Arnold v. Dominion Trust Co

Arnold v. Dominion Trust Co
Collection
Supreme Court Judgments
Date
1918-04-15
Report
(1918) 56 SCR 433
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
British Columbia
Subjects
Insurance
Decision Content
Supreme Court of Canada
Arnold v. Dominion Trust Co, (1918) 56 S.C.R. 433
Date: 1918-04-15
Laura Blanche Arnold and Others (Plaintiffs) Appellants;
and
The Dominion Trust Company, Executor Of The Estate Of W. R. Arnold, and Andrew Stewart, Liquidator Of Said Company (Defendants) Respondents.
1918: February 25; 1918: April 15.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.
Life insurance—Benefit of wife—Declaration in writing—Will—Identifying policy—R.S.B.C. [1911] c. 115, s. 7—"Winding-up Act"—Leave to appeal.
By sec. 7 of the "Life Insurance Policies Act" of British Columbia a man may "by any writing identifying the policy by its number or otherwise" cause a policy of insurance on his life to be deemed a trust for the benefit of his wife for her separate use.
Held, per Davies and Anglin JJ., Fitzpatrick C.J. dubitante, Idington J. contra, that such declaration in writing may be made by will as the legislature of British Columbia, when enacting this provision, must be presumed to have adopted the judicial construction of similar legislation in the Province of Ontario.
A. by his will bequeated to his wife "the first seventy—five thousand dollars collected on account of policies of life insurance."
Held, DAVIES J. contra, that said devise was not a writing "identifying the policy by its number or otherwise" as required by sec. 7 of the Act and said sum of $75,000 did not enure to the benefit of A.'s wife.
After the death of A. his wife brought action against the Trust Company, executor of his will, and said company's liquidator under a Winding-up order to recover $75,000 out of the proceeds of life policies collected by the executor. On appeal from the judgement of the Court of Appeal in said action.
Held, Idington and Brodeur JJ. dissenting, that the case was not one subject to the provisions of sec. 106 of the "Winding-up Act" and leave to appeal was not necessary.
Judgment of the Court of Appeal (35 D.L.R. 145) sustaining that at the trial (32 D.L.R. 301) affirmed. APPEAL from a decision of the Court of Appeal for British Columbia[1], affirming, by an equal division of opinion, the judgment at the trial[2], in favour of the defendants.
The action was brought to recover the sum of $75,000 bequeated to the appellant by the will of her husband, W. R. Arnold. The questions raised on the appeal were, first, whether or not leave of the court or a judge as provided by sec. 106 of the "Winding-up Act" was necessary; secondly, whether or not the declaration in writing required by sec. 7 of the "Life—Insurance Policies Act" can be made by will; and thirdly, whether or not the devise identified the policy under the provisions of sec. 7. These questions are fully dealt with in the above head—note.
S. S. Taylor K.C. for the appellant. Any declaration in writing satisfies the requirement of sec. 7. A will is a writing and a declaration made by will is sufficient. Orange v. Pickford[3], at page 365; McKibbon v. Feegan[4].
The designation of all the policies on testator's life identifies the policy otherwise than by number. In re Lynn[5]; Beam v. Beam[6]; In re Harkness[7]; In re Roger[8].
Lafleur K.C. for the respondents. The declaration cannot be made by will. In re Watters[9].
As to identification of the policy see MacLaren v. MacLaren[10].
THE CHIEF JUSTICE.—At the hearing of this appeal an application was made by counsel for the respondent to quash the appeal for want of jurisdiction. The ground put forward was that the respondent company being in liquidation, no appeal could, under secs. 22 and 101 of the "Winding-up Act," be brought without leave of the Court.
