PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

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1 Citation: Estate of S. Belle Bruce Date: PESCTD 50 Docket: ES-2253(B) Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION IN THE MATTER of the Estate of S. BELLE BRUCE, late of Montague, in Kings County, Province of Prince Edward Island, Unmarried, Deceased, Testate. BEFORE: The Honourable Chief Justice J. Armand DesRoches Horace B. Carver, Q.C. and Michael Drake Barbara F. Stevenson, Q.C. and Douglas Drysdale, Q.C. Ewan W. Clark Solicitors for the Applicant the Public Trustee Solicitors for Marion Bruce, Roland Bruce, Earle Bruce and Janice Krug Solicitor for the Canadian Bible Society Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island June 14, 2004 Charlottetown, Prince Edward Island August 5, 2004

2 Citation: Estate of S. Belle Bruce 2004 PESCTD 50 No. ES-2253(B) IN THE MATTER of the Estate of S. BELLE BRUCE, late of Montague, in Kings County, Province of Prince Edward Island, Unmarried, Deceased, Testate. Prince Edward Island Supreme Court - Trial Division Before: DesRoches, C.J. (In Chambers) Heard: June 14, 2004 Judgment: August 5, 2004 [14 pages] WILLS - Construction - Intention of donor - charitable gifts - Is there a general intention to make charitable gifts? Who are the eligible benefactors? Testator bequests 80 per cent of estate to missions and Christian organizations but leaves discretion to the executors as to which religious organizations will receive a bequest and the amount to which they will receive. Executors of will predecease the testator. Letters of Administration with Will Annexed granted to niece of the deceased but niece dies before fully administering the estate. Public Trustee granted Letters of Administration with Will Annexed for Property Unadministrated. Public Trustee makes application seeking opinion, advice and direction as to validity of the will and whether he has the same discretion as the executors appointed by the last will and testament. CASES REFERRED TO: Re Parnell, [1924] 1 W.W.R. 1, 1 D.L.R. 15 (Man. C.A.); Chichester Diocesan Fund and Board of Finance (Inc.) v. Simpson, [1944] A.C. 341 (H.L); Re Loggie Estate, [1954] S.C.R. 645; Re Fraser Estate (2000), 191 Nfld. & P.E.I.R. 76 (P.E.I.S.C.T.D.); Canada Permanent Trust Company v. the University of Prince Edward Island, [1976] P.E.I.J. No. 54, 9 Nfld. & P.E.I.R. 293; 12 A.P.R. 293 (P.E.I.S.C.A.D.); Re Willis, Shaw v. Willis, [1921] Ch. 44 (C.A); Towle Estate (Guaranty Trust Co. of Canada) v. Minister of National Revenue, [1967] S.C.R. 133; Income Tax Special Purposes Commissioners v. Pemsel, [1891] A.C. 531;Neville Estates Ltd. v. Madden [1962] Ch. 832; Re: Estate of Francis Everett Morrissey, [1997] 2 P.E.I.R STATUTES CONSIDERED: Probate Act, R.S.P.E.I, 1988, Cap. P -21; Rules of Court of Prince Edward Island, Rule 14.05(3)(a) and (d). TEXTS CONSIDERED:: Feeney s Canadian Law of Wills, 4th ed. 2000, Theobald on Wills, 15 th ed., (London: Sweet & Maxwell, 1993); Snell s, Principles of Equity, 27 th ed. (London: Sweet & Maxwell, 1973). Horace B. Carver, Q.C.and Michael Drake, solicitors for the applicant the Public Trustee Barbara F. Stevenson, Q.C. and Douglas Drysdale, Q.C., solicitors for Marion Bruce, Roland Bruce, Earle Bruce and Janice Krug Ewan W. Clark, solicitor for the Canadian Bible Society

