluded that the continuing condominium of Germanic law, by
its nature, could not have been the source of the notion of seizin, for it was
a system wherein the essential characteristic of seizin, the instantaneous
transmission of possession, could have no meaning.
Therefore the origin of the principle of seizin must be found in the custom-
ary law of old France, as it was under the feudal system during the thirteenth
century. However, a principle such as this does not merely spring into being.
There must be a raison d’8tre, and it is in the abuses of the feudal system
that this generating cause is found. 10
All the land in his fief belonged to the seigneur. JiHe granted certain parcels
of it to his vassals, who received only a title known as domaine utile, an im-
perfect form of ownership, and a legal possession, subject always to the
overriding ownership of the seigneur, the donaine direct. The feudal system
of land tenure is somewhat difficult to appreciate in an age of absolute private
ownership, because no one, under the system, owned land in our sense of
the term except the seigneur. What he granted to his vassal was primarily
a possession for use, which may perhaps be best described as an ownership
in law, but not in fact.
When a vassal died, he was deemed to dessaisir himself, that is, to have
divested himself of his domaine utile, which returned to the seigneur. The term
seizin was first used to denote this process of transfer from vassal to lord. The
Grand Coutumier of Charles VI said: “Servus mortuus saisit doininumn
vivum,” and Laurifre says: “. . . toute personne qui mourait 6tait cens~e se
dessaisir de ses biens entre les mains de son seigneur.”‘1
As a result of this process, the heir did not receive the succession until
formally invested by his lord. Although in fact he was possessor under the
same title as his predecessor, he lacked the recognition of his status in regard
to the property until ensaising by the seigneur. Consequently the heir was
not protected against tiers d~tenteurs during the interval between the opening
of the succession, and his ensaisinement, since in the eyes of the law, he had
no official status.
9Baudry-Lacantinerie et Wahl, op. cit., no. 141.
lOHuc. Code Civil, Vol. 5, no. 28; Laurent, Principes de Droit Civil, Vol. 9, no. 221.
1lLaurire, Inslitutes Coutumiers, liv. 2, tit. 5, rigle 1.
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V:hy, asked the medieval jurists, should the intervention of the lord be
necessary, thereby temporarily depriving the heir of his lawful possession?
They assumed that the last wish of the deceased was to invest his heir with
the possession of the property which he himself had enjoyed during his life-
time, not to renounce it and return it to the lord. Therefore they reversed
the maxim, eliminating the seigneur in the process of transmission. As
Mourlon says: ”
le vassal d6c6d6 6tait cens6 lui-m6me, au moment
de sa mort, mis ses h6ritiers en possession de sa succession, ce qui les dis-
pensait de l’obligation d’en demander la d6livrance au seigneur.”’12 Des Mares
most succinctly expresses the same idea when he says: “Mor saisit son hoir
vif, combien que particuli~rement il y ait coutume locale oil il faut necessaire-
ment saisine du seigneur.”‘
.
.
.
The maxim, le anort saisit le %if, was then a fiction of the law, conceived
by the medieval jurist, by virtue of which the de cujus was presumed to
have transferred the possession of his property, at the moment of his death,
to his closest blood heir. The purpose was to obviate the seizin of the lord
and protect the heir against third persons. By doing away with the formality
of investiture, the dangerous hiatus between the opening of the succession,
and the heir’s recognition as legal possessor was avoided. As Dufourmantelle
says: “La cause originaire de la maxime ce fut de rendre 1’h16ritier possesseur
de plein droit, a l’encontre des tiers d6tenteurs de la succession.’1 4
It has been contended the seizin of the vassal was originally conceived to
avoid payment of the relief and rachat, due to the seigneur upon a transmis-
sion of land to the heir of a deceased vassal. However the authorities do not
support this. The Droit de Breton, although declaring the heirs in the direct
line seized, did not dispense them from paying the relief. And the Coutume
de Paris, along with many others while declaring the heirs seized, still re-
quired them to pay the relief. It is reasonable to believe that the seigneurs
would forego the formality of investiture in the interests of protecting their
vassals, but to imagine that they would as readily surrender a source of
revenue, stretches the imagination. As centuries passed, however, the maxim
was invoked to avoid the relief, but this was not until the sixteenth century
when the distinction between fiefs and rotures disappeared, and, perhaps
more important, the individual barons had lost a great deal of their power.
One must therefore be careful not to confuse an ultimate result of the maxim
with its originating force.’ 5
The principle of seizin therefore was of neither Roman nor Germanic
origin. The legal thinkers of the middle ages were faced with a problem, and
to solve it, they conceived the notion of the seizin of the heir. No idea, of
course, is entirely new. The influences of the Roman and Germanic traditions,
12Mourlon, Ripilitions Ecrites sur le Code Civil, 12th ed. vol. 2, p. 18.
‘sDes Mares, Dicision, no. 234.
14Dufourmantelle, Origines de Ia Saisine, Revue Critique, 1891, p. 607.
15 See Huc, Commentaire Thiorique et Pratique du Code Civil, 1893 vol. 5, no. 28.
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SEIZIN IN QUEBEC LAW
being in the minds of the men of the age, did undoubtedly affect medieval
thought to some degree. However, despite the fact that the notion of seizin
does, at first appearance, seem to reflect these influences, its juridical essence
is completely different, and must be appreciated as having its true origin in
feudal France.
THE JURIDICAL ESSENCE OF THE NOTION OF SEIZiN
It must always be kept in mind that seizin has no relation to ownership.
It relates exclusively to possession, that is legal possession as distinguished
from possession in fact. From its earliest use as a maxim of French law it
had this meaning, and only this meaning. In 1768, Pocquet de Livonire
said: “La saisine de droit est distincte de celle de fait: c’est-.-dire que l’hri-
tier peut prendre possession sans permission de justice, en vertu de la loi. 16
However even now, some fail to make the distinction, and believe that
seizin comprised also the transfer of the ownership of the property. One of
the principal reasons for this continuing error lies in the failure to appreciate
the vassal’s tenure under feudal law, where the concept originated. If one
failed to understand that the vassal was not owner of the property he held,
the impression would be that his heir was seized of both the ownership and
the possession, whereas in fact, the ownership always remained with the
seigneur, and it was only the status as legal possessor which was instantaneous-
ly transmitted.
Yet, whatever the reason, the confusion did, and to a degree still does exist,
and the school which related seizin to ownership by failing properly to dis-
tinguish between it and possession numbered among its adherents such
eminent jurists as Pothier, Demolombe, Mourlon and even Mignault. These
men used the term seizin to represent both the transfer of ownership, and
the transmission of possession, Mourlon going so far as to postulate two
distinct seizins, one for each process. But this is not the case, for as Huc
says: ” . . . la saisine n’a trait qu’
la possession; la question d’acquisition
de la propri~t6 lui demeure 6trang&e.”‘ 7 This is reiterated by Laurent and
Baudry. The former states: ‘”Donc la saisine concerne la possession: partant
il faut r6server cette expression pour marquer la transmission de la posses-
sion.”1 8 And Baudry expresses the same thought: “On voit que la maxime,
la possession, et non i la propri& des biens
le mort saisit le vif est relative
hr~ditaires”. 19
There can be little doubt that this is the correct view. While the trans-
mission of both ownership and possession do, generally speaking, occur simult-
aneously, they occur by reason of distinct principles of law. The ownership
‘8 Pocquet de Livoni~re, Rtgles du Droit Franais, 1768, no. 4.
*7.HIuc, op. cit., nos. 28, 29.
‘sLaurent, Principes de Droit Civil, 4th ed., vol. 9, no. 213.
