A Simple Legacy: “To My Children”
The First of Two Parts
by Daniel N. Mettarlin *
Legacies to “children” and “issue” are common; yet few terms
can create more difficulties for the unwary draftsman. In this two-
part article Mr. Mettarlin analyses the legal meaning of these terms
and of such common companion expressions as “by roots” and “in
equal shares”. From history, doctrine, and jurisprudence he distills
two conflicting
irreconcilability.
Their warring co-existence, he shows, renders uncertain traditional
and apparently clear testamentary dispositions.
In conclusion the
author advocates certain rules of construction for judicial use, and
suggests drafting aids to minimize costly and unnecessary litigation.
theories, and underlines
their
INDEX
Introduction
Chapter I: The Failure of the Civil Code …………………………………
1. The conflict between articles 937 and 980 ………………………….
69
69
2., A look into the past ……………………………………………………………
A) The law prior to 1747 –
B) The innovations of 1747 –
. 70
representation accepted ……….. 70
representation rejected ………. 74
3. The law of Q uebec …………………………………………………………….
A. The Failure of the Codifiers ………………………………………..
i) The problem of Article 937 ……………………………………….
ii) The conundrum of Article 980 …………………………………
B. The Jurisprudence …………………………………………………………
i) The rejection of post 1747 law …………………………………
ii) The failure to decide if article 980 is based on repre-
sentation …………………………………………………………………..
77
77
77
79
82
83
83
* Of the Notarial Bar of the Province of Quebec.
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Chapter II: Problems in Legacies to Collaterals and Strangers
and in the Substitution ………………………………………
86
1. The view adopting representation ………………………..
…………..
86
A) The historical and jurisprudential basis of this view …….. 86
88
B) Consequences in the direct line …………………………………….
88
C) Consequences in the collateral and nonrelated lines …………
90
D) Consequences in the Substitution ………………………………..
91
91
93
aa) The substitution in ancient law …………………………….
i) The collateral and non-related lines ……………………..
ii) The direct line ……………………………
iii) The substitution to persons both in the direct and
…………………..
collateral lines …………………………………………………………
bb) The substitution in Quebec law …………………………..
2. The view rejecting representation ……………………………………
A) The basis of this view in Ancient law …………………………
B) ‘ The basis of this view in Quebec Law
C) The consequences in the direct, collateral and non-related
……………
lines and in the substitution …………………………………………..
102
3. General conclusion ………………………………………………………………
104
Chapter III: The Division of a Legacy to Children ……………………
104
95
95
97
97
100
104
106
106
109
111
112
1. Descendants in the primary degree …………………………………….
A ) The law prior to 1747 …………………………………………………….
B) The law of Quebec …………………………………………………………
C ) Conclusion ……………………………………………………………………….
i) Assuming article 980 is not based on the rules of
intestacy ……………………………………………………………………
109
ii) Assuming article 980 is based on the rules of intestacy 110
2. Descendants other than those in the primary degree …………
A) The principles of division ………………………………………………
i) Rule 1 – Living descendants exclude their own des-
cendants ……………………………………………………………………..
112
ii) Rule 2 – Descendants inherit only their deceased
parent’s share …………………………………………………………..
113
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A SIMPLE LEGACY: “TO MY CHILDREN”
67
Chapter IV: Common Expressions to Avoid the Problems of
Division and Inclusion ………………… 114
1.- Terms which attempt to provide for the death of a child ………
A ) The term “issue” ……………………………….
B) The phrase “with representation in favour of” ………………
………………………..
i) Assuming article 980 rejects representation …………….
ii) Assuming article 980 adopts representation ………………
C) The need for definition; and suggested clauses ………………
114
115
117
117
118
119
2. Terms that provide for division …………………………………………….
A) “In equal shares” ..
B ) “B y roots” ……………………………………………………………………..
C) Suggested clauses for the draftsman ………………………………
………………..
120
……. 120
122
125
Chapter V : Special Problems ……………………………………………………
127
1. The meaning of “children” in the prohibition to alienate ……..
127
2. The meaning of “children” in the power to appoint …………….
128
3. Does the term “children” include children of a child deceased
at the time the will is executed …………………………………………
132
4. The meaning of collective Expressions other than “children” 132
C onclusion ………………………………………………………………………………….
134
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INTRODUCTION
A legacy to “my son John Smith” is clear and in need of little in-
terpretation.1 However, in few cases can the testator so clearly
define the object of his bounty. A youthful testator may have other
children before he dies and so not wish to limit his bequest to named
persons. A testator who bequeaths his property to his son’s children
cannot name such grandchildren for fear that some may die and
others may be born prior to his son’s death. Thus it is customary
and wise to leave property by a generic term, to a class of persons,
such as to one’s “children” or issue” without naming any members
of the class. Unfortunately a class legacy to “children” or “issue”
creates numerous problems of interpretation and definition.
Whether a gift to “children” will include adopted children,2 or
children in gestation (especially if the testator uses an expression
such as “children born of my marriage”, or “children living at the time
of my death”) or children of a second marriage, the first having ended
in a foreign divorce not recognised in Quebec, are questions beyond
the scope of this essay. What I intend to discuss are the problems
resulting from the following and similar situations. Suppose a testator
has left his property to his “children”, but that upon the testator’s
death several of his children have died leaving descendants. Will such
descendants 3 be able to inherit the legacy to “children” and if so in
what proportions? Would the results differ had the testator left the
property to his “issue” or ordered that the property be divided “by
roots” or “in equal shares” ? Would the results be the same if the
1 Should “John Smith” not be the testator’s son, the question will arise whether
the testator left him the property because he was John Smith, or because he was
his son. There are a number of cases in which the testator left property to a
named person, described also as the testator’s wife, who in fact was not his
wife: see Russell V. Lefrangois (1884) 8 S.C.R. 335 where the testator was igno-
rant of his wife’s previous valid marriage (the problem of whether the rule for
a son would be different is discussed); see Trudeau v. Plouffe [1944] S.C. 201
where the testatrix knew her marriage was invalid. The problem sometimes occurs
that a person has named his wife beneficiary and is then divorced without
changing his will; Dunbar v. Murray (1940) 78 S.C. 458; Hubert V. Martin
[1951] S.C. 309 (dealing with an insurance policy); Winer V. Great West Life
Assurance Co. (1941) 79 S.C. 262 (also concerned with insurance.) See also R.
Comtois, Traiti Thiorique et Pratique de la Communauti de Biens (Montr6al,
1964). No. 238, p. 234.
2 Albert Mayrand, “Adoption et successibilit”, (1959) 19 R. du B. 409 pp. et
seq.
3 Assuming, of course, that we have decided whether such descendants are to
include adopted children, children in gestation, and the like.
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A SIMPLE LEGACY: “TO MY CHILDREN”
69
property was left not to the testator’s “children” but to the “children”
of a son, or brother or blood stranger? What will be the meaning of
“children” or “issue” in such legacies as to “my surviving children”
or “usufruct to my children, ownership to charity” or “to my three
children”, or “income to my children until the youngest child is 21
years when the principal shall belong to my issue by roots”?
Unfortunately the equivocal wording of the civil code and the
uncertain state of the jurisprudence give few answers to these ques-
tions. Who will share a legacy to “children” or “issue” and in what
manner it will be divided, are among the most troublesome questions
of our legal system.
Chapter I
THE FAILURE OF THE CIVIL CODE
1. The conflict between articles 937 and 980.
Article 937 expounds a simple rule,
“In substitutions, as in other legacies, representation does not take place,
unless the testator has ordained that the property shall pass in the order of
legitimate successions, or his intention to that effect is otherwise manifest”.
However, article 980 offers an apparent contradiction,
“In the prohibition to alienate, as in substitutions, and in gifts and
legacies in general, the terms children or grandchildren, made use of
without qualification either in the disposition or in the condition, apply to
all the descendants, with or without the effect of extending to more than one
degree according to the terms of the act”.
These two articles are in evident need of interpretation and recon-
ciliation. Are they complementary or independent? Are descendants
more remote than children in the first degree permitted to inherit in
virtue of article 980 because of the principles of representation or in
virtue of other principles? If the term “children” does permit repre-
sentation, are all the rules associated with representation to apply
to art. 980, such as a by root division, limited representation among
the “children” of collaterals (article 622 C.C.), etc., or will only
some of these rules be applicable ? If article 980 does not introduce
representation to wills, upon what principles is the article based;
which descendants other than those in the first degree will be
included in a legacy to “children”
in virtue of these principles;
how will a legacy to “children” be divided among them ?
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Logic alone will not answer these questions. In such matters, as
Justice Holmes once wrote, “a page of history is- worth a volume of
logic”. In this respect common and civil law do not differ. Our civil
code, as Walton has pointed out,4
“is saturated with history, and in many.parts is so extremely condensed, and
expressed in such an abstract form, as to be hardly intelligible to anyone
unfamiliar with the sources from which it is drawn… And, in some cases,
words, which at the first glance might seem to be clear, may be shown to be
equally susceptible of another meaning which is … consonant … with the
old law”.
Articles 937 and 980 are not the elegant products of some master
logician. They are the organic and hence untidy results of centuries of
experience; they are the particular solutions to particular problems
which once plagued our legal system. Only when we understand the
legal questions which concerned the theorists and practitioners of the
past, will we know why the codifiers enacted these articles, whiich
questions they were intended to settle, and which problems they left
untouched. Only then will- we know where history binds us, and
where logic and social policy leave us free to interpret, develop and
even innovate.
2. A look into the past.
Past experience, then, does not leave us free to roam at large in
our interpretation of articles 937 and 980. If we would resolve the
conflict between these articles, and understand the meaning of a legacy
to “children”, it is incumbent upon us to turn to the history of repre-
sentation in wills, and the corollary history of the meaning of the
term “children”.
A) The law prior to 1747 –
representation accepted.
Representation is a legal institution which enables the descendants
of an ancestor deprived of his rightful inheritance by untimely death,
to inherit what their ancestor would have taken had he been alive.
It prevents one branch of an ancestor’s family from being impoverish-
ed and prejudiced by an untimely demise, and it ensures the desire of
most of us that our grandchildren not be disinherited should a child
of ours predecease us.
Many legal systems have refused to admit representation to wills
without the testator’s express direction. They argue that since the
4 F. P. Walton, The Scope and Interpretation of the Civil Code of Lower
Canada (Montreal, 1907), p. 93.
No. 1]
A SIMPLE LEGACY: “‘TO MY CHILDREN”
71
testator can easily provide for the descendants of a deceased benefi-
ciary; a failure to do so should be interpreted as a rejection of repre-
sentation and a desire to benefit the legatee personally, without
regard to his family.
Roman law rejected testamentary representation.5 However, the
resulting exclusion of whole branches of the testator’s family led the
praetor to develop certain legal institutions which insured the inherit-
ance of a deceased child’s children.6 Whether or not the term “liberi”
per se ensured this result is uncertain, but most authors believe
that it did. 7
The various French customs diverged on the question of testa-
mentary representation. Some customs, based on Roman precedent,
rejected representation unless the testator expressly requested it. s
However, many customs, including that of Paris did permit testament-
ary representation in certain cases, even without express testamenta-
ry command.
All customs agreed that where a beneficiary was named or other-
wise clearly individualized only an express command would permit
representation. However, the customs that permitted representation
held that in a legacy to a class of persons “par nom collectif”, such as
to “ma famille” or “mes enfants” or “mes descendants” where the
class members were not individually designated, representation would
occur automatically.
Thus Bourjon 9 wrote,
“La representation n’a pas lieu dans les substitutions… h moins que la
substitution ne soit en nom collectif, ou faite… en faveur des enfans du
grevy”
5 Furgole, Commentaire do l’ordonnance de Louis XV sur les substitutions
(Paris, 1767), p. 108; Lalonde, Trait6 de Droit civil du Quibeo (Montr6al 1958),
v. 6, p. 143; Thevenot d’Essaule, Traitg des substitutions fiddicommissaires, ed.
le juge Mathieu (Tontr~al, 1889), No. 990, p. 310.
6Thus in a substitution where the testator’s child was the institute, and the
substitutes persons other than that child’s children, the praetor wrote into the
will a condition that the property would pass to the substitutes only if the tes-
tator’s child died without children. If the testator’s child died leaving children
the property.was to pass-to such children. See Gallirs v. Ryaraft [1901] A.C. 130.
7 Under Roman law, if property was left to “liberi” the children of a pre-
deceased child would inherit the legacy. By the term “liberi” the testator was
deemed to include children and the children of a predeceased child.
8 D’Aguesseau, Questions ooncernant les substitutions avec Zes r6ponses de tous
les parlemens et cours souveraines (Toulouse, 1770), pp. 296, 297, 310.
OF. Bourjon, Le droit commun do la France et la Coutume do Paris (Paris,
1770), V. 2, No. 19, p. 174.
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Similarly Guyn6 10 indicated,
“Lorsque le testateur a laiss6 ses biens h sa famille nomine collectivo, tous lea
Auteurs conviennent, qu’il faut presumer, que son intention a 6 … d’y
admettre la representation jusques aux enfans des fr~res”.
And Ricard 11 stated that collective legacies included,
“Toutes les personnes qui jouissent, par la loi du pays, du droit de represen-
tation”.
The basis of such representation was that in using these collective
nouns the testator was deemed to have intended his property to pass
in the same manner as if he died intestate. The same persons who
would have inherited had he died intestate would inherit a legacy to
“descendants” or “famille” or “enfants”, including those who could
inherit a predeceased parent’s share by representation.
“lorsque le fid6icommis est fait en termes g6n6raux et collectifs … sans
ddsignation particuli~re des personnes…
]a repr6sentation devoit avoir
lieu … savoir, que le testateur 6toit presum6, en pareilles occasions, s’Atre
voulu conformer h la Coutume” 12
Bourjon 13 writes that a
“substitution… faite en gdndral au profit des enfans du grev…, la
pr~somption 6tant que le testateur a modelM sa disposition sur la loi”
And Despeisses ‘1 writes:
“Mais le fiddicommis fait en faveur de plusieurs d6sign6s par un nom collec-
tif, comme d’enfans,… doit 6tre r~gl6 suiv. l’ordre des successions ab-intes-
tat; ensorte que tous … soient … appells … suivant le m~me ordre qu’ils
seroient appelIs s’il 6toit question de succ6der ab-instestat… parce qu’on
interprte… la volont6 du d6funt, ensorte qu’il ne se d6parte pas du droit
commun”.
Thus, by bequesthing his property to persons whom he described
collectively, the testator was deemed to wish such bequest to devolve
and be interpreted in the same manner as if he had died intestate, and
hence permit representation to occur to the extent to which it was
permitted in abintestate successions.
Not all collective nouns would permit representation. Only a speci-
fic few would have this result: “famille”, “descendants”, “siens”,
10 Guyn6, Traitj de la Reprisentation (Paris, 1727), p. 177.
11 Ricard, Traitg des Donations entre-vifs et testamentaires, traits III, “Des
substitutions”, ed. Bergier (Riom, 1783) V. 2, No. 575, p. 347. See also Bourjon,
op. cit., V. 2, No 20, p. 175, who states: “La substitution 6tant faite en faveur
des enfans du grevd, elle s’ouvre par son dc~s en faveur de tous les enfans… et
mgme en faveur des petits enfans quoiqu’ils soient dans un subs6quent degr6 …
ainsi, en ce cas, la representation y a lieu”.
12 Ricard, op. cit., No. 676, p. 389.
13 Bourjon, op. cit., V. 2, No. 22, p. 175.
14 Despeisses, Oeuvres (Toulouse, 1778), V. 2, p. 140.
A SIMPLE LEGACY: “TO MY CHILDREN”
No.1]
73
“parents”, “hoirs”, “enfants”. ‘r Others collective nouns such as
“fils” 16 “fr~res”, “cousins” and the like were not deemed indicative
of a desire to bequeath the property as on intestary and hence did
not lead to representation. However, no theory was evolved to
determine which words permitted representation, and which did
not; some expressions remained in doubt.
The view that terms such as “children” should introduce represen-
tation to wills led to certain inequities and illogicalities to be discussed
later in this essay. Thus towards the middle of the 18th century,
certain commentators wishing to ensure that the family of a predi-
ceased child would not be excluded from a legacy to “children”, yet
unhappy with the odd results of the admission of the rules of intestacy
and representation to wills, suggested a new theory for benefiting a
predeceased child’s family. In fact, they rediscovered Roman law.
They argued that the term “children” should enable descendants of a
predeceased child to inherit the latter’s share not because of represen-
tation, but because the term children had a technical legal meaning
which enabled them to do so, as did the term “liberi” in Roman law.
Unhappy with the theory that the term “children” introduced the
rules of intestacy and representation to wills they rejected this notion
and developed similar but not identical results on the basis of this
“new” theory. However, the consequences of this “new” theory in
15 The view that the term “enfants” permitted representation was not unani-
mous. Ricard, op. cit., No. 583, p. 349, and Bourjon, op. cit., V. 2, No. 20, p. 175,
believed that the term did permit representation. However, the Procureur do
Paris, while admitting that such terms as “famille” and “descendants” resulted
in representation, was more uncertain about the term “enfants”. Legacies, he
stated,
“faites seulement aux enfans pourroient souffrir plus de doute, parce qu’on
pourroit dire que sous ces termes les petits-enfants n’6tant pas disertement
compris, ils ne paroissent pas, suivant la volont6 du substituant, capables de
representer leur p~re d6c~d6”. D’Aguesseau, Questions concernant les substi-
tutions avec les rponses de toune Ls parlements et cours souveraines, (Tou-
louse, 1770), p. 303.
However, the Procureur’s view is definitely a minority one; thus, see Ferri6re,
Dictionnaire de droit et de pratique, (Paris, 1740), Vol. 1, p. 792.
“Dans les Testamens, le mot d’enfans comprend souvent les petits-enfans,
parce qu’en fait de dernieres volontez, on leur donne une interpr6tation
favorable, pour peu que l’intention du Testateur n’y paroisse pas contraire.”