3 Page: 1 DesRoches C.J.: [1] This application by the Public Trustee of Prince Edward Island, who was appointed to administer the estate of S. Belle Bruce, seeks the opinion, advice or directions of the Court on certain questions arising from the last will and testament of the deceased. [2] The grounds for the application are found under Rule 14.05(3)(a)and (d) of the Rules of Court: (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where relief claimed is for, (a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;... (d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation of municipal by-law or resolution. BACKGROUND & QUESTIONS [3] S. Belle Bruce died on or about November 1, Her last will and testament dated January 5, 1983 is reproduced here. This is the last will and testament of me, S. Belle Bruce of Milltown Cross, Prince Edward Island I. I hereby revoke all previous wills and testamentary dispositions. II. III. I nominate, constitute and appoint my brother Neil Bruce, and my nephew, Bruce Moore, to be the Executors of this my will. I give eighty per cent (80%) of my estate unto my Executors to distribute as they see fit in their sole discretion among missions and other Christian organizations to which I gave in my lifetime. I direct my Executors to give the largest amount to Perry Rockwood s organization and lesser amounts to Billy Graham s organization,

4 Page: 2 Underground Evangalism and the other missions which I supported. IV. I give twenty per cent (20%) unto my brothers Jack Bruce, Neil Bruce and my nephew, Bruce Moore provided however that if any of the said three should predecease me then the said share of the deceased person is to go to missions as provided in paragraph III above. Dated at Charlottetown, P.E.I., this January 5, Signed, published and declared by the said S. Belle Bruce as and for her last will and testament in the presence of us, both present at the same time and in the presence of each other, who at her request and in her presence have here unto set and subscribed our names as witnesses, Horace B. Carver S. Belle Bruce Everett A. King [4] S. Belle Bruce appointed two Executors, her brother Neil Bruce, and her nephew Bruce Moore. Both predeceased her. [5] At the time of S. Belle Bruce s death, her closest known living relatives were three nephews and two nieces. Katherine Annabelle Brehaut, a niece, was granted Letters of Administration with Will Annexed, but unfortunately she died on April 28, 2003 without having fully administered the estate. [6] On November 28 th, 2003 Letters of Administration with Will Annexed of Property Unadministered were granted by this Court to Les Zielinski, the Public Trustee for the Province of Prince Edward Island. [7] On February 13, 2004 an Order was made by this Court pursuant to a motion from the Public Trustee that the following parties be served with the administrator s notice of application: Roland Bruce, nephew of the deceased; Earle Bruce, nephew of the deceased; Marian Bruce, niece of the deceased; Robert MacLeod, nephew of the deceased; and Janice Krug, daughter of Kathryn Annabell Bruce Brehaut (deceased), who was a niece of S. Belle Bruce. [8] Notices of application were additionally sent to all of the missions and Christian organizations identified by the Public Trustee as potential benefactors under the will of S. Belle Bruce including:

5 Page: 3 The People s Gospel Hour; Billy Graham Evangelistic Association of Canada; Mission Without Borders International; Child Evangelism Fellowship; New Brunswick Bible Institute; Christian Direction; World Vision Canada; Food for the Hungry; Radio Bible Class; Back to the Bible; World Missionary Evangelism; The Voice of China and Asia; Trans World Radio; Canadian Bible Society; and the Caledonia Church. [9] It was further ordered that notices be published in The Charlottetown Guardian, The Globe and Mail and the New York Times. The Canadian Bible Society is the only organization which made a submission as a result of those solicitations. [10] On February 26, 2004, a notice of application was filed by the Public Trustee seeking the opinion, advice and direction of the Court in regards to: 1. Whether Clauses III and IV of the last will and testament of S. Belle Bruce are sufficiently certain so that the beneficiaries identified therein may be ascertained for disbursement of the proceeds of the estate, or whether the bequests therein, or some of them must fail for uncertainty; 2. Whether the Public Trustee, administrator for the estate S. Belle Bruce, is granted by virtue of the Letters of Administration of the Estate with Will Annexed for Property Unadministered issued by this Court on November 28, 2003, the self-same discretion granted to the executors in Clause III of the will, namely, to distribute as they see fit in their sole discretion among missions and other Christian organizations to which I gave in my lifetime ; 3. If the Public Trustee, administrator of the Estate of S. Belle Bruce, is not vested with the discretion described in Clause III of the will, and in the event that the will is deemed valid, which charitable organizations are entitled to a portion of the estate pursuant to Clause III and IV of the will, and what is the extent of that entitlement; and 4. In the event that Clauses III and IV of the will fail for uncertainty or

