1907 Nov. 14.

[ANGLIN, J.]

RE SILVERTHORN.

Will-Construction-Devise to Wife-Life Estate Power of Sale-Use of
Proceeds-Income.

The testator gave and devised to his wife "all my personal estate of every
description for her own use and that my landed property and the balance
that may be coming due on the
mortgage shall be disposed of
after the death of my wife and shall be made into fifteen parts of which
fifteen parts each of my sons shall receive two fifteenth parts and each of
my daughters one fifteenth part and that so long as my wife
lives
she shall have the use of the landed property and either use it rent it or
sell it and use the money as she thinks best:

.

Held, that the interest of the wife in the landed property was a life interest only, with a power to sell the land, if she so desired, and, in that event, a right to invest the proceeds as she should deem best, and enjoy the income derivable therefrom during her life.

MOTION by the executors of James F. Silverthorn, deceased, for an order determining certain questions arising upon the will of the deceased, as set forth in the judgment.

The motion was heard by ANGLIN, J., in the Weekly Court at Toronto, on the 7th November, 1907.

W. E. Middleton, for the executors.

W. H. Blake, K.C., for the widow, Elizabeth A. Silverthorn.

November 14. ANGLIN, J.:-The executors ask the opinion of the Court upon the construction of the following clause in the last will and testament of James F. Silverthorn, deceased:

"To my dear wife Elizabeth A. Silverthorn I give and devise all my personal estate of every description for her own use and that my landed property and the balance that may be coming due on the Samuel Silverthorn mortgage shall be disposed of after the death of my wife and shall be made into fifteen parts of which fifteen parts each of my sons shall receive two fifteenth parts and each of my daughters one fifteenth part and that for as long as my wife Elizabeth A. Silverthorn lives she shall have the use of the landed property and either use it rent it or sell it and use the money as she thinks best."

The absolute title of the widow to the personal property is admitted. As to the Samuel Silverthorn mortgage it was conceded by counsel for Mrs. Elizabeth A. Silverthorn that she took only the

income thereof for life. The question for consideration is as to the disposition made of the landed property.

Mr. Blake, for the widow, asks a declaration that she is entitled absolutely to this property. On the other hand, Mr. Middleton, representing the executors, submits that she only takes a life interest in it. I have examined In re Jones, Richards v. Jones, [1898] 1 Ch. 438, Lloyd v. Tweedy, [1898] 1 I.R. 5, In re Richards, Uglow v. Richards, [1902] 1 Ch. 76, and In re Tuck (1905), 10 O.L.R. 309, cited by counsel. I have also considered Espinasse v. Luffingham (1846), 3 Jo. & LaT. 186; In re Bush, [1885] W.N. 61; and In re Pounder (1886), 56 L.J.Ch.N.S. 113. As pointed out in regard to other testators in more than one of these cases, this testator, when desirous of making an absolute gift of property, knew how to do so, as evidenced by his disposition of the personal estate.

Were it not for the concluding words of the devise of the realtythat she may "sell (it) and use the money as she thinks best' there would be no room for the contention that the widow has more than a life interest in the landed property. Mr. Blake, however, argues that the right given her, as he puts it, to use the money arising from the sale of the realty as she thinks best, is inconsistent with any limitation upon her interest in the property itself.

It is a cardinal rule of construction that effect must be given, if possible, to every disposition of property made by a testator; that no words of disposition, no portions of a will, are to be rejected or deemed inoperative, if it is possible, by putting upon other portions of the document any reasonable construction, to remove apparent inconsistencies and make them effective. If the contention presented on behalf of the widow is to prevail, the careful directions of the testator as to the disposition of his landed property after his wife's death, and its division into fifteen parts, of which the sons shall receive each two fifteenth parts and the daughters one fifteenth part, would be entirely ineffectual and inoperative. It is impossible to suppose that if the testator intended to give to Elizabeth A. Silverthorn the entire interest in his landed property, he should have made this careful disposition upon the assumption that there would still be some remaining interest in that property, which might in that event be the subject of disposition by himself. As pointed out in several of the cases above cited, the disposition in favour of the sons and daughters would be repugnant and invalid for uncertainty,

8-VOL. XV. O.L.R.

Anglin, J.

1907

RE SILVER

THORN.

Anglin, J.

1907

RE SILVERTHORN.

if it must be read as intended to operate only upon such portion of the capital received from the sale of the landed property, if it be sold, as might remain after the death of Elizabeth A. Silverthorn, she having the right to use, in her untrammelled discretion, any part of such capital. This, therefore, is not a construction to be favoured.