16While an occasional author suggested that the term “fils” would include
“grand-fils” the best opinion was that the term meant only sons in the first
degree, based on the reasoning that in Roman law “filii” did not have the same
extended meaning that “liberi” did; c.f. Furgole, Traitg des Testaments (Paris,
1779), V. 2, No. 125 p. p. 410; Ricard, op. cit., No. 507, p. 335; Pothier, ed. Bugnet,
Oeuvres (Paris, 1861), V. 8, No. 72, p. 478; Caroli Molinaei [Charles Dumoulin],
Opera (Paris, 1681), Vol. 1, No 15, Glosse 1, p. 259.
McGILL LAW JOURNAL
[Vol. 12
substitutions, and legacies to collaterals and strangers, differed from
those of the previous theory. This newer view was championed parti-
cularly by Furgole and Guyot. i7
However, this “new” view was not widely held, and there was
little doubt that before 1747, if a predeceased child’s children were to
inherit his share in virtue of a legacy to “children” the basis of such
inheritance was the importation of the rules of intestacy to wills.
This was the rule of Paris. 8
B) The Innovations of 1747 – Representation rejected.
In 1747 the Ordonnance des Substitutions changed the law com-
pletely. Representation was banished from wills throughout France,
even in class legacies, so that bequests to “children”, “family” and
“descendants” were given a new meaning.
By 1747, the French law of substitutions was quickly approaching
chaos. Whereas the testator might clearly indicate who was to
inherit his property, there was usually some often misunderstood
Roman rule, some ancient custom, or some opinion of a commentator
which would lead some family member the testator never intended to
claim the property. Certainty, a special necessity to the law of wills,
was quickly disappearing to be replaced by a kaleidoscope of constantly
shifting interpretations of Roman law, endless disputes between the
commentators, continual unresolved conflicts between customary and
Roman law, and a host of contradictory decisions unanchored by pre-
cedent, but based on the transitory sentiments of each individual
judge as to what seemed logical or fair.
The Ordonnance not only attempted to unify the law of substitu-
tions but to develop a law of testamentary interpretation based on
order and certainty. In the words of the preamble it hoped to “prove-
nir les interpr6tations arbitraires par des r6gles fixes et uniformes”
and so diminish “la foule de procis” which had plagued the previous
system.
The method of the Ordonnance was to adopt a literal approach to
will interpretation. The host of equitable, but uncertain rules of pre-
17Furgole, Trait6 des Testaments (Paris, 1779) v. 2, No. 125, pp. 410 et seq.
Guyot, R6pertoire Universel et Raisonn6 de Jurisprudence. (Paris, 1784), v. 6,
p. 720 et seq.
IsWe have seen the doubts of the Procureur de Paris, supra p. 73, note 15;
however, as already observed, his view is in the minority; c.f. Bourjon, op. cit.,
V. 2, No. 20, p. 175; Ricard, op. cit., Nos. 503 et seq., p. 335, and Nos. 663 et seq.,
p. 387: Lee v. Martin (1857), 7 L.C.R. 351 at p. 358.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
75
sumption and construction which had hitherto dominated will inter-
pretation were discarded. The draftsman was obliged to, indicate
expressly and clearly who would inherit. He could no longer rely on
court-made presumptions to achieve equitable results among the
testator’s family or to cover his drafting lacunae. He was obliged to
express himself “d’une manibre plus expresse”.
Among the presumptions the Ordonnctnce abolished, was the rule
that collective nouns such as “famille”, “enfants”, anT “descendants”
would introduce the rules of intestacy and so permit representation.
The Procureur de Paris in his comments to the draftsmen of the
Ordonnance had indicated the confusion which this rule had led to,
“la difficult6 de distinguer exactement les dispositions ou les expressions
collectives, qui feroient presumer que le substituant a voulu se conformer
A la Loi des successions ab intestat, et de celles au contraire oil il a eu en rue
des personnes fixes et certaines”.j 9
He strongly recommended its abolition and at his suggestion arti-
cle 21 of the Ordonnance forbade all presumptions of representation
in wills,even in class legacies. A testator who wished representation
to occur in the future would have to demand it expressly. Article 21
stated,
“La representation n’aura point lieu dans les substitutions, soit en directe ou
en collat6rale, et soit que ceux en faveur de qui la substitution aura Wt faite
y aient itj appelts collectivement, ou qu’ils aient
td ddsignds en particulier,
et nommds suivant ‘ordre de la parent6 qu’ils avoient avec l’auteur de la
substitution, le tout, 4 moins qu’il n’ait ordonn6 par une disposition expresse
que la reprdsentation y auroit lieu, ou que la substitution seroit ddfdr6e sui-
rant l’ordre des successions ldgitimes.” 20
The Ordonnance did not, however, put an end to all the problems
of interpretation. Much like the man who in 1857 suggested closing
the American Patent Office “because nothing was left to be done”
the draftsman of the Ordonnance would have been surprised how
much was left to do.
A meaning had to be attributed to terms such as “issue” and
“family”. Such terms could no longer mean “such beneficiaries as
took upon an intestacy”. However, it was evident that these terms
19 D’Aguesseau, op. cit., p. 304.
2O Recueil G6niral des anciennes lois Frangaises (Paris, 1830), v. 22, p. 198.
Emphasis added. It should be noted that the Ordonnance deals only with substitu-
tions, and while the general rule was that the rules governing substitutions and
legacies were to be the same, there is some doubt whether the Ordonnance applied
to legacies other than those contained in substitutions. However, this problem
does not exist in our law since both articles 937 and 980 apply to all substitutions
and to all legacies.
McGILL LAW JOURNAL
[Vol. 12
could not be limited to descendants in the first degree. The commen-
tators decided such terms should mean “that generation of descen-
dants who were closest in degree to the testator”. 21
Descendants more remote in degree were to be excluded even if
their father had predeceased the testator.22
Thus if a testator left his property to his “issue” and was survived
by two children, and one grandchild (the latter being the child of a
predeceased child of the testator), the estate would devolve in equal
shares to the two children only. Similarly, if the testator was survived
by three grandchildren (all his children having predeceased him)
and one greatgrandchild (the child of a predeceased grandchild), the
three grandchildren would be the sole beneficiaries. Moreover, since
representation was rejected, the grandchildren would inherit in their
own right and by heads; they would not share by roots as under the
rules of representation and intestacy.
Oddly, the commentators extended this same meaning to the
term “children”. A legacy to children would now be limited to des-
cendants in the first degree, but if no children survived the testator
at all, it would enable the next generation to inherit under its aegis,
to the exclusion of the descendants of any deceased member of such
generation,
“[dans un legs aux enfants] … observez que les petits-enfants ne sont cens6s
appels qu’autant qu’il n’y a point d’enfants au premier degr” 23
Thus, after 1747, representation was rejected in wills, and the
meaning of such terms as “issue”, “family” and “children” was nar-
rowed to mean that generation of descendants closest in degree. This
21 This was the meaning that the customs which rejected representation before
1747 had given to these terms. These customs had never limited these terms
to descendants in the first degree, but allowed grandchildren to inherit under
their aegis provided no children in the first degree at all were surviving. D’Agues-
seau, op. cit., p. 302 (discussing the custom of Toulouse).
22 In the case of the term “family”, of course if these were no surviving de-
scendants in any degree, the term would mean surviving collaterals of the genera-
tion closest in degree to the testator.
7 Thv enoCd’Essau”e,-op. cit7p 295T No 945,-footn.-a.” D’Essaule sug-
gested that the terms “children” and “descendants” should be distinguished. He
argues at pp. 302-303 that the term “descendants” should continue to have its old
meaning and that grandchildren of the testator should be entitled to inherit
their deceased parent’s share even though other children of the testator were
surviving; however Bergier
(the editor of Ricard’s works) disagreed with
D’Essaule as to the extended meaning of “descendants”. In view of the express
wording of the Ordonnance, Bergier’s opinion seems to be the better one;
Ricard, op. cit., p. 373, (ed. Bergier).
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
new rule became the maxim “en testaments les plus proches en degr6
excluent les plus 6loignds”.
8. The Law of Quebec.
A. The Failure of the Codifiers.
The Ordonnance des substitutions was never registered by the
Sovereign Council of Quebec, and so never formed part of our law.25
The old custom of Paris continued in force until the codification. This
does not mean that the legal system of Quebec, could not have adopted
the law of the Ordonnance as part of its customary law. However, the
pre-codification jurisprudence indicates that under the old law of
Quebec the term “enfants” would introduce the rules of intestacy to
wills and so permit testamentary representation 26 as under the law
of Paris prior to 1747.
i) The problem of article 937
In 1866 the codifiers were faced with the problem of the extent
to which to permit representation to wills, and the meaning to give
to the terms “children”, “issue” and “family”. The codifiers had three
choices. They could permit representation in legacies to “children”;
they could follow the principles of the Ordonnnce des Substitutions
which rejected representation and limited the term “children” accord-
ing to the maxim “les plus proches excluent les plus 6loign6s”; or
they could adopt the theory suggested by Furgole and Guyot 27 which
24 Article 621 of the Civil Code of Quebec has a similar concept, “La repr6sen-
tatio n.’a, pas lieu en faveur des ascendants; le plus proche dans chaque ligne
exclut le plus 6loign6.” Emphasis added.
25 Barclay’s Bank Ltd. v. Paton (1934) 56 B.R. 481. P.-B. Mignault, Le Droit
Civil Canadien (Montreal, 1895), v. 1, pp. 20 et seq.
20 In Dumont v. Dumont (1862) 7 L.C.J. 12, the Court discussed but did not
decide whether the term “children” would permit representation. However in the
case of Glackemeyer V. Cit6 de Quebec (1860) 11 L.C.R. 18, it was held that the
term did allow representation. In the case of Lee V. Martin, the Superior Court,
(1857) 7 L.C.R. 351, and the Court of Appeal, sub. nom. Martin v. Lee (1858)
9 L.C.R. 376, both held that the term did introduce representation. The case was
ultimately appealed to the Privy Council, (1861) 11 L.C.R. 84, 4 Can. Rep. App.
Cas. 46, which disposed of the case on another point, and so did not discuss
at all the question of representation. However, the Privy Council did impicitly
reject the view that the term “children” was to be interpreted according to
post-1747 law.
27 See supra pp. 73-74, and particularly infra pp. 97 and ff.
McGILL LAW JOURNAL
[Vol. 12
rejected representation but extended the meaning of the term “chil-
dren”.
Article 937 dealing with representation states,
“In substitutions, as in other legacies, representation does not take place,
unless the testator has ordained that the property shall pass in the order of
legitimate successions, or his intention to that effect is otherwise manifest”.
Unfortunately what the codifiers intended to achieve by article
937 is not quite clear. At first blush the article seems inspired by
article 21 of the Ordonnance; the wording of the two articles is almost
identical, and the Codifiers 28 quote article 21 as one of the principal20
“authorities” 30 consulted in drafting article 937.
However, while article 937 is extremely similar to article 21
there are two important differences in wording which suggest that
article 21 may not be the source of article 937.
. Whereas article 21 demands that the testator’s intention to permit
representation be “express”, article 937 asks only that his intention
2SReports of the Codifiers, Fifth Report (Quebec, 1865), Article 191, p. 384.
Lalonde, Trait6 de Droit Civil du Qu6bec (Montreal, 1958) v. 6, p. 155, gives
different sources, but he seems to be in error. C.f. McCord, The Civil Code of
Lower Canada (Montreal, 1867), p. 151.
29 The codifiers quote Ricard as the other principal “authority” of Article 937.
Ricard admitted representation in legacies to children. However, the codifiers
state that they have consulted him “avee modification”. (Note, however, that
McCord does not state that Ricard is being used “avee modification”; McCord
claims that his annotated Code is correct in regard to the citation of authorities
quoted by the codifiers; McCord, op. cit., “Preface to the First Edition”, pp. iii-iv.)
This cryptic phrase “avec modification” (if indeed it was used by the codifiers)
is not explained, but it would appear that the codifiers are referring to the
modification brought to Ricard’s views by the editor of his works, namely, Ber-
gier. Bergier wrote after 1747, and rejected representation in class legacies since
this was the law after 1747; Ricard, op. cit., ed. Bergier, pp. 370 et seq.
3o The “authorities” for the articles in the Civil Code, namely the cases and
authors referred to by the codifiers, are not really the sources of the articles.
They are simply “the authorities consulted by the Commissioners, and nothing
more”; M Cord, op. cit., Preface, p. iv. Indeed, some of the so called “sources”
even oppose the views finally adopted by the codifiers. Moreover, these authorities
are definitely not part of the article to which they refer; “the marginal notes
and the references to existing laws or authorities at the foot of the several arti-
cles of the said Code, shall form no part thereof, and shall be held to have been
inserted for convenience of reference only”; 29 Vic. c.41 s.1 (Province of Canada);
Walton, op. cit., p. 77. However, if all the authorities consulted by the codifiers
support the same view, as they apparently do in the case of article 937, this
unanimity should be given some weight. Thus Walton notes that in cases of
doubt “the references of the Commissioners are of the utmost value.. .” although
“At the same time the references require to be used -with judgment”: op. dit.,
p. 126.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
be “manifest”. 31 Moreover whereas article 21 specifically states that
class gifts will not permit representation, (“soit que ceux en faveur de
qui la substitution aura 6t6 faite y aient t6 appell~s collectivement”),
article 937 does not expressly prohibit representation in class gifts.
As the major purpose in enacting article 21 was to break with the
old law and prohibit automatic representation in class legacies, the
codifiers omission to follow the Ordonnnce’s explicit rejection of
representation in class legacies seems significant, especially in view
of the pre-codification Quebec jurisprudence admitting representation
in legacies to “children” and the failure of the Sovereign Council to
register the Ordonnance in Quebec.
Thus the wording of article 937, especially when viewed in the light
of history, raises a difficult question. What exactly will be sufficient
“manifest intent” to permit representation in wills? Will a class legacy
to “children” be adequate evidence of such “manifest intent” as under
the law prior to 1747, and as suggested by the pre-codification Quebec
jurisprudence, or is some more explicit evidence demanded? Unfor-
tunately the article gives no hint as to what the codifiers meant by
“manifest intent” or what their purposes were in drafting article 937.
ii) The Conudrum of article 980.
Evidently the codifiers did realize that in drafting article 937 they
did not settle the meaning of legacies to “children” or “family”, for
in articles 979 and 980 they attempt to define these terms, although
for some reason they do not deal with legacies to “issue”.
Whatever arguments may be raised to suggest that article 937
enables the term “family” to permit representation are quickly refuted
by article 979. That article clearly states that the term will not
permit representation in wills.s2 It adopts the law after 1747,
“The term family when it is not limited, applies to all the relatives in
the direct or collateral line belonging to the family, who come by successive
51 The French version of article 937 suggests more positive indicia of intent
to permit representation than does the English version. In French, the article
reads that representation will not occur unless a contrary intent is “manifes-
te”. If the English “manifest” is read eiusdem generis with the expression,
“ordained that the property pass in the order of legitimate successions”, the
English and French versions become more consistent, and article 937 may be
considered more closely related to article 21 than a quick reading of the English
version would suggest.
52 The sources quoted by the codifiers make this completely clear; Fifth Report,
pp. 397-8; art. 233-235.
McGILL LAW JOURNAL
[Vol. 12
degrees according to law or to
representation being allowed otherwise than in the case of legacies”.
indicated, without however
the order
However, article 980 is not as clear. The article states,
to alienate, as in substitutions, and
in gifts and
“In the prohibition
legacies in general, the terms children or grandchildren.., apply to all
the descendants”.
The codifiers do not state whether the descendants are to take
by representation, or in virtue of the maxim “les plus proches excluent
les plus 6loign6s” or according to the system advocated by Furgole
and Guyot.33 We can only guess at their intention. A strong argument
may be made that article 980, like 979, adopts post 1747 law. The
codifiers in their comments on article 829 c.c. strongly suggest this
is the case,
“In matters of inheritance the law calls to the succession certain persons
in the place of others who are deceased. This right, known as representa-
tion,… [is based] upon the presumed affection of the deceased..,
it has
not been extended to testamentary dispositions, as the same presumption
no longer exists, even in the direct line, when the testator might have
called the grand children or descendants in a clear manner to share in
his succession, and has not thought proper to do so. Representation therefore
does not take place in the matter of legacies”.3 4
These comments are almost a direct translation of article 21 of
the Ordonnance.
Moreover throughout history the import and theoretical basis
of the terms “family” and “children” have been the same. Before
1747 both terms permitted representation; after 1747 neither did.
It would seem doubtful that the codifiers would suddenly decide to
innovate and differentiate the terms without comment, basing the
definition of one term on the Ordonnance, and the other on the
law it changed.
Moreover, article 979 states that the term family “applies to all
the relatives … without however -representation being allowed other-
wise than in the case of legacies”. The emphasized phrase strongly
suggests that the general principle applicable to all legacies whether
to classes or individuals is that representation is not applicable, and
that article 980 should not be interpreted as derogating from this
universal rule without express language. This argument suggests
that articles 937, 979 and 980 are based on the post 1747 system, or
at the very least that article 980 rejects representation and either
is based on post 1747 law or on the system suggested by Furgole
and Guyot.
33 C.f., supra pp. 73-74, and particularly infra pp. 97 and ff.
34 Reports of the Codifiers, Fifth Report (Quebec, 1865), art. 80, p. 167.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
However, a strong argument can be made that article 980 is based
on representation.
Article 979 states that the term family is to apply to all the
relatives, “without however representation being al1owed otherwise
than in the case of legacies”. The emphasized phrase is not repeated
in article 980. Does this not suggest that article 980, unlike article
979, does permit representation, and that the codifiers did intend
to follow the old law of Paris in enacting articles 937 and 980, making
specific and express exception in the case of a legacy to “family” ?