6 Page: 4 otherwise, how are the proceeds of the estate to be distributed. [11] It should be noted that Les Zielinski, who made this application to the Court, has since left the position of Public Trustee. Mark Gallant was appointed to this position on March 5, 2003 and is continuing with the application in his duty and role as the Public Trustee. In conjunction with the settling of the estate, Mark Gallant applied to the Court for authorization to sell a residential parcel of land, No , being a house and lot located at 41 Belmont St. in Montague, Kings County which was part of the estate. That motion was granted and an order was issued on May 25, 2004 from this Court authorizing the sale of the property. [12] As a result of notices being served, Roland Bruce, Earle Bruce, Marion Bruce and Janice Krug, being S. Belle Bruce s heirs-at-law, appeared in response to the Public Trustee s notice of application. They assert that the last will and testament of S. Belle Bruce is void for uncertainty and that the rules of intestacy apply. I will refer to them in these reasons as the respondents. [13] At Tab 2 of the applicant s record, there is an accounting record of monies paid to the aforementioned organizations and missions based on bank passbooks that contain entries for the periods December 1978, the years 1979 and 1980, and for June The applicant has prepared tables and made calculations based on these four distinctive time periods to determine the portion or percentage that each organization received during that period in relation to what other organizations received. For example, in 1978 the Public Trustee has identified disbursements totalling $575 as charitable donations. The People s Gospel Hour received $100 representing a 17.9% share of the total amount for that year. In 1979, the total amount of disbursements identified as donations is $1,735, with the World Missionary Evangelism receiving $500, representing a 28.81% share of the total amount for that time period. [14] Clause IV of the will provides equal shares of 20% of the estate as bequests to the deceased s brothers Jack Bruce and Neil Bruce, and to her nephew Bruce Moore, conditional on their being alive at the time of her death. Clause IV further contains a residual clause which provides that in the event the named benefactors have predeceased the testatrix these bequests are to be distributed as per the instructions contained in Clause III. All three of the aforementioned benefactors predeceased S. Belle Bruce. There is no issue raised by any of the parties as to the intention expressed by S. Belle Bruce in Clause IV, nor is there an issue raised as to the certainty of its meaning. [15] However, the effect of Clause IV is such that if Clause III of the will is found to be valid, 100% of S. Belle Bruce s estate will be distributed among those Christian organizations and missions to which she contributed in her lifetime that can be

