Dame Marie Louise Herse, alias Louise Herse, wife of Andre Zephirin Grothe, and Grothe, - Appellants; Joseph Dufaux, Junior, alias Joseph Marie Dufaux, Marguerite Dufaux, Wife of Joseph Clet Robillard, and Robillard, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 09 November 1872 |
| Date | 09 November 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 520
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA.
Mews' Dig. tit. Colony; II. Particular Colonies; 4. British North America. S.C. L.R. 4 P.C. 468; 42 L.J. P.C. 1; 21 W.R. 313.
[281] ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA. DAME MARIE LOUISE HERSE, alias LOUISE HERSE, wife of ANDRE ZEPHIRIN GROTHE, and GROTHE,-Appellants; JOSEPH DUFAUX, Junior, alias JOSEPH MARIE DUFAUX, MARGUERITE DUFAUX, Wife of JOSEPH CLET ROBILLARD, and ROBILLARD,-Respondents * [Nov. 7, 8, 9, 1872]. P. R., in 1825, by a notarial instrument, in the nature of a Deed of donation inter vivos, gave his Son, J. R., a certain piece of land, reserving the usufruct to himself for life, with remainder to J. R. for life (both life interests being expressed to be " a titre de constitut et precaire sa vie dwante "); and after J. R.'s death, to his children born in lawful wedlock; in default of such " la propriete demeurera et appartiendra aux autres heritiers du dit donateur qui en jouvront et disposeront con-formement d ce qu'il en aura dispose et ordonne par son testament et ordonnance de derniere volonte." By a Will of previous date, confirmed by a Codicil made after the date of the Deed of donation, P. R. gave to his Son, J. R., the enjoyment and usufruct during his life of all the property, movable or immovable, which he, P. R., should have at his death, the absolute interest in such property to pass at the death of J. R. to his children born in wedlock, with power in default of such children to J. R. to dispose of such property at his discretion, and without being bound to follow any rule of equality or proportion, among the Testator, P. R.'s Grandchildren, who were to be content with the share to be assigned them. J. R. died without children, and by his Will bequeathed, with other property, some of the land comprised in the Deed of donation by P. R. in his favour, to two only of the Grandchildren of P. R. In a suit by another of P. R.'s Grandchildren, claiming a portion of such land as * Present: Sir James William Colvile, Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 520 HERSB V. DUFAUX [1872] IX MOORE N.S., 282 heir by substitution under the terms of the Deed:-Held, by the Judicial Committee, affirming the judgment of the Court of Queen's Bench of Lower Canada, that notwithstanding the words " d titre de constitut et precaire sa vie durante " in the Deed of donation, J. R. became under it the institute (greve), with a substitution in favour of his own children, and that the term " aMtres heritiers " operated only in the event of J. R. having no children, as a ret&ur to the Donor, and made the property capable of passing by his Will, as also by the Will of his Son, J. R. Exposition of the Civil Code of Lower Canada, with regard to gifts inter vivos, with reference to the text Writers on the ancient law of France and the Code Napoleon [9 Moo. P.C. (N.S.) 310-316]. The Statute law of Lower Canada has engrafted on the old French law an unlimited power of disposition by Will [9 Moo. P.C. (N.S.) 308]. The word " Rentiers" has there acquired a signification, wider than and differing from, that which it would obtain in France [9 Moo. P.C. (N.S.) 308]. By a Deed of gift inter vivos, dated the 21st of May, 1825, made and executed at Montreal before Notaries, Pierre Roy (deceased) declared and acknowledged [282] that, in consideration of the good and essential services which his Son, Joseph Roy (also deceased), had rendered to him, he made gift and donation to his Son, being present and accepting for himself his heirs and representatives in future, a piece of land situate in the Faubourg St. Laurent, in the City of Montreal, with six Houses and other buildings thereon, to be enjoyed, used, dealt with, and disposed of by Joseph Roy, " d titre de constitut, et precaire " during his life, the enjoyment to commence only at the decease of the Donor, who reserved the enjoyment and profit of such piece of land during his life " d titre de con-stitut et precaire " only, and that after the decease of Joseph Roy the ownership of the piece of land should remain to his children born in lawful wedlock, and in default of children born in lawful wedlock of Joseph Roy, " sa propriete demeurera et a-pparti-endra auec au-tres heritiers du dit donatew qui en jouiront et disposeront conformement d ce qu'il aura dispose et ordonne par son testament et ordownance de derniere volonte," it being [283] understood, nevertheless, that it should be lawful for Joseph Roy to construct and erect on the piece of land, or part of the same, one or more Houses in stone or in wood, and of such dimensions as he should think fit, and to take and occupy for