19Baudry-Lacantinerie et Wahl, op. cit., no. 151.
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passes to the heir in virtue of the principle of succession itself. As article
596 of the Quebec Civil Code states: “Succession is -the transmission by law
or by the will of man, to one or more persons, of the property and the trans-
missible rights and obligations of a deceased person.” All succesors are im-
mediately owners, even the irregular heir, but on the other hand all successors
are not immediately legal possessors, for article 607 of the Code expressly
requires that the irregular heir be judicially put in possession. Seizin, then,
is essentially synonymous with possession, a distinction emphasized by our
law in allowing it to the testamentary executor, who unless he is also a legatee,
is never owner of the property which he administrates. Jaubert has said:
“Autre chose est la propri6t6, autre chose est la saisine,” 20 and he is supported
by many others, with whom this writer readily agrees. 21
THE PRINCIPAL EFFECTS OF SEIZIN
Seizin produces two principal effects. The first of these is that the heir
(and in this section the word heir comprises the legatee in so far as ap-
plicable) can immediately put himself in effective possession of the property
of the succession without the need of any authorization. The second, and
more important effect, flows from the first, for as a result of his seizin, the
heir may immediately exercise all the rights which his predecessor could
have exercised, that is: ” . . . toutes les actions, personnelles ou r~elles,
immobili~res, p~titoires ou possessoires.”2 2 A succession
mobili~res ou
comprises many forms of property, amongst which are to be found rights and
actions, which are also acquired by the heir. As Laurent says: “Il est in-
contestable que l’hritier a les actions du d6funt; il en a la proprit6 comme
‘.”2 3 However the acquisition of these rights is a
propri~taire de l’hr~dit
question of ownership, flowing from the devolution of the succession, not
from the heir’s seizin.
One is thus prompted to ask what purpose is served by seizin if the heir
has the rights and actions in virtue of the succession itself. Yet it must be
remembered that if these actions are capable of being owned they are equally
capable of being possessed. Mignault says: ” . . . lorsqu’on jouit d’un droit,
on peut dire qu’on poss~de ce droit.”12 4 Possession is no more than enjoyment,
so the result of the seizin is that the heir receives the status to exercise these
. . propri~taire de l’h&-
rights and actions which he owns. Laurent says: ”
dit6 … mais cela ne suffit pas pour qu’il puisse les exercer. En effet, exercer
.
20Jaubert, c.f. Locr6, tit. 2, p. 490.
21Pandectes Franfaises, vol 54, Nos. 1676, 1684; Bonnecasse, Precis de Droit Civil,
vol. 3, no. 625; Laurent, op. cit., no. 213; Ferriire Commentaire, tit. 4, no. 2; Toullier.
Droit Civil Franfais, vol. 4, no. 80; Baudouin, Le Droit Civil de la Province dc Quibcc,
p. 1115; Jean v. Gagnon, [1944] S.C.R. 175.
22Mignault, op. cit., vol. 3, p. 271.
22Laurent, op. cit., vol. 9, no. 224.
24Mignault, op. cit., vol. 9, p. 358.
No. 2]
SEIZIN IN QUEBEC LAW
177,
une action, c’est faire acte de possession; donc ii faut &re possesseur pour
agir en justice. C’est dire que l’h&itier a l’exercice des actions en vertu de la
saisine . .. l’article 724 (607 Que. C.C.) comprend express~ment les actions
parmi les choses dont la possession passe de plein droit
l’hritier; et it efit
&6 inutile de les mentionner si l’hritier en avait l’exercise comme propri&
taire, puisque l’article 711 (596 Que. C.C.) r~gle la transmission de la pro-
pr!i&6, tandis que
‘article 724 est uniquement relatif i la possession. ’25
The above quotation illustrates the subtle difference between the owner-
ship of property, and the rights inherent in it. The status given by seizin is
therefore the legally recognized capacity to exercise the rights and actions
attached to the property. JUpon the opening of the succession, the heir has
all the rights attached to the property, but he cannot exercise them. This
capacity comes from his seizin, for as Josserand says: ” . . . sans saisine,
l’h&itier a bien la jouissance de ce titre, il n’en a pas l’exercice; la mise en
oeuvre lui en est refus~e.” 28 And Huc says: “La saisine moderne n’aurait
trait qu’A l’exercice des droits actifs et passifs du d~funt . . .,,2T This dis-
tinction is well evidenced in the case of the irregular heir. It cannot be denied
that he becomes owner, de plein droit, from the moment of the de cujus’
demise, but until legally put in possession, he cannot exercise the rights
which form part of such ownership. Toullier says: “La diffirence entre le
successeur saisi et celui qui ne l’est pas consiste donc en ce que les droits
transmis i 1’un, comme 5. l’autre par la seule force de la loi, peuvent &re
imm~diatement exerc~s par l’un sans aucune intervention de la justice ou
d’un tiers, tandis que l’autre ne peut les exercer qu’apr6s avoir obtenu Fin-
vestiture de la justice.” 28
It cannot therefore be strictly said that the heirs are seized of the rights
and actions, but instead, of the exercise of them. Since the exercise of a right
is an act of possession, seizin conserves its definite meaning, the instantaneous
transmission of the possession of the property of the succession, the possession
of the rights and actions being but a segment of the universality, and their
exercise but an effect of the legal possession.
The importance of the distinction between the transmission of the owner-
ship of the succession, and the seizin is evident when one considers certain
rights of the heir, which have been attributed to the latter concept. The
right of transmission has been listed as an effect of seizin. By this is meant
that the heir, even if he dies immediately following the decease of his author,
transmits the latter’s succession in his own. That this process occurs is un-
deniable; that it is a result of seizin is untenable. The heir acquires his
ownership by law alone, independently of his seizin, and it is this ownership
25Laurent, op. cit., no. 224.
26Josserand, Cours de Droit Civil Positif Franfais, 2nd ed., vol. 3, no. 826.
27Huc, op. cit., vol. 5, no. 33.
2 8Toullier, op. cit., vol. 4, no. 91.
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which is transmitted to his own heirs. As 1-uc says: “Il faut donc pas con-
fondre l’acquisition du droit successif lui-m~me avec la saisine.20 It has also
been contended, that it is as a result of his seizin that the heir has the right
to the fruits of the succession from the moment of his predecessor’s death.
Again this is not so, for his right is a result of ownership, not possession,
which is made clear by article 408 C.C., which states: “Ownership in a thing,
whether moveable or immoveable, gives the right to all it produces and to
all that is joined to it as an accessory whether naturally or artificially.”
Without seizin the heir would not be in a position to go before justice to
demand these fruits, to exercise his right, but it cannot be doubted that the
right itself would be his, whether seized or not.
Therefore, in any consideration of the effects of seizin, it must always be
kept in mind that since it is no more than a continuation of the possession
of the deceased, it can have no other effect, nor give any other rights than
those attached to possession.
THOSE SUCCESSORS TO WHO-M SEIZIN IS GIVEN
In Quebec, the lawful heirs, when they inherit, and the legatees, by what-
ever title, are seized upon the death of their predecessor. Seizin is also given
to the testamentary executor, whose position shall be dealt with later.
In old France, only the closest blood heir was seized, great stress being
laid upon blood ties, and the preservation of family estates. Testamentary
the belief being, as some medieval Joyce
successions were discouraged,
Kilmer put it: Deus solus heredem facit. The eldest son was considered the
only successor to his father’s estate in virtue of the right of primogeniture.
