2013 QCCA 250, 2013 QCCA 250

Miller (Estate of) 2013 QCCA 250 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021348-115 (500-17-041538-086) DATE: FEBRUARY 11, 2013 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. GUY GAGNON, J.A. JACQUES R. FOURNIER, J.A. DANIEL S. MILLER, in his own capacity and ès qualités , executor and trustee to the Estate of the late Harry A. Miller and SCOTT D. MILLER, ès qualités , executor and trustee to the Estate of the late Harry A. Miller APPELANTS – Defendants v. PATRICIA MILLER RUBIN, in her own capacity and ès qualités executor and trustee to the Estate of the late Harry A.

Miller RESPONDENT – Plaintiff JUDGMENT [ 1 ] THE COURT : On the appeal from the judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Eva Petras) rendered on December 8, 2010 that maintained in part the respondent's amended motion to institute proceedings with costs against the appellant Daniel S. Miller and: • cancelled and annulled the Deed of Sale entered into before Notary Kevin Leonard on March 7, 2005 between the appellants, in their capacity as liquidators of the Estate of the late Harry A. Miller, and the appellant Daniel S.

Miller, of the immoveable property therein described; • ordered the Estate to pay the appellant Daniel S. Miller $5,000 as restitution for the cancellation of the Deed of Sale; • declared that after the cancellation of the aforesaid sale, the Estate of Harry S. Miller is the owner of the Zahler Property as described therein, save and except for the house erected thereon, and therefore, • declared the appellant Daniel S.

Miller the sole owner of the house bearing civic number 285 [Street A], Sainte-Agathe-des-Monts, Québec, J8C 2Z8 [ 2 ] For the reasons of Hilton, J.A., with which Gagnon and Fournier J.A. agree; [ 3 ] DISMISSES the appeal, with costs against the appellants. ALLAN R. HILTON, J.A. GUY GAGNON, J.A.

JACQUES R. FOURNIER, J.A. Mtre Sandra Mastrogiuseppe Mtre Michael Lubetsky DAVIES WARD PHILLIPS & VINEBERG LLP For Appelants Mtre Barry Landy SPIEGEL SOHMER INC. For Respondent Date of hearing: May 30, 2012 REASONS OF HILTON, J.A. [ 4 ] The principal issues in this appeal are whether the trial judge correctly granted a motion to cancel a deed of sale of land from the Estate of the late Harry Miller to the appellant Daniel Miller, and subsidiarily, whether she properly considered other scenarios Daniel proposed by which he had already become owner of the same property.

The resolution of these issues involves the determination of whether one or both of the Executors and Trustees of the Estate were in a conflict of interest when they signed the deed of sale in that capacity to Daniel, and whether the written proceedings gave rise to the trial judge taking any account of the other scenarios Daniel proposed that would justify his claim to ownership of the property. I THE FACTS [ 5 ] The late Harry Miller was the father of both the respondent Patricia Miller Rubin and Daniel, as well as the grandfather of the appellant Scott D.

Miller, who is Daniel's son. [ 6 ] In 1944, Harry Miller purchased a plot of land containing 51,850 sq. ft., as well as the summer house erected on it, bearing civic address 291, [Street A], in Ivry-sur-le-Lac (now part of Sainte-Agathe-des-Monts) for $10,000. The trial judge refers to this land, including the summer house, as the "Country House Property", and I will do so as well.

In 2008, the value of the Country House Property was estimated to be $797,500, representing $216,800 for the land, and $580,700 for the Country House. [ 7 ] In 1952, Harry Miller purchased a plot of vacant land adjacent to the Country House Property for $1,000 from Mrs. Max Zahler. This land is triangular in form, and is referred to in the evidence, the Superior Court judgment and hereafter as the Triangle. [ 8 ] In 1953, Harry Miller purchased a second plot of Mrs.

Zahler's vacant land, significantly larger than the Triangle, for which he paid $4,000. [ 9 ] Collectively, these two plots of land are referred to by the parties as the Zahler Property, for which Harry Miller paid a total of $5,000. The Zahler Property consists of 71,150 sq. ft., of which the Triangle forms 10,250 sq. ft., with the balance of 60,900 sq. ft. being derived from the property purchased in 1953.