Indeed the codifiers were aware of and indeed cite as a source of
the article pre-codification jurisprudence which suggests that prior
to 1866 a legacy to “children” would cause representation: and in
commenting on article 980 the codifiers state, that,
x Les r~gles adopt6es sont regard6es par les Commissaires comme 6tant
celles du droit actuel. 2,35
In view of their knowledge of pre-codification jurisprudence, and
in view of their comments that article 980 does not change pre-
codification law, it would appear that the codifiers intended a legacy
to “children” to permit representation. Certainly if they had intended
otherwise they should have rejected representation more clearly. Any
doubt as to their intention, in view of the foregoing, should be
resolved in favour of the theory of representation.
A further argument may be made that the codifiers intended to
reject the law introduced by the Ordonnance.
While the codifiers quote, as authorities for article 979, article
21 of the Ordonnance and those authors who adopt its views, the
authorities given for article 980, namely, Ricard, Guyot, 36 and
35 The Reports of the Codifiers. Fifth Report, arts. 233-236, p. 198; Martin v.
Lee (1857) 7 L.C.R. 351; (1858) 9 L.C.R. 376, is cited by the codifiers and
favours the view that art. 980 introduces testamentary representation. Article
980 itself bears some similarity to a phrase of Ricard’s, “Un fideicommis fait
sous ce nom collectif d’enfans… a autant d’effet que si le testateur s’6toit servi
du mot descendans”; Ricard, op. cit., p. 349, No. 583; and we have seen that
Ricard adopts the position that the term “children” permits representation.
36 The Reports of the Codifiers, Fifth Report (Quebec, 1865), p. 398, art. 236.
The codifiers also refer to Pothier, op. cit., v. 8, p. 509, and to Thevenot d’Essaule,
op. cit., Nos. 367 et seq. However, the sections of these authors referred to by
the codifiers do not deal with the problem of representation; rather the sections
quoted deal with other aspects of art. 980 to be discussed later. Pothier and
d’Essaule, in other sections of their works, which sections are not referred to by
the codifiers, do discuss whether the term “children” would introduce representa-
tion to wills. D’Essaule, who wrote after the enactment of the Ordonnance, of
course adopts the position that the term “children” is to be interpreted according
(op. cit., No. 945,
to the maxim “les plus proch s excluent les plus 6loign6s”
p. 298). Pothier also writing after the Ordonnance, suggests that the term
McGILL LAW JOURNAL
[Vol. 12
the case of Martin v. Lee.3 all favour the law prior to 1747. In
striking contrast to article 979 the Ordonnance des Substitutions is
not mentioned. This last argument, while it, strongly suggests that
the maxim < les plus piroches excluent les plus 6loign6s >> should be
rejected, does not, however, show whether. the codifiers approved
the views of Ricard or Guyot, which, as we have seen, differ.
B. The jurisprudence.
What the codifiers really intended by articles- 937 and 980 will
always be impossible to answer definitively. However, the process
of adjudication demands, as Justice Brandeis once stated, “that some
questions be decided even if not answered”.
The Quebec courts have decided that article 980 is not based on
post-1747 law; however, they have as yet failed to decide whether
a legacy to “children” introduces the principles of intestacy and
representation to wills, or is based on the views rejecting represent-
ation advocated by Guyot. Since each theory has differing con-
sequences; the failure -of the jurisprudence to decide means that
legacies to “children” raise many questions to which there are as
yet no answers.
“children” means only children in the first degree, so that, if no children in the
first degree were to survive the testator but grandchildren did survive him,
according to Pothier such grandchildren would not be able to inherit in virtue
of. the term. This last view is clearly erroneous and does not represent a correct
view of the law either before or after 1747; Pothier, op. cit., v. 8, p. 477, No. 66.
Des Rivikres Beaubien, TraitN sur les lois civiles du Bas-Canada (Montreal, 1832)
v. 2, p. 160, agrees with Pothier, but he is generally believed to have copied
Pothier’s views rather than to have seriously examined the law. Thus it would
appear that the only authorities cited by the codifiers onthe question of whether
the term ‘children'” permits representation are Guyot and Ricard, both of whom
favour pre-1747 law, and the case of Martin v. Lee, where the Privy Council
implicitly accepted the pre-1747 law and the lower courts definitely accepted it.
The codifiers’ citation of this case is important in the author’s opinion, for, as
Walton observes “Sometimes the Commissioners cite a case in their note.. When
it appears that they.cite it in support of the article this will give to the case
a high degree of authority.” Op. cit., p. 129.
37 Lee v. Martin; Mai-tin v. Lee, (1857) 7. L.C.R. 351; (1858) 9 L.C.R. 376;
(1861) 11 L.C.R. 84. This case was appealed as far as the Privy Council; the
Privy Council did not deal with the question but implicitly accepted the view
that pre-1747 law would be admitted to Quebec. The lower courts all accepted
the view that representation would occur in a legacy to children and the Privy
Council did not disagree with this view of the law prior to 1747. The codifiers
quote all three decisions; namely, those in the lower courts and that of the Privy
Council; c.f. McCord, op. cit., p. 159.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
83
i) The rejection of post 1747 law.
While a few early decisions 38 have adopted the view that articles
937 and 980 are based on article 21 of the Ordonnance des Substitu-
tions, these’decisions have now been over-ruled by modern Quebec
jurisprudence 39 and unanimously rejected by Quebec doctrine.40 Since
the Supreme Court decision of Bernard v. Amyot-Forget 4 1 there is
no doubt that our law has rejected the maxim << les plus proches
excluent les plus 61oign6s >>, and that it is settled law that if a testator
leaves his property to his “children” and is survived by children in
the first degree, and by grandchildren who are the descendants of
predeceased children in the first degree, such grandchildren will inherit
in virtue of the term “children”.
ii) The failure to decide if article 980 is based on representation.’
Unfortunately, while the courts have definitively rejected post
1747 law they have failed to indicate which of the two theories
advocated prior to 1747 is gain currency; that of Ricard admitting
representation and the rules of intestacy to wills, or that of Guyot
rejecting them. In other words, the courts have failed to properly
reconcile articles 937 and 980, and decide whether article 980 permits
representation’in wills.
Some cases 42 and virtually all the Quebec authors 3 have sug-
gested that a legacy to “children” should introduce the rules of
3
8Castonguay
v. Beaudry (1869) 1 R.L. 93: Joubert v. Walsh (1885) M.L.R.
1 S.C. 85 (where however the court held that the result would have been the
,same had it allowed representation, since in this case the testator was survived
by only one grandson); Laferri~re v. Lavallge (1904) 10 R. de J. 128; in Lebeau
v. Benoit (1920) 57 S.C. 123 in an obiter it was suggested that the Ordonna.cp
des Substitutions did not change the law of Quebec; this latter view has some
foundation if one accepts the doubts of the Procureur de Paris that the collective
term “children” did not lead to representation; c.f. d’Aguesseau, op. cit., p. 303.
39 Brunette v. Peloquin (1871) 3 R.L. 52; Marcotte v. Nool (1880) 6 Q.L.R. 245;
Beaudin V, Beaudin (1927) 65 S.C. 517; Deguire v. Groulx (1910) 38 S.C. 158;
Plouffe v. Lapierre (1917) 52 S.C. 151; Prgfontaine v. Dillon (1922) 33 K.B. 314;
Fredette v. Begnoche [1957] S.C. 473; David et Autres [1963] S.C. 305; c.f. also
Mein ke v. Brown [1958] S.C. 293 where the court by way of obiter dictum agreed
with this view of art. 980 C.C.
4oMignault, op. cit., v. 5, pp. 25 et seq.; Langelier, Cours de Droit Civil
(Montreal, 1907) v. 3, pp. 262 and 329; Lalonde, op. cit., v. 6, p. 153. Billette,
rraitg thdorique et pratique de Droit Civil Canadien (Montrdal, 1933), No.
765, p.’ 663; R. Comtois, “Le sens di terme “en.fants” dans les dispositions & titre
gratuit” (1964), 14 Thimis 36.
41 [1953]’1 S.C.R. 82.
42 See the cases referred to below at p. 87, note 51a.
43 See the authors referred to below at page 87.
McGILL LAW JOURNAL
[Vol. 12
intestacy to wills and hence permit representation.* They argue that
is a sufficient manifest intention of the
a legacy to “children”
testator’s desire that the property pass in the order of legitimate
successions, as demanded by article 937, to permit representation.
According to this view articles 937 and 980 are to be read together
as forming one continuous concept, such that, when article 937 states
that representation will not be admitted to wills unless,
a) The testator expressly ordains that the property is to pass in the same
manner as on intestacy, or,
b) indicates a manifest intention to that effect,
Article 980 adds a third exception
c) or, unless the term children is used. 44
However, other cases have adopted the views of Furgole and Guyot
that a legacy to “children” is not introductive of the rules of intestacy
* Throughout this essay I will sometimes state that article 980 is based on
the rules of representation; when this is done the reader should always bear
in mind that this is a shorthand device by which is meant that the term
“children” permits representation to occur among the recipients because the
term “children” is deemed introductory of all the rules of intestacy and all
its consequences.
44Article 21 of the Ordonnace des Substitutions stated that representation
would occur if there was an express desire
a) to permit representation, or
b) to follow the order of abintestate successions.
Article 937, however, states that representation will occur if there is an
express or a manifest desire.
a) to follow the order of intestate successions.
Thus article 937 much more than article 21 of the Ordonnance clearly demon-
strates that the occurence of testamentary representation is a consequence of
the introduction of the rules of intestacy to wills, rather than a separate and
distinct institution which might occur in wills apart from the other consequences
of an intestate succession. The French version of the article makes this quite clear,
“La reprdsentation n’a pas lieu …
it moins que le testateur n’ait
ordonn6 que les biens seraient d~f~r~s suivant l’ordre des successions
lgitimes, ou que son intention au mgme effet ne soit autrement mani-
fest~e” (italics added).
Therefore, if the term “children” permits representation to occur as a third
exception to the prohibition against testamentary representation laid down in
937 C.C., it is only because the term “children” introduces the rules of intestacy
to wills, and not because the term “children” introduces the institution of repre-
sentation without the other effects of the abintestate succession (such as a “by
root” division in certain circumstances). Of course, the history of the problem of
testamentary representation makes this point quite clear without any need of
indirect support from article 937. There is no doubt historically that the term
“children” introduced all the rules of intestacy to wills, and that representation
was simply one of these rules, albeit the most important one.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
85
and representation to wills. 45 Since these cases accept the law prior
to 1747 as the basis of 980, they agree that if a testator is survived
by children, and by grandchildren who are the children of pre-
deceased children of the testator, that such grandchildren can inherit
their deceased parent’s share in virtue of a legacy to “children”.
However they argue that the reason such grandchildren inherit is
not because they represent their parents as on intestacy, but because
the term “children” includes them under its aegis by definition; in
other words, they are “children” within the technical legal meaning of
that term. According to this view articles 937 and 980 are separate and
distinct. Article 937 alone deals with representation and rejects it. The
purpose of article 980 is to simply define the term “children” without
regard to representation, which article 937 has already rejected. Thus
when article 980 gives to the term children a meaning broader than
“descendants in the first degree” and broader than “the generation
of descendants closest in degree to the testator” it enables the descend-
ants of a predeceased child to inherit their father’s share not by
representation, but simply because the children of a predeceased child
are deemed to be included in the technical legal term “children”.
According to this view grandchildren or, more remote descendants
inherit not by representation and according to the rules of intestacy,
but in their own right, because they are “children” and according
to the special rules and principles particular to the legal institution
which article 980 creates and which has nothing to do with represent-
ation or the rules and principles of intestacy.
While at first blush the theoretical basis of 980 C.C. seems of
interest only to pedants, it is evident that it will be extremely impor-
tant to decide whether or not article 980 introduces the rules of
intestacy and representation to wills. The answer will have practical
importance in many areas.
First, it will decide whether in a legacy to the “children” of a
person who is related to the testator in the collateral line or in any
way other than by being a direct descendant, or in a legacy to the
“children” of a person not related to the testator at all, grandchildren
not permitted to inherit under the rules of intestacy will be included
as “descendants” in virtue of the term “children”.
Second, it will decide whether in such legacies as “to my grand-
children” or “to my issue” the legacy is to be divided by roots
according to the rules of abintestate succession or by heads according
to the rules of ordinary legacies.
45 See the cases referred to on pages 101-102, below.
McGILL LAW*’JOURNAL
[Vol. 12
. Third, such common expressions as “with representation in favour
of”, “by roots”, “in equal shares”, and “my issue” and other similar
expressions will take on very different meanings depending on which
view of 980 C.C. is adopted;
To these problems we will now turn.
Chapter II
PROBLEMS IN LEGACIES TO COLLATERALS
AND STRANGERS AND IN THE SUBSTITUTION
Suppose that a testator leaves his property to “the children of
my brother”. If several children of the brother survive the testator,
but a child of the brother has predeceased the testator, leaving
children surviving him, will such brother’s grandchildren inherit the
legacy ? Similarly if the testator had left his property “to the children
of my friend John” could John’s grandchildren inherit the share of
their deceased parent even though some of John’s children have
survived the testator ?
The answer to these questions depends on the theoretical basis of
article 980.
If a testator who uses the term “children” is deemed to include
grandchildren only because he is presumed -to follow the rules of
abintestate successions then the above described grandchildren should
be excluded.
. If, on the other hand, article 980 allows grandchildren to inherit
their deceased parent’s share in their own right and not according
to the rules- of intestacy and representation’ then such grand-nephews
of the testator and.such grandchildren of the testator’s friend will
be able to inherit in virtue of the term “children”.
1. The view adopting representation.
A) Th’e historical and jurisprudential basis of the view.
We have seen that most French authors who wrote prior to 1747
believed that the term “children” would permit representation
in
wills because the term was deemed introductive of all the rules of
intestacy to wills.
…
–
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
* Thus R-icard -writes,-
t lorsque le fid~icommis ,est fait en termes gn~raux et collectifs .., sans
designation particuli~re des personnes…
la representation devoit avoir
lieu-… savoir, que le testateur 6toit presum6, en pareilles occasions, s’6tre
voula conformer a la Coutume. 4
–
and numerous authors agree with him. 47
This view of the ‘ancient ‘French authors has been unanimously
adopted by modern Quebec doctrine. Thus Mignault indicates,
< ... les articles 937 et 980 n'offrent -rien de contradictoire;... Le lgisla-
teur d~finit le mot enfants. I1 s'applique b tons les descendants, dit-il; c'est
tout comme si le testatur s'dtait servi du mot descendants... I1 me semble
qii'on ne" sauraiti manifester- d'une" mani~re plus 6vidente 'sa volont6 de
d~f~rer ses biens suivant l'ordre des successions lgitimes, que d'y appeler
des descendants., 48
and Lalonde, 49 Comtois, 50 and Faribault 51 all agree with him.
There has also been much jurisprudential support for -this
position; P -however .,this jurisprudential support is far .from
conclusive.
- Firstly, the jurisprudential acceptance of this position has only
been by way of obiter dicta. All the cases favouring the adoption of
testamentary representation as on intestacy concerned only legacies
to direct descendants of the testator. In such legacies the results
would have been exactly the samehad the court rejected the importa-
tion of the rules of intestacy to wills and based article 980 on the
theories advocated by Furgole.
46 Ricard, op. cit., No. 676, p. 389.
4i C.f. Despeisses, op. cit., v. 2 p. 140 et seq.; Bourjon. op. cit., v. 2 No. 20
p: 75; c.f- also Ricaid, op. cit., No. 575, p. 347., At first sight Ricard appears
to be restricting his comments to the terms "family" and "descendants"; however,
it is clear from the examples given that-these terms are only examples of the
general principle that numerous collective terms including "children" lead to
representation. C.f. also Ricard, op. cit. No. 512 p. 336. In the case of Martin
v. Lee (1857) 7 L.C.R. 351 at p. 358, the Court, after a lengthy analysis of
ancient law, states. that. "the general .unanimity of authority applicable to the
principle of representation is equally strong in its application'to the general
or collective term all my children used in the bequest".
48 IMighauff,'L Droit Civil Canadien (Montreal, 1901) v.'5, p. 28.
*49 Lalonde, op. cit.,-vol. 6 p. 153.
..
50 Comtois, (19'64)- 14 Th6mis 37 at p. 43, writes; "nouis estimons preferable
1'opinion - de la majoritY des auteurs suivant laquelle- les petits-enfants - d'un
enfant pr~dM6d
prennent... par l'effet de la representation."
..
-
-
5 M. Faribault, Trait6 thorique et pratique ae la Fiducie (Montreal, 1936),
p. 255.
plaFr.exeette v. Begnoche [1957] SC 473; Plcaffe v. Lapierre (1917) 52 SC 151,
e. pecially, the views of Archambault, CJ.; Brunette v. Peloquin (1871) 3 RL 52;
Bernard v. Amyot-Forget [1952] BR 89 at 99 (the views of Barclay, J.); Drouin
v. Hgnault (1939) 57 BR 101 at pp. 112-3; David et Autres [1963] SC 305.
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Secondly, as we will see later in this chapter, there is much
jurisprudence which support Furgole's views.
Thus, while it is evident that there is strong support for the view
that a legacy to "children" should be interpreted according to the
rules of intestacy, this support is neither unanimous nor conclusive.
We still await a definitive answer from the courts.
B) Consequences in the direct line.
The consequences of the view that article 980 permits the testator's
descendants, other than those in the first degree, to inherit a legacy
to the testator's "children" according to the rules of intestacy and
representation are obvious.
is allowed whether the children of
Article 620 states,
takes place without limit in the direct line descending;
"Representation
it
the deceased compete with the
descendants of a predeceased child, or whether all the children of the
deceased having died before him, descendants of these children happen
to be in equal or unequal degrees amongst themselves."
If article 980 is deemed to introduce the rules of intestacy to
wills, representation will take place indefinitely and unrestrictedly
in a legacy to "children" in the direct line, the whole as provided
in article 620.