7 Page: 5 identified. If Clause III fails as a result of uncertainty, the proceeds of the estate will be distributed in accordance with the laws of intestacy. It is an either/or situation with no middle ground. [16] The value of the estate based on the inventory and valuation of the property, dated November 27, 2003 is an estimated at $459, Since that time a property with an assigned value of $53,800 was sold by order of this Court for $50,000. [17] The respondents argue the will must fail because of the uncertainty as to who are the benefactors caught by Clause III. They argue the methodology adopted by the applicant does not advance certainty as there is no way of knowing if the bank passbooks represent actual donations made by S. Belle Bruce, or whether the funds were given as charitable gifts, or even received by the various organizations. Additionally, they submit the evidence offered covers only a very short period of S. Belle Bruce s lifetime and therefore cannot represent all of the organizations which she supported. It is further argued on their behalf that there is no evidence with respect to: a) what are the purposes-for-being of the organizations; b) in what activities the organizations engage; c) whether the organizations are incorporated bodies of unincorporated groups; d) whether the organizations are profit-making or not-for profit; or e) where the organizations conduct their business. [18] The Respondents also note that, but for one, none of the organizations or missions notified either directly or through publication in the newspapers have come forward with evidence of having received charitable donations from S. Belle Bruce in the past. The Canadian Bible Society is the only organization that appeared at the proceedings and has filed an application record. It clearly has established its charitable purpose and its status as a Christian organization. [19] The sum of the respondents argument is that there is insufficient evidence to determine the identity of the organizations and missions that would be bona fide beneficiaries under Clause III of the will. They advance the position that in order for this clause to be valid it must be shown that the disbursements made to these organizations were in fact charitable gifts. [20] The respondents also submit that the doctrine of lapse applies where a testator grants discretionary power to her executors to handle or dispose of estate property and the executors die first. The result, they argue, is that the property which was the subject of the appointment falls into the residue of the estate and, where the will does not contain a residuary clause that contemplates the failure of the gift, the gift passes

8 Page: 6 according to the laws of intestacy. [21] Finally the respondents argue that the delegation made in the will to be divided as my Executors decide, is an unlawful delegation of power. Testators, they argue, must chose the beneficiaries, the exception being if the testator identifies with sufficient precision a class of persons or objects to be benefited. Then the testator may delegate. It is the respondents position that for all these reasons the last will and testament must fail and the estate be administered under the laws of intestacy. The Issues 1. Is the last will and testament of S. Belle Bruce valid? 2. If yes, does the Public Trustee have the authority to administered the will as stated by the testatrix, S. Belle Bruce or does the authority end with the deaths of the executors appointed in the will? 3. If the will is invalid, how are the proceeds of the estate to be distributed? Analysis Issue 1: Is the will valid? [22] The issues in dispute arise primarily from an uncertainty as to who are the benefactors. The fact the Public Trustee has made application to this Court for a ruling on the matter is indicative that there is some uncertainty. The question for the Court to determine is whether the existing uncertainty causes the last will and testament of S. Belle Bruce to fail. The Public Trustee is requesting an opinion and direction on both the validity of the will and on his authority to administer the estate as provided for in the will. [23] The basic rule is stated clearly in Re Parnell, [1924] 1 W.W.R. 1, 1 D.L.R. 15, in which the Manitoba Court of Appeal held that in the case of gifts with ambiguity with regard to either persons or property, it is the duty of the Court so to construe the words as to give effect to the gift, if it is at all possible to do so, rather than declare it to be void for uncertainty and defeat the testator s intention. [24] Courts have adopted as a guiding star in the consideration of a will the language used. If intention cannot be gleaned from the words, the Courts have repeatedly stated they will not, and cannot make a new will for a testator, nor can they attempt to improve on an executed will. Feeney s Canadian Law of Wills, 4 th ed., states the proposition as