He was looked upon as having not merely an expectant, but an actual right
in the property of his father. Thus the law presumed, in an intestate succession,
that not only had the deceased wished his property to devolve to his eldest
son, but that he had an obligation to see to it.31′ As the Coutume de Poitou,
Article 273 said: “L’on ne peut faire par testament ou legs, quelque peine qui
y soit appos~e, que l’hritier ne soit saisi des choses que le d~funt tenait au
temps de son tr~pas.” Gradually the notion of primogeniture disappeared,
and all the children were placed in the same preferred category. However
the familial concept prevailed, in the form of a reserve for the children and
the parent was forbidden by law to exclude them from the reserved segment
of his succession. Even to-day French law allows seizin *to the universal
legatee only when there are no reserved heirs.
Quebec law, to the contrary, gives seizin to all but the irregular heir by
virtue of the abolition of the reserve and the introduction of the English
concept of freedom of willing. The seizin of the Quebec heir is the same as
that of his French counterpart, both being instantaneously seized under a
2 Huc, op. cit., vol. 5, no. 27.
3OSee Simmonet, Histoire ct Thioric de la Saishic Hriditaire, p. 110.
No. 2]
SEIZIN IN QUEBEC LAW
resolutive condition. If the heir accepts the succession, he has been seized
from the moment of its opening; if he renounces it he is deemed never to
have been seized. However the basis of the seizin in each case is different.
The French law looks upon the heir as continuing the juridical person of
the deceased,3 ‘ but this is not so in Quebec. The statutes of 1774 and 1801,
which abolished the legitime of the legal heir, and introduced freedom of
willing, greatly altered the concept of successions in this Province. Test-
amentary succession became, in a sense, the rule instead of the exception,
since persons were free to leave their property to whomever they wished.
Seizin was therefore extended to the legatee, as fully as it had been to the legal
heir. As Baudouin says: ” . . . le Code de Qu~bec a considr6 la succession,
qu’elle soit ab intestat ou testamentaire, moins comme une continuation de la
personne juridique du d~funt, que comme une sorte de succession aux biens
devolue dans le premier cas par la loi, dans le second en fonction de la volont6
du testateur”.32
The Crown, since 1915 the only irregular heir, is expressly denied the
seizin, and must be judically put in possession, although, like all herrs, it Is
owner of the succession from the moment of its opening. Laurent says:
“Quoique les successeurs irr~guliers n’aient pas la saisine, ils ont la propriit6
des biens h6rditaires de plein droit, d~s l’instant de l’ouverture de l’h6r&
dit6. Ils sont donc propri~taires sans &re posseseurs.”” However once put in
possession, the irregular heir is in the same position as the other successors
who have been seized. Planiol says: “Quand l’envoi en possession a 6t6
prononc6 , le successeur irr~gulier se trouve dans la m~me situation que s’il
6tait hritier l6gitime.” :”4 The position of the irregular heir serves to point
out the exact nature of seizin, and the fact that it has no connection with
ownership.
Seizin then is a legal fiction, given to all successors save the irregular heir,
by virtue of which the successor is deemed, from the moment of the opening
of the succession, to be in legal possession of all the property rights and
actions which it comprises, without any act of material apprehension on his
part. and even if he is completely unaware of his inheritance. The seized
heir is, by reason of his seizin, capable of suing and being sued, and in short,
enjoys the same possession as did his author.
THE TESTAMENTARY SEIZIN
The legatee in Quebec is granted a seizin as full and plenary as the legal
heir by article 891 of the Civil Code, which states: “Legatees, by whatever
title, are, by the death of the testator, or by the event which gi; es effect to
3’Toullier, op. cit., no. 92; Planiol et Ripert, op. cit., no. 2215; Bonnecasse,
op. cit., no. 603.
32Baudouin, op. cit., p. 1160.
3Laurent, op. cit., no. 237.
34PIaniol et Ripert, op. cit., no. 215.
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the legacy, seized of the right to the thing bequeathed, in the condition in
which it then is, together with all its necessary dependencies, and with the
right to obtain payment, and to prosecute all claims resulting from the
legacy, without being obliged to obtain legal delivery.” The seizin of the
legatee is unique to Quebec and flows from the new law introduced into the
Province by the statutes of 1774 and 1801, and therefore to appreciate it, we
must understand the law as it was prior to the cession, that is, the law of old
France.
Prior to the Napoleonic codification, France was divided into the pays
coutuiniers and the pays de droit crit, successors to the Roman law. In the
customary provinces, the natural mode of succession was ab intestat, while in
the written law provinces the testament took precedence as it had in Rome.
As Maleville says: “Il faut savoir que dans les pays de droit &rit, ]a suc-
cession l6gitime n’avait lieu qu’. d~faut de la succession testamentaire, et
que l’hritier institu6 itait seul, par son titre, investi de l’hbridit6; que dans
les pays coutumiers, c’6tait toujours l’hriter lgitime qui &ait saisi de la
succession, et l’heritier institu6, qu’on n’appelait aussi que l~gataire universel,
6tait oblig6 de lui demander ]a d6livrance de l’objet de son legs. 85
The customary provinces, which protected the blood heirs by law, were
the source of the Quebec law before the cession, not the written law prov-
inces where the ‘Roman practice of instituting an heir by testament was
followed. In the former the law provided for a legitime, composed of four-
fifths of the propres, which were reserved for the blood heir, and could not
be disposed of by testament. Pocquet the Livonniere says: “En pays cou-
tumiers, institution d’h~ritier n’a lieu, c’est-a-dire, les successions y sont
d~fri6e par la Loi municipale, selon l’ordre du sang et de la parent6; il n’y
est pas permis de se choisir un britier, au prejudice de ceux qui sont appel6s
par la Coutume.” 6 Seizin, therefore, was given only to the blood heir,
and it comprised all the property of the succession. Thus where particular
legacies were given, it was necessary for the legatee to go to the seized heir
and demand delivery of his legacy. This does not mean that the legatee was
not owner, but he was an owner without legal possession or the capacity to
exercise the rights stemming from his ownership. Denisart says: “La n&
cessiti de la demande en d~livrance de legs, soit universels, soit particuliers,
est fond6e en pays coutumiers sur ce qu’en vertu de ]a maxime, le mort
saisit le vif, les h6ritiers du sang sont saisis de tous les biens de ]a succes-
sion.”‘3 T If a legatee attempted to put himself in possession the heir could
bring an action to have his legacy declared null.38 In short the law in this
3 5Maleville, Discussion de Code Civil, 3rd ed., vol. 2, p. 170.
36Pocquet de Livonniire, op. cit., p. 195. The maxim institution d’hritier n’a lieu, may
be found in Coutume de Paris, art. 299; Coutume d’Anjou, art. 271; Coutume de Maine,
art. 237; and Coutume de Touraine, art. 258.
37Denisart, Dilivrance de Legs, 161, no. 2.
3SPrudhon, Trait’ de L’Usufruit, vol. 1, p. 481.
No. 2]
SEIZIN IN QUEBEC LAW
Province, prior to the Quebec Act of 1774 was, as Mignault explains it:
“Mime lorsque le d~funt avait laissE un testament, la saisine appartenait en-
. l’hritier. Le lgataire bien qu’il devint propri~taire, sans aucun fait ni
core
. n’acqu~rait pas la possession de
tradition, du jour du d~cbs du testateur.
‘hritier . . . S’il se
la chose lgu~e; i1 devait en demander la d~livrance
mettait de lui-m~me en possession de cette chose, il se rendait coupable d’une
voie de fait
‘ gard de l’hritier. ‘3 9
.