The rules of article 620 will be applicable to all legacies to
"children" in the direct line whether such children are left property
as absolute owners, usufructuaries, naked owners, institutes or benefi-
ciaries under a trust. The only exception will be in some legacies
to "children" of the testator who are the substitutes in a fiduciary
substitution. We will discuss this exception at length in another
section.
C) Consequences in the collateral and non-related lines
In legacies in the testator's collateral line, such as "to my brother's
children", the view that the term "children"
is introductory of
representation to the extent that it would occur in abintestate suc-
cessions will severely restrict the descendants of a collateral's
deceased child who can inherit in virtue of the term "children".
Article 622 states,
"In the collateral line representation is admitted only where nephews and
nieces succeed to their uncle and aunt concurrently with the brother and
sister of the deceased."
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A SIMPLE LEGACY: "TO MY CHILDREN"
89
If then, in a legacy to "my brother's children", one of the
brother's children predeceased the testator, leaving children of his
who survive the testator, article 622 C.C. would prevent such grand-
children from inheriting the legacy to "children". Indeed, the grand-
children of a brother would be able to inherit a legacy to "children"
in the collateral line only if all the brother's children had predeceased
the testator. In such a case they would be called in accordance with
the laws of intestacy, in their own right and by heads, and not by
representation and by roots.
Thus, in a legacy to "children" of any relative other than a direct
descendant, the term "children" will be limited to descendants in
the first degree, unless no descendants in the first degree are surviv-
ing, in which case the next surviving generation will be included
under its aegis and inherit by head. 52
This, of course, was the view of ancient law,
, Et si la substitution est faite par un collat6ral ou 6tranger, les enfans
en premier degr6 sont prdf~r~s aux descendans des enfans pr~d&cds...
parce qu'en succession des collat6raux, il n'y a pas lieu de representation,
outre les enfans des frires.z53
and there is little doubt that it will be our law if article 980 is
based on representation as permitted on intestacy. The rule restricting
the meaning of a legacy to "children" who are not direct descendants
of a testator will apply to all legacies except a substitution in which
the "children" of the institute are fiduciary substitutes. In this latter
case, although the "children" are collaterals of the testator, the above
principles will not apply; such children will inherit in virtue of a
special rule to be discussed in the next section.
There are as yet no Quebec cases deciding to what extent descen-
dants of a predeceased child can inherit a legacy to the "children"
of collaterals. However, the case of Meredith v. Meredith 54 is most
instructive of the courts' probable attitude (assuming of course that
52 Of course, this analysis assumes that the rules of intestacy are to be followed
as if the testator died intestate; this was the ancient law as we will see below.
In a legacy "to my brother's children", it may be argued that the rules of
intestacy should be considered as if the brother died intestate and, therefore,
grandchildren could inhert by representation since they can be considered as
descendants of the brother. This interpretation, while logical, was rejected by
ancient law and should not form part of our law. In all legacies to the "children"
of any person including the testator, such legacies must be interpreted as if
the testator had died intestate and representation will only be permitted if it
would have been permitted on the testator's intestacy.
53 Despeisses, op. cit., v. 2 p. 141; c.f. also Montvalon, op. cit. v. 2 p. 180;
Ricard, op. cit., No. 690 p. 391; d'Aguesseau, op. cit. p. 294-96.
54 Meredith v. Meredith (1939) 66 B.R. 572 (P.C.).
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-
article- 980 is based on representation to the extent permitted by
articles ,620-623 C.C.). The case concerned a legacy to "my husband's
nephews and nieces (immediate heirs)". Since the court was not
interpreting a legacy to "children" or even to "heirs" the decision
is not too relevant -to our problem. However, it does indicate to this
author the only reasoning a court could adopt in interpreting a legacy
to the "children" of collaterals, assuming of course that article 980
is based on representation to the extent permitted by the rules of
intestacy,
inasmuch-as the descendants of nephews and nieces cannot represent
...
..
"
-their fathers or mothers in an inheritance from their great-uncle or great-
aunt .(art. 622). It would seem, as is pointed out in Mignault Vol. 3, p. 309,
that -in the view of the Civil Code, the affection of an uncle or aunt is
not supposed to extend further than his or her nephews and nieces.. ." 5
As for a legacy to the "children" of a person not related to the
testator such as "to my friend's children" there is no doubt that
in such a -legacy even if: all the descendants in the first degree
predeeeased the festator leaving children who survived him the legacy
would not pass to such grandchildren but would lapse. If remoter
descendants are permitted to inherit a legacy to "children" only
because the term introduces the rules of intestacy to wills it is
obvious that in legacies to the "children" of strangers the term must
be restricted to descendants in the first degree only. Again this
rule, would suffer one exception; namely, the case of the fiduciary
substitution in which the substitutes are "children" of a friend of
the testator and that friend is the institute.
D) Consequences in the substitution.
We have seen- the various meanings of the term "children" in
legacies in the direct, collateral and non-related lines, assuming that
article 980 introduces the rules of intestacy to wills. However the
above, meanings suffer one exception, namely, the fiduciary substi-
tution in which the substitutes are described as "children", In such
legacies, again 'assuming article 980 is based on the rules of intestacy,
the' grandchildren of :collaterals -and strangers will sometimes be
permitted to inherit a legacy to children by representation even'thouigh
i, other. legacies the ordinary rules of intestacy would bar them., In
certain cases the testator's direct descendants not in-the first degree
who would normally inherit by representation may be excluded
entirely from the inheritance. Thus in substitutions the meaning of
55Ibid. p. 575, per Lord Maugham, L.C.
No. 1]
A SIMPLE LEGACY: "'TO MY CHILDREN"
the term "children" often differs from its meaning in ordinary
legacies.
This exceptional meaning of -"children" in substitutions is not
based-on a refusal to apply the rules of intestacy and representation
to the substitution. On the contrary all authors agree that, once
the. term "children" is, deemed introductory of the principles of
intestacy, the rules of representation should apply to all legacies,
including the substitution, and article 980 admits to no other inter-
pretation. The exceptional rule is based on the theory that'in a sub-
stitution the rules'of representation and intestacy are to be consider-
ed as if -the institute died intestate, and not the testator.
This- exception is grounded in ancient law. If we accept the rule
of ancient law that the term "children" permits representation, then
we must take the exception along with the rule, and admit that in
substitutions, representation is to be considered from the point of
view of the institute and not the testator.
aa) The substitution in ancient law.
i) The Collateral and nonrelated lines.
If a testator left his property to his brother (or to his .friend)
and then to the latter's "children", several authors, such as Ricard, 6
suggested that the testator really intended to benefit his brother's
family as his brother would have done had the brother mad. the
will and left the property to his -own children. While not denying
that the term "childien" introduced the laws of intestacy, Ricard
suggested that the laws of intestacy should be considered as if the
brother had. died without a will and not the testator. If the brother
was- considered as dying intestate, the brother's grandchildren from
the brother's viewpoint were descendants and hence allowed to take
by representation, even though from the testators point of view they
wee 'collaterals and excluded from representing.
Ricard moulded these views into a rule; namely, that in a sub-
stitution the relationship was to be considered from the institute's
point-of view and not the testafor's.
.
Thus in a substitution in which the institutes were friends-or
c6llateralg of the- testator, and the "children" of such friends or - col-
laterals the substit utes, representation would'take place without tinit
among the "children of the institutes", owing to the application of
58 Ricard, op. cit., p. 391, Nos. 690 et seq.
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the rules of representation as if the institute died intestate and not
the testator.57
However, this exception to the general rule (namely that in substi-
tutions to "children" the rules of intestacy were to be considered as
if the institute died intestate and not the testator) applied only to
substitutions. In all other legacies, including usufructs, the general
rule still applied, and the rules of intestacy were considered from the
testator's viewpoint.
Ricard gives an example of a usufruct to the testator's sister
with naked ownership to her children. He pointed out that in such
a case, the rules of intestacy are to be followed from the testator's
point of view so that the grandchildren of the sister (grandnephews
of the testator) could not inherit with his sister's children (nephews
of the testator).58
Ricard's position was widely adopted,59 but never unanimously. 0
The various customs adopted differing positions, but Paris adopted
the Ricardian system. The ordonnance of 1747 also apparently adopted
his views. 61
However, even among the authors who accepted Ricard's views
there were refinements. Bourjon 62 stated that in a substitution the
exception would only apply if the substitutes were not related to the
testator; otherwise the relationship was to be considered from the
testator's viewpoint.
< il faut distinguer si le lgataire est parent ou 6tranger au testateur; ...
S'il est 6tranger, la substitution est au profit du plus prochain parent
57The principle of considering relationship from the institute's point of view
was a general principle in ancient law; c.f. d'Aguesseau op. cit., questions 31-2,
pps. 325 et seq., at p. 326: "le fid~icommis doit 6tre recueilli par le plus proche do
l'hritier grev6, et non pas par le plus proche du testateur", c.f. also Article 22 of
the Ordonnance des substitutions; t Dans les substitutions auxquelles les filles
sont appel~es au d6faut des mhes, elles recueilleront les biens substitu6s dans
l'ordre qui aura W r~gl6 entre elles par l'auteur de la substitution; et s'il n'a
pas marqu6 express6ment ledit ordre, celles qui se trouveront les plus proches
du dernier possesseur desdits biens, les recueilleront en quelque degr6 de parent6
qu'elles se trouvent, A l'6gard de l'auteur de la substitution >>. See also Ricard op.
cit. no. 690, p. 391; d’Essaule, op. cit., pp. 308-309, nos. 983-988.
58 Ricard, op. cit., p. 391, Nos. 690 et seq.
59 Ricard, op.
it., ed. Bergier, pp. 370 et seq.; Montvalon, Traiti des Succes-
sions, Vol. 2, pps. 179 et seq., (Paris), 6d. 1786).
60 Ricard, op. cit., p. 391, No. 691; and p. 343, No. 551. Bergier, Ricard’s
editor, points out that a controversy existed, and Furgole, a century later,
indicates that it was not resolved: Furgole, Traitj des Testaments No. 125, p. 413.
D’Aguesseau, op. cit., pps. 294 et seq., indicates the varying views of the customs.
61 Ricard, op. cit., pps. 371 et seq. (Bergier’s views.)
62 Bourjon, op. cit., v. 2, pp. 166-7, Nos. 66-68.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
grev6; c’est ce qu’il faut conclure d’une telle substitution, dont le testateur
a charg6 un homme qui n’a aucun lien de sang avec lui; ainsi en ce
cas le mot de famille, doit se rapporter, non A lui testateur, mais A celui
qu’il a honor6… Mais s’il est parent du testateur, elle appartient au
parent du grev6, plus prochain du c~t6 et ligne du testateur; … > 63
However, Bourjon’s views appear isolated; his views moreover
should be rejected, since logically there is no good reason why the
children of strangers should be treated more favourably than children
of collaterals and on a par with those of descendants.
ii) The direct line.
The attempt to allow descendants of a brother to inherit a sub-
stitution by formulating the rule that in substitutions the relationship
was to be considered from the institute’s point of view led to a further
complication. Suppose a testator left his property to his son, with
provision that should his son die without children the property would
pass to all the testator’s grandchildren by way of substitution.
Suppose the son enjoyed the property for several years, and then
died without children, survived by several nephews (grandchildren of
the testator), and the children of a predeceased nephew. The children
of the predeceased nephew of the testator’s son although the descend-
ants of the testator (that is, his great grandchildren) would be grand-
nephews of the institute, (the son). Since the laws of intestacy in
a substitution would be considered from the institute’s point of view,
the children of the predeceased nephew, although the great grand-
children of the testator, would be unable to inherit since they were
collaterals of the-institute beyond the heritable degree in this respect.
Ricard followed his rule (of considering relationships from the
institute’s viewpoint) to its logical conclusion. He stated that the
great grandchildren of the testator who were collaterals of the in-
titute would be unable to inherit by representation. 64
This solution, while logical seems odd; it is perhaps the result
of logic running away with itself, rather than the result of any
attempt to approximate the rules of will interpretation to the desires
of the testator.
63Bourjon quotes Ricard as the authority for this theory. Actually Bourjon
appears to misunderstand Ricard. The passage of Ricard that Bourjon cites
deals with a problem other than that discussed above. Bourjon has taken a
phrase out of context; c.f. Ricard, op. cit., No. 554 sq., pp. 343-344; and No. 691
p. 391; c.f. also Pothier, op. cit., v. 8 Nos. 75 & 76, pps. 479-80, who further
indicates the real sense of the phrase of Ricard that Bourjon has taken out of
context.
64 Ricard, op. cit., No. 688 sq., p. 391.
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We have seen Bourjon’s attempt to circumvent this untoward
result. 0 5 He maintained that only if the substitutes were not related
to- the testator would the laws of intestacy’be considered from the
institate’s point of view. However, it appears that his views were
rejected by ancient law, and the author believes they should be
rejected by’ our law.
” Furgole, although dealing with a different but related problem,(0
suggests a more logical method of circumvention. The rule that in
a substitution the rules of intestacy are to be considered from the
institute’s point of view but in all other legacies from the testator’s
point of view is not an inflexible law of public order, but a simple
rule of presumption of the testator’s intention. The testator is free
to indicate a contrary desire either expressly or tacitly. If the test-
ator in a legacy of absolute -ownership to A’s children were to order
that the property be divided as if A had died intestate he would
have expressly abrogated the rule. Furgole argued that if a testator
were to- leave his property to “my son and after his death to’ my
grandchildren” the expression “my grandchildren'” would indicate
an intention to follow the testator’s rules of intestacy and not the
institute’s. In ‘other words, once the testator indicated by some
expression that he was concerned with the family of the testator,
the relationship’ and the rules of intestacy and hence of representation
should be considered as flowing from the testator and not the ins-
titute; only if there was no strong indication to the contrary would
the inflexible rules of the Ricardian system apply. 7
The Furgolian system is certainly consistent with the general
theory of will interpretation; while it is true that the earlier authors
adopt a more inflexible position a’s to the rules to be followed, given
the inherent logic of the system and its consistency with their vievs
it is quite possible a court might consider its adoption in Quebec.
65 Supra, pp. 92-93 of this article.
66 This section is based on the assumption that the term “children” introduces
reiresentation into wills. Furgole did not accept this view. However; the problem
of whether beneficiaties were to be considered as related to the testator or the
institute arose in many areas of ancient law aside from the field of representation.
It was a general problem, of which the question, to whom persons would be
related so as to permit representation, was but one aspect. Furgole is, of course
discussing the general problem; his solution, although for another problem, is
however very relevant to our discussion.
67 This suggested rule of presumption applies only to the problem of indicating
in a substitution from whose point of view the intestacy is to be considered. Thus
in a simple’ legacy “to the children of my sister”,, the fact that the children are
indicated” a9 being related to the sister does not mean that the sister’s grand-
children could take in virtue of the term “children”.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
95
iii) The substitution to persons both in.the direct and collateral lines.
One problem-not discussed in ancient-law is a substitution.in which
the institutes are several persons, and the substitutes all the “children”
of all the institutes.
..
Suppose a substitution “to my children in the first degree, and
on’the death of the last child in the first degree; to all their children”.
Further suppose that the testator left three children, A, B- C, and
that when the last child, C, died, there were surviving two children
of’A and one grandchild of A (the child of a predeceased child of A),
three children of B, one child of C and one grandchild of C (the
child of a predeceased child of C). Thus on C’s death the substitutes
are two descendants of C, five nephews of C, and one grandnephew of
C. How will these persons share ? Will they be considered from C’s
point of view in which case the grandnephew would be excluded as
being a collateral not permitted to inherit on intestacy, or should they
be considered from the viewpoint of all the institutes as a class of
ancestors, such that all the substitutes will be considered descendants
and-permitted to inherit ? The last view seems preferable. However
ancient law did not discuss this question at all.
bb). The ‘substitution in Quebec law.
As far as Quebec jurisprudence is concerned there are only two
cases which refer to the problem of from whose point of view -the
intestacy is to be considered; both cases do so in a cursory manner.
Joubert v. ‘Walsh suggests by way of obiter dictum that the rules
are to be considered from the testator’s viewpoint only, even in a sub-
stitution; but the basis of its reasoning appears erroneous.68 In
Arnnd v. -Armand 69 Sir Alexandre Lacoste for the Court of Appeal
made passing reference to the problem in the following-manner.-
OsJoubert v. Walsh (1885) M.L.R. 1 S.C. 85; it is argued that the rule
formulated by Ricard applied only when the testator used the term “family”,
and did not apply when the term “children” was used. The argument is based
on the fact that in discussing the problem Ricard gave examples where only the
term “family” was used. However, if one reads Ricard carefully, it. becomes
apparent that the terms “descendants”, < famille >>, and
t enfants > are used
interchangeably as examples of the legacy nomine collectivo, to avoid. repeating
a long list of, terms. Ricard’s views apply to children as well. This becomes
clear, specially at Ricard, op. cit., No. 674 p. 389, and No. 690 p. 391; -also,
p, $99 No. 520 and p. 349 No. 583.
69 Armand v. Armand (1898) 7 B.R. 356 at pp..360-361..
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Soit que l’on envisage le legs en rapport avec la succession du testateur
ou en rapport avec celle du grev. D (Emphasis added)
The codifiers might have rid us of the troublesome and meta-
physical distinctions to which French law prior to 1747 was falling
prey. Unfortunately they did not. Indeed they do not even allude
to these problems. In enacting article 937 they stated with deceptive
simplicity that representation would occur if the testator ordered
property to pass “in the order of legitimate successions”. They did
not indicate whose order of legitimate succession was to be considered,
nor did they lay down any rules for determining whether the testator
intended his order of legitimate successions, the institute’s or any
other person’s. In the absence of any specific intention on their part
to the contrary, it would seem that the ancient French law prior to
1747 should prevail, and that the metaphysics of the Ricardian system
are part of our law.
