CED: An Overview of the Law Real Property (Western) Notes for III.1 – IV.3 III.1: Fate of Estate in Fee Tail FN1. Estate in fee tail was a statutory estate created by De Donis Conditionalibus (1285), 13 Edw. I, c. 1, which became part of Ontario's real property law by the introduction of English law into Upper Canada as of October 15, 1792 [see Property and Civil Rights Act, R.S.O. 1990, c. P.29]. De Donis Conditionalibus was re-enacted as s. 1 of R.S.O. 1897, c. 330, and was repealed by S.O. 1956, c. 76, s. 1; see also Estates Tail Act, R.S.O. 1950, c. 117 [repealed S.O. 1956, c. 19]. FN2. Conveyancing and Law of Property Act, R.S.O. 1950, c. 68, s. 4. For the subsequent historical development of these provisions, see S.O. 1956, c. 10, and R.S.O. 1960, c. 66, ss. 4 and 5. FN3. Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 4; see also Pt. II. III.2: Common Law FN1. Roddy v. Fitzgerald (1858), 10 E.R. 1518 (U.K. H.L.). FN2. Ray v. Gould (1857), 1857 CarswellOnt 316 (U.C. Q.B.). FN3. See Also §§98-105 (rule in Shelley's Case). FN4. McDonald, Re (1903), 1903 CarswellOnt 658 (Ont. Div. Ct.); Colliton v. Landergan (1888), 15 O.R. 471 (Ont. Ch.); Doe d. Anderson v. Fairfield (1846), 1846 CarswellOnt 121 (U.C. Q.B.); Iler v. Elliott (1872), 1872 CarswellOnt 163 (U.C. Q.B.); see also Thompson, Re (1935), 1935 CarswellOnt 60 (Ont. C.A.) (devise to testator's son with proviso that if son "dies without leaving an heir", estate tail in son created). FN5. Fleming v. McDougall (1880), 1880 CarswellOnt 36 (Ont. Ch.); see also Jordan v. Adams (1861), 9 C.B.N.S. 483 (once donor using term"heirs" or "heirs of the body" as following on estate of freehold, no inference or declaration of intention, however explicit, having effect); Trust & Loan Co. v. Fraser (1871), 1871 CarswellOnt 8 (Ont. Ch.) (where testator devising property to A and to heirs of A's body with power to appoint to any one as such heirs, A taking estate in fee CED: An Overview of the Law tail; mortgages executed by A taking precedence over claims of children under power of appointment which A afterwards executing in their favour); Fetherston v. Fetherston (1835), 6 E.R. 1363 (U.K. H.L.) (applying only where testator using words"heirs" or "heirs of the body" in their technical sense and not in some other sense). FN6. Cleator, Re (1885), 10 O.R. 326 (Ont. C.A.). FN7. Wild's Case (1599), 77 E.R. 277; Peterborough Real Estate Co. v. Patterson (1888), 15 O.A.R. 751 (Ont. C.A.) (first branch of rule in Wild's Case); see also Fuller v. Grant (1902), 33 S.C.R. 34 (S.C.C.); Haig, Re (1925), 57 O.L.R. 129 (Ont. C.A.); Beckstead, Re (1928), [1928] 4 D.L.R. 666 (Ont. C.A.). FN8. Peterborough Real Estate Co. v. Patterson (1888), 15 O.A.R. 751 (Ont. C.A.) (second branch of rule in Wild's Case). FN9. Peterborough Real Estate Co. v. Patterson (1888), 15 O.A.R. 751 (Ont. C.A.) (third branch of rule in Wild's Case). FN10. Byng v. Byng (1862), 10 H.L. Cas. 171; see also Peterborough Real Estate Co. v. Patterson (1888), 15 O.A.R. 751 (Ont. C.A.) (devise to A and to A's wife, B, and"to their children and children's children for ever ... Provided always that A and B shall not be at liberty ... or dispose of [said lot] as it is my will that the same may be entailed for the benefit of their children"; held that A and B taking life estates); Fuller v. Grant (1902), 33 S.C.R. 34 (S.C.C.) (land devised to A for life "and to her children if any at her death"; A having no children at date of will; A taking life estate because"the gift to the children was not 'immediate', and the word 'children' cannot be construed as a word of limitation"; Haig, Re combined application of rule in Shelley's Case and first branch of rule in Wild's Case; land devised to A for life, remainder on death to sons and daughters; A at date of will having no children; A taking estate in fee tail; words "sons and daughters" read as words of limitation); Young v. Denike (1901), 2 O.L.R. 723 (Ont. Ch.); Chandler v. Gibson (1901), 2 O.L.R. 442 (Ont. C.A.); Sharon v. Stuart (1906), 1906 CarswellOnt 584 (Ont. Weekly Ct.); McPhail v. McIntosh (1887), 14 O.R. 312 (Ont. C.A.), Jeffrey v. Scott (1879), 1879 CarswellOnt 107 (Ont. Ch.); but see Beckstead, Re (1928), [1928] 4 D.L.R. 666 (Ont. C.A.) (decision in Haig confined to particular facts before court; appellate division failing to consider third branch of rule in Wild's Case; by devise to A for life, remainder "to his first and each subsequent son successively according to seniority", A obtaining life estate). FN11. Culbertson v. McCullough (1900), 27 O.A.R. 459 (Ont. C.A.). FN12. Riddell v. McIntosh (1885), 9 O.R. 606 (Ont. Ch.). IV.1.