9 Page: 7 follows: Keeping in line with the aim of discovering the subjective intent of the deceased, the court should strive to give a word the meaning it had for the testator. On the other hand, the most influential rule of construction is that the court may construe the words used by the testator in their ordinary sense. This is so even if the testator s artless use of language causes his or her intention to be defeated Thus, for example, when the testator has used a word which, in view of the events that have occurred, can have only one reasonable meaning, the court cannot make the assumption that he or she would probably have had a different intention (and have used a different word with regard to those circumstances) had he or she thought about the events occurring. To give effect to such an assumed intention, no matter how probable it might seem, would be to resort to conjecture. If no intention can be extracted from the words of the will and admissible extraneous evidence, the court has no alternative but to declare that the matter is void for uncertainty. [25] Where there is uncertainty as to the identity of the benefactors the general principle is that the gift is void. The exception to this principle is found in Chichester Diocesan Fund and Board of Finance (Inc.) v. Simpson, [1944] A.C. 341 (H.L) at page 371: To this salutary rule there is one single exception. A testator may validly leave it to his executors to determine what charitable objects shall benefit, so long as charitable and no other objects may benefit. [26] Feeney s Canadian Law of Wills at states: Of course, if a will, read in the light of the surrounding circumstances, fails to identify the property or the donee of the property, and there is no equivocation (which, as will be shown, is practically the only case, where direct evidence of intention may be admitted), then the gift is void for uncertainty. Similarly, if there is an equivocation, and evidence of the testator s actual intention fails to resolve the ambiguity, then, too, the gift is void for uncertainty. There is one exception, and that is where the uncertainty relates not to the property, but to a donee which is a charity. In such a case, the court may apply the cyprès doctrine and direct that the property be devoted to similar charitable purposes, as in the Supreme Court of Canada decision in Re Loggie Estate. [27] The cy-près doctrine provides the Court with discretion to vary the objects as necessary, with the ultimate purpose of meeting the intentions of the testator to make charitable gifts. This principle was set out in Re Loggie Estate, [1954] S.C.R. 645, where the Supreme Court of Canada stated at page 649:

10 Page: 8 The fundamental principle is that a testator must, by the terms of his will, himself dispose of the property with which the will proposes to deal. He may not depute that duty to his executors or trustees, save in the case of a gift for charitable purposes, when he may depute the selection the charities. The courts in such case are able to determine whether or not a particular gift is charitable. [28] Theobald on Wills, (15 th ed., 1993) offers these observations at pages 466 and 467: A charitable bequest never fails for uncertainty. This means that if a general intention can be found to give to charity, the gift does not fail because the testator has not indicated the particular charity he wishes to benefit, or because the means he indicates for ascertaining the particular charity are inadequate. Thus a gift to the following charitable societies, with a blank left for the insertion of their names, is a valid gift. There is a general charitable intent, which has not crystallised to particulars.... Again, a gift to such charitable uses as the testator has directed, or for such charities as his executor shall think fit, or as the testator shall name thereafter, will be carried out by the court though there are no directions, or though no executor is appointed or he dies before the testator, or though no charities are ever named. [29] In order for the cy-près doctrine to apply, the court must make a determination that there is a general intent to make a charitable gift, otherwise the gift will lapse or, in other words, fail. Bequests that name particular organizations and contain a specific intention but are ambiguous or uncertain will, as a general rule, not be caught by the cyprès doctrine. In Re: Fraser Estate(2000),191 Nfld. & P.E.I.R. 76, MacDonald C.J.-T.D ruled that a charitable gift to an organization for which there was no evidence of its existence, in that case an Ethiopian Youth scholarship Fund, failed because the bequest was uncertain and of a specific nature, as opposed to one of general intent. [30] At paragraph four, Chief Justice MacDonald provides the following analysis: I begin my analysis by adverting first to the principles of interpretation at common law where wills are concerned. Generally speaking, the rules of interpretation are inclined in favour of giving effect to a charitable gift, even in situations where a testator s bequest is problematic in terms of its application or execution. Re Davis; Hannen v. Hillyer, [1902] 1 Ch. 876, as quoted by Cashman L.J.S.C. in Montreal Trust Company v. Richards et al (1982), 40 B.C.L.R. 114 at p.126. In such cases, courts have properly resorted to invoking the cy-pres doctrine in order to save the gift, thereby preventing an otherwise impossible or impracticable gift from lapsing. However, before