If we then adopt the viewpoint of the majority of French authors
and cases prior to 1747 that the term “children” introduces represent-
ation into wills, we must conclude that in all legacies (including
usufructs), other than substitutions the rules of intestacy are to be
considered from the testator’s point of view and that descendants of
the “children” of collaterals and strangers of the testator will be
unable to take by representation. However, in the substitution
(including trusts which create substitutions) 10 the rules of intestacy
are to be considered from the institute’s point of view and hence
descendants of the “children” of collaterals and strangers will be
able to take by representation provided they are descendants of the
institute. Moreover in the substitution, descendants of the testator
who are remote collaterals of the institute will be excluded from
representing. However, it is possible that in a substitution when the
testator uses terms clearly relating the substitutes to his family, the
exception will not apply and the testator will be deemed to intend
that the property pass as if he died without a will.
70 Since most testators avoid creating substitutions, the long discussion of
the substitution may seem of academic rather than practical interest. However,
a trust can and often does include a substitution, and since trusts are becoming
widespread the discussion of the substitution is not without practical importance.
There are some obiter dicta to the effect that trusts and substitutions are
mutually exclusive institutions. However, it is the author’s view that a trust
can contain a substitution. C.f. Drouin v. Hinault (1939) 67 B.R. 101 at p. 106
(St-Germain, J.); Pr~fontaine v. Dillon (1922) 33 B.R. 314 at pp. 319 sq., where
the question is raised by Lamothe, C.J.
No.1]
A SIMPLE LEGACY: “TO MY CHILDREN”
97
2. The view rejecting representation.
A) The basis of this view in Ancient Law.
By the middle of the 18th century the interpretation of a legacy
to “children” had become an involved and complex affair. The term’s
meaning varied from legacy to legacy dependent on whether the
property was bequeathed to the testator’s “children” or to those
of his cousins, or his brothers or his friends. A substitution to “my
brother’s children” would be interpreted differently from a simple
legacy to the same children; and a substitution to a stranger’s
“children” could, in many cases, be interpreted more favourably than
a substitution to the testator’s own “children”. Moreover, the rules
of interpretation applicable to each legacy were always subject to
change dependent on whether the rules of intestacy to be applied
were those of the testator, the institute or another person. This
chaos was further augmented by the efforts of authors to formulate
rules which would end these illogicalities and inequities, rules which
unfortunately only compounded the difficulties, and whose transparent
casuistry lent a ludicrous aura to the whole problem.
Perhaps it was these endless and growing complexities brought
about solely by the adoption of the theory that the term “children”
introduced the rules of intestacy and representation to wills, that
led Furgole to reject this theory completely and evolve a new theory
to explain why the descendants of a deceased child could inherit a
legacy to “children”. 71 His views were supported by Guyot 72 and
71Actually there is some doubt whether Furgole did advocate the theory
attributed to him. The language he used is subject to many interpretations;
and although Merlin and Guyot both state that he did advocate the theory
discussed in this section, it is possible that this theory may be attributed to him
erroneously. If this doubt is justified, it would make the historical antecedents
of this theory almost non-existent, since its other proponents, Merlin and Guyot,
were merely compliers of ancient law, and both wrote after 1747 when the law
had been completely changed.
However, in view of the support for this theory in the jurisprudence of
Quebec, and in view of the strong arguments that the codifiers may have
intended to follow the theory (whether historically valid or not), it is doubtful
whether at this late date historical scruples as to its legitimacy will have any
influence in deciding its ultimate acceptance.
I have for the purposes of less awkward nomenclature called the theory the
“Furgolian system”, but this may well be the attribution of an invention to a
person who never heard of it and who would have denied its validity had he
been informed of it.
72 Guyot, Rgpertoire universel et raisonni de Jurisprudence, (Paris, 1784),
v. 6 p. 720 et seq.
-
-McGILL LAW JOURNAL
[Vol. 12
Merlin 73 both of whom argued strenuously for their adoption. How-
ever, it should be realized that the views of Furgole, Guyot and
Merlin do not represent the generally accepted view of the law prior
to 1747. 74
Drawing support from Roman Law, Furgole states that the term,
“children” like the term “liberi” has a special legal meaning of its
own which includes not only children in the first degree, but the
descendants of the deceased children in the first degree. These des-
cendants inherit the share their deceased ancestor would have taken
had he been alive. However, they inherit not by representation, but
73 Merlin, Rgpertoire universel et raisonn6 de Jurisprudence, (Paris, 1827)
v. 6, pps. 4 et seq.
74 There are good reasons for asking how historically valid the Furgolian
system really is. First, as indicated, there is doubt whether Furgole himself
supported it; secondly, even if he favoured the theory, his views and those of
Merlin and Guyot can in no sense be considered as representing the established
view of pre-1747 law. At best their theory is a proposed innovation, rather than
an accepted theory.
As we have pointed out earlier, prior to 1747 there was a serious and unresolved
dispute amongst the authors and amongst the various customs as to whether a
legacy to “children” should be interpreted according to the maxim, c en testaments
les plus proches excluent les plus 6loigns : or whether the term would permit
concurrent inheritance among descendants in differing degrees. Furgole’s book
Des Testaments, was published before the Ordonnance des Substitutions settled
the dispute. Yet oddly, it makes no reference at all to the controversy.
It may be argued that as a lawyer who practised in Toulouse, Furgole would
obviously favour the rule c les plus proches excluent les plus 6loignus ; which
was the position adopted by the custom of Toulouse. However, Furgole was
writing more than a book for Toulouse advocates. He was writing a work
which he hoped would have validity for all of France. Thus he quotes much
jurisprudence from other customs, and cites authors who often disagreed with
the view current in Toulouse. In his discussion on “children” many of the
cases and authors cited are from Paris and reject the view that C les plus
proches excluent les plus 6loigns >>; these cases support concurrent taking. It is
quite probable that Furgole supports this latter view, and his language:
z Le mot enfans comprend…
lorsqu’ils sont a la
place de ceux du premier degrd de gdn~ration, qui sont d~cd~s sans avoir
recueilli i’ (op. cit., 1. 2 No. 125 p. 413; italics added) suggests that Merlin and
Guyot are correct when they attributed this view to him.
tous les descendans…
However, in the same work, Des Testaments, albeit in another section dealing
with another problem, he expressly states that a class gift, such as, to “children”
would be divided on the principle that c les plus proches en degr6 doivent 6tre
admis, A l’exclusion de ceux qui sont plus 6loign6s > (Furgole, op. cit., v. 2
No. 136, p. 578). Moreover in his book on the Ordonnance des Substitutions,
which was written after his work on wills and which commented on the new
law introduced by the Ordonnance, he states that certain authors prior to 1747
wrongly intimated that representation was introduced to wills and that the
No.1]
A SIMPLE LEGACY: “TO MY CHILDREN”
99
in their own right as being “children” within the special legal meaning
of that term.
le mot enfans comprend, par son 4nergie, et par le signification que
la loi et l’usage lui ont attribue …
tous les descendans, A quelque degr6
qu’ils soient, lorsqu’ils sont 4 la place de ceux du premier degr6 de g~n&
ration, qui sont d~c~d~s sans avoir recueilli. ; 75
Furgole maintained that the term “children” did not introduce
any of the rules of intestacy to wills, and particulary rejected the
notion that the term permitted representation. He argued that the
descendants of a deceased child inherited their ancestor’s share of a
Ordonnance intended to put an end to this discussion and definitely to adopt
the correct view of ancient law. He then states that the Ordonnance introduced
the maximum z les plus proches excluent les plus 6loign~s 2,. This seems to suggest
that his view was that the ancient law also adopted this maxim and perhaps the
equivocal writing of his earlier work really favours the view finally adopted by
the Ordonnance. Guyot and Merlin who perhaps misunderstood Furgole were
not, of course, creative writers, but compliers of the ancient law, although
in this case they may have been more creative than they knew. The basis
for their arguments are not strong; we have seen that the only author they
quote, namely Furgole, is unclear. Moreover the cases they cite to support
their position lend little weight and indeed favour the opposing view namely
that ancient law adopted the theory of representation.
It would thus appear that the historical basis of the view that descendants
in varying degrees can take concurrently, not by representation, but in their
own right by definition is very weak. This view appears to have no support in
the ancient jurisprudence; the only authors who favour it are apparently Furgole,
whose support is uncertain and Guyot and Merlin both of whom wrote after the
Ordonnanee and quote Furgole as their sole authority in ancient law.
Moreover even if Furgole did advance the views suggested by Guyot and
Merlin, this would still not strengthen the position that there was substantial
support in ancient law for the theory that article 980 is to be based on definition.
Furgole’s view would not represent the mainstream of the law prior to 1747.
It would at best be a proposed innovation at variance with the views of the
major authors who wrote prior to 1747. Moreover, this theory was put forth
only one year before the law was irrevocably changed by the Ordonnance.
Certainly, even if his view was logical it had no time to gain acceptance. One
would have to say that prior to 1747 the principle that was accepted was
representation and not definition.
75 Furgole, Trait6 des Testaments, v. 2. No. 125 p. 413 [italics added]. The
descendants who could inherit in the place of a deceased child did not include
every descendant who survived him, but only those who would inherit the
intestate estate of such child. In other words, if a testator left his property
to his “children” and a child in the first degree preseceased the testator, the
children of such deceased child would take his place in the succession; if one of
such predeceased child’s children also predeceased the testator, then the testator’s
great grandchildren (who were descended from such grandchild) would take the
place of such deceased grandchild, and so on; the whole such that no branch
of the family would be deprived of a share.
McGILL LAW JOURNAL
[Vol. 12
legacy to “children” not because the term “children” permitted
representation, but because the term “children” by definition included
the descendants of a deceased child.
Having rejected the view of Ricard that the term “children”
introduced the rules of intestacy and representation to wills, and
having adopted the view that the term “children” had a uniform
meaning wherever used, Furgole concluded that the term did not
differ in meaning, dependent on whether it described collaterals,
strangers or descendants of the testator or of the institute or of
another person. The term could have only one meaning, independent
of the nature of the legacy, and of the relationship of the beneficiary
to the testator or any other person.
<< II ne faut pas mime examiner s'il s'agit d'une disposition faite par un ascendant en faveur de ses descendans, ou par un collateral,... vu que la disposition se trouve dans la valeur et la signification du mot enfans, qui est collectif de tous les degr~s de gdnration; ... qu'ainsi il ne faut pas recourir A la qualit6 du testateur pour y prendre une conjecture de sa volont6. 2 76 Furgole's views were accepted in their entirety by Guyot,77 and Merlin 78 both of whom quoted him extensively. Thus Merlin indicated, On sent, en effet, combien il serait d~raisonnable de distinguer sur ce point, entre les dispositions faites par un ascendant et les dispositions faites par un collatdral. >79
B) The basis of this view in Quebec law.
Strong arguments can be made that article 980 introduces the
Furgolian system to Quebec.
The codifiers quote Guyot as one of the authors consulted in
drafting article 980. However, more important, the wording of article
980 seems to indicate that they adopted his views.
An article based on representation should have distinguished bet-
ween the meaning of the term “children” in ordinary legacies and
in substitutions. Article 980 draws no such distinctions,
“in substitutions and in gifts and legacies in general, the terms children
or grandchildren… apply to all the descendants.”
76 Furgole, Traitg des Testaments, No. 125 p. 413.
77 Guyot, Ripertoire universel et raisonng de Jurisprudence, (Paris, 1784)
7 8 Merlin, Ripertoire universel et raisonnd de JuAispnudence, (Paris, 1827)
v. 6 p. 720 et seq.
v. 6 p. 4 et seq.
79 Merlin op. cit. v. 6 p. 5.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
An article based on representation and the rules of intestacy
should have indicated that the meaning of the term “children”
will differ depending on whether it describes descendants, col-
laterals or strangers. However, article 980 draws no distinctions
between descendants, collaterals and strangers.
“… in gifts and legacies in general, the terms children or grandchildren…
apply to all the descendants.”
Thus the wording of article 980 suggests that the term “children”
is to have one uniform meaning, no matter what the nature of the
legacy, no matter what ‘the relationship of the beneficiary to the
testator or institute. It appears to adopt the views of Furgole.
There is much jurisprudence to support this interpretation. In
Beaudin V. Beaudin 80 the court permitted the descendants of a
deceased child to inherit a legacy to “children”, but held, although
by way of obiter dictum, “I that such descendants did not inherit on
the basis of representation,
c les petits-enfants ne recueillent pas les biens par repr6sentation, mais parce
qu’ils sont compris dans la designation < d'enfants. >>
Similar views were suggested by St-Germain, J.82 and Walsh, J.1
in Drouin v. Hgnault, but these views were obiter dicta. The recent
case of Meincke v. Brown 84 also suggested that article 937 rejected
representation in all legacies, including those to “children” and that
the purpose of article 980 was to enable the descendants of a deceased
child to inherit a legacy to “children” on the basis of definition. But,
again, this suggestion was not necessary to the decision.
However, in the case of Armand v. Armand, 85 the court rejected
the view that article 980 introduced the principles of intestacy and
representation, and did so by way of ratio decidendi. Since all the
jurisprudence supporting the view that article 980 is based on intes-
tacy and representation does so only by way of obiter dicta, this case
assumes a certain importance as a precedent.
The case concerned the division among grandchildren of a legacy
to the “children” of the testator’s children. If it were decided that
article 980 was based on the rules of intestacy the legacy would be
divided by roots; if it was held that the article followed the Furgolian
80 (1927) 65 S.C. 517.
s It was by way of obiter dictun since the court could have reached the same
result if it had applied the principles of representation.
82 (1939) 67 B.R. 101 at p. 107.
83 Ibid, at p. 109.
84 [1958] S.C. 293; c.f. also Rhgau~me v. Cardinal (1930) 68 S.C. 333 at 336.
85 (1898) 7 B.R. 356; (Sir Alexandre Lacoste, C.J.).
McGILL LAW JOURNAL
[Vol. 12
system, the beneficiaries would inherit by heads; the Court adopted
a by head division and expressly stated that article 980 is not based
on representation [applying that term here loosely] .Sa
c Dans les successions et dans les legs, les biens se partagent par tate
entre les h~ritiers et les l6gataires nomm6s, except6 dans les cas oi il y a
representation… La representation n’a pas lieu dans les substitutions,
non plus que dans les autres legs … 3, 85b
In view of the above jurisprudence, and the jurisprudence sup-
porting the theory of representation as on intestacy, the Superior
Court in the recent case of David et Autres 8( could quite correctly
state that Quebec case law reflected two conflicting theories in regard
to article 980; one accepting representation, the other rejecting it.
The latter cases, the court stated,87
c n’ont pas admis la representation lorsque le testateur ou donateur se
servait du mots ‘enfants’… [et] ont d~cid6… que le mot ‘enfants’ com-
prenait les petits-enfants ou descendants…
sinon que les petits-enfants
ou descendants des enfants d6c6d~s venaient 4 Ia substitution, concurrem-
ment avec les enfants vivants. 2,
There is then a strong basis for the view that article 980 permits
the descendants of a deceased child to inherit a legacy to “children” not
by representation but by definition. If this latter view is adopted, the
beneficiaries who will share a legacy to, “children” will differ greatly
from -those who would share the bequest if the article was based on
the principles of intestacy and representation.
C) The Consequences of this view
i) The consequences in the direct, collateral and non-related lines and in
the substitution,.
If article 980 introduces the rules of intestacy to wills, the meaning
of the term “children” will vary from legacy to legacy. However, if
the Furgollan system is adopted, the term will have a single meaning,
uniform to all legacies, whether it describes descendants, collaterals
85a The court should have said that article 980 is not based on the rules of
intestacy, since in this case the grandchildren did not represent anyone but took
in their own right; the word “representation” is apparently used as a rough
equivalent for the expression “inheritance in the same manner as on intestacy”.
85b Ibid., p. 360.
86 [1963J S.C. 305.
87 [1963] S.C. p. 305 at p. 342; c.f. also Dorion J. who in Prifontaine V. Dillon
also indicates that both views exist, (1922) 33 B.R. 314, at 327 C Leurs descen-
dants ne peuvent donc pas recueillir ce legs A leur place, ou par representation…
No. 1] –
A SIMPLE LEGACY: “TO MY CHILDREN”
103
or strangers; whether it is used in substitutions or in ordinary
legacies.
The meaning which the term will always have is as follows:
a) All descendants in the first degree of the .person whose descendants
they are.
AND
b) Those descendants of, a deceased descendant in the first degree who
would have inherited the abintestate estate of the deceased descendant
in the first degree.
If this definition is applied in legacies to the “children” of the
testator or to the “children” of the institute, it is evident that the
beneficiaries who will share such legacies will be exactly the same as
those who would share such legacies if article 980 were based on the
rules of intestacy. In virtue of both theories the descendants of a
deceased descendant will always be able to step into the latter’s shoes
and inherit his -share, in the .one case because they represent him, in
the other case because the term “children” includes them by defini-
tion.
However, in all other legacies, the meaning of the term “children”
will differ depending on which theory is adopted. Thus in a legacy
to “the children of my brother John” or to “the children of my
friend John” or in the case of a substitution “to my brother John
and on his death to my children”, applying the above (Furgolian)
definition uniformly the term “children” will always include the
descendants of a deceased child, whereas if article 980 was based
on representation only children in the first degree would be able
to inherit tlhese legacies.
By- way of example, if at the time of ultimate distribution of-the
above legacies to the “children” of my brother or friend John there
were surviving,
a) 3 children in the first degree of John,
b) 3 grandchildren of John, 2 of whom are children of a deceased child
of John and one of whom is a child of one of John’s living children,
c) 4 great-grandchildren of John, all of whom are children of a deceased
grandchild of John, (the father of which grandchild was one of John’s
–predeceased sons),
all’these descendants, except the grandchild whose parent-is living
would inherit the legacies. If article 980 were based on representation
however, only the three children in the first degree could inherit.
McGILL LAW JOURNAL
[Vol. 12
3. General Conclusion.
Thus there are two theories upon which article 980 may be based.