These new concepts, freedom of willing, abolition of the legitime, and the
change from an absolute seizin given only to the heir, to a co-existant and
equally plenary testamentary seizin, were not immediately fully appreciated
by the courts. Despite the statutes, they continued to accord the full seizin
to the legal heir, requiring the legatee to obtain delivery from him. In an early
case it was held: “Le mort saisit le vif. A common legacy therefore vests in
the heir at law and he is not divested of the same until a d~livrance de legs
has been obtained. ‘” 40 A year later, in Duclos v. -Dupont, it was held that the
want of a d~livrance de legs to a universal legatee is an exception in the
mouth of the heir. 41 And in 1854, a court stated: “The doctrine is in-
controvertible, that the legatee is not vested with the legacy prior to de-
livrance.” 42
However the jurisprudence gradually shook off the shackles of the old law,
and in Robert v. Dorion, it was held that in the event of a universal legacy,
a demand in delivrance is unnecessary. Mr. Justice Smith expressed the
feeling of the Court, saying: “On the principle therefore that cessat ratione
cessat ipse lex, a demand for delivrance should no longer be considered neces-
sary for a universal legatee.” 43 Finally, in Blanchet v. Blanchet, the Court
of Appeal held, reversing the lower court, that since 41 Geo. III, C. 4, the
dflivrance de legs had ceased to be necessary. The court found that this field
of law in ‘Lower Canada had fallen within the scope of the written law, and
thus the universal legatee was seized immediately in virtue of the will. Mr.
justice Badgley clearly pointed out that this seizin is the same legal fiction
applied to the heir, and that the universal legatee, from the moment of the
testator’s death, was deemed to be possessor of the property of the succes-
sion. 44
This was the interpretation of the new law when the Codifiers began their
task, and they, appreciating the novel aspects, sought -their authorities, not in
the French authors, but in the Quebec jurisprudence. In their notes on what
is now article 891 of the code, they state: “Le projet pr~sente. cette rigle
comme expression du droit existant suivant l’opinion alors r6cente de la
39Mignault, op. cit., vol. 4, p. 337.
4OCampbell v. Sheperd, [1819] Stuart’s Reports, 138.
4 1Duclos v. Dupont, B.R.Q. [1820] no. 495, Stuart’s Reports, p. 236.
42Holand v. Thibaudeau, [1854] Dicisions du Bas-Canada, t. 4, p. 121.
43Robert v. Dorion, (1857) 3 L.C.J. 12.
44Blanchet v. Blanchet, (1861)
(Q.B.) 11 LC.R. 204.
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[Vol. 3
Cour d’Appel dans l’affaire Blanchet.”4 They recognized that the legatee now
stood on an equal footing, stating: “Les Commissaires, en pr~sentant corn-
me un point encore plus ou moins douteux, l’opinion qu’ils adoptent, savoir
celle qui repousse la n6cessit6 d’obtenir d6livrance, ont cru qu’elle 6tait plus
en harmonie avec le principe nouveau qui r6git ]a mati~re. Ils ont aussi tfich6
de rendre le sujet plus complet, en mettant l’h~ritier et le lgataire sur ce
m~me pied.” 46
The Codifiers clearly thought that they were merely stating the existing
law. However it has been contended that they introduced new law by in-
cluding the particular legatee in the article, whereas the jurisprudence from
which they drew had dealt only with the universal legatee. Yet is was neces-
sary to extend seizin to the particular legatee in view of the changes in the
old law, for when a principle of law is altered, all those other aspects of it,
whose existence depends upon the principle must also alter. It cannot be
said, as each of these corrolaries is replaced, that the replacement is new law.
The statutes of 1774 and 1801 introduced a new principle of law, and abrogat-
ed an old one. The principle of the old law lost its force, and to fill the vacuum
left by its disappearance, along with the many other laws which found their
being in it, a new body logically sprang into being as a result of the new
principle. Therefore the extension of seizin to the particular legatee was a
logical necessity, and the Codifiers merely articulated this fact, they did not
thereby create new law.
Thus as our law now stands both types of legatee are seized, and the
seizin of each is unique and complete. There exists no conflict between the
two, for. each operates within its own sphere, and as such, is exclusive, for
they do not deal with the same property of the succession. Mr. Justice Mathieu
pointed this out, saying: “Au d6c~s du testateur, ses l6gataires particuliers sont
saisis de plein droit, de leur legs, sans qu’il soit besoin d’en demander deli-
vrance au 16gataire universel, qui n’a ]a saisine d’aucun des legs particuliers,
mais au contraire, n’a que celle du legs universel, abstraction faite des legs
particuliers. ‘ ’47 The effects of the legatee’s seizin are identical to those in the
case of the heir, and he may therefore sue and be sued from the moment the
succession opens, or from the event which gives effect to his legacy. In the
latter case, where a legacy is made under a suspensive condition, the legatee
is not seized until the condition is fulfilled. In the interval, the heir, or uni-
versal legatee, as the case may be, is seized under a resolutive condition.
When the condition upon which the legacy depends is fulfilled, the heir is
deemed never to have been seized, and the legatee to have been seized from
the moment of the testator’s death.
The legatee therefore, in Quebec, is a testamentary heir and like the legal
heir is, by fiction of the law, immediately seized of the possession of his
455i me Rapport, p. 182.
465iime Rapport, p. 168.
47Archambault v. Viger, (1889) 18 R.L. 349.
,No. 2]
SEIZIN IN QUEBEC LAW
legacy at the moment of the succession’s opening, a radical departure from
the old law, wherein our laws originally found their source. It is a unique
position and demonstrates another example of the successful combination of
principles drawn originally from conflicting sources which characterizes
many aspects of the law of the Province of Quebec.
THE SEIZIN OF THE TESTAMENTARY EXECUTOR
The executor, although not a successor is also granted by law, seizin of
the moveable property of the succession by the terms of article 918 C.C.
which states, in part: “Testamentary executors, for the purpose of the
execution of the will, are seized as legal depositaries of the moveable property
of the succession, and may claim possession of it even against the heir or
legatee.
This seizin lasts for a year and a day reckoning from the death of the
testator, or from the time when the executor was no longer prevented from
taking possession.”
The seizin of the testamentary executor originated in the law of tie pays
de droit coutumier, to protect legatees. Since seizin was given only to the
heir, he was in a position to ignore the legacies granted by his predecessor.
The practice therefore arose of appointing an executor to see to the fulfill-
ment of the testator’s wishes. Lamoignon states: “C’est une r~gle fonda-
mentale en mati~re de succession que la mort saisit le vif. La proprit6 et Ia
possession de tous les effets de l’h&dit6 passent donc, sans aucune inter-
valle de temps, sur ]a tte et dans les mains de l’hritier. Ainsi, il est souvent
le maitre de rendre les dispositions du testateur auquel il succ~de, illusoi-
res . .. quand personne n’a qualit6 apparente pour l’en emplcher par l’appo-
sition des scell~s.
On a rem~di6, en partie, a cet inconvenient en France en 6tablissant l’usage
des ex~cuteurs testamentaires que les testateurs peuvent choisir, et qui sont
saisis par cette seule qualit6 de la possession de tous les biens de l’hr~dit6,
et du pouvoir de les administrer au d6sir du testament qui les a 6tablis.” 48
The office is: “… un mandat, mais un mandat soumis i des r~gles toutes
spciales.” 49 For example it begins with the death of the principal, while
ordinary mandate ceases at such time. The executor is the agent of the
de cujus, not of the heirs or legatees, and they cannot prevent him from
fulfilling his charge. V-owever he must, as must all agents, remain within
the bounds of his mandate, whether they are imposed by law or determined by
the will of the testator. His mandate is to execute the wishes imposed by the
will and it is to do so that the seizin is given him, the same seizin as given the
heir or legatee, for as Me. -Aim6 Geoffrion, pleading before the Court of
48 Lamoignon, vol. 2, T. 49, p. 429.
49Colin et Capitant, op. cit., vol. 3, p. 902.