each House that he should choose so to build a piece of land and building site of forty feet frontage by ninety feet deep, which he should be bound to enclose, at his sole cost and charge, with fences of planks or stakes of the height of ten feet above the ground, and each and every piece of ground which Joseph Roy should choose so to take for building on as aforesaid, should belong to him in absolute ownership, with power to dispose of it by act inter vivos or by his last Will, according to his pleasure, provided that he did not sell or alien the lots of land during the life of the Donor. This Deed was duly read, published, and registered. The questions raised on this appeal were, first, as to the validity and effect of the above-recited passage in the Deed of gift, and secondly, whether the Respondents, who claimed to be entitled under the Wills of Pierre Roy and Joseph Roy, were entitled to the entirety of so much of the piece of land as was not built upon, and appropriated by Joseph Roy, under the power in that behalf contained in the Deed of gift, or whether the Appellant, Marie Louise Herse, as one of the co-heirs of Pierre Roy, was entitled to claim from the Respondents one moiety of such piece of land. Pierre Roy, the Donor in the Deed of gift, previously to the date and execution of the above Deed, namely, on the 15th of December, 1821, made his Will, whereby he gave and bequeathed to his Son, Joseph Roy, the enjoyment and income during his [284] life of all the property, movable and immovable, which he, the Testator, should leave at his decease, so that the ownership should remain to the children born or to be born in lawful wedlock of Joseph Roy, and in case he should not have children born in lawful wedlock, he should have power to dispose of the ownership of the property, as well movable as immovable, according to his prudence and discretion, without being bound to follow any law of equity, or of proportion, amongst the P.C. vi. 521 17 IX MOORE N.S., 286 HERSE V. DUFAUX [1872] Grandchildren of the Testator, who should be bound to be satisfied with the portion which should be allotted to them by Joseph Roy, their Uncle. Pierre Roy, the Donor, after the date of the Deed of gift made a Codicil to his Will, dated the 12th of December, 1831, and thereby, after his Will had been read over to him by one of the Notaries in whose presence the Codicil was executed, confirmed his Will, and desired that it should be executed according to its form and tenor in everything which was not altered by such Codicil. This Codicil did not in any way alter the gift in the Will contained of -all the Testator's property, further than by giving certain legacies which were not material to the questions on this appeal. Pierre Roy died the 16th of August, 1832, without having revoked or altered his Will, save so far as the same was altered or revoked by the Codicil, and the Will and Codicil were registered on the 4th of April, 1842. Joseph Roy, the Donee in the Deed of gift, entered into possession of the piece of land therein comprised, and built upon a portion of the same piece of land of forty feet frontage by ninety feet in [285] depth, a House forming the corner of the Rue Dorchester and the Rue Ste. Elizabeth, and also built upon another portion of the same piece of land of forty-two feet frontage by ninety feet in depth, a House forming the corner of the Rue Sanguinet and the Rue Ste. Catherine. Pierre Roy, the Donor, had issue Joseph Roy and Catherine Roy, who married Joseph Herse, deceased, and there was issue of such marriage two children, the Appellant, Marie Louise Herse, and Marie Marguerite, afterwards the Wife of Joseph Dufaux, since deceased. The Respondents, Joseph Dufaux, junior, and Marguerite Robillard, were the only children of Marie Marguerite Dufaux. Joseph Roy, the Donee, by his Will, dated the 2nd of September, 1848, gave and bequeathed to Marie Louise Helene Grothe, his great niece, since deceased, a site situated in the Quartier St. Louis, of the City of Montreal, making the corner of the Rues Dorchester and Ste. Elizabeth, containing forty feet frontage by ninety feet in depth, more or less, with a House, Coach-house, and other appurtenances constructed thereon, to be enjoyed, used, dealt with, and disposed of by Marie Louise Helene Grothe, in absolute ownership, and as she should think fit at her age of majority after the Testator's decease ; and the Testator gave and bequeathed to the Appellant, Marie Louise Herse, the enjoyment and income during her life, first, of a site situated in the Quartier St. Louis, containing forty-two feet in depth, and being the corner of the Rues Sanguinet and Ste. Catherine, and further, the enjoyment and income, during her life, of another site situate in the Quartier Ste. Laurent of the City of Montreal, and [286] therein particularly described, with a House and appurtenances thereon constructed, and as to the ownership of the two sites the Testator gave and...
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