Each view has strong support. While the theory advocated by Furgole
does seem superior in that it would rid us of the metaphysical distinc-
tions of the opposing theory one cannot say with certainty which
theory will ultimately prevail.
In view of this uncertainty, to what extent the descendants of
collaterals or strangers of the testator can inherit a legacy to “chil-
dren”, and to what extent descendants of the testator’s descendants
or collaterals or strangers can inherit a substitution to “children”
are unsettled questions.
Chapter III.
THE DIVISION OF A LEGACY TO CHILJDREN
In the previous chapter we discussed who might share a legacy
or a substitution to “children”. In this chapter we will determine
what portion of the bequest each recipient of a legacy to “children”
may claim. We will consider especially whether the division will be
by root or by head, and whether the answer will differ dependent
on which theoretical basis of article 980 is adopted.
1. Descendants in the primary degree 8s
Suppose a testator leaves his property to trustees to pay the
income to “my two children in the first degree” and then on their
death to divide the capital among their children”.89
SSBy primary degree the author means those recipients who would have
inherited the legacy had no descendant predeceased the testator. Thus in a
legacy to “children”, the descendants in the primary degree would be descendants
in the first degree. In a legacy to “grandchildren” or to the “children of my
children” they would be descendants in the second degree; in a legacy to “issue”
they would be descendants in the first degree.
89 For this discussion it is assumed that the court will find that on the death
of a child in the first degree, the trustees are to hand over the principal
of his share to all the testator’s grandchildren and not only the children
of the deceased child, C.f. Robin v. Duguay (1897) 27 S.C.R. 347; if the court,
however, finds the expression “their children” to mean that the trustees are
to deliver over the share of a deceased child only to such child’s children as
in Roy v. Gauvin (1871) 3 R.L. 443 the problem will not arise. When the court
will find an expression such as “their children” to mean all the children of
several persons or only the children of each child respectively, is an important
No.1]
A SIMPLE LEGACY: “TO MY CHILDREN”
105
Suppose one child in the first degree dies leaving one child and
the other child in the first degree dies leaving nine children. Will the
grandchildren take by heads, such that each grandchild will inherit
a one-tenth share, or will the division be by roots, such that one
grandchild will inherit one-half and the others one-ninth each ?
It is a general principle of wills, that,
<< lorsqu'un testateur institue plusieurs lgataires... sans assignation de
parts, il y a
ils ont tous des droits 6gaux et
prennent des parts 6gales.009 o
If article 980 is based on the Furgolian system, this rule should
apply and the legacy to the grandchildren should be divided into
ten equal shares.
institution conjointe...
If, however, legacies to "children" and "grandchildren" are intro-
ductive of all the rules of intestacy, then this principle of equal
division will not apply and legacies such as "income to my children,
ownership to my grandchildren" should be divided by roots among
the grandchildren and not equally.91
question but one beyond the scope of this essay; c.f. d'Essaule, op. cit., pp. 314
et seq. Nos. 1003 et seq.
90 Juris-Classeur Civil (Paris, 1962), art. 1002, No. 65; also. Cour de Nancy, D.,
1949, 140.
91 One metaphysical problem does arise. Article 623 of the Civil Code states,
"In all cases where representation is admitted the partition is effected according
to roots..." It could be argued that grandchildren will share a legacy unequally
when they represent a deceased ancestor but not when they inherit in their own
right as primary recipients as in the case of a legacy directly to "grandchildren".
In such a case it can be argued that they should inherit equally by heads.
However, as indicated earlier, if article 980 is to be considered as permitting
representation, it
is because a legacy to "children" or "grandchildren" should
introduce all the rules of intestacy to wills and not only the institution of
representation. Therefore, a legacy such as "to my grandchildren" or "to my
son's children" should devolve and be divided in
the same manner as if the
testator had died intestate, namely, by roots. Such a by root division seems
consonant with the desires of most people to divide their property equally among
the branches of their family rather than equally among its individual members.
Similarly, legacies such as "to my brother's grandchildren" should be divided as
if the testator had died intestate, namely, by heads (article 632 C.C.) as should
a legacy "to my friend's grandchildren". In the case of a legacy to "my friend's
grandchildren"
it seems strange to reason that the legacy is to be divided by
heads because of the application of the testator's rules of intestacy, when
strangers can never inherit an intestate succession. Perhaps a better way to
put the same concept and thus explain why such "friend's grandchildren" inherit
by heads is to state that all legacies to "grandchildren" will be divided equally
among the primary recipients unless such recipients would have inherited the
testator's abintstate succession unequally; since strangers cannot inherit on
abintestate succession they share equally according to the general principles of
wills.
McGILL LAW JOURNAL
[Vol. 12
A) The law prior to 1747
Under French law prior to 1747 the division would probably have
been by roots. Ricard makes it quite clear that a gift to the testator's
children meant "toutes les personnes qui jouissent, par ]a loi du pays,
du droit de representation..., et... Es partagent le fid~icommis par
souches, et non par tites".92 And Bourjon states, "le cas d'une substi-
tution faite en g~n6ral au profit des enfans du grev,.. les biens...
se partagent par souches". 93
B) The law of Quebec
Quebec jurisprudence, however, has not followed the ancient law
in this regard, but has opted for a by head division among descendants
in the primary degree. The Quebec courts have refused to divide
legacies to "my grandchildren" by roots as the rules of intestacy
would dictate; thus they seemingly reject the concept that the terms
"children" and "grandchildren" introduce the rules of intestacy to
Wills.
In Remillard v. Chabot the testator left his property to his children
and then to their children in equal shares. The Superior Court held
that since article 937 banished representation, the property would
be divided among the grandchildren by heads. 94 The Supreme Court
affirmed this view,9 5 but did not discuss articles 937 and 980; their
position was based on the direction to divide the property equally.
This case can, of course, easily be distinguished on the grounds
that the legacy to the grandchildren in equal shares precluded a divi-
(Emphasis added)
92 Ricard, op. cit., No. 575, p. 347.
93 Bourjon, op. cit., v. 2., No 22, p. 175. However there is one point that should
be raised. Bourjon speaks of a substitution to the children of the institute being
divided by roots. This would be so only in the rarest of circumstances. In
substitutions the rules of intestacy are to be considered as if the institute died
intestate. Thus in a substitution to "my children in the first degree and then to
their children" if there were two children in the first degree, one of whom died
leaving three children, and the other of whom died leaving two children, the legacy
would be divided into five equal shares since the rules of intestacy would be
considered from the institute's point of view. " ... In all cases children or their de-
scendants... inherit in equal portions and by heads when they are all in the
same degree and in their own right..." (article 625 C.C.). In legacies other
than substitutions, such as "usufruct to my children, ownership to their children"
the legacy should be divided unequally and by roots. In such a case the rules of
intestacy will be determined as if the testator had died intestate.
94 (1905) 11 R. de J. 409.
95 (1903) 33 S.C.R. 328.
No.1]
A SIMPLE LEGACY: "TO MY CHILDREN"
107
sion by roots, and that the remarks on article 937 C.C. were super-
fluous. However, in Armand v. Armand 91 the testator did not order an
equal division; yet the same by head division resulted.
In Armand V. Armand the testator left his property to his chil-
dren and then to their children "suivant l'ordre des successions"; the
testator further provided that if a child in the first degree died with-
out children his share was to belong to the testator's grandchildren
but no provision was made as to what share each grandchild would
take. One child did die without children, and the question arose, how
were the grandchildren to divide the property? The court held that
since 937 C.C. rejected representation and the rules of intestacy in
wills, the division among the grandchildren would be by heads.
, Dans les successions et dans les legs, les biens se partagent par tate entre
les h~ritiers et les lgataires nomm~s, excepts dans les cas otL il y a repr&
sentation... La reprtsentation n'a pas lieu dans les substitutions, non plus
que dans les autres legs...' (C.C. Art. 937). 2,97
While it might have been possible to distinguish the case of
Armand v. Armand on two grounds, the court expressly rejected
both possible distinctions; 91 the case is strong and clear authority
96 (1898) 7 B.R. 356.
97 (1898) 7 B.R. 356 at 360.
The court stated that since article 937 rejects representation, the division
among grandchildren should be by heads in accordance with the ordinary
principles of legacies. The court would have been technically more correct to
have stated that since the term "children" does not introduce the rules of
intestacy to wills (among them the right to inherit by representation) a legacy
to "grandchildren" would be divided equally and not by roots. The possible
right of the "grandchildren" to inherit by roots sprang not from their right
to represent but from their right to take as on intestacy.
OsThe will created a substitution of which the institute was the testator's
son and the substitutes, the son's nephews; we have noted the view of Ricard
that in a substitution the institute is to be considered as having died and
the rules of intestacy followed from his point of view. Thus in this case the
nephews, being collaterals of the institute, would according to the rules of the
intestacy have taken by heads and not by roots. However, the court expressly
rejected this view pointing out, at pb. 360-361:
'X Soit que l'on envisage le legs en rapport avec la succession du testateur
t6 d6fdrts
on en rapport avee celle du grev6, on voit que les biens n'ont pas
suivant l'ordre des successions... >>
It also could have been argued that since it was provided that, if a child died
with children the division was to be made among the grandchildren “suivaiit
l’ordre des successions”, but that in the case of a child dying without children
no provision was made how the property was to be divided, there was an implicit
direction to divide the property by heads; however, the court rejected this view,
treating the second legacy as being subject to the general law.
McGILL LAW JOURNAL
[Vol. 12
for the proposition that a legacy to the children of several persons will
be divided by heads.
The case of Armand v. Armand was followed in Rh6aume v. Car-
dinal9 9 where the court ordered a legacy to the children of the testa-
tor’s children to be divided by heads although no provision was made
as to how the property was to be divided. The court stated that article
937 excluded a division by roots:
,g I1 y a donc… quatre ouvertures de substitution. Chacun ne rend quo
sa part. I1 la rend non i ses enfants, mais aux petits-enfants par tate;
il n’y a pas de representation dans les legs, 937 C.C…. Les petits-enfants
vivants h la mort d’un des enfants ont donc droit i cette part, par t~te et
non par souche.: 99a
Support has been given to the views of Armand v. Armand in
the case of Duguy v. Robin where it was stated, 100
and in the case of Meincke v. Brown 101 where the court suggested
that Art. 980 C.C. was not based on an introduction of the rules of
intestacy to wills, and that a division among the testator’s grand-
children should be by heads. However, the case of Duguay v. Robin
is distinguishable on the grounds that the legacy (in this case not a
substitution) was to the children of the testator’s sisters, who, accord-
ing to the rules of intestacy could only take by heads; and the case of
Meincke V. Brown is also distinguishable since the testator did order
an equal division among his grandchildren. 10 2
99 [1930] S.C. 333. Actually this case is distinguishable. The institute was a
son of the testator, and the substitutes were the son’s children and the son’s
brothers’ children. Assuming that article 980 is based on the rules of intestacy, and
assuming that the rules of intestacy are to be considered as if the institute had
died intestate, the divsion among his children in the first degree would have to
be equal, as would that among the children of his brothers. Thus the result would
have been the same no matter what theoretical basis of article 980 the court
adopted.
99a Ibid., p. 336.
100 (1896) 5 B,R. 277 at p. 290; approved (1897) 27 S.C.R. 347.
“le legs… fait sous un nom collectif h taus les enfants sans limitation
de parts… les lgataires n’ont chacun qu’une part 6gale. 2
101 [1958] S.C. 293.
102 In Gelinas v. Paquin (1922) 32 B.R. 431 the court adopted a “by root”
division; however, the basis for the decision was not that article 980 brings the
rules of intestacy to wills but that the particular wording of the will showed the
testator’s special intention to divide his property by roots; in other words,
he showed the “manifest intention” demanded by article 937 that the property
should be so divided.
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A SIMPLE LEGACY: “TO MY CHILDREN”
109
C) Conclusion
i) Assuming article 980 is not based on the rules of intestacy.
The above cases are strong authority for the proposition that a
legacy to “grandchildren” or to “the children of my children” will be
divided equally among descendants in the primary degree.
This, of course, does not mean that the testator cannot order
otherwise. The testator may leave his property to his “grandchildren
by roots”; or he may bequeath his property “to the children of my
children to be divided as if I had died intestate”. But barring such
express direction the division among descendants in the same primary
degree should be by heads.
Legacies to “my grandchildren by roots” or to “my grandchildren
as if I had died intestate” raise interesting questions. Assuming
article 980 is not based on the rules of intestacy does the direction that
the property be divided “by roots” or “as on intestacy” indicate that
not only is the property to be divided as on an intestate succession but
that the property is to accrue only to these persons who could inherit
upon intestacy ? In other words, by employing such expressions is
there not a “manifest intention” to have the legacy governed by all
the rules of intestacy and representation, and not by any of the rules
of 980 C.C. (assuming that article 980 rejects those rules).
In the case of a legacy to “my brother’s grandchildren as if I had
died intestate”, there is no doubt that the rules of article 980 are
not applicable. In leaving the legacy in these terms, the testator has
ensured that the legacy will be interpreted in accordance with article
937 (which states that representation will apply to wills if the testator
so orders).
In the case of a legacy to “my brother’s grandchildren as if I had
died intestate” not only would the division be by roots, but great-
grandchildren would be excluded if grandchildren were surviving.103
However, a legacy to “my brother’s grandchildren by roots” 11
should not introduce all the rules of intestacy to wills. The expression
“by roots” deals only with the manner in which the property is to be
103 In the case of a legacy where the testator has ordered that the property
pass according to the rules of intestacy (as in a legacy “to my brother’s grand-
children to be divided as in an abintestate succession”) without indicating
according to whose rules, the presumptions discussed earlier should apply. In
the substitution, the presumption should be that the institute’s rules of intestacy
are to the followed; however, in all other types of legacies the rules of intestacy
should be followed from the testator’s point of view.
104 Cf. pp. 122 et seq. of this article for a discussion of other difficulties
inherent in the term “by roots”.
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divided. It does not indicate an unequivocal desire that the property
pass in the order of legitimate successions; nor does it show that the
testator wished the term “children” to have a meaning different than
that bestowed upon it by article 980. The term should do no more than
ensure a by root division among descendants in the primary degree;
it should not prevent great-grandchildren from stepping into their
deceased parent’s shoes. A legacy to “my brother’s grandchildren by
roots” should be interpreted in accordance with article 980 and not
according to article 937. However, to alleviate any doubts, a drafts-
man who orders a “by roots” division should be especially certain to
define the terms “children” and “grandchildren”.
ii) Assuming article 980 is based on the rules of intestacy.
The cases of Armand V. Armand, and Rhdaume V. Cardinal hold
that a legacy to “children”‘ or “grandchildren” is to be divided equally
among descendants in the primary degree, on the assumption that
article 980 is based on definition and not on the rules of intestacy.
However, in view of the strong authority that article 980 is
based on the rules of intestacy it would be well to consider the conse-
quences of such a theory should the above cases be over-ruled.
If the courts do decide that article 980 is introductive of the rules
of intestacy, then a legacy to “grandchildren” or “children of my
children” will be divided by roots, except in certain substitutions. 1 5
Thus if a testator were to leave his property to his “grandchildren”
and was survived by two children of one child called John, and three
children of another child called George, John’s children would each
take one-quarter of the legacy, while George’s children would each
inherit only one-sixth.
Of course, a testator could order otherwise. He might leave the
property to his “grandchildren in equal shares”, or to the “children
of his children, by heads”. In such a case all grandchildren would
share equally; as Laurent, who favours the view that the term “chil-
dren” is introductive of the rules of intestacy points out:
z… par 6gale portion, ou une expression analogue… indique que le testa-
teur a voulu avantager individuellement et A titre 6gal chacun des descen-
dants. i 106
‘Or Of course, in a substitution the legacy will be divided by heads if the
grandchildren are descendants of the institute.
106 F. Laurent, Pimincipes de Droit Civil, 4th ed. (Paris, 1887) v. 13, p. 544,
No. 492. Most French authors favour the view that a legacy to “children” is
to be interpreted according to the rules of intestacy. Cf. also Juris-Classeur
Civil (Paris, 1962) Art. 1002, No. 67. However, the Code Napoleon has no
article similar to article 980.
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A SIMPLE LEGACY: “TO MY CHILDREN”
111
Assuming that article 980 introduces the rules of intestacy and
representation, will the direction that the property is to be divided
“in equal shares” or “by heads” prevent all the rules of intestacy
from being applied? Thus in a legacy “to my grandchildren in equal
shares” would the legacy be limited to descendants in the second
degree only?
The author feels that a direction as to how the property is to be
divided should not prevent the other rules of intestacy from applying.
This was the opinion of Montvalon;10 7 it is also the opinion of
the court in Plouffe V. Lapierre 108 and most recently in David et
Autres: 109
& Or, il semble qu’en se servant du mot & descendants 2, le donateur a voulu
que les biens soient d~fdr~s suivant l’ordre de la succession lgitime. Et ce
n’est pas parce qu’il se sert, A la fin de la clause, des mots & par tate i
pour la division, que ceci empacherait la representation, vu que
‘article
623 C.C. stipule que dans le cas de repr~sentation, le partage doit se faire
par souche, car on verra, h l’tude de la jurisprudence qui sera cite plus
t6 interpr6t~es par les tribunaux comme
loin, que nombre de causes ont
donnant lieu 4 la representation, malgr6 que le partage devait Atre fait
par t6te. D
z Et en indiquant que les descendants vivants seraient appelds A la substitu-
tion par parts 6gales et par tate, le donateur n’a pas voulu n6cessairement
enlever la representation s’il a ordonn6, comme dans le cas present, que les
biens soient d6f6r~s suivant l’ordre de la succession lgitime, car le dona-
teur, en employant le mot K descendants >, ordonnait que les biens soient
d6f6r~s suivant l’ordre de la succession l6gitime. 11.0
2. Descendants other than those in the primary degree. 11
We have hitherto discussed how a legacy to “children” will be
divided among descendants in the primary degree only. However, in
107 Op. cit., v. 2, 180, but only for a direction to divide the property “in equal
shares”; however, he suggests that in a legacy to “my children by heads”,
the expression by heads would prevent representation. In such a legacy the
term children would be limited to descendants in the first degree only. This is
.contrary to the view expressed in David et Autres where it is suggested that
the request for a “by head” division would not prevent representation.