In my opinion, this was founded on a misconception of the nature of the action; it is not one against the company or the liquidator properly speaking but only as executor of Wm. Arnold deceased. It involves the construction of the will of the deceased. In such an action it cannot be decided what the plaintiffs can recover against the liquidator as such but only what part of the estate of the deceased which can be so recovered the plaintiff is entitled to. If there are two persons each claiming to be entitled under a will the liquidator as executor may be a necessary party to a suit to determine their rights but it must obviously be a matter of indifference so far as the company is concerned which of the two is entitled. I have been assuming that the estate of the deceased would only have a claim on the assets of the company in liquidation but of course if there were specific trust funds in the hands of the liquidator as executor the case would be very much stronger. The matter is complicated by the plea which the defendants have put in that the estate of the deceased is insolvent and that they are creditors against it, but clearly the fact that they may have such a defence could not be any ground for preventing the action being brought against them as executors.
Therefore I am of opinion that the action is not one which is within the prohibition of the "Winding-up Act" at all, and no leave being required, the application against the jurisdiction fails.
I am of opinion that the appeal must be dis- missed on the ground that the will makes no such declaration of a trust as sec. 7 of the "Life Insurance Policies Act," R.S.B.C., ch. 115, calls for. This section enables a man to declare that a policy effected on his life is for the benefit of his wife and children, but here we have nothing but a bequest to the testator's wife of $75,000 out of the monies which may be collected on account of policies of life insurance.
It is suggested that "the Act should receive such fair, large and liberal construction and interpretation as will best ensure the attainment of its object," but this does not help us, for apart from the fact that the courts ought, if possible, to place such construction on every Act as will best ensure the attainment of its object, I think the object of this Act is, broadly speaking, to enable a man during his lifetime to make out of his earnings a provision for his family which shall be beyond his own or his creditors' reach. I do not think it was intended to enable him to retain his insurance as his own absolute property even after his death and under cover of the special protection afforded by the Act upon distinct conditions bequeath the proceeds, which may be the whole of his estate, in fraud of his creditors. This involves to a certain extent the question into which I do not wish to enter whether the declaration called for by the Act can be made by will.
The Chief Justice in his reasons for the judgment appealed against says:
assuming the will to be such a writing as is contemplated by the Act.
I gather from this that he probably shares the doubts which I certainly entertain whether a will is such a writing as the statute contemplates.
The only case in which the point seems to have received much consideration is one before the Ontario courts in which province the statute is similar to the one in British Columbia. In McKibbon v. Feegan[11], a majority of the court concluded that the declaration could be made by will but Osler J. dissenting, delivered what appear to me to be weighty reasons for holding the contrary view.
It is not necessary to decide this point in the present case because as I have said I do not find that the will identifies any policy by its number or otherwise as the statute requires.
Since writing the above, my attention has been called to a newspaper report of a decision of Chief Justice Meredith, in the Province of Ontario, in the matter of the will of John Wesley Monkman, a soldier who was killed on active service. The learned Chief Justice held that a postcript to the will, though it may not be valid as part of the will, is a sufficient declaration for the purposes of the "Insurance Act."
This is a step further in the liberal construction and interpretation of the Act. The writing could be no declaration during the life of the deceased and as a general rule at any rate the law does not recognize any testamentary disposition made otherwise than by will.
DAVIES J. (dissenting):—This appeal coming on for hearing, respondent moved to quash on the ground that leave to appeal had not been obtained under sec. 106 of the "Winding-up Act" and that such leave was necessary to give this court jurisdiction.
I am of the opinion that the sections of this "Windup Act" relating to appeals are, as expressed in the 101st section of the Act, confined to
orders or decisions of the court or a single judge in any proceeding under this Act. This appeal from the judgment of the court of final resort in British Columbia is one conferred upon litigants by the "Supreme Court Act" itself and is not, in my opinion, a "proceeding" under the "Winding-up Act" requiring the leave of a judge before being taken, but an ordinary appeal from the final judgment of a court of last resort in the province in an action originating in a superior court. Leave to bring that action in the first instance was obtained under the 22nd section of the "Winding-up Act." Thereafter the litigants had their statutory right of appeal under the "Supreme Court Act." I think, therefore, the motion to quash for want of jurisdiction fails and must be dismissed with costs.