(a): Life Estate -- Words in Conveyance Sufficient to Create Life Estate CED: An Overview of the Law FN1. Airey, Re (1921), 21 O.W.N. 190. FN2. Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 5(3), (5). IV.1.(b): Words in Will Sufficient to Create Life Estate FN1. Doe d. Ford v. Bell (1850), 1850 CarswellOnt 182 (U.C. Q.B.); Dumble v. Johnson (1866), 1866 CarswellOnt 98 (U.C. C.P.); Hamilton v. Dennis (1866), 1866 CarswellOnt 47 (U.C. Ch.). FN2. Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 26. FN3. Virtue, Re (1922), 22 O.W.N. 482 (although no words of limitation used by testator, only life estate passing, as there being direction to executors to sell property on death of devisee); see also Doe d. Keeler v. Collins (1850), 1850 CarswellOnt 330 (U.C. Q.B.) (property devised to wife "to be at her will and disposal during her life", with subsequent direction as to disposition after her death; wife taking life estate only); Burgess v. Burrows (1871), 1871 CarswellOnt 122 (Ont. H.C.); Wilson v. Graham (1886), 12 O.R. 469 (Ont. C.A.); Nelson, Re (1914), 7 O.W.N. 250 (Ont. H.C.); affirmed (1914), 7 O.W.N. 425 (Ont. C.A.). FN4. Cutter, Re (1916), 31 D.L.R. 382 (Ont. S.C.); Walker, Re (1925), 56 O.L.R. 517 (Ont. C.A.); Hornell, Re (1944), 1944 CarswellOnt 267 (Ont. H.C.); affirmed (1944), 1944 CarswellOnt 55 (Ont. C.A.) (testator leaving whole of estate to wife, remainder to daughter on death of wife; testator's intention interpreted as passing life estate); McGarry Estate, Re (1950), 1950 CarswellNS 13 (N.S. C.A.); see also Royal Trust Co. v. Freedman (1973), 41 D.L.R. (3d) 122 (Man. Q.B.); Montreal Trust Co. v. Klein (1971), 1971 CarswellMan 45 (Man. C.A.); affirmed (1973), 1973 CarswellMan 108 (S.C.C.). FN5. McGarry Estate, Re (1950), 1950 CarswellNS 13 (N.S. C.A.) (testatrix leaving residue of estate to husband "to have and to own until his death and then to pass whatever is left of my estate to my nephew"; court refusing to find that effect of will being to make absolute gift of estate to husband and that words attempting to reduce absolute effect of gift being repugnant and void; husband taking life interest only, with power nevertheless to encroach upon principal). FN6. Cutter, Re (1916), 31 D.L.R. 382 (Ont. S.C.) (apparent absolute gift by testator to sister cut down to life estate); Hornell, Re (1944), 1944 CarswellOnt 55 (Ont. C.A.); McGarry Estate, Re (1950), 1950 CarswellNS 13 (N.S. C.A.); see also Walker, Re (1925), 56 O.L.R. 517 (Ont. C.A.) (absolute gift to widow of testator not cut down by direction that on widow's death "any portion ... undisposed of by her" to go over; latter clause being repugnant to absolute gift); Aspden v. Seddon (1974), L.R. 10 Ch. 394 (Eng. C.A.) (duty of judge being to construe instrument at hand, CED: An Overview of the Law and not to refer to construction put by another judge upon instrument perhaps similar but not same). FN7. Loveless, Re (1929), 36 O.W.N. 340 (Ont. Weekly Ct.); Walker, Re (1925), 56 O.L.R. 517 (Ont. C.A.); Miller, Re (1914), 6 O.W.N. 665 (Ont. H.C.); Cathcart, Re (1915), 8 O.W.N. 572 (Ont. H.C.); McClennan, Re (1925), [1925] 4 D.L.R. 915 (Ont. C.A.); Scott, Re (1925), [1926] 1 D.L.R. 151 (Ont. C.A.). FN8. Gouinlock, Re (1915), 8 O.W.N. 561 (Ont. H.C.) (question whether testator having given this additional power being "altogether a matter of construction"); Walker, Re (1925), 56 O.L.R. 517 (Ont. C.A.); McGarry Estate, Re (1950), 1950 CarswellNS 13 (N.S. C.A.); see also Richer, Re (1919), 50 D.L.R. 614 (Ont. C.A.) (testator giving wife "the free use of all my estate, both real and personal, for her lifetime.