McGILL LAW JOURNAL
[Vol. 3
Appeal said: “La saisine 6tablie par l’article 918 C.C. est une fiction de ]a loi,
et ]a saisine, dans son sens lgal, c’est ]a possession d’une chose.”‘ 0
The executor is therefore deemed to be possessor of the moveable property
of the succession from the moment of the testator’s death, to enable him suc-
cessfully to harry out his mandate. In other civil jurisdictions such as France,
Louisiana or Haiti, the codes provide for the seizin of the executor only
when it has been expressly given him by the testator in the will; the seizin
does not flow from the law alone. However in Quebec we may distinguish
two types of seizin, the legal and the testamentary. The former comes from
the law and cannot be revoked. The latter comes from the will of the testator,
who, by article 921 C.C. may modify, restrict or extend, the powers, the
obligations, and the seizin of the executor. As Baudouin says: “Alors que !e
droit franqais ne donne la saisine iL 1’ex~cuteur testamentaire que si le testa-
teur lui-m8me y a pourvu, le droit qu6becois connait deux sortes de saisine:
la saisine lgale confere a tout ex6cuteur du simple fait de sa nomination,
et ]a saisine testamentaire par laquelle le testateur peut modifier ]a premiere,
soit en augmentant, soit en diminuant les pouvoirs normaux et lgaux de
l’ex~cuteur.” 5′ These two seizins, while distinct in origin, do not, however,
have a co-equality of position; a certain precedence must be given to the legal
for it cannot be prevented by the testator who may only modify it. The legal
seizin may exist without the testamentary, but the latter cannot stand alone.
The principal question is, what is the relation between the seizin of the
executor, and that of the heir or legatee. At first glance there appears to be a
contradiction for it seems impossible that two persons should be legal pos-
sessors of the same thing at the same time. However no incompatibility exists
for the natures of the two possessions are different. The heir, or legatee, has
possession as owner, while the executor possesses only as a depositary and
administrator, with no real right in the property he holds. 52 The two operate
concurrently, for the executor possesses for and in the name of the heir or
legatee, who are the owners of the property he detains, by virtue of the will of
the testator, for the purposes of the execution of his mandate. Toullier says:
“Cette saisine n’emp&he point celle de l’hritier . . . c’est toujours l’h~ritier
qui est le veritable possesseur; lui seul est saisi comme propri~taire.”‘ ‘; ” How-
ever, in one aspect, the executor’s seizin takes precedence for he is empowered,
in virtue of it, to claim possession of the moveable property even against the
heir or legatee. 4
5o. Iarchcssa’dt v. Durand, (M.L.R.) 5 Q.B. 364.
5lBaudouin, op. cit., p. 1167.
552Aubry et Rau, Droit Civil Franais, vol. 7, no. 711; Troplong, Du D,5p61, no. 245,
Ricard, Don. part. 2, no. 71; Marchessaull v. Durand, supra.
53Toullier, op. cit., no. 212.
4Cook v. La Banque de Quibec, (1893) 2 Q.B. 172; Aornandeu v. McDonndl, 30
L.C.J. 120.
-No. 2]
SEIZIN IN QUEBEC LAW
His seizin extends only to the moveable property, unless explicitly ex-
tended by the will to include the immoveable also, and moveables comprise
only those actually in existence at the testator’s death, thus excluding the
revenues accruing from the immoveables during the executor’s term of office.55
The law limits his seizin to a year and a day from the death of the testator
or from the time he was no longer prevented from taking possession, but
again this may be altered or extended by the testator. It has been decided
that it begins from the moment of the testator’s death, and the taking of in-
ventory is not a prerequisite to the seizin. It is automatic and instantaneous,
and the executor needs no authorization to take possession. ‘As Pothier
says: “Les effets de la saisine de l’excuteur testamentaire sont que l’ex6-
cuteur peut se mettre lui-mfme en pos3ession des biens de la succession.” 56
As a result of his seizin, the executor may sue the debtors of the e5tate,
and be sued by its creditors. This raises the question as to whether a judg-
ment against the executor constitutes chose jugie against the heirs or
legatees. The better view is that it does not, for the executor does not re-
present the succession, he only administers it. Baudry says: “Pas plug comme
demandeur que comme d~fendeur, l’ex~cuteur testamentaire ne peut repri-
senter la succession en justice. Aucun texte n’en fait ie repr~sentant des
h6ritiers. Or, du jour du d~c~s du testateur, ses hritiers sont les seuls re-
pr~sentants de la succession . . . Si n~anmoins, il s’agissait, le jugement
qui serait rendu contre lui ne serait certainerient point opposable aux hMri-
tiers.” 57 And Baudouin says: “S’il y a contestation on admet qu’il n’y a pas
d’autorit6 de chose jug~e a la decision rendue entre le tiers et l’ex~cuteur
testamentaire au regard de l’hritier.”58
The executor is therefore an administrator, who is given the same seizin, the
possession by fiction of law, as is given the heir or legatee, although, except
when so stated, he is neither owner of, nor successor to the property he pos-
sesses. The seizin is given him to permit him to execute the mandate im-
posed upon him by the testator, and may be invoked even against the heir or
legatee. It is but another example of the melding of two laws, for although its
origin lies in old France, it has not the rigidity of its modern French counter-
part, being modified by the notion of freedom of willing which came to this
Province with the English.
THE LEGISLATURE AND THE LAW
The question of seizin was looked upon as a reasonably cut and dried
aspect of our law until 1892, when the first of a series of succession duties
acts was introduced. These taxing measures once again brought the notion
5.sRicard, op. cit., no. 77; Mignault, op. cit. p. 461; Roch, Traiti de Droit Civil Ca-
nadien, vol. 5, p. 517.
56Pothier, op. cit., no. 218; also Toullier, op. cit., no. 585.
5TBaudry-Lacantinerie et Colin, op. cit., p. 336.
58Baudouin, op. cit., p. 1167; also Morency v. Mercier, (1928) 31 P.R. 134.
McGILL LAW JOURNAL
[ vol. 3
of seizin to the attention of the lawyers of this Province, posing the problem
as to whether or not certain provisions of these acts have partially nullified
or suspended the maxim, le mort saisit le vif. The question has been before
our courts many times in the intervening 65 years, and to many observers it
remains unsblved, or only partially answered.
The original statute, 55-56 Vict. c. 17, put into force June 24, 1892 became
articles 1191b to 1191i of the Revised Statutes of 1888. The provision which
has proved so contentious was article 1191d which read: “Nul transport des
biens d’une succession n’est valide et ne constitue un titre, si les droits
payables en vertu de cette loi n’ont pas 6t6 pay~s, et aucun ex~cuteur, fid~icom-
missaire, administrateur, curateur, h~ritier ou l6gataire ne peut consentir i
un transport, ni au paiement des legs a moins que ces droits n’aient 6t’
pay~s ou A moins qu’un certificat n’ait &6 d~livr6 par le percepteur du re-
venu de la province a l’effet qu’aucun droit n’est exigible.”