If the words " as she thinks best" refer to the use to be made of the money arising from the sale of the realty, it might be difficult to maintain that the widow's interest is not absolute. These words, however, do not necessarily relate to the use to be made of the money. I think they rather relate to the widow's option to use the property herself, or to rent it, or to sell it. Any one of these things she may do "as she thinks best," and this quite consistently with her own interest being a life interest only. But in the event of sale she is given the use of the money. So, in the event of not selling, she is given the use of the land itself. The testator apparently applies the word "use" to the money-proceeds of the sale of the land, standing in the place of the land itself—in the same way as he applies it to the land. The widow, I think, is limited to the enjoyment of the income to be derived from the investment of the money should she sell the land, her discretion as to the place, manner, and kind of investment being apparently unrestricted. As already pointed out, it is impossible to read the disposition in favour of Elizabeth A. Silverthorn as to the landed property in any other way without rejecting, as wholly inoperative, the preceding disposition in favour of the sons and daughters.

For these reasons, in my opinion, the interest of Elizabeth A. Silverthorn in the landed property should be declared to be a life interest only, with a power to sell the land, if she so desires, and, in that event, a right to invest the proceeds as she deems best, and enjoy the income derivable therefrom during her life. Costs of all parties to be out of the estate, those of the executors as between solicitor and client.

E. B. B.

[BOYD. C.]

WARREN V. THE D. W. KARN Co.

Injunction-Testimonials to Employer and Employee-Publication in Changed
Form-Property in and Control by Employer.

It is not every breach or violation of good faith or departure from honourable
dealing which can call forth the powers of equity to make redress; there
must be disclosed some case of civil property which the Court is bound to
protect before the publication of private papers will be enjoined.
The plaintiff, an expert, was a superintendent of the defendants' manufactory
of pipe organs for several years, during which time two commendatory testi-
monials had been given, one that "the builders (defendants) and Mr. Charles
S. Warren (plaintiff) have every reason to congratulate themselves," and
the other addressed to the plaintiff by name, wherein he was congratulated
on having "solved the problem of a thoroughly satisfactory electro-pneu-
matic action."
After he had left the defendants' employ and started business for himself, the
defendants published an advertising pamphlet containing the testimonials,
omitting all reference to the plaintiff or to his name. In an action for an
injunction to restrain the publication of the testimonials in a mutilated
form:-

Held, that as between the superintendent and the company whose agent or
employee he was, the testimonials were the property in possession of the
company, who had the right to control their publication, and that right con-
tinued after the plaintiff left their employment, in the absence of any re-
striction imposed by the writers.

Howard v. Gunn (1863), 32 Beav. 462, followed.

THIS was an action brought by the plaintiff, a former superintendent of the defendant company, to restrain the publication by the defendants in an altered form of certain testimonials given in recommendation of organs, manufactured by the defendants under the plaintiff's superintendence, in which he, as well as the company, were commended. The plaintiff had left defendants employment and started a rival business for himself, and by the alterations he was deprived of any commendation, under the circumstances set out in the judgment.

The action was tried at Woodstock on 24th September, 1907, before BOYD, C., without a jury.

A. B. Morine, for the plaintiff.

G. T. Blackstock, J. G. Wallace with him, for the defendants.

September 27. BOYD, C.:-The case for relief presented by the plaintiff may be thus stated. The plaintiff has been trained in the work of organ building, and by special attention has acquired great skill in the construction of pipe-organs for churches.

1907

Sept. 27.

Boyd, C. 1907

WARREN

V. THE

D. W. KARN

Co.

Thus qualified as an expert, he was employed by the defendants as superintendent of their manufactory for about eight years, from 1897 to 1905, and during that time a large number of such pipeorgans was successfully constructed under his supervision.

These organs were of approved excellence, and the plaintiff claims that the most of the work was due to his skill. In particular as to two organs, testimonials were given in which the merit of the plaintiff was recognized. The first in 1897, in connection with the Metropolitan Church organ, was given by Mr. Lemare, a distinguished musician and organist, in these words: "I am delighted with the organ; let me say that it is the finest organ I have played on the American continent. It has a splendid tone, and I am sure the builders and Mr. Charles S. Warren have every reason to congratulate themselves on the success they have achieved in obtaining such a magnificent instrument.

The other, given in the shape of a letter from a well-known organist, Mr. Jeffers, with reference to an organ in the Central Methodist Church, Toronto, in 1905, addressed to the plaintiff, wherein he was congratulated on having "solved the problem of a thoroughly satisfactory electro-pneumatic action."

Before the plaintiff became connected with the defendants they did not manufacture the pipe church organ.

He left the company for the purpose of setting up an independent business in the line of church organs, and the defendants after he left continued to make such organs. So that now, the plaintiff and defendants are rival makers and dealers, at arms' length in business competition.

The gist of the plaintiff's grievance is that the defendants have issued a pamphlet containing these two recommendations, but so altered as to apply solely and only to the defendants. As to Mr. Lemare's report, this is done by omitting the words "and Mr. Charles S. Warren," so that the sentence reads "I am sure the builders have every reason to congratulate themselves on the success; and as to Mr. Jeffers' letter, by striking out the introductory "My dear Mr. Warren," and substituting "The D. W. Karn Co., Gentlemen."

The plaintiff admitted that he received the testimonials as agent