In 2008, the value of the Zahler Property was assessed at $731,800, comprised of $232,300 for the land, and $499,500 for the house that Daniel began to build on it shortly prior to Harry Miller's death . [ 10 ] The price of acquisition of $5,000 for the Zahler Property in 1952 and 1953, and its current value, have a significant bearing on the way in which the litigation was resolved at trial. [ 11 ] In the spring of 1966, Daniel started to clear and excavate the Zahler Property in order to build a summer home.

He testified that he paid for all the costs related to the clearing and excavation of the land, and that his father paid for some of the landscaping as a housewarming gift. Patricia, however, contended that their father paid to have the land cleared and excavated. Nevertheless, it is not disputed that Daniel then built and paid for the construction of a house on the larger plot of land that was acquired in 1953, which now bears civic address 285 [Street A].

The size of that house, however, is relatively small in relation to the superficial area of the Zahler Property. [ 12 ] Harry Miller passed away on October 12, 1966, leaving a valid Will dated May 7, 1962, which eventually was probated. It is important to emphasize at this stage that when the Will was drafted, the Zahler Property was vacant.

No construction had been initiated on it until a few months prior to Harry Miller's death, without Harry Miller having modified his Will. [ 13 ] Under the Will, Harry Miller made certain particular legacies, and then bequeathed the rest and residue of his Estate to his Executors and Trustees, to be held in trust during the lifetime of his wife Miriam Miller, and then to be distributed in equal shares to Daniel and Patricia in equal shares, subject to the remaining provisions of the Will. [ 14 ] The Will provided for three Executors and Trustees: Miriam, Daniel and Harry Miller’s accountant.

In 1967, the accountant renounced the position as Executor and Trustee, after which Patricia replaced him. Harry Miller specified in his Will that unless

otherwise mentioned, his Executors and Trustees should act unanimously with regard to his Estate. [ 15 ] The Will also provided that Miriam, Daniel and Patricia could occupy the Country House as long as they each paid for one third of the maintenance expenses. The Will further mentioned that either Daniel or Patricia could acquire the Zahler Property upon tendering $5,000 to the Estate, and obtaining the approval of a majority of the Executors and Trustees. [ 16 ]

Article Seventeenth of the Will is to the following effect: My dear wife and my son, DANIEL, and my daughter PATSY, shall have the right to occupy our country home at Ivry, upon each of them paying one-third (1/3) of the costs of maintenance thereof. I exclude from this provision that portion of the property at Ivry which was purchased from Mrs. Max Zahler.

I direct that this portion may be purchased by such of my children who desire to do so upon receiving the consent of the majority of my Executors and Trustees, in which event, such sale or sales to such child or children shall be made at cost, viz Five Thousand Dollars ($5,000.00). [ 17 ] It is apparent that when Harry Miller described the property to which the rights described in

Article Seventeenth applied, he was referring only to ''the property at Ivry which was purchased from Mrs. Max Zahler'', and not that property plus the Zahler House that Daniel built subsequent to the execution of the will. [ 18 ] After Harry Miller's death in 1966, Miriam and Patricia, with her family, continued to regularly occupy the Country House. Once it had been built, Daniel and his family stayed in the Zahler House.

Both families, however, interacted with each other and used the facilities on the Country House Property, especially during the time when Daniel had not yet insulated the Zahler House for winter use.

In this respect, it is not disputed that Daniel's children would often be at the Country House, where Patricia took care of them, and where they played with her own children. [ 19 ] Throughout the years, Daniel significantly renovated and maintained the Zahler Property, including the Zahler House, as did Patricia with respect to the Country House Property, including the Country House, each at their own respective expense.

Each of them acted essentially as the de facto owners of the houses they occupied respectively on the Zahler Property and the Country House Property. [ 20 ] On January 15, 1995, Miriam passed away. Until November 4, 1998, the only Executors and Trustees were Daniel and Patricia, however, on that date, Scott was appointed as the third Executor and Trustee. [ 21 ] From 2002 to 2004, Daniel and Patricia exchanged various letters in an effort to resolve issues surrounding ownership of the lands and houses in Ivry-sur-le-Lac.