The text was altered gradually and finally appeared as article 14, paragraph
7 R.S.Q. 1925, C. 29 reading in part: “Sujet aux dispositions de P’article 13,
nul transport des biens d’une succession n’est valide et ne constitue un titre,
si les droits payables en vertu de ]a pr~sente section n’ont pas 6t6 pay~s; et,
aucun ex6cuteur, fid6icommissaire, administrateur, curateur, fid~icommis-
saire, administrateur, curateur, h6ritier, lgataire ou donataire, comme susdit,
ne peut consentir A un transport, ni au paiement des legs, et aucune personne
ou corporation ou aucun agent de transferts pour une corporation ne peut
accepter ou enregistrer un transfert d’actions dans ses livres, et aucun as-
sureur ne peut payer valablement les sommes dues a raison d’un d6cs, a
moins que les droits exigibles n’aient 6t6 compl~tement pay~s et i moins qu’un
certificat attestant que ces droits ont 6t6 payts ou qu’il n’y en a pas d’exi-
gibles n’ait 6t6 dtlivr6 par le percepteur du revenu … ”
In 1930, by Geo. V c. 28, a significant alteration appeared, and the section
was amended to read, in part, as follows: “Subordonntment aux dispositions
de l’article 13, nulle transmission de biens appartenant, lors de son dc~s, a
une personne d~c~d~e, ne peut se faire, et un transport de ces biens n’est
valide ou ne constitue un titre A ou pour ces biens, tant que le droits exigibles
en vertu de la pr~sente section n’ont pas 6t6 compl~tement pay6s et qu’un cer-
tificat, contenant une description des biens et attestant que ces droits ont 6t6
pay~s, ou qu’il n’y en a pas d’exigibles, n’a pas 6t6 d~livr6 par le percepteur
. .” This is the version we now find as section 44 of the present
du revenu .
act. The prohibitions to executors and other administrators or holders has
now become section 45 and is too lengthy to recite herein. Suffice it to say that
it prohibits executors, trustees, curators, heirs, legatees, donees, corpora-
tions, transfer agents, depositaries, banks and insurers to pay out sums in
their hands until the succession duties have been paid.
These two sections appear under the heading Mesures de Contr6le, and by
their terms impose severe restrictions upon the rights of the heirs or legatees
No. 2]
SEIZIN IN QUEBEC LAW
for the purpose of safeguarding the payment of the duties. Seizin we have
defined as that legal possession which permits the heir or legatee full and
free exercise of the rights inherent in the succession. Have these provisions
abolished the legal seizin, and placed the heirs and legatees in a position
analagous to the irregular heir requiring them to be put in possession in
virtue of a certificate issued by a government official? Have the provisions of
articles 607 and 891 been made meaningless? In short, is the heir or legatee
still seized, or has this act made the payment of the duties a prerequisite of
their seizin. We are faced with a valid statutory provision on one hand, and
on the other, an established maxim of civil law. Are these two then irreconcil-
able, and if not, how is the reconciliation to be effected?
THE LAW AND THE COURTS
Few questions have received as many and varying interpretations by our
courts. An attempt will now be made to trace the interpretation of this
section through the jurisprudence marking off three broad periods! First
the decisions up to the amendment of 1930, then from that date to 1944 and
1945 in which years the cases of Jean v. Gagnon59 and Sokoloff v. Iron
Fireman60 were decided, and finally from those decisions to the present date.
In this pursuit three main questions must be kept in mind. Does section 44
prevent the immediate devolution of the ownership of the property of the
succession; second, does it suspend the seizin; and third, does it, in fact,
interfere with neither of these processes.
The section, as it stood prior to 1930 in no way interfered with the im-
mediate devolution of property to the heirs or legatees. In Thievierge v.
Cinqinars, it was held: “La loi qui dit que nul transport des biens d’une
succession n’est valide et ne constitue un titre si les droits voulus n’ont pas
&6 pay~s ne comprend pas la simple transmission ou d~volution des biens
“…”61 And Sirois says: “Cette
du d~funt
la simple transmission des biens par le
disposition s’applique-t-elle aussi
. tort.” 62 And in 1928, it was held: “La nullit:
d~cis? :On l’a pr~tendu, mais
du transport de biens d’une succession dont les droits n’ont pas 6t6 acquitt~s,
ne s’applique qu’ une alienation par l’hritier; elle n’affecte aucunement la
transmission du patrimoine du de cujus.” a
ses h~ritiers ou l~gataires .
The prevailing interpretation of this section was that it only applied to
subsequent transfers of the property, and did not affect the transmission, by
death, of either the property or the seizin thereof. It did not prohibit an heir
or legatee from taking possession himself, it only prevented certain persons
5 9 ean v. Gagnon, [1944] S.C.R. 175.
6OSokoloff v. The Iron Firemans Co., [1945] KB. 201.
6 lThievierge v. Cinqmars, (1897) 13 S.C. 398.
62Sirois, Des Droits Sur les Successions, 4 R.L. n.s. p. 553.
63Viau v. Viau, (1928) 48 K.B. 177.
McGILL LAW JOURNAL
[ Vol. 3
already in possession from transfering that possession to another. This is
evidenced by the use of the word transport, which means a giving over.
Therefore the section, prior to 1930 did not affect the seizin of the heir or
legatee who still was instantaneously invested with the legal possession of
in his possession, as a
his bequest, it only meant that he was “frozen”
guarantee of payment, until the duties exigible were acquitted. ‘However in
1930, an attempt was made to extend the section to cover even the trans-
mission by death, by amending the section, as set out above, and inserting
for the first time, the word transmission.
The amendment law came before the Court of Appeal in 1935, in the case
of Cardinal v. Langevin.6 4 This case dealt with a petition in continuance by
the universal legatee. The petition was dismissed, the Court holding that in
view of the amendment, the property was not effectively transmitted until the
duties were paid, and until such time, the legatee did not have the necessary
quality to continue the action. Mr. Justice Hall said: “It is obvious that this
amendment was made with the definite purpose of meeting Cannon’s objection,
and giving effect to Fitzpatrick’s obiter, that the payment of the duties should
be a condition precedent to the devolution of the property of the estate. It
may be doubted whether it was the intention, or that it was within the com-
petence of the legislature to repeal the common law that heirs, when they
inherit, are seized by law alone of the property, rights and action of the
deceased …. Transmission can have no other meaning than the devolution
of the property and rights.” Although the learned judge seems to confuse
ownership and seizin, it appears clear, that in his view, the property did not
pass to’the heirs or legatees until the duties were paid.
In the case of Desrochers v. Desrochers,G5 the Court of Appeal allowed
a petition in continuance, holding that such a petition was merely a request for
judicial recognition of status, and as such was not prohibited by section 44.
However the interpretation that the section prevented the immediate devolu-
tion of ownership prevailed, Mr. Justice Bond saying: “All the act says is,
that no transmission of any property, or transfer thereof shall be valid. It
does not purport to deprive the heirs, legal or testamentary, of their status
or quality as such. There is a suspensive condition as respects the vesting
of ownership or rights of ownership in the heir or any other beneficiary.”
The Quebec courts continued to so hold in subsequent cases, among which
are Findlay v. Lusk,”6 Laiernian v. EisenbcrgG7 and Planiondon v. Pla-
7nondon.68
64Cardinal v. Langevin, (1935) 59 K.B. 351.
65Desrochers v. Desrochers, (1937) 63 Y-B. 352.
6SFindlay v. Lusk, (1941) 79 S.C. 350.
67Lauterman v. Eiscnberg, (1941) 79 S.C. 109.
68Plamondon v. Plamondon, [1942] S.C. 237.