11 Page: 9 directing a scheme under the cy-pres doctrine, the Court must be satisfied that the charitable gift in question contains a general charitable intention, or else the gift will lapse: Re Stanford, [1924] 1 Ch. 73. Evidence of such a general intention must be gleaned from the will itself, and may be inferentially derived from the document after a textual analysis by the Court and by consideration of extrinsic evidence: Re Charlesworth, [1996] M.J. No. 159 (Man. Q.B.), at para. 35. By applying the cy-pres doctrine, the Court may designate a suitable beneficiary that is similar in nature or purpose to the object originally intended to benefit under the will. [31] Chief Justice MacDonald draws attention to the fact that there are few guidelines to assist the court in making a determination of general intent, and states that the analysis used is essentially a subjective exercise. At paragraph 7, he quotes Snell s Principles of Equity (27 th ed. London: Sweet & Maxwell at p. 164) which states: What must be shown is an overriding intention to devote [the property] to charity in general. Yet it is impossible to lay down any satisfactory test to determine what suffices to show this; the reported cases show surprising instances of both liberal and conservative views upon it. [32] In another decision from this Court, Canada Permanent Trust Company v. the University of Prince Edward Island et al, [1976] P.E.I.J. No. 54, 9 Nfld. & P.E.I.R. 293; 12 A.P.R. 293, McQuaid J., writing for the Court of Appeal, applied the cy-près doctrine to uphold a charitable trust which had been bequeathed for the advancement of education. The gift in question was bequeathed to St. Dunstan s University. When the testator died, St. Dunstan s University had ceased to function as an institution of learning, the University of Prince Edward Island having been created by statute. McQuaid J. applied the principles enunciated in Re Willis, Shaw v. Willis, [1921] 1 Ch. 44 (C.A) at p. 52: It has been established by numerous authorities that there is a special principle guiding the Court in reference to legacies to charities different from that which guides it in reference to legacies to individuals or to purposes which are not charitable. That principle is this. If the Court sees a general intention in favour of charity but a particular mode indicated for giving effect to that intention cannot be adopted, that will not affect the validity of the gift, but the Court will, in some form or other, give effect to it. One of the most familiar instances is where the particular mode indicated by the testator is the selection of the particular charitable objects. It has over and over again been decided that the impossibility of the selection being made as directed by the testator will not prevent the Court from giving effect to the charitable bequest by making the selection itself. The principle is thus stated in general terms in Tudor s Charitable Trusts, 3 rd ed., p. 32: Where a bequest is made for certain definite objects and for charitable purposes, in proportions to be fixed by trustees or other persons, the gift for charitable purposes will not fail, although the persons entrusted with the apportionment die without apportioning.

12 Page: 10 [33] As I understand the thrust of their submissions, the respondents do not contest the will on the grounds of uncertainty of intention, but rather because it lacks charitable purpose. Charitable purpose, they argue, requires knowledge of: i) the nature of S. Belle Bruce s charitable support; ii) the identity of the organizations to ensure that they are in fact charitable organizations; and iii) the charitable purpose that is to be served. [34] I cannot agree with this position. In my view, charitable purpose is found in S. Belle Bruce s general intention to make charitable donations to Christian organizations and missions. In Towle Estate (Guaranty Trust Co. of Canda) v. Minister of National Revenue, [1967] S.C.R. 133 at 141, the Supreme Court of Canada adopted the common law definition of charity as stated in 1891 by Lord Macnaghten in Income Tax Special Purposes Commissioners v. Pemsel, [1891] A.D. 531 at p. 583: Charity in its legal sense comprises four principle divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the proceeding heads. [35] The respondents argue that the evidence provided by the bank passbooks is not conclusive proof that the disbursements made, as represented by the entries in the bank passbooks, are in fact charitable donations. The respondent contends that these organizations must provide some proof that they have received charitable donations in the past in order to establish themselves as beneficiaries. In my opinion, this is in an impractical imposition given that these disbursements were made more that 20 years ago. [36] Alternatively, the respondent contends that the only way to ensure the bequests under Clause III of the will are in fact charitable gifts is by an accounting of the activities of all of the potential beneficiaries to determine if, in fact, their activities are of a charitable nature. I also find this contention to be impracticable. Theobald on Wills at pages 453 provides: Gifts for religious purposes are charitable provided that they are for the public benefit. It is open to question whether religious purposes will be presumed to be for the public benefit unless the contrary is shown. [37] At pages of Theobald on Wills we read: The limit appears to be that the religious purpose must be something more than mere personal edification. It must be in someway directed to the public good....it has been said that to advance religion means to promote it, to