108 (1917) 52 S.C. 151.
109 [1963J S.C. 305, p. 313.
110 Ibid., pp. 313-314. For some of the other problems inherent in the use of
the expression “is equal shares” see pp. 120 et seq. of this article.
Ill This section envisages a legacy to “children”
in which the testator is
survived by children and grandchildren, or by grandchildren alone, all, the
children having predeceased him. For a definition of who are considered
descendants in the primary degree, c.f. footnote 88, page 104 of this. article.
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many cases the testator will be survived not only by descendants in the
primary degree, but by those in other degrees as well. Indeed in
some cases where all the descendants in the primary degree are de-
ceased he may only be survived by descendants in the secondary or
more remote degrees. How will such legacies be divided?
Suppose a testator leaves his property to his “children” and is
survived by three children in the first degree, and eight grandchil-
dren, five of whom are the children of the three living children in the
first degree, and three of whom are the children of a deceased child
in the first degree.
How will this legacy be divided? What shares will the children in
the first degree take; what shares will accrue to the grandchildren?
A) The Principles of Division.
i) Rule 1 – Living descendants exclude their own descendants.
In the above example the five grandchildren of the testator whose
parents are living will be excluded from the legacy. Only the three
living children in the first degree and the three children of the
deceased child in the first degree, will be able to inherit.
While this rule seems somewhat at variance with the language
of article 980 which states that “the term children … applies to all
the descendants” there is no doubt as to its validity. If one accepts
the view that article 980 is based on representation, then article
624 c.c. is quite clear on this point.
“Living persons cannot be represented, but only those who are naturally
dead.”
If, however, the contrary views of Furgole and Guyot are taken
as the basis of 980, then the statement of Furgole that grandchildren
and remoter descendants inherit only,
lorsqu’ils sont h la place de ceux du premier degr6 de g~ndration, qui sont
d~c~ds sans avoir recueilli.D 112
should be conclusive.
This obvious rule was upheld in David et Autres.13 Whether the
division is by heads or by roots, in each branch of a family,
e le plus proche en degr6 exclut le plus 6loign6 2 114
l11 Furgole, TraiM des Testaments, v. 2. No. 125 p. 413.
113 [1963] S.C. 305; R. Comtois, loc. cit., (1964) 14 Themis 37, at 43, also
agrees.
114 What if a descendant is surviving but renounces his share ? Will his
children inherit his share.? According to the rules of intestacy no representation
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A SIMPLE LEGACY: “TO MY CHILDREN”
113
ii) Rule 2 – Descendants inherit only their deceased parent’s share.
The second rule of interpretation is that the descendants of a
deceased ancestor can never take more than the share their ancestor
would have taken had he been alive; thus in the example given above
the 3 children in the first degree would take a quarter share each,
and the 3 children of a predeceased child in the first degree would
only take his share, such that they would inherit 1/12th each.
For those who maintain that representation is the basis of 980
this proposition is self-evident,
, les descendants qui viennent par representation… ne peuvent avoir, h
eux tous collectivement, quel que soit leur nombre, que la part virile, ni
plus ni moins, que le reprdsent6 aurait eue.;D115
However, for those who maintain that article 980 is not based
on representation, but on the right of descendants in varying degrees
to take in their own right, there is some doubt. It has been suggested
in Meincke V. Brown that since the division is to be made.
quel qu’en pft 6tre le nombre –
c non pas par souches mais par ttes … que chacun des petits-enfants et
eflt droit de recevoir
autres descendants –
une part 6gale h celle des enfants du premier degr6… La raison en est
que le partage par souches s’oplre dans le cas seulement oil la reprdsenta-
tion est admise (art. 623 C.C.). 3, 116
Other cases nowhere suggest that legacies inherited in part or in
whole by descendants not in the primary degree should be divided
equally among descendants of differing generations (as in a legacy
to “grandchildren” shared by grandchildren and great-grandchildren)
or should be divided equally among descendants in the same degree
who are not primary descendants (as in a legacy to “grandchildren”
in which all the beneficiaries are great-grandchildren, the grand-
children being all deceased).
When Armand v. Armand-17 and Rh6aume V. Cardinal 11 suggest
that legacies to “children” or “grandchildren” be divided equally
can occur (624 C.C.). His children could only inherit if all the other children
is not
in the first degree renounced or were unworthy.
the basis of art. 980 then the answer is more uncertain, but it would appear
that such children should be excluded on the argument that the share of the
renouncing parent would either accrue to the other co-legatees in virtue of 868
C.C. or would lapse; moreover, if all the children in the first degree had
renounced, their children should be unable to take, since in such a case there
would be a lapse of the whole legacy, the property passing on intestacy or if
the legacy was a particular legacy, in favour of the universal legatees.
If representation
115 Demolombe, Cours de Code Napoleon (Paris, 1864) v. 19, p. 165, No. 76.
116 Meincke v. Brown [1958] S.C. 293 at p. 303.
117 Arm’nd v. Armand (1898) 7 B.R. 356.
118 Rh6aume v. CardinaL [1930] S.C. 333.
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they refer only to the division among descendants in the primary
degree; these cases do not mean that every descendant who inherits
in virtue of the terms “children”, “grandchildren” or “issue”, should
take an equal share. This jurisprudence simply affirms the general
principle of will interpretation that a legacy to several co-legatees
will be divided equally among them if no contrary provision is made.
However, if a testator provides that if a legatee die before inheriting,
various persons are to take in default of the original legatee this gen-
eral principle would not allow such persons to take more than the
original legatee’s share. Article 980 by allowing grandchildren to
share with children will only permit them to take the share their
parent would have taken had he been alive. The article cannot be
interpreted as allowing them to receive more than their parent would
have taken had he been alive, and so diminish the shares of the other
children. There is no reason to interpret article 980 in the illogical
and unnatural manner suggested in Meineke v. Brown, and so enable
those who take in default to take more than the person in whose
default they are taking, especially when a family is concerned. Furgole
and Guyot both reject the view suggested in Meincke v. Brown. They
point out that grandchildren only inherit, “lorsqu’ils sont a la place
de ceux du premier degr6 de g6n6ration qui sont d6c6d6s”. The de-
velopment of the ancient French law in regard to the term “children”
and the cases quoted by Guyot suggest no other possible view.
Chapter IV.
COMMON EXPRESSIONS TO AVOID THE PROBLEMS OF
DIVISION AND INCLUSION
1. Terms which attempt to provide for the death of a child.
It is evident that a legacy to “children” leaves uncertainty as to
which descendants will be included under its aegis, and in what pro-
portions they will share.
The draftsman cannot await the ultimate decisions of the courts,
but must attempt to avoid these difficulties by express provision as
to whom such a legacy includes, and express direction as to how it
shall be divided.
There are several expressions of common use which attempt to
accomplish this result. A testator wishing to ensure that the descen-
No.1]
A SIMPLE LEGACY: “TO MY CHILDREN”
115
dants of a deceased child take such child’s share, may leave his pro-
perty to ‘issue” instead of to “children”, or he may state that the
property is to pass to “children with representation in favour of the
issue of a deceased child”. Many a draftsman hoping to avoid the diffi-
culties of division will direct that the property be divided among the
“children” or “issue” “by roots” or “in equal shares”, as is his wont.
However, such expressions, while they do solve some of the prob-
lems that a simple legacy to “children” does not, are in themselves
the source of difficult problems. It is suggested that if the above
analysis of articles 937 and 980 is focused upon such terms as “issue”,
“with representation in favour of”, or “by roots” “by heads” and “in
equal shares”, such phrases reveal themselves inadequate in many
cases to determine definitively who will share the legacy and in
what proportions. Such terms will often only frustrate the testator’s
true wishes and diminish his patrimony through costly and unneces-
sary litigation. In some cases a simple legacy to “children” will cause
less difficulty.
A) The term “issue”
We have seen that a legacy to “children” raises certain difficulties
as to how it will be divided, and who will be included under its aegis.
Some draftsmen, to avoid these problems, leave property to “issue”
instead of to “children”. Unfortunately the term “issue” is as uncer-
tain in result as the term “children”.
The difficulties of a legacy to “children” stem from our legal
system’s failure to decide whether the legacy is to be governed by
the principles of abintestate successions or by the Furgolian system.
The term “children” may have various meanings and divisions de-
pendent on which system is finally adopted. Unfortunately a legacy
to “issue” is plagued by the same difficulties. A legacy to “issue”
may be governed by the rules of intestacy, or it may be governed
by the rules advocated by Furgole. But again the term will differ
in meaning and in consequences of division, dependent on which
system is finally adopted, and as yet the courts have indicated no
preference. The testator by using the term “issue” instead of the
term “children” has simply replaced one uncertain term with an-
other.
The term “issue” may be interpreted in accordance with article
937, as indicating an intention on the part of the testator to leave his
property as on intestacy, or the term “issue” may fall within article
980, as being analagous to the expression “children”.
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If the term falls within article 937, or if the term is governed by
article 980 and it is decided that that article is based on the rules of
intestacy, then a legacy to “issue” will be governed by the rules of
intestacy.
If it is decided that article 980 is based on the rules of intestacy,
then whether the term “issue” falls within article 937 or within
article 980, the term “children” and “issue” will both have exactly the
same meaning. Both terms will mean “those descendants who inherit
upon intestacy”. It will make no difference whether the testator leaves
his property to “children” or to “issue”. The results will be the same.
Thus a legacy to “my sister’s issue” will be divided by heads, and the
descendants of a predeceased child in the first degree should be
excluded from representing. While it may be argued that the term
“issue” should have a meaning different from “children”, the history
of the meaning of these terms indicates conclusively that if certain
collective legacies permit representation, then the term “issue” is to
be interpreted according to the rules of abintestate succession.
If article 980 is not based on the rules of intestacy, then the
meaning of “children” and “issue” may diverge depending on whether
the term “issue” falls within article 937 or within article 980.
If the term “issue” is governed by article 980, then of course
the effect of a legacy to “issue” and a legacy to “children” will be
identical. Both terms will be governed by the principles laid down
on pages 102-104 of this article.
If, however, the term “issue” falls within article 937, and article
980 is based on the Furgolian system, legacies to “children” and to
“issue” will differ in result. In such circumstances, a legacy to
“children” will be governed by the Furgolian system, whereas a
legacy to “issue” will be interpreted in accordance with the rules of
abintestate successions.
In the case of David et Autres -19 the court suggested that even if
article 980 were based on the Furgolian system, the term “issue”
should still be interpreted under article 937. The court argued that
terms such as “issue” or “descendants”, like the expression “heirs”
but unlike the expression “children”, indicate a manifest intention to
follow the rules of intestacy, and hence argued that the terms “issue”
and “descendants” should be interpreted in accordance with article
937 and not in accordance with article 980, which latter article dealt
only with the definition of “children”, not with that of “issue”.
119 [1963J S.C. 305.
No. i]
A SIMPLE LEGACY: “TO MY CHILDREN”
117
However, this author disagrees strongly with the position suggest-
ed in David et Autres. If article 980 is based on the Furgolian system
the term “issue” must fall within article 980. To suggest otherwise,,
and state that the term “children” is governed by the Furgolian sys-
tem, and the term “issue” by the rules of intestacy is to state that
the term “children” has a more extensive meaning than the term
“issue”. This appears contrary to common sense. Moreover, the lan-
guage of article 980 suggests that the term “issue” falls within its
confines. The article states that the term “children” applies to “all
the descendants”. To interpret the term “issue” within article 937 and
not within article 980 is to state that the term “children” is to be in-
terpreted as if the legacy was bequeathed to “all the descendants”,
but the term “issue” is not to be interpreted as if the property were
left to “all the descendants”.
Thus it is evident that the term “issue” produces no more cer-
tainty in result than the term “children”. How a legacy to “issue” will
be divided, what will be its meaning when used in a substitution, and
to what extent descendants, collaterals or strangers of the testator
can inherit under its aegis, are yet unsettled questions. The answers
will depend on whether the term is to be governed by the rules of
intestacy or by the Furgolian system.
To avoid all these problems, the draftsman must define who are
meant by “issue” and indicate how the legacy is to be divided among
them. To do otherwise is to court litigation.
B. The phrase “with representation in favour of”
It is customary in many legacies to leave property to a person
“with representation in favour of his children, or his issue”. Such a
legacy raises complications.
Suppose a legacy “to my brother with representation in favour
of his children”. Further suppose that both the brother and one of his
children have predeceased the testator, but that the predeceased child
has left children who survive the testator. Will the brother’s grand-
children inherit in virtue of the expression “with representation in
favour of his children”?
i) Assuming article 980 rejects representation.
Let us firstly assume that article 980 is not based upon repre-
sentation, but is based upon the Furgolian system. The term “chil-
dren” would then normally include the children of a predeceased
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child, no matter what the relationship to the testator. Does the
expression “with representation” prevent such a result ? If the
expression is regarded as a synonym for “failing my brother” the
grandchildren should inherit. The legacy would be interpreted as
reading “to my brother and failing him to his children”. However,
it might be argued that the expression “with representation in favour
of” manifests a desire to introduce the rules of intestacy to wills.
In this case the expression “with representation in favour of his
children” would be interpreted according to article 937.
ii) Assuming article 980 adopts representation.
How will this expression be interpreted if it causes the legacy to
fall within article 937, or if article 980 is deemed to introduce the
rules of representation to wills ?
Let us assume the testator leaves his property to his “friend
with representation in favour of his children”. The children of a
friend cannot “represent” him. Yet the legacy states they are to do so.
What meaning is to be given to this contradiction?
On the one hand it can be argued that the fact that the testator
has ordered that the friend’s children are to represent the friend,
does not mean that the friend’s children are in turn to be represented
by their children. The rules of representation and intestacy should
(on this view) be rigorously followed, and any derogation therefrom
strictly interpreted. The fact that representation is permitted in one
case where the law does not admit of it does not allow it to be permitted
in a second case where it is not expressly ordered. Such a view
would therefore interpret the legacy as meaning “to my friend
and failing him to his children in the first degree.”
On the other hand it can be argued that the expression is evidence
of an intention to derogate from the rules of intestacy; or, put another
way, it is evidence of an intention to consider the person who is to be
represented as having died intestate. Since the term “representa-
tion” is a technical term, it should (on this view) be given its techni-
cal meaning. If the testator had wished to use the term “failing” he
would have done so; his use of the expression “representation” shows
(according to this argument) a desire to consider the friend as having
died intestate.
A legacy to “my brothers with representation in favour of the issue
of a deceased brother” creates problems which militate against this
latter solution.
If several brothers survive the testator but one
brother predeceases the testator leaving children, there would be no
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
if one of
problem; in such a case the laws of intestacy would allow representa-
tion. However,
the predeceased brother’s children
predeceased the testator leaving children, or if all the brothers
predeceased
leaving varying numbers of children,
the laws of intestacy will in the first case exclude the brother’s grand-
children and in the second case divide the property by heads and not
by roots.
the testator
In such a case does the testator intend to allow representation
without limit or only as permitted by law ? The natural presumption
would be, only as permitted by law.
However, if the expression “with representation” is allowed to
introduce representation unqualifiedly among strangers it seems odd
not to allow it for relatives of the testator. Thus it would appear that
consistency demands either that the expression “with representation”
permit unlimited representation even in non-related and collateral
lines, as if the person represented had died intestate, or that the term
be considered a simple synonym for “failing”. Which interpretation
is better can only be decided by the courts.
Until the courts give a definite meaning to the expression the
draftsman would be wise to avoid it.
C) The need for definition.
It is evident that the testator who leaves his property to “chil-
dren” or “issue” in many cases has created an uncertain legacy.
The draftsman should attempt to avoid the problems inherent in
these terms by indicating exactly which descendants will inherit in
virtue of such legacies and which descendants will be excluded. In
other words, he should define the terms.
For the draftsman’s convenience the author would like to provide
suggested definitions although reminding the reader that many of the
questions raised in such definitions will only be discussed in the
Second Article.
Whenever the terms “children” or “issue” are used in a will, the
draftsman would be wise to include a general definitional section to
the following effect:
1.1 The terms “child” or “children” wherever used in this my will
shall mean:
i) All lawful blood descendants in the first degree;
120
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ii) All adopted descendants in the first degree, notwithstanding
the Adoption Act of Quebec, or any other future or present
legislative provision inconsistent herewith.
1.2 The term “issue” wherever used in this my will shall mean:
i) All lawful blood descendants in the first and more remote
degrees;
ii) All lawfully adopted descendants in the first and more remote
degrees, notwithstanding the Adoption Act of Quebec, or any
other future or present legislative provision inconsistent
herewith;
iii) Provided, however, that a descendant who is surviving at the
time he is called upon to benefit shall exclude his own des-
cendants.
2. Terms that provide for division.
We have seen that a legacy to “children”, or to “issue” with no
provision as to how the legacy is to be divided, creates uncertainty
as to what share each “child” or “issue” will inherit.
Evidently a wise draftsman should make express provision as to
what portion of the legacy each beneficiary will take. The terms of
most widespread use are “in equal shares” and “by roots”. However,
such expressions while common and simple are uncertain in result.
Only in limited circumstances can they be used without fear of litiga-
tion.
A) “In equal shares”.
In the case of a legacy to “children” or “issue” where no prima-
ry 1 20 descendants die before the legacy is finally distributed, a direc-
tion to divide the legacy into “equal shares” or “by heads” will create
no problems in meaning. Whether one adopts the Furgolian system,
or argues that article 980 introduces the rules of intestacy, legacies
to “my grandchildren in equal shares” will obviously be divided equally
among the grandchildren, and legacies “to my issue by heads” in which
only children in the first degree inherit will be divided equally among
120 C.f. footnote 88 of p. 104 of this article for a definition of the term “primary
descendant”.