No. 21
SEIZIN fN QUEBEC LAW
All these decisions stated that the law suspended the devolution of owner-
ship, and seizin, when mentioned at all, was treated in only a cursory fashion,
and confused with ownership.
Then, in 1944, the Supreme Court was called upon to decide the question.119
Here, at last, the proper distinction between the transfer of ownership, and
seizin was made. Having so differentiated, the court went on to say that the
prohibition of section 44 did not conflict with the recognized principle of the
civil law, that the heir inherits operatione legis, the estate of the deceased.
The transmission of the property, from the moment of death, is not subord-
inated to the payment of the succession duties. This decision was followed by
the Court of Appeal in 1945.70 Mr. Justice St. Germain said: ” . . . il semble
impossible d’admettre que ce texte de la loi ait ainsi rfvolutionn6 les disposi-
tions du code civil, et que l’on ait voulu que tant que les droits successoraux
ne sont pas pay~s, la propri~t6 des biens demeure suspendue.”
This is the correct view. If we are to interpret this section to mean that the
right of ownership itself is suspended until the duties are paid, then every
in the
succession is automatically vacant, for who would own the propert
interim? Certainly not the Crown, for then the heir would be using Crown
money in many cases, to pay the duties, and furthermore, such an intrusion
into the domain of private ownership would smack of a collective spirit un-
dreamt of by even the most radical socialist. To conceive of the succession
owning itself during the interval would be a return to the Roman hereditas
iacens, a concept alien to our law. And finally, one of the oldest maxims of
the civil law is that a succession cannot remain in suspense, so we must
therefore conclude that the legislature did not intend to introduce any of
these alternatives. It must be remembered that section 44 is but one provision
of a fiscal statute; and to hold that it could, as such, amend the civil law, is to
give it a force beyond all bounds of normal legal interpretation. The terms
of articles 583 C.C. and 596 C.C. have lost none of their effect, and from the
moment of decease, the successor is owner of that property to which he
succeeds, even though the entire estate be gift wrapped in Succession Duties
Acts.
LE MORT NE SAISIT-IL PLUS LE VIF?
In Jean v. Gagnon, the Supreme Court interpreted the word transmission
to mean the seizin of the heir. Does this therefore mean that section 44
suspends the immediate legal possession of the heir? In other words has the
heir or legatee no capacity to act as such until the duties are paid, and a
certificate from the collector produced. This question must be discussed in
reference to specific cases, which are divided into two main groups, those
prior to the amendment of 1930, and those since that date.
69fean v. Gagnon, [1944] S.C.R. 175.
loSokoloff v. Iron Fireman Company, [1945] K.B. 201.
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The prevailing view taken by the Courts, during the former period, was
that the heir or legatee was only prevented from alienating or transferring
the property he had inherited. In 1897, the Superior Court allowed an heir
to sue upon a note, prior to the payment of duties.71 Two years later, it was
held that a petition from an order awarding certain shares held by a deceased
person in trust, should be allowed, on the ground that the non-payment of the
duties did not prevent the heir or executors from taking possession of the
estate.72 The Appeal Court, in 1921, allowed recognition of a right of serv-
itude prior to payment of the succession duties, a In Lafrance v. Thiffeault,
it was held that the universal legatee was entitled to take up the instance
whether the succession duties had been paid or not. It was further held that
the seizin was in no way suspended or interfered with.7 4 Again, the Superior
Court held that the omission to pay the duties and produce the certificate,
did not deprive an heir of the recourse provided him by law, to recover debts
due to the succession. 75 Finally, in 1930, it was decided that the failure to
pay the duties did not prevent an heir from seeking the recovery of a debt
due to the succession, by continuing a suit instituted by the deceased. 7
1 It is
clear from these decisions that the Courts believed the heirs or legatees to still
be seized, but once seized they were frozen in their possession until the duties
were paid. In other words the civil law immediately put them in possession,
while the fiscal law prohibited them from relinquishing it, once received.
With the addition of the word tranmnission in 1930, a stricter interpreta-
tion was given this section. The word transmission was interpreted by many to
mean seizin, and thus our courts, in numerous cases, denied the heir or
legatee any capacity to act until the duties were paid. Mr. Justice Surveyer
held that a universal legatee cannot perform any acts resulting from his
status and attempt to recover debts due the succession prior to paying the
duties. 77 That same year, the Appeal Court decided that particular legatees
could not demand that the beneficiary heir be declared insolvent, until the
duties were paid.-8 In Cloutier v. Cloutier it was held, that since the section
in question prohibits any transmission of property to the heirs, an action in
partition cannot be instituted until the duties are paid. 79 In another case Mr.
Justice Forest held, that a petition in continuance of suit cannot be instituted
7- Thivierge v. Cinqmars, (supra).
721n Re Denoon and The Taylor Hydraulic Air Co., (1899) 15 S.C. 567.
73Roberval v. Simard, (1921) 31 K.B. 328.
74Lafrance v. Thiffeault, (1924) 37 K.B. 278.
75Lemay v. Boissoncault, (1925) 63 S.C. 266.
76Leduc v. C.N.R., (1930) 33 P.R. 383.
77Meunier v. L’Hcurcux, (1935) 74 S.C. 360; also Turner v. Leavit, (1935) 73 S.C.
521; Taillon v. Brouillard, [1943] S.C. 140; Brosseau v. Cornfield, (1940) 43 P.R. 417;
Bernier v. Blais (1941) 45 P.R. 45; Labrie v. Thievierge, (1941) 45 P.R. 393; Lavoie v.
Bouchard, [1947] S.C. 493.
78Hritiers de Dame Chateau v. Richot, (1935) 59 K.B. 1.
79Clouticr v. Cloutier, (1938) 76 S.C. 59.
SEIZIN IN QUEBEC LAW
No. 2]
until the duties are paid.80 Yet again it was held: “Un hfritier ne peut se
pourvoir devant les cours de justice de cette province, pour riclamer une
part d’une succession ou d’un h&itage sans 6tablir au pr6alable que les droits
successoraux ont 6t6 acquitt6s.” 8′ And in 1954 an action by an executor
claiming money due the estate was dismissed on inscription in law due to
the fact that the duties were not paid.8 2
However this interpretation was not unanimous, and certain judges felt
that it imposed an undue hardship on successors. Consequently many deci-
sions were tempered by considerations of equity, as the courts introduced
subtle distinctions to escape the apparent rigidity of section 44. In Desrocherr
v. Desrochers, an heir presented a petition in continuance of suit. The Court
of Appeal allowed it, before payment of the duties, since nothing in the Act
precluded an heir from judicially establishing his title as such, and since it
involved no transfer to or by him.83 This distinction was preserved in Paradis
v. Brunet, where it was held: “L’action en rediition de compte et partage
peut 6tre intentge par un hgritier sans le payement pr6alable des droits de suc-
cession. I1 ne s’agit 1A que d’une demande judiciaire pour faire 6tablir la
quaiit6 d’h6riti&re de la demanderesse.”84
To further lighten the restrictions of the act, another distinction was drawn,
between the right to demand payment, and the payment itself. In an Appeal
Court decision it was held: “Le b~nfficiaire d’une assurance n’est pas emp&ch
de rgclamer en justice l’indemnit6 convenue dans la police, par le motif qu’il
n’aurait pas acquitt6 les taxes de succession; il ne peut, n6anmoins, obliger la
compagnie A verser la somme due avant de se conformer aux dispositions de
la loi A cet 6gard.”85 And in 1952 it was held: “Aux termes de la loi des
droits sur les successions, ce n’est pas l’action, mais le payement qui est pro-
hib6. avant que ces droits ne soient acquittgs. Un h~ritier peut donc poursuivre
et 6tre poursuivi sans qu’il soit all6gu6 ni prouv6, que les droits successoraux
ont 6t6 pay~s.”86 Consequently a successor could institute action and obtain
judgment, prior to the payment of the duties. In this series of judgments
may be seen a return to the pre-amendment interpretation, which denied that
seizin was suspended, holding that the section prohibited only subsequent
transfers of the property, not actions.8 7
SoCasavant v. Dr. X., (1939) 77 S.C. 447.