13 Page: 11 spread its message ever wider among mankind; to take some positive steps to sustain and increase religious belief, and these things are done in a variety of ways which may be comprehensibly described as pastoral and missionary. Provided that the activities do not take place in seclusion, trusts for religious activity in a broad sense will be recognized as charitable. [38] The respondents argue there is no way of knowing whether the bequests will be used in fact for charitable purposes. However, as Theobald on Wills provides at p. 455, activities that themselves are not charitable but are ancillary to religious observance and instruction do not effect the charitable status of a trust. Church activity overflows from the church itself to the parochial hall with its whist drives, dances and bazaars. (Per Cross J. in Neville Estates Ltd. v. Madden, [1962] Ch. 832 at 851). [39] In the instant case, a consideration of the evidence as a whole, consisting of the bank passbooks denotes a pattern of charitable donation. This evidence suggests that the deceased maintained bank accounts specifically for the purpose of making charitable donations. [40] The respondents are also critical that the bank passbooks represent a very short period in the life of the deceased. Accepting there is a pattern of making charitable donations, it is highly plausible there are Christian organizations and missions to which the deceased made charitable donations that have not been identified. To address this concern, the applicant placed notices in newspapers locally, nationally and internationally (U.S.) with the objective of discovering other Christian organizations and missions that have received charitable donations from S. Belle Bruce. The fact none have come forward does not have any bearing on either the deceased s intention to make charitable gifts, or the evidence of a pattern of such gifts. [41] The deceased s intention to make bequests to Christian charitable organizations is further evidenced by Clause IV of the will that instructs the executors to make the bequests to her brothers Jack and Neil Bruce and her nephew Bruce Moore conditional on them being alive at the time of her death. The clause directs the residue gifts, those gifts that do not meet the condition, to be added to the bequests contained in Clause III. As already noted, all three of the beneficiaries named in Clause III predeceased S. Belle Bruce. [42] From all of the above and based on the evidence, I conclude that S. Belle Bruce s will expresses both a general and a specific intention to make charitable gifts to Christian organizations and missions. This intention is found in the expression that specifically names two organizations as benefactors, and generally makes charitable gifts to those Christian organizations and missions which she supported in her life time. Specifically, Perry Rockwood s organization and Billy Graham s Underground Evangelism are to receive charitable donations with the former receiving a greater amount than the latter.

14 Page: 12 This specific intent is supported by a general intent to give to other unnamed Christian organizations and missions. For these reasons, I am of the opinion that the last will and testament of S. Belle Bruce is valid. Issue 2: The Authority of the Public Trustee [43] The respondent advances the argument that because both executors named by S. Belle Bruce have died, the property which is subject to the appointment lapses into the residue of the estate. They contend that because there is no residual clause to deal with this situation the gift must fail. The Respondents rely on Feeney s Canadian Law of Wills at 13.6 which states: The doctrine of lapse also applies in cases involving a power of appointment that is to be exercised by will where a testator grants such a power but the donee of the power dies before the testator. In this situation the property that was subject to appointment falls into the residue of the testator s estate. [44] This line of reasoning does not take into account the fact the bequests in question are of a charitable nature and as such the doctrine of lapse has no effect. As previously discussed, it is well established that where a general intention to make charitable donations can be established the Court has the authority to fill in the blanks or to appoint a personal representative where there is none. [45] To repeat in this context Theobald on Wills, at pages 467 the legal principle is as follows: Again, a gift to such charitable uses as the testator has directed, or for such charities as his executor shall think fit, or as the testator shall name thereafter, will be carried out by the court though there are no directions, or though no executor is appointed or he dies before the testator, or though no charities are ever named. [Emphasis added] [46] I also refer to the words of Warrington L.J. in Re Willis quoted in paragraph 32 above where he states a charitable gift will not fail although the persons entrusted with the apportionment die without apportioning. The authority survives it seems. [47] In this connection, I note the Probate Act, R.S.P.E.I. 1988, Cap. P -21 draws no distinction between the powers of executors and administrators whether original or substitute. Subsection 1(m), defined the term personal representative as follows: personal representative means the executor, original or by representation, or administrator, for the time being of a deceased person, appointed by letters