Daniel sought to become recognized as the sole owner of the Zahler Property, as well as the Zahler House. At the same time, he also considered himself an undivided co-owner of the Country House Property, including the Country House, although he agreed in one letter to transfer his interest in the Country House to Patricia. There was also some debate as to whether the Triangle was part of the Country House Property, or the Zahler Property.

Patricia claimed it was part of the Country House Property, whereas Daniel maintained that it formed part of the Zahler Property that either of them could purchase for $5,000, in accordance with

Article Seventeenth of the Will. [ 22 ] Daniel prepared and signed a letter to Patricia dated January 24, 2005 asking her to sign a deed transferring the Zahler Property (including the Zahler House) to him. The letter mentioned that if she refused to sign it, she would be exposed to legal proceedings. [ 23 ] Instead of legal proceedings, on March 5, 2005, a deed of sale was tendered on Patricia, who refused to sign it in her capacity as an Executor and Trustee of the Estate.

At the same time, the tendering notary gave Patricia the letter from Daniel dated January 24, 2005 referred to above urging her, in her aforesaid capacity, to sign the deed of sale that would transfer the Zahler Property and the Zahler House to him. The letter also indicated that Daniel had deposited $5,000 in trust with a notary.

Despite being dated January 24, 2005, Patricia did not receive the letter until the notary tendered it at the same time as the proposed deed of sale on March 5, 2005. [ 24 ] Prior to the notarial tender, however, on March 2, 2005, Patricia deposited $5,000 into the Estate’s bank account, which is a joint account held by her and Daniel, with a view to her purchasing the Zahler Property, including the Zahler House.

She also engaged an attorney, who, on March 7, 2005, sent Daniel a letter via email indicating that Patricia would not sign the Deed of Sale that had been tendered by a notary, and that she had already tendered $5,000 to the Estate in order to purchase the Zahler Property and the Zahler House. [ 25 ] Also on March 7, 2005, both Daniel and Scott, acting in their capacity as Liquidators of the Estate, signed the Deed of Sale whereby Daniel purchased the Zahler Property, including the Zahler House, from the Estate for $5,000. The deed was recorded in the land registry that same day.

Daniel claimed not to have received the letter from Patricia's attorney on March 7 until after he and his son Scott signed the Deed of Sale transferring the Zahler Property and the Zahler House to him. [ 26 ] Between 2005 and 2008, Daniel and Patricia attempted to resolve the situation and offers were made on both sides, but they were unable to reach an agreement. II THE PROCEEDINGS IN THE SUPERIOR COURT [ 27 ] Patricia's proceedings sought to have the Deed of Sale transferring the Zahler Property and the Zahler House to Daniel cancelled.

Essentially, two grounds were invoked: first, that she had validly exercised her right to acquire the Zahler Property and the Zahler House on March 2, 2005 prior to Daniel and Scott having caused their sale to Daniel on March 7; and, second, that Daniel and Scott were in a position of conflict when they signed the Deed of Sale on behalf of the Estate. [ 28 ] The conclusions of the action did not seek the cancellation of the registration of the Deed of Sale from the index of immoveables of the cadastral lots in question, nor was the Registrar impleaded.

Patricia did, however, solicit conclusions: first, to have the Estate declared the owner of the Zahler Property, including the Zahler House, after the resolution of the sale to Daniel; second, that

she had validly exercised her right to become owner of the Zahler Property and the Zahler House; and, third that the Estate be ordered to convey them to her. At trial, however, Patricia abandoned the latter two claims. [ 29 ] In his defence, Daniel sought the dismissal of Patricia's action, her removal as an Executor and Trustee of the Estate of Harry Miller for breach of her fiduciary responsibilities, and a declaration, to the extent necessary, ratifying and confirming Daniel's title to the Zahler Property, including the Zahler House, notwithstanding Patricia's failure to sign the Deed of Sale to him.

Beyond what I have just mentioned, Daniel did not constitute himself cross-plaintiff to claim ownership of the disputed property on any basis other than the validity of the execution of the Deed of Sale to him that Patricia's action was intended to cancel. [ 30 ] In May of 2009, Daniel instituted separate proceedings against Patricia seeking the partition of the Estate and an order from the Superior Court to sell the Country House Property, including the Country House, with the proceeds to be equally divided between him and Patricia, save for the reimbursement to Patricia of certain renovation expenses incurred in 1981-82 and 2003, less certain sums paid to her husband, Paul Rubin.

