Haidl v. Sacher, 2 Sask R 93

Judge:Brownridge, Hall and Bayda, JJ.A.
Court:Court of Appeal for Saskatchewan
Case Date:November 22, 1979
Jurisdiction:Saskatchewan
Citations:2 Sask R 93;(1979), 2 Sask.R. 93 (CA);106 DLR (3d) 360;1979 CanLII 2289 (SK CA);[1980] 1 WWR 293;1979 CanLII 2289 (BS SC);[1979] SJ No 428 (QL);7 ETR 1
 
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Haidl v. Sacher (1979), 2 Sask.R. 93 (CA)

MLB headnote and full text

Haidl et al. v. Sacher et al.

(No. 6969)

Indexed As: Haidl et al. v. Sacher et al.

Saskatchewan Court of Appeal

Brownridge, Hall and Bayda, JJ.A.

November 22, 1979.

Summary:

This case arose out of a bequest in a will of the residue of an estate in equal shares to seven named persons and "to the children of, Herbert Haidl ..." - see paragraph 1. The trial judge held that the children of Herbert Haidl shared in the residue on a per stirpes basis. The children of Herbert Haidl appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal dismissed the appeal and affirmed the judgment of the trial court.

Wills - Topic 7380

Quantity of interest taken - Concurrent gifts - When donees take per stirpes - A testator in his will gave the residue of his estate in equal shares to seven named persons and "to the children of, Herbert Haidl ..." - See paragraph 1 - The Saskatchewan Court of Appeal affirmed that the residue should be distributed to the children of Herbert Haidl on a per stirpes basis and not on a per capita basis - The Court of Appeal affirmed that the trial judge properly considered evidence of surrounding circumstances in interpreting the will even though there was no ambiguity.

Wills - Topic 8550

Evidence and proof - Extrinsic evidence of surrounding circumstances to interpret a will - The Saskatchewan Court of Appeal held that evidence of surrounding circumstances should be admitted to interpret a will even though there is no ambiguity - See paragraphs 7, 8 and 21 - The Court of Appeal referred to examples of indirect extrinsic evidence of intent which constitutes evidence of surrounding circumstances and may be admitted to aid in the interpretation of a will - See paragraph 7.

Wills - Topic 7388

Quantity of interest taken - Concurrent gifts - When donees take per capita - The Saskatchewan Court of Appeal stated that "there is a prima facie rule in favour of per capita construction" - See paragraph 23.

Cases Noticed:

Re Alcock, [1945] 1 All E.R. 613, refd to. [para. 3].

Canada Permanent Trust Company v. Shave et al. (1958), 25 W.W.R. 638 (Sask. Q.B.), refd to. [para. 3].

Reishiska v. Cody (1968), 62 W.W.R. 581, refd to. [para. 7].

Re Rowland, [1963] Ch. 1 (C.A.), refd to. [para. 8].

Higgins and Others v. Dawson and Others, [1902] A.C. 1, refd to. [para. 9].

National Society for the Prevention of Cruelty to Children v. Scotland National Society for the Prevention of Cruelty to Children, [1915] A.C. 207, refd to. [para. 12].

Re Morgan, Perrin v. Morgan, [1943] A.C. 399, refd to. [para. 12].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 16].

Re Burke, 20 D.L.R.(2d) 396, refd to. [para. 17].

Re Harmer, [1963] 2 O.R. 690, refd to. [para. 18].

Josiak v. Sitler, [1971] 1 O.R. 724; 16 D.L.R.(3d) 490, refd to. [para. 19].

National Trust Co. Ltd. v. Fleury et al., [1965] S.C.R. 817; 53 D.L.R.(2d) 700, refd to. [para. 19].

Re Jeeves, [1949] 1 Ch. 49, refd to. [para. 22].

Re Birkett, [1950] 1 Ch. 330, refd to. [para. 22].

Authors and Works Noticed:

Feeney, The Canadian Law of Wills: Construction, p. 17 [para. 7]; p. 53 [para. 12].

Theobald on Wills (13th Ed.), para. 427 [para. 9].

Albert, Michael, Modern Law Review, vol. 36, p. 353 [para. 14].

Counsel:

Dr. John Beke, Q.C., for the appellants (Haidl children);

G.L. Gerrand, Q.C., for the respondents.

This appeal was heard by BROWNRIDGE, HALL and BAYDA, JJ.A., of the Saskatchewan Court of Appeal, on December 1, 1978.

The judgment of the Court of Appeal was delivered by BAYDA, J.A., at Regina, Saskatchewan, on November 22, 1979.

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