15 Page: 13 under the seal of the court; [48] The Public Trustee was appointed by this Court by way of Letters of Administration with Will Annexed for Property Unadministered on November 28, As previously discussed, the Court s power to appoint executors and to fill in the blanks as to who are the beneficiaries and the extent of the gift to be bequeathed is well established. [49] Although it is unnecessary to address the issue of a residual clause that contemplates the executor s predeceasing the testatrix, it is noteworthy to draw attention to the fact that the will does in fact contain a residual clause to this effect. The respondents may argue that the residual aspect of Clause IV only applies to the three conditional bequests provided for, but that would be a very narrow reading of the clause. The will, when viewed in its entirety, establishes that two of the benefactors identified in Clause IV, Jack Bruce and Bruce Moore, were also appointed as the executors of the estate. The bequests in Clause IV, are conditional on the benefactors being alive, with provisions that should these benefactors pre-decease, these bequests are to be distributed as per the instructions in Clause III. There is little doubt in my mind that it was S. Belle Bruce s intention to make charitable donations in the manner described in Clause III regardless of who was administering the estate. Issue 3 - If the will is invalid... [50] There is no need to answer this question as it is no longer relevant to the matter at hand. CONCLUSION [51] The applicant suggests there are two categories of gifts to be disbursed. The first category is comprised of the bequest to the Perry Rockwood organization which is to receive the greatest portion of the estate. The second category is comprised of the bequest to Billy Graham s Underground Evangelism and of all the other organizations and missions to which S. Belle Bruce supported during her lifetime. [52] The power to make the disbursements has been vested in the Public Trustee through the Letters of Administration with Will Annexed. The exercise of that power is subject to the approval of the Court. The amount to be gifted to each organization is left to the Public Trustee to calculate using the tables devised to determine a percentage value of the previous donations. The Public Trustee shall submit his proposal for disbursements to this Court for approval.

16 Page: 14 [53] The respondents have done a service to the Court by the submission of their factum and the arguments they have made in regards to this matter. It has given the Court the opportunity to fully investigate and respond to the legal questions raised. Without these submissions this matter would not have received the judicial scrutiny it deserves. This may be of little comfort to the respondents, but it advances a certainty in the jurisprudence as to how charitable bequests are to be considered. It is fair to say, that most people, faced with the possibility of inheriting a substantial amount of money from a deceased relative if the will was found to be invalid due to uncertainty, would pursue that possibility. [54] The role of the Court however is to give effect to the will based on the intentions of the deceased. In my opinion, it is clear S. Belle Bruce intended that her estate be disbursed to Christian organizations and missions as she directed in Clause III. COSTS [55] I am in agreement with my colleague Justice Jenkins who stated in Re: Estate of Francis Everett Morrissey, [1977] 2 P.E.I.R. 179 at page 185 that persons with concerns over wills should not be burdened by an award of costs only because their challenge is unsuccessful. Furthermore, in this case I am satisfied the respondents had reasonable grounds, both legally and morally, to have the Court determine the issues raised by the application. Their submissions were of assistance as were those made on behalf of the Canadian Bible Society. In the circumstances, it is fair and equitable that the total costs of all the parties who appeared be paid out of the estate of S. Belle Bruce, and I so order. August 5, 2004 C.J.