For her part, Patricia maintains in her defence to that action that the Estate should transfer the Country House Property and the Country House to her, as well as the Triangle, and that the Zahler Property should be attributed to Daniel, with related conclusions. [1] This case will be tried in June of 2013.

III THE JUDGMENT OF THE SUPERIOR COURT [ 31 ] The trial judge made a number of findings of fact in the face of contradictory evidence relating to the use of the Country House Property and the Zahler Property, as well as findings relating to the payment of expenses and improvements relating to the two properties. To the extent these findings have any bearing on the conclusions sought in the final versions of the action and the defence which I have described in paragraphs [28] and [29], they are amply justified and do not properly give rise to appellate intervention.

These findings and the conclusions in law drawn therefrom are set out below. [ 32 ] In 1966, Daniel persuaded his father to allow him to build a house on the Zahler Property. In the spring of that year, in which Harry Miller later would die, Daniel began to clear and fill the Zahler Property, with financial assistance from his father, who also paid for the landscaping on the property. [ 33 ] Daniel then built a house on the Zahler Property, which he paid for by himself. Since then, he maintained the Zahler House and the Zahler Property, as well as having made significant improvements to both.

The trial judge found that his efforts were focused mostly on the larger of the two Zahler lots, and less so on the smaller Triangle. [ 34 ] Patricia's and Daniel's families occupied the Country House Property and the Zahler Property respectively for over 40 years. Essentially, Daniel had always acted as the de facto owner of the Zahler Property since he built the Zahler House, just as Patricia had done likewise with respect to the Country House Property and the Country House.

She had also made significant improvements to them, to the extent of roughly $400,000, and shared the house with Miriam until her mother passed away in 1995. [ 35 ] The trial judge also noted that Patricia and Daniel have differing accounts with regard to their father's intentions, although both of them agreed that Harry Miller wished his family to live in harmony and share the lands at Ivry-sur-le-Lac. [ 36 ] Daniel claimed that the Zahler Property land was a gift and that this “gift” was conditional upon his building a summer home on the land in order to stay close to the Country House.

Patricia, on the other hand, asserted that Daniel was merely given the right to occupy the Zahler land in order to build a secondary residence for his family. Patricia also testified that her father said that the Country House Property would eventually be hers, because he allowed her brother to build on the Zahler Property. [ 37 ] The trial judge rejected Daniel's contention that the Zahler Property was gifted to him. Even if Harry Miller had promised to give Daniel the Zahler Property, this had no legal effect.

The gift of an immovable is made by notarial deed, on pain of absolute nullity, pursuant to articles 1824 C.C.Q ., and 776 and 806 of the Civil Code of Lower Canada , the latter of which were in force when the supposed gift would have been made. [ 38 ] The trial judge also rejected Daniel's contention that a do ut facias [2] contract existed between him and his father. In such a contract, the person who owns the land, in this instance Harry Miller, must derive some real material benefit from the occupier, Daniel.

The trial judge found no evidence of a contract between Harry Miller and Daniel that provided for mutual benefits and obligations. She further concluded that Harry Miller simply allowed his son to build a house on the Zahler Property in order for his family to have some privacy, while continuing to be a part of the Miller family life. Furthermore, no such contract was documented in writing, and Daniel never confirmed his ownership over the Zahler Property after his father's passing. [ 39 ] The trial judge further rejected Daniel's argument that he acquired the Zahler Property through acquisitive prescription.

She first observed that Daniel should have requested a declaratory judgment from the Superior Court to confirm his ownership of the Zahler Property, which he had never done. [ 40 ] Even if he had made such an application, however, to acquire something by means of acquisitive prescription, one must have valid possession, which Daniel did not enjoy as he held the Zahler Property with the acknowledgement of a superior domain, namely, that of the Estate. As one of the Executors and Trustees of the Estate, he had seisin of its assets in that capacity until their liquidation in accordance with

article 777 C.C.Q . Furthermore, there was no inversion of title pursuant to

article 923 C.C.Q . that would allow him to claim that he began to possess the Zahler Property at some point, as opposed instead to simply detaining it. [ 41 ] The trial judge further concluded that Daniel did not validly acquire ownership of the Zahler Property and the Zahler House pursuant to