The question to be decided on the appeal is whether the sum of $75,000, being part of the proceeds collected from life insurance on the life of William Robert Arnold, deceased, belongs to the appellants who are the widow and infant children of the deceased or constitutes part of his general estate.
The determination of that question depends first upon the construction to be given to sec. 7 of the "Life Insurance Policies Act" of British Columbia (R.S.B.C. [1911] ch. 115).
The Act itself is entitled
An Act to secure to wives and children the benefit of life insurance and to regulate and prohibit insurance without an interest in the life of the insured.
The 7th section, upon the construction of which this appeal depends, provides that where an assured
by any writing identifying the policy by its number or otherwise
makes
a declaration that the policy is for the benefit of his wife or of his wife and children or any of them, such policy shall enure and be deemed a trust for the benefit of his wife for her separate use and of his children or any of them according to the intent so expressed and declared. The deceased Arnold made a declaration in his will that the first $75,000 collected on account of his life insurance policies should be for appellant's benefit.
If the declaration required to be made by the statute can be made by will, then the only question remaining is whether or not the testator has complied with the statute in the matter of identifying his policies.
Mr. Lafleur for the respondent contended that the statutory declaration required could not be made by will, and even if it could that this will had failed to identify the policies of insurance.
I am not able to agree with either contention. The British Columbia statute is in all material points of its 7th section which we have to construe substantially the same as sec. 5 of the Ontario Act. 47 Vict. ch. 20, securing to wives and children the benefits of insurance, while sec. 8 of the former statute is substantially the same as sec. 6 of ch. 136 of the R.S.O. 1887, as amended by 53 Vict. ch. 39, sec. 6.
By a series of judicial decisions in the Province of Ontario, including those of the Court of Appeal of that province, before the British Columbia legislature enacted the statute in question, it had been decided that the words "any writing" included a last will, and I think it must be assumed what when the legislature of British Columbia enacted the statute in question they did so with the knowledge of the judicial interpretation which had been authoritatively placed upon the Ontario statute on that point and with the intent that such interpretation would be followed in British Columbia.
I may say that, while the question is one not free from all doubt I agree with the conclusion the courts of Ontario had reached that the words "any writing" in the section in question included a will. As to the question whether the will in this case sufficiently identifies the policies of insurance, I am of opinion that it does. I cannot accept the argument that the maxim ejusdem generis should be applied to the language of the statute, and that the words
any writing identifying the policy by its number or otherwise
should be construed so as to limit the identification to something akin or similar to the number of the policy. On the contrary, I think that any language which sufficiently identified the policy or policies so as to prevent any mistake being made with respect to the declaration of trust would be sufficient. In the case now before us, the words of the testator's bequest were
The first $75,000 collected on account of policies of life insurance I give to my wife, Laura, etc.
There were ten insurance policies on Arnold's life in force at the time of his death amounting to $425,000 and of this sum $207,054, it is stated, had been collected. It does seem to me, alike on authority and principle, that the terms of the above bequest are sufficient to comply with the statute. The object of requiring identification of the policy or policies with respect to which a declaration of trust in favour of testator's wife or children might be made was to insure such certainty as would avoid any trouble or dispute as to the particular policy or policies of insurance as to which any such declaration applied. Any language insuring this result, however general, would, in my judgment, suffice. "The first $75,000 collected on account of policies of life insurance" means, of course, the testator's life insurance; and in my opinion, embraces all of testator's life insurance and does not leave any doubt as to testator's meaning or the sources from which the fund he was creating for his wife and children was to come. His object was to make a declaration of trust with respect to a specific portion of that life insurance for his wife and children. I am unable to appreciate the distinction attempted to be drawn between a bequest of all of his policies of insurance, which under the Ontario authorities, would undoubtedly be sufficient and a bequest of a specific amount "first collected on account of those policies." The question to my mind is: Has language been used so identifying the policies as to place the question of their identity beyond doubt? I cannot see how the limitation of the amount as to which the declaration of trust was applicable, namely, the first $75,000 collected out of testator's policies could affect the identification of the policies from which the amount was to be collected. The fact was proved that at his death Arnold had ten life policies in force. The $75,000 was declared to be the first $75,000 collected from those policies. There could be no doubt in my judgment as to the identity of the policies out of which the fund declared to be in trust for the widow and children was to come. It is true that fund might come from one or more of these, ten policies but that possibility cannot alter the fact that the language of the bequest covered and identified each and all of the policies as those from which the fund bequeathed might come. It would be a narrow construction which determined that, although the words of the bequest covered and included all of the policies and so identified them, nevertheless as the $75,000 might be collected out of one of the $100,000 policies or two of them, that fact operated to destroy the identification.