No.1]
A SIMPLE LEGACY: “TO MY CHILDREN”
121
the children. Under such circumstances the terms “in equal shares” or
“by heads” produce no litigious issues.
However, in cases where one or more descendants have died before
the legacy is to be divided, leaving descendants entitled to inherit, a
direction to divide the property “into equal shares” will lead to un-
certainty. Since the testator cannot be sure a child or grandchild will
not die unexpectedly, a direction to divide a legacy “in equal shares”
without further amplification is dangerous.
Suppose a legacy to “my children” to be divided “equally” among
them or to “be divided by heads and not by roots”. Further suppose
that the testator is survived by two children in the first degree and
three grandchildren, the children of a deceased child in the first
degree. Will the direction that the property is to be divided “by
heads” or “equally” mean that the legacy will be divided into five
equal shares, and that child and grandchild alike will inherit one-
fifth; or will the legacy be divided as common sense dictates into
three equal shares, such that each child will inherit one-third, and
each grandchild one-ninth ? Similarly in a legacy to “my issue to be
divided equally among them” in which the testator is survived by
only three grandchildren, one of whom is the child of one predeceased
child, and the other two, the children of another predeceased child,
the question will arise whether the legacy is to be divided into three
equal shares, or only into two equal portions.
Arguments may be made supporting both interpretations.
In many cases (and indeed in all cases if article 980 is based on the
Furgolian system) legacies to “children” or “issue” or “grandchil-
dren” will be divided in equal shares among descendants in the
primary degree, even if the testator has remained silent as to how
he wishes his property to be divided. In such legacies, a direction to
divide the property “into equal shares” if it is to have any effective
meaning must (it can be argued) refer to those descendants who
would have inherited unequally, namely those descendants other than
those in the primary degree. Thus in legacies “to my children in equal
shares” or to “my brother’s children in equal shares” where children
in the first degree will share equally according to the general princi-
ples of law, and without express provision, the expression “in equal
shares” should (on this view) mean that descendants of a deceased
child are to share equally with surviving children in the first degree;
otherwise the term will have no effective meaning. This interpretation
was suggested by way of obiter dictum in Meincke V. Brown, 21 where
121 Meincke v. Brown [1958] S.C. 293 at p. 303.
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the court suggested that a legacy “to be equally divided amongst my
children” should be divided into equal shares among children and
grandchildren alike.
However, a contrary decision was reached in Plouffe v. Lapierre 122
and by way of ratio decidendi. In that case the testator left his
property to be divided << par 6gales parts entre mes huit enfants >>.
Seven of the testator’s eight children survived him. However, one child
predeceased the testator leaving six grandchildren. The court did not
divide the property into thirteen equal shares, as suggested in Meincke
v. Brown, but divided the property into eight equal shares, each child
inheriting one-seventh of the legacy, and each grandchild, one-forty-
eight (i.e. one sixth of the one-eight share apportioned to that branch
of the family).
The interpretation of Plouffe v. Lapierre seems more consonant
with common sense and the desires of most testators than the view
suggested in Meincke v. Brown. Expressions such as “in equal shares”
are too common both in home-made and professionally drawn wills
to be given the unnatural meaning of applying to each descendant
who inherits a legacy to “children”, “grandchildren” or “issue”. The
term should enable only an equal division between primary branches
of the family. It should not enable those who inherit the share of
another in his stead, to inherit a larger share than the person in
whose stead they inherit would have taken had he lived. This is the
view of Montvalon 123 and of Ricard 123a and our law should accept it.
In any event it is evident that the expression “in equal shares”
must be used with great care. It
is the author’s contention that
the expression should never be used unless it only applies to des-
cendants in the same primary degree. Thus legacies to “children in
the first degree in equal shares” or to “my descendants in the second
degree to be divided equally” offer no problems of interpretation.
However, a legacy to “my issue in equal shares” or to “my children
to be divided by heads” only raises unnecessary questions as to what
share the descendants of a deceased descendant are to inherit.
B) ‘By roots”
A term common to many wills is the expression “by roots”. Un-
fortunately this expression possesses a certain intrinsic ambiguity
which makes its use dangerous in many cases.
12 2 Plouffe v. Lapierre (1917) 52 S.C. 151.
123 Montvalon, op. cit., v. 2, pp. 180-181.
123a Ricard, op. cit., p. 348 Nos. 576 et seq.; supra p. 111.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
At first blush it is difficult to understand why the term should
create any difficulties. Many legacies such as a substitution “to my
children, and then to my grandchildren” or a legacy to “my brothers’
children” will be divided equally among the primary recipients if
no contrary provision is made. It would seem that a testator who
wishes to divide the property unequally among such children and
grandchildren according to the family or branch from which they
spring need only state that the property is to pass to such children
or grandchildren “by roots”. It is difficult to see how the testator
could make his intention any clearer.
However, an examination of the jurisprudence will reveal how
such legacies as to “my brothers’ children by roots” or to “my grand-
children by roots” can raise litigious questions.
In the case of Gurd v. Gurd 124 the testator left his property,
“in equal proportions by roots, between those of my nephews and my nieces
who may survive me, and the lawful issue then living as representing their
parent, of any of my nephews and my nieces who may predecease me.”
(Emphasis added)
The testator was survived by eight nephews who were the
children of three brothers. The plaintiffs argued that the property
was to be divided into eight equal shares among the nephews. They
suggested that the nephews should take equally because it was the
nephews who should be considered as being, “the root without refer-
ence back to the family branch” from which the nephews sprung.
The defendants, however, argued that the division should be in three
equal shares; the term “root”, they suggested, referred to the branches
or families from which the nephews sprang. The question facing the
court, then, was, did the term “by roots” refer to the division among
the nephews themselves or only to the division among their de-
scendants ?
The court upheld the defendants and divided the legacy into three
shares,
“The word, in my opinion, applies to the case of the primary recipients who
are to take as their share by roots and not individually by heads.” 124a
However, in the case of Desbarats v. Desbarats 125 the court
reached the opposite conclusion. In that case the property was left
to the testator’s executors to,
“partition in ownership … my property… equally by roots between those
of the said twelve nephews and nieces who may be then living.., and the
124 Gurd v. Gurd [1944] S.C. 89; disposition quoted at p. 90:
124a Ibid., at p. 91.
125 Desbarats v. Desbarats [1955] B.R. 765.
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lawful issue then living of any of them who may have died.” (Emphasis
added)
The testator was survived by twelve nephews and nieces who
were the children of three brothers of the testator. The plaintiff
asked for a division into twelve equal shares; the defendant for a
division into three equal shares. The court unanimously divided the
property into twelve parts.
s26
Rinfret, J., stated,
z II me semble bien 6vident que l’emploi du mot root, souche, h cet endroit
precis du testament, ne peut que r~fdrer h la souche dont la tate est chacun
des neveux et nices, enfants des trois fr6res …
and Pratte, J., held,12 7
c les mots by roots ont t6 employ6s en pr6vision de l’hypothbse oi l’un ou
Fautre de ces neveux on nices ne survivrait pas au testateur, pour indi-
quer que les enfants d’une niece ou d’un neveu dgcdd auraient droit collec-
tivement h la part de leur p~re ou mbre, selon le cas.D
Great emphasis was placed by Rinfret, J. on the particular wording
of the will; however, Pratte, J. concentrated on the intrinsic meaning
of the expression “by roots”.
Evidently these cases suggest that the expression “by roots”
is a much more litigious phrase than most draftsmen contemplate.
Of course, in certain circumstances the phrase will raise no doubts.
Such is the case of a legacy to the “issue” of one person such as
“to John’s issue by roots” or to “my issue by roots”. In such a case
the phrase can only refer to the division among descendants other
than those in the first degree. However, in any legacy to the “children”
or “issue” of several persons and even to the “grandchildren” of one
person the term can only be used at the peril of litigation.
Of course, a strong argument can be made that a legacy to the
“children” or “issue” of several persons, or to the “grandchildren”
of one person, “to be divided by roots”, is to be divided unequally
among the recipients in the primary degree, and that the term “by
roots” refers not only to the descendants of deceased descendants
in the primary degree, but to the descendants in the primary degree
as well. A legacy to “my grandchildren by roots” (no matter which
theoretical basis of article 980 is finally adopted) will be divided by
root among the descendants of a deceased grandchild even had the
testator remained silent as to what division he desired. In such
legacies the direction to divide the property “by roots”, if it is to
have any effective meaning,. must refer to those descendants who
126 [1955] B.R. 765 at p. 768.
127 [1955] B.R. 765 at p. 770.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
125
would have inherited equally, namely the grandchildren (assuming,
of course, article 980 to be based on the Furgolian system).
2
8 states,
Thus Bond, C.J. in Gurd v. Gurd 1
“The word, in my opinion, applies to the case of the primary recipients who
are to take as their share by roots and not individually by heads. Art. 1014
C.C. provides that when a clause is susceptible of two meanings it must
be understood in that in which it may have some effect rather than in
that in which it can produce none. Here, to partition the estate individually
amongst the nephews would be to ignore the express words “by roots”, and
indeed, to replace these words in effect with the words “by heads”.”
However, it is evident that this argument has not assumed the
force of law. Even in the same case Bond, C.J., had already observed
that it was not a question of applying the general law,
“but rather one of ascertaining the intention of the testatrix…
It becomes
necessary therefore to scrutinize the wording of the clause in question…”
and went on to say that
that is,
“the words occur in this clause directly in connection with the word
‘nephews’,
the primary beneficiaries, and both logically and
grammatically should be so applied, rather than to pass over the intervening
words and apply it to the children of predeceased nephews only, where
indeed it would be superfluous.”129
And Rinfret, J. in Desbarats V. Desbarats placed particular emphasis
upon the special wording of the will rather than bestowing any
intrinsic meaning upon the expression “by root”.
Thus in view of the above jurisprudence, and especially in view
of the fact that every will and especially a long will, will contain
its own contradictions, the draftsman should use the expression “by
roots” with great care. The author would suggest that the phrase
may be used with complete safety only when it refers to the
“issue” of only one person. Certainly the draftsman should relegate
to the ranks of the inherently contradictory the sometimes used
expression “by roots and in equal shares.”
C) Suggested clauses for the draftsman.
The cases of Meincke v. Brown, 30 Gurd v. Gurd 131 and Desbarats
v. Desbarats 132 indicate the great care that must be taken in the
use of such expressions as “in equal shares” and “by roots”.
2 8 Gurd v. Gurd [1944] S.C. 89 at p. 91.
1
129 Gurd v. Gurd [1944] S.C. 89 at p. 91.
180 Meincke v. Brown [1958] S.C. 293.
181 Gurd v. Gurd [1944] S.C. 89.
182 Desbarats v. Desbarats [1955] B.R. 765.
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The author has suggested that the expression “in equal shares”
should only be used to describe a division among descendants in the
primary degree, and that the expression “by roots” should only be
used to describe the partition among the “issue” of one person.
The draftsman should attempt to construct the legacy to “children”
or “issue” so that this is possible. The best method of achieving this
result is to divide the property into shares, as in the following
manner,
“I give all my property to be divided into as many equal shares
as there are children 133 of mine who are living at the time of my
death, and children of mine who are not living at the time of my
death (whether or not they have died before or after the execution
of this will) 13 4 who have left issue 135 of theirs who are living at
the time of my death. One of such equal shares shall belong to each
child of mine who is living at the time of my death, and one of such
equal shares shall belong to the issue who are living at the time of
my death of each child of mine who is not living at the time of my
death, such issue to divide such equal share among themselves by
roots.”38 0
It
is suggested that this type of legacy will avoid the pitfalls
engendered by the use of the terms “in equal shares”, “by roots”
and “by roots and in equal shares”.
133 The testator should, of course, define whom he means by children; c.f.
pp. 119-120 of this article.
134 It has been questioned whether
is dead
at the time the will is drawn can inherit in virtue of the term “children”; c.f.
Gervais v. Gervais [1950] B.R. 749; Martin v. Lee (1861) 11 L.C.R. 84; c.f.
also Galliers V. Rycroft [1901] A.C. 130 at 131.
the children of a child who
135 See page 120 of this article for a definition of the term “issue”.
136 However, where the testator leaves his property to several generations
before he finally vests it in ownership, the draftsman must take great care to
avoid the “three generation” rule of article 932 C.C. and endeavour to ensure
that the shares are not considered as separate legacies, but are part of one
mass. For the effect of a division into shares upon the “three generation”
rule c.f. Masson V. Masson (1913) 47 S.C.R. 42.
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
127
Chapter V
SPECIAL PROBLEMS
1. The meaning of “children” in the prohibition to alienate.
A testator may leave his property to his son, and then prohibit
his son from alienating the property to anyone except the son’s
“children”. What is the meaning of the term “children” under such
circumstances ? Is the prohibition to alienate except to “children”
violated if the son alienates the property to the children of a deceased
child of his ? Could the son alienate the property to the children of a
living child ? Would the term “children” in a prohibition to alienate
“except to the children” of the testator’s brother have the same
meaning ?
Article 979 defines the term “family” for all purposes except
when used in the prohibition to alienate. In the prohibition to alienate
the term is given a special meaning by article 978,
“The prohibition to alienate out of the family, when no dispositions require
the following of the legitimate order of succession, or any other order, does
not prevent the alienation, by gratitious or onerous title, made in favour
of the more distant members of the family.”
However, article 980, which defines the term “children”, makes
no distinction between the meaning of the term when used in a pro-
hibition to alienate or when used otherwise. Article 980 states,
“In the prohibition to alienate, as in substitution, and in gifts and legacies
in general, the terms “children” or “grandchildren”… apply to all the
descendants.”
Thus the term “children” should have the same meaning in a
prohibition to alienate as in a legacy. Just as a legacy to “my son’s
children” will enable the children of a deceased child of the testator’s
son to inherit, so an alienation to the children of a deceased child of
the testator’s son should not violate the prohibition to alienate “except
to my son’s children”. However, an alienation to the children of a
living child of the testator’s son would violate the prohibition to
alienate.
Whether a prohibition to alienate “except to the children of my
brother” or “except to the children of my friend” would be violated
by an alienation to the children of a deceased child would depend on
whether article 980 is based on the Furgolian system or on the rules
of intestacy.
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If the Furgolian system is adopted, then the prohibition will not
be violated if the property is alienated to the child of a deceased
child of a brother or friend; the term “children” in such a case will
include the children of a deceased child.
If article 980 is based on the rules of intestacy then the answer
will depend on whether the rules of intestacy are violated by such an
alienation. The question arises, whole rules of intestacy are to be
followed; those of the testator or those of the person prohibited
from alienation. Thus in a legacy to “my brother with no right to
alienate except to his children” if the testator’s rules of intestacy are
to be followed the brother will be able to alienate only to his children
in the first degree; however, if the brother’s rules are applied then
he will be able to alienate the property to the children of a deceased
child in the first degree.
There is also one further problem. If a child in the first degree
dies leaving three children, could the person prohibited from alienating
“except to children” alienate to one of these three grandchildren, and
not to the others; or does the prohibition to alienate mean that the
alienation must be made equally in favour of all those who step into
the deceased child’s share ? The author believes that an alienation
to one descendant would be valid. The spirit of the prohibition to
alienate is to prevent alienation outside the family rather than a
positive desire that the property be divided in a particular way. This
spirit is evident in article 979, and there is no reason not to apply
it to article 980.
2. The meaning of “children” in the power to appoint.
A power to appoint among “children” or “issue” also raises certain
questions. Can the donee 137 of a power to appoint to “children”
appoint to the children of a deceased child or of a living child, and,
if so, in what proportions can he appoint among such grandchildren ?
Does the term “children” when used in a power to appoint among
the testator’s “children” differ from its meaning when used in a
power to appoint among the “children” of collaterals or friends of
the testator ? If the “children” to whom the donee of the power can
appoint are substitutes, will the answers to the above questions differ?
137 In discussing the power to appoint I am using the terminology of the
English Common Law. Thus I refer to the person given the power to appoint
as the “Donee of the power”, and I refer to the persons to whom the Donee of
the power may appoint as the “Objects of the power’%
No. 1]
A SIMPLE LEGACY: “TO MY CHILDREN”
The prohibition to alienate and the power to appoint are differing
legal institutions. In the prohibition to alienate, the person prohibited
if he dies without alienating
from alienating owns the property; 13
it, the property will pass to his heirs; if he does alienate it the
property will be deemed to come from his patrimony. 139 However
the person given a power to appoint does not own the property; he
is simply a mandatory carrying out the testator’s wishes. When
he does appoint the property, it is deemed to come not from his
patrimony but from the testator’s. The objects of the power are
legatees of the testator, and subject to the same rules concerning the
devolution of legacies as all other legatees.
The power to appoint is merely a method of ascertaining the
testator’s legatees; the testator may leave the property to “such
of my children as are 21 years of age on my death” or he may leave
the property “to such of my children as my wife feels are deserving”.
In both cases the “children” are legatees of the testator.
Thus in a legacy to “such of my children as my wife shall appoint”
the class of beneficiaries among whom the wife can appoint should
include the children of a deceased child, just as a legacy to “my
children” would include them.
Unfortunately there is a basis for doubting this position on his-
torical grounds. The Ordonnnce des Testaments of 1735 clearly
stated that the children of a testator among whom property was
to be appointed would only include “children in the first degree”.
Article 62 reads,
td institu6 h6ritier A la charge d’6lire un des Enfans
< celui qui aura
du testateur, ne pourra 61ire un des petits-Enfans ou descendans, encore
que celui des enfants dont ils sont issus ffit mort avant que le choix efit
td fait. Et que, si les Enfans du premier degr6 ddcdent avant que le
t6 fait, le droit d'61ire demeurera caduc et 6teint, A moins que
choix ait
le testateur n'en efit autrement ordonn,2,
and Bourjon 140 states,
<