Article Seventeenth of the Will. Although she acknowledged the terms of the Will to be clear, the trial judge considered it necessary to refer to Harry Miller's intentions in order to reconcile

Article Seventeenth with the rest of the Will. [ 42 ] From the trial judge's perspective, it was apparent from several clauses in the Will that Harry Miller wished to treat his children

equally so they would have the same rights and advantages with regard to his Estate. She considered that Harry Miller would not have had an issue with one of his children purchasing the Zahler Property for $5,000, but only if this amount corresponded to its value at the time of sale. As things now stand, if Daniel were declared owner of the Zahler Property, as well as half of the Country House Property, there no longer would be such a balance between both siblings. Daniel would end up with considerably more than Patricia and potentially even much more depending on the market value of the Zahler Property and the Zahler House. [ 43 ] She concluded that Harry Miller did not intend

Article Seventeenth to be used in the manner that both Daniel and Patricia sought to invoke in March of 2005. Moreover, the trial judge also decided that both of them had renounced to the use of

Article Seventeenth since they had not availed themselves of the right it contains since his death in 1966. As such,

Article Thirteenth and

Article Thirty-First of the Will superseded

Article Seventeenth.

Article Thirteenth provided for the equal division of the Estate in kind between Daniel and Patricia, to the extent that it was possible and advisable, unless they agreed otherwise (which obviously was not the case). Under

Article Thirty-First, it was contemplated that Daniel and Patricia could purchase an asset of the Estate, provided there was unanimous agreement of all the Executors and Trustees. [ 44 ] Moreover, the trial judge found that it was in accordance with the intentions of Harry Miller to have the third Executor and Trustee approve the sale of the Zahler Property. Although Scott was entitled to act in that capacity, however, his grandfather could not have foreseen that he would be in a position of conflict of loyalties between his father and aunt.

In any event, Scott had an interest in the Zahler Property and the Zahler House upon its transfer to his father as one of his heirs. From the Will, it seemed that Harry Miller intended that all his grandchildren should be treated equally with regard to financial advantages, but this intention would not be respected by the sale of the Zahler Property and the Zahler House to Daniel. [ 45 ] The trial judge thus concluded that neither Daniel nor Patricia validly invoked

Article Seventeenth of the Will. She therefore cancelled the Deed of Sale of the Zahler Property for the purchase price of $5,000 from the Estate to Daniel and declared that it still belonged to the Estate. She further ordered the return of the $5,000 to Daniel he paid to acquire it. Nevertheless, as Daniel had built the Zahler House at his expense and had acted as its owner since the construction, and given the principle of equal treatment between the siblings flowing from the Will, the trial judge declared Daniel the legal owner of the house at 285 [Street A], but not the land on which the house is built. [3] [ 46 ] In effect, without having said so specifically, the trial judge read out

Article Seventeenth from the Will despite its lack of ambiguity requiring

interpretation, finding it no longer susceptible of being acted on by either Patricia or Daniel in accordance with Harry Miller's intentions when he executed the Will in 1962. IV CONCLUSIONS SOUGHT IN APPEAL [ 47 ] In his appeal, Daniel principally seeks the dismissal of Patricia's recourse to cancel the sale of the Zahler Property, and a declaration that he is the sole owner of the Zahler Property and the Zahler House.

Alternatively, he requests that if the Court maintains the principal conclusion of the judgment at trial cancelling the deed of sale to him, he be declared the owner not only of the Zahler House, but also of its various appurtenances and dependencies, which are described at length in the conclusions of his factum.

No such claim, however, was made in the conclusions of his defence to Patricia's action in the Superior Court, whether by cross-demand or otherwise. [ 48 ] As for Patricia, she solicits the dismissal of the appeal, but has not constituted herself as an incidental appellant to challenge the trial judge's conclusion declaring Daniel to be the owner of the Zahler House, despite the acknowledgment of her counsel at the hearing in this Court that the conclusion to that effect in the judgment is ultra petita .

V GROUNDS OF APPEAL AND ANALYSIS [ 49 ] Daniel has alleged five grounds of appeal that I will treat in sequence. Collectively, they represent a scattergun approach to his view that he has been the owner of the Zahler Property and the Zahler House since 1966. That being said, the only operative conclusion Daniel sought in his defence to Patricia's action was that he was the owner of the Zahler Property and the Zahler House pursuant to the Deed of Sale that he and Scott signed in his favour in their capacity as Liquidators of the Estate of Harry Miller.