The fund $75,000 testator settled on his wife and children was to be the first $75,000 collected on any or all of the policies but each and all of the policies were identified as being the sources or one of the sources from which the $75,000 might come. Nor can I see that because one or more of the companies which issued the policies resisted payment successfully of the amount insured, such fact could affect the question of identification. The argument would be equally strong if he had identified the policies by their numbers.
I agree with the conclusion of Martin J. who, after citing several of the Ontario cases, says:
It is but a short easy and logical step from these cases, where all of the policies or only one policy are or is dealt with, to this case.
My conclusions are therefore that we have jurisdiction to hear and determine this appeal; that the words of the statute "any writing" embrace and include a last will of a testator; and that the testator has in the present case sufficiently identified the policies out of which the fund he desired to settle upon his wife and children was to come. I would therefore allow the appeal and direct judgment to be entered accordingly for the plaintiff.
IDINGTON J.—I think this appeal should be dismissed with costs. I am of the opinion that the motion to quash the appeal should have prevailed.
The action was begun after the Trust Company, respondent, had been put in liquidation by an order under the "Winding-up Act."
Presumably sec. 22 of that Act, which prohibits the institution of any suit against a company after a Winding-up order is made
except with the leave of the court and subject to such terms as the court imposes,
was duly observed. No such order, however, appears in the case now presented for our consideration. If it was properly obtained then the whole litigation is a proceeding under the Act. But if it was not obtained the whole proceeding is void and there can be no appeal allowed to help one so acting.
It is provided by sec. 101 of the Act that except in the North West Territories, any person dissatisfied with an order or decision of the court or a single judge in any proceeding under the Act may, by leave of a judge of the court, appeal therefrom.
Three classes of cases are made thus appealable. One is if the question to be raised on the appeal involves future rights; another if the decision is likely to affect other cases of a similar nature in the Winding-up proceedings; and a third if the amount involved in the appeal exceeds five hundred dollars.
Sec. 102 provides for such appeals being carried to the respective appellate courts of the provinces named.
Sec. 103 provides for cases in the North West Territories being allowed an appeal to this court by leave of a judge thereof.
Sec. 106 is as follows:—
106.—An appeal, if the amount involved therein exceeds two thousand dollars, shall, by leave of a judge of the Supreme Court of Canada, lie to that court from:
(a) The Court of Appeal for Ontario;
(b) The Court of King's Bench in Quebec; or
(c) a superior court in banc in any of the other provinces or in the Yukon Territory.
No leave to appeal this case from the Court of Appeal for British Columbia has been given.
Having regard to the care taken by Parliament in the foregoing enactments for safeguarding any estate in liquidation under the "Winding-up Act" from becoming involved in unnecessary litigation and the consequent delays and expenses thereof, I have no doubt that it intended to limit appeals to this court in the way provided by this sec. 106.
If that was not its purpose in thus enacting, it puzzles one to understand what conceivable object could have been had in view; for the two thousand dollar limit named would cover almost any conceivable case and enable the parties concerned to come here by virtue of the provisions of the "Supreme Court Act" without special leave.