8lConnolly v. Estate Michael Connolly, (1938) 40 P.R. 36.
82Guarantee Trust v. Barnabi, [1954] S.C. 411.
83Desrochers v. Desrochers, supra; also Sokoloff v. Iron Fireman Co., supra; R,’-
pington v. Vaillancourt, [1946] K.B. 482.
84 Paradis v. Brunet, [1947] S.C. 156; Dc Lottinz4lle v. Whiteford, (1941) 79 S.C. 212.
8.London Life Insurance Co. v. Sequin, (1933) 55 K.B. 332; also Butler v. Archam-
bault, (1944) 11 I.L.R. 140.
88Gregoire v. Gaudreault, [1952], S.C. 156.
8TKack v. Savard, (1937) 41 P.R. 238; Desruisseaux v. Lafleur, (1937) 41 P.R. 371;
Capital Trust v. Connolly, (1940) 79 S.C. 39; Lazure v. Eden, [19521 P.R. 147.
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In the jurisprudential history, two cases stand out, the first of these being
Jean v. Gagnon. In this case, the Supreme Court, clearly distinguishing be-
tween seizin, and the transfer of ownership, held that section 44 of the Act
suspended the legal seizin, making the payment of the duties a statutory
suspensive condition, failing which the heir has no capacity to act. However,
in deciding that a sale entered into before the duties were paid by the seller
was valid, upon subsequent production of a certificate, they gave to the
payment of the duties a retroactive effect. Consequently the nullity imposed
upon such a transfer is only relative. The Court compared the position of the
heir, who has not complied with the law, to that of the irregular heir, stating
that the act merely creates specific incapacities to deal with the property
effectively. In this last statement is hidden the germ of the correct interpreta-
tion of the section.
This judgment was carried a step further in the case of Sokoloff v. The
Iron Fireman Company. The Court of Appeal held that a widow could
continue an action for damages instituted by her deceased husband, without
alleging or proving that duties had been paid. Mr. Justice St. Germain,
however, took the case beyond the particular circumstances. Citing the reason-
ing used by the Supreme Court in Jean v. Gagnon to decide that the section
did not suspend the transmission of ownership, he states that the same reason-
ing must apply to the transmission of seizin, which in his view, is a question
of public order, and cannot remain in suspense. He says: “Il est bien 6vident,
que le mot transmission, que nous rencontrons dans les articles de cette
tout acte de trans-
section II intitul~e Mesures de Contr6le, se rapporte
la transmission par d~c~s aussi bien de ]a saisine
mission. subsequent i
lgale, que de ]a propriet6. II s’agit, dans cette section, de transmission et
transport que le l~gislateur defend A l’h6ritier de faire aux fins de prot6ger
les droits du fisc, et nullement de la transmission par d6c~s et de ]a propri~t6
et de la saisine l~gale.”
I do not doubt that the learned judge is perfectly correct in stating that
section 44 of the Act does not subject the seizin of the heir or legatee to
the prerequisite condition of payment of the duties. However although his
discussion is the most astute to be found in the jurisprudence, it is humbly
submitted that it needs to be carried slightly further to its logical conclusion.
As the question stands now, after its evolution through the Courts, the
provisions of section 44 and 45 suspend neither the transmission of owner-
ship nor the transmission of seizin, per se, but do prevent subsequent trans-
fers. However this does not fully clarify the real relationship between the
meaning of section 44 and the concept of seizin.
This statute is not an act regulating the devolution of successions, or alter-
ing the civil law. It is a fiscal measure taxing the property of a succession,
or the transmission of that property. The Legislature having decreed that
such a tax shall be levied, is naturally desirous that it shall be paid, and this
No. 2]
SEIZIN IN QUEBEC LAW
has provided measures to ensure that payment, and thus we have sections 44
and 45. However it must be remembered that these provisions are designed
solely to protect the interests of the treasury and must be interpreted as such.
They were never intended to be used by private citizens as a method of
avoiding contracts, or as a defence against a valid claim by a creditor. We
have a law of successions that was old when modern successions duties
were still unthought of. jOne of the principles of this law is that the legal
possession of the property of a deceased person is deemed to pass to his
successors from the moment of his death. To maintain that the legislature
intended to impede or repudiate this process requires a substantially more
explicit provision than the mere insertion of a word transmission in one
regulatory section of a taxing statute.
Consequently the provisions of sections 44 and 45 hinder neither the
transmission of the ownership of the succession, nor the legal possession. We
must remember that this tax is but a consequence of the rights conferred
upon a successor by the law, and to deny him these rights, is to destroy the
basis of the tax. The legislature merely wished to put every obstacle possible
in the way of an evasion of this tax to protect their security, and thus they
forbade the successor to alienate or otherwise dispose of his property in such
a way as to diminish their chances of collecting the tax. However this is not to
say that the heir is intrinsically incapable of exercising his rights. Although it
may be true that many citizens spend a good deal of time and effort devising
methods whereby they can evade tax payments, it is not the position of the
legislature to statutorily endow all citizens with such nefarious motives. Their
taxing laws must assume that the duties will be paid, and provisions such
as sections 44 and 45 become operative only when a successor fails to fulfill
his obligations to the state. Sanctions are post-operative, and to interpret
this law to mean that all successors are automatically deprived of certain of
their rights, before they even have the opportunity to disobey the law, is a
reversal of our system of justice.
The government is the creditor of every heir or legatee and by this Act
has done no more than constitute itself a privileged creditor of prime rank.
The purpose of section 44 being to protect the treasury’s rights, it is perfectly
entitled to protect them in as unassailable a manner as it wishes. Our code
presents several instances in which a creditor is protected against fraudulent
alienations or payments made by his debtor, as in articles 1031, 1032 and
1033 C.C. The government has chosen perhaps the most effective protection
possible, by freezing the assets of a succession in its owners hands.
But this must not be interpreted to mean that the successor is not seized,
for he still has full capacity to exercise his rights and actions, and such
exercise is perfectly valid; it is the effect of the exercise which is limited by
the act. A clear distinction exists between not possessing a right and possessing
a right but being prohibited from effectively exercising it. Seizin has been
194
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[Vol. 3
defined as that legal possession by virtue of which the heir gains the capacity
to exercise the actions and rights inherent in it. The Act in no way deprives
the successor of this capacity, it merely gives the actions themselves no effect
until the payment of the duties.
Ve must therefore conclude that the notion of seizin, that fictitious legal
possession by which the successor instantaneously acquires the status neces-
sary to exercise the rights and actions of the succession, is left unsullied in
all its implications. He who is seized can act; and conversely, he who can act
is seized; that is the criterion. It is therefore submitted that the provisions of
the Act do not interfere with the seizin, not do they suspend it for, as Mr.
Justice Jean said, “Dans ce cas, la loi contient-elle des dispositions qui d6-
l’hritier d’actionner ou d’Etre actionn6 avant d’avoir pay6 les
fendent
droits successoraux ou obtenu un certificat qu’il n’y a aucun droit exigible?
Je ne le crois pas.”8
SsRoy v. Coupal, [1950] S.C. 156.