To hold, as I understand the ruling directing the argument to proceed would mean if adhered to, opening the way to appeals here in any litigation the judge in charge of the Winding-up proceedings may, as I presume he did herein, permit; whenever the amount in controversy or thing involved in any way of a claim against the company or its liquidators reaches the limit set by the "Supreme Court Act" for the particular province in which the litigation may have been permitted.
It was suggested in argument that the restriction in sec. 106 upon appeals here was designed to be applied in cases of a proceeding under the Act.
That is answered by the express language of the sec. 106 which contains no such language as to support the argument.
There is, I submit further, no litigation with the company or its liquidator which can be permitted except by virtue of sec. 22 and everything permitted thereunder is a proceeding under the Act in the language used in sec. 101.
On the merits of the questions raised in argument, I am of the opinion that the "Life Insurance Policies Act" (R.S.B.C. 1911, ch. 115) by its section seven never was intended to cover any case of a bequest by will or indeed any revocable instrument whatever. The first sentence of that section is as follows:—
7. In case a policy of insurance effected by a man on his life is expressed upon the face of it to be for the benefit of his wife, or of his wife and children, or any of them, or in case he has heretofore indorsed, or may hereafter indorse, or by any writing identifying the policy by its number or otherwise has made, or may hereafter make, a declaration that the policy is for the benefit of his wife, or of his wife and children, or any of them, such policy shall enure and be deemed a trust for the benefit of his wife for her separate use, and of his children, or any of them, according to the intent so expressed or declared; and so long as any object of the trust remains, the money payable under the policy shall not be subject to the control of the husband or his creditors, or form part of his estate when the sum secured by the policy becomes payable; but this shall not be held to interfere with any pledge of the policy to any person prior to such declaration.
It is expressed in the most imperative terms that in such cases, thus defined, the policy
shall enure and be deemed a trust * * * according to the intent so expressed,
and so long as any object of the trust remains the money payable
shall not be subject to the control of the husband or his creditors, or form part of his estate.
It was obviously designed that the declaration should be irrevocable and once made should not only protect the objects of the trust but also protect the husband making it from the importunities or pressure of creditors.
It is urged that the Act in question herein was copied from an Ontario Act of the like import and that the Court of Appeal for that province upheld an appointment or declaration made by will. That decision does not bind us. With unfeigned respect for the court which so decided I cannot follow the decision. I prefer the reasoning of Mr. Justice Osler who dissented therefrom. Indeed I may be permitted to adopt the views he expressed and forbear enlarging further on that aspect of the case.
Even if I could accept any revocable instrument such as a will continues to be until the maker of it is dead, there seems to me insuperable obstacles in appellant's way, in the adherent nature of the will in question.
He fails to identify the policy or policies upon which it might operate. The ascertainment thereof is left to the chances of the development of circumstances that cannot arise until some weeks after the testator's death. For there could be no payment of any policy until after probate had been obtained by the respondent Trust Company, or someone in its place, after its renunciation.
Moreover, no part of the bequest is made payable to the appellant by any insurance company but it forms part of the estate and is payable out of the estate. The language of the section expressly prohibits that sort of thing.
Sec. 15 of the Act provides for the appointment by the husband of a trustee or trustees to receive the money but that is very far from what was done in this case.
And I may add that the express provisions of that section for the nomination by a husband or father by his will of such trustees, seems to me instead of helping the appellant in her argument for the declaration required by sec. 7 being possible by will destroys the argument.
If the legislature had ever contemplated such a thing surely it would have so expressed itself.
The purpose it had in view in enacting sec. 7 could not be accomplished by any will or other revocable instrument. But some of those purposes could be promoted by adding the nominating power in sec. 15, without encroaching in the slightest degree upon the permanence and sanctity of the trust that had been created by virtue of sec. 7. ANGLIN J.—The respondent moved to quash this appeal on the ground that the leave of a judge of this court to bring it was necessary under sec. 106 of the "Winding-up Act" (R.S.C., ch. 144), and was not obtained. This contention rests on the view that, owing to an order for the Winding-up of the defendant Trust Company, executor of the insured, having been made before this action was begun, "leave of the court" to commence it was required and was obtained under sec. 22 of the "Winding-up Act." The like leave to proceed with the action, had it been already commenced before the Winding-up order was pronounced, would have been necessary. The court disposing of an application for leave under sec. 101 determines whether the pending or proposed action is one which should be permitted to go on—whether having regard to the nature of the action and all the circumstances the interests of justice will be better served by allowing it to proceed, or, when that is possible, by requiring that the subject matter shall be dealt with by the judge or officer charged with the Winding-up in the course of the proceedings before him. When the leave is given the action is brought or proceeds in the court in which it is instituted subject to whatever incidents, including rights of appeal, the law attaches to it. The granting of this leave, whether it be to bring an action or to proceed with one already brought, does not make of it a "proceeding under this Act" within the meaning of sec. 101 of the "Winding-up Act." By "any proceeding under this Act" is meant a proceeding in the Winding-up itself, e.g., the making of the Winding-up order, or the allowance or disallowance of a creditor's claim, or the determination of the liability of a contributory by the judge or delegated officer under whose direction the liquidation is carried on. The right of appeal in this action is conferred not by the "Winding-up Act," but by the "Supreme Court Act;" and it is the ordinary appeal given by the latter Act from a final judgment of a court of last resort in the province in an action which has originated in a superior court. The motion to quash therefore fails.
The right of the plaintiff to the $75,000 insurance money in question as a preferred beneficiary under the "Life Insurance Policies Act" (R.S.B.C. [1911] ch. 115) is contested on three grounds—that a will is not a "writing" within the meaning of sec. 7 of the statute by which a declaration of trust for preferred beneficiaries may be made; that the testator did not purport to declare such a trust, but merely to make a bequest or give a legacy to his wife; that the will does not identify the policy or policies "by number or otherwise" as sec. 7 requires.
The material part of sec. 7 of the British Columbia statute, first passed in 1895 (ch. 26), is a reproduction of sec. 5 of the Ontario Act to secure to wives and children the benefit of insurance, enacted in 47 Vict. as chapter 20, and carried into the R.S.O., 1887, as chapter 136. Sec. 8 of the British Columbia statute is substantially, and so far as material, a reproduction of sec. 6 of ch. 136 of the R.S.O., 1887, as amended in 1890 by 53 Vict. ch. 39, sec. 6. It had been decided by the late Chancellor Boyd, in Re Lynn [12], and again in Beam v. Beam[13], that a will is a "writing" within the Ontario section; and in McKibbon v. Feegan[14], these decisions had been approved by the Court of Appeal (Hagarty C.J.O. and Maclennan J.A., Osler J.A. dissenting). I think it must be assumed that the legislature of British Columbia was apprased of the judicial interpretation that had been thus definitely placed on the statutory provision under discussion when it adopted it in 1895, and that it intended that that interpretation should be followed in British Columbia. Casgrain v. Atlantic and North West Rly. Co.[15], at page 300; see also authorities collected in Maxwell on Statutes, 5 ed., at p. 500, and in 27 Hals. Laws of England, at p. 142. The "Interpretation Act" of British Columbia (R.S.B.C. 1897, and 1911) does not contain a provision excluding the application of this well-established rule of statutory construction such as we find in the R.S.C. [1906] ch. 1, sec. 21(4) and in the R.S.O. [1914] ch. 1, sec. 20. Without expressing any view as to what should have been the construction of the British Columbia statute had the matter come to us as res integra, I am of the opinion that we must now act upon the assumption that the construction placed upon the similar provision of the Ontario Act was intended by the legislature of British Columbia to be that which should be given to sec. 7, and that a will, if otherwise in compliance with the requirements of that section, must therefore be deemed a "writing" within its purview.
In numerous cases in Ontario dispositions by will in the form of bequests or legacies of insurance have been held to be sufficient as declarations to meet the requirements of the statute. The Lynn Case[16] and McKibbon v. Feegan[17], already cited, Re Cheese-borough[18], and Book v. Book[19], are instances. Once it is accepted that a declaration under the statute may validly be made by will, I think it follows that words of bequest or gift are sufficient in form. It would scarcely accord with the liberal construction which should prevail in the interpretation of this legislation and would have a deplorably unsettling effect were we to hold otherwise and overrule now decisions that have stood unchallenged for twenty—five years and must have been acted upon very frequently since they were pronounced.
The question as to the sufficiency of the identification of the policies is in a different position. Induced no doubt by the desire to render as far-reaching as possible the scope and operation of what they deemed remedial legislation—to advance the remedy which it was designed to provide—the courts of Ontario have apparently refused to apply the well—known ejusdem generis and noscitur a sociis rules to the construction of the words "or otherwise" in the phrase
by any writing identifying the policy by its number or otherwise.
They have held that where a testator had but one policy a bequest to a preferred beneficiary of his property "including life insurance" should be treated as a declaration under the statute sufficiently identifying that policy. Re Harkness[20]; Re Watters[21]. There are indications in the decided cases that a bequest of a definite portion of the proceeds of the testator's life insurance might be deemed sufficient where he had but a single policy. It has also been held that where there were several policies a bequest of
all my property real and personal and including life insurance policies and certificates
(Re Cheeseborough[22]; see, too, In re Cochrane[23], would satisfy the statute as to policies in force at the time of the making of the will and not made payable to named beneficiaries. Probably the most recent de- cision in Re Monkman and Canadian Order of Chosen Friends [24], goes further than any that preceded it. But in no reported case, so far as I am aware, has it been held that, where the testator has several policies, a bequest of a sum smaller than their gross amount to be paid out of his insurance or to be charged upon it, without any further identification of the policies to be so affected, is a good declaration of trust under the statute.
In going as far as they did in order to attain the purpose of the legislation under consideration, the courts of Ontario have, I think, reached, if they have not overstepped, the limit of what the legislature intended to permit when it prescribed, as a condition of the efficacy of "any writing" designed to take life insurance out of the assets available to satisfy creditors and make of it a trust fund exclusively for beneficiaries of the preferred class, that such "writing" should identify the policy or policies so dealt with "by number or otherwise." Any method of identification, however widely different from identification by number, has apparently been treated as sufficient.
But the decided cases have not gone the length of entirely dispensing with identification and that, I fear, would be the result of holding sufficient a mere charge by will of an amount representing a fraction of their face value upon all a testator's life insurance consisting of numerous policies. With respect I cannot accept Mr. Justice Martin's view that to do so would be to take "but a short, easy and logical step from these cases," i.e., those already decided. Assuming that the identification prescribed is to be found in all of them, it would be the step from identification of some kind to no identification at all. In the case at bar, the insurance, consisting of ten policies, two of them for $100,000 each, amounts in all to $425,000, of which $207,054.54 has been collected. The bequest is of
the first $75,000 collected on account of policies of life insurance.
The first $75,000 collected might come entirely out of one of the $100,000 policies or it might come partly out of the proceeds of several policies. The policies might be paid in full in a single payment or only by instalments. Some might be found wholly uncollectable. The executors might proceed more promptly in making proofs of claim to one company than to another. The diligence or the readiness in meeting claims against it of one company might be greater than that of another. Upon some or all of these contingencies would depend the source or sources from which the $75,000 first collected would come, and the determination of what assets would be taken out of the estate and what would be available for creditors. It is, in my opinion, impossible to say that under such circumstances there has been any identification whatever of the policy or policies, the whole or part of which is to form the subject of the statutory trust for the preferred beneficiary. However ready or even anxious we may be to give to a statute designed
to secure to wives and children the benefit of life insurance,
such construction as will tend to effect that purpose, we may not entirely dispense with the identification which the legislature has seen fit to prescribe. To do so would be to legislate, not to construe.
I am, for these reasons, of the opinion that this appeal fails and must be dismissed with costs. The appellant, however, is entitled to her costs of the unsuccessful motion to quash which should be set-off against the costs of appeal to be paid by her. BRODEUR J.—A motion to quash the appeal has been made by the respondent on the ground that this appeal has been taken without leave by a judge of this court.
The present action has been instituted by the appellant to claim a sum of $75,000, being part of the proceeds from life insurance of her husband, William Robert Arnold. The question to be decided in the case is whether that sum of $75,000 belongs to the preferred beneficiaries of the deceased or constitutes part of his general estate.
When the action was instituted against the Dominion Trust Company, which had been appointed executors of the will of Arnold, a Winding-up order had been made against, the company, and under the provisions of sec. 22 of the "Winding-up Act (ch. 144, R.S.C.), the leave of the Supreme Court of British Columbia was obtained.
When the appeal came up before this Court, no leave was obtained, and it was contended by the respondent that the appeal should be quashed because no such leave was obtained.
Sec. 106 of the "Winding-up Act," says that
An appeal if the amount involved therein exceeds $2,000 shall by leave of a judge of the Supreme Court of Canada lie to that court from (a) the Court of Appeal in the Province of British Columbia.
The appellant, on the other hand, claims that such leave is only required in proceedings under the "Winding-up Act," and that the present action does not refer to any such proceedings.
I see that no such distinction as alleged by the appellant is to be found in sec. 106; that section seems to be of a general nature. It is of importance that proceedings against a company being wound up should be expedited with rapidity, and it is also to be found in the general economy of the "Winding-up Act" that legal proceedings should not be taken unless by leave of the courts.
It is stated in sec. 18 that proceedings might be taken in any action against a company.
Sec. 22 provides, as I have already said, that no action might be instituted, except with the leave of the court and the same requirements are exacted in the case of appeals. Once the Winding-up order has been given all the legal proceedings are under the control of the courts and must be instituted only with the leave of the courts.
In those circumstances, I have come to the conclusion that, the appellant having failed to obtain leave from a judge of this court before proceeding, the appeal should be quashed.
We have already decided in the case of Ross v. Ross[25], that the appeal to the Supreme Court of Canada given by sec. 106 of the "Winding-up Act" must be brought within 60 days from the date of the judgment appealed from and that after the expiration of the sixty days so stated neither the Supreme Court of Canada nor a judge thereof can grant leave to appeal.
As the respondent has not made his motion within the time prescribable by the rules he should be entitled to the costs of his motion only.
Appeal dismissed with costs.
Solicitors for the appellants: Taylor, Harvey, Stockton & Smith.
Solicitors for the respondents: Cowan, Ritchie & Grant.
[1] 35 D.L.R. 145.
[2] 32 D.L.R. 301.
[3] 4 Drew. 363.
[4] 21 Ont. App. R. 87.
[5] 20 O.R. 475.
[6] 24 O.R. 189.
[7] 8 Ont. L.R. 720.
[8] 18 Ont. L.R. 649.
[9] 13 Ont. W.R. 385.
[10] 15 Ont L.R. 142.
[11] 21 Ont. App. R. 87. 29
[12] 20 O.R. 475
[13] 24 O.R. 189.
[14] 21 Ont. App. R. 87.
[15] [1895] A.C. 282.
[16] 20 O.R. 475.
[17] 21 Ont. App. R. 87.
[18] 30 O.R. 639.
[19] 32 O.R. 206; 1 Ont. L.R. 86.
[20] 8 Ont. L.R. 720.
[21] 13 Ont. W.R. 385.
[22] 30 O.R. 643.
[23] 16 Ont. L.R. 328.
[24] 14 Ont. W.N. 29.
[25] 53 Can. S.C.R. 128.