Whatever else he may have alleged in his defence about the history of his occupation and use of the Zahler Property should therefore be seen as a justification for his decision in his capacity as a co-liquidator to transfer it to him by way of the Deed of Sale that Patricia sought to cancel, but not as an independent source of ownership.

It seems to me, with respect, that the trial judge may have confused these two distinct concepts when she declared Daniel to be the owner of the Zahler House, despite her having recognized that Daniel had not sought any relief beyond being recognized as owner of the Zahler Property and the Zahler House as the result of the execution of the impugned Deed of Sale. [ 50 ] First is his submission relating to a contract do ut facias between him and Harry Miller in 1966.

He contends that his father transferred the Zahler Property to him conditional on his building a house on it to remain in proximity to his parents and Patricia. It suffices to dispose of this contention to observe that the trial judge concluded as a fact that there was no evidence that Harry Miller derived any benefit from having Daniel build a house on the Zahler Property, which is an essential factor of such a contract.

In fact, she concluded that the evidence showed that Harry Miller paid for having the land filled in, excavated and for landscaping. [ 51 ] This submission was somewhat of an afterthought when it is remembered that Daniel's contention that Harry Miller had gifted the property to him appeared doomed to fail, as indeed it did. [ 52 ] Next is his argument regarding acquisitive prescription. I reiterate that Daniel never made a formal application to be declared owner of the Zahler Property or the Zahler House in the proceedings before the trial judge.

His proceedings in the Superior Court are entirely deficient to bring about such a result. They contain nothing that could have given rise to such a declaration and an order to the

Registrar of the Land Titles Office to register a favourable judgment as his title. [ 53 ] In any event, the trial judge was right to conclude that Daniel's possession of the Zahler Property cannot be considered unequivocal, which is an essential element to obtain a declaration of ownership based on acquisitive prescription. As the trial judge observed, he is an Executor and Trustee under the terms of the Will by which the Estate of Harry Miller owns the Zahler Property. Moreover, Harry Miller never changed his will after he supposedly gifted the Zahler Property to his son, which begs the question, for which Daniel has no persuasive answer, why he would not have deleted

Article Seventeenth from his Will. [ 54 ] Moreover, the Estate paid municipal and school taxes on the Zahler Property, which at that time included the Zahler House, between 1996 and 2000, as well as in 2002, and school taxes in 1998, 2000 and 2002.

The very fact that Daniel judged it necessary to have a notarial deed executed to transfer the Zahler Property and the Zahler House to him from the Estate is itself evidence of the precarious nature of his supposed ownership by some other means. [ 55 ] That very deed also contains declarations that the trial judge found to be false; in particular, that Harry Miller gifted the property to him de facto in 1966.

The declared obligation of the purchaser in the deed, "to continue to pay all property taxes due and to become due, as he personally did since 1966 ", is also demonstrably untrue. [ 56 ] The third ground of appeal relates to Daniel's acquisition by virtue of the Deed of Sale pursuant to

Article Seventeenth of the Will that the trial judge ordered to be cancelled. [ 57 ] As I have mentioned, the trial judge essentially read out

Article Seventeenth of Harry Miller's Will despite its lack of ambiguity when it was drafted in 1962, or at the time of Harry Miller's death in 1966. She did so on the basis that its application over 39 years later in 2005 was inconsistent with Harry Miller's true intentions, as reflected in other provisions of the Will that she referenced, that Patricia and Daniel be treated equally. [ 58 ] I would first observe that

Article Seventeenth, as drafted, did give Patricia and Daniel the equal opportunity to purchase the Zahler Property, on exactly the same basis. To that extent, its provisions were entirely consistent with the principle of equal treatment of the two siblings that is reflected in other provisions of the Will. Indeed, Patricia purported to put herself in essentially the same kind of supposedly unequal position as Daniel by her exercise, albeit ineffective, of the rights under

Article Seventeenth of the Will. [ 59 ] Second, I agree with Daniel's submission that the trial judge erred in law when she held that both siblings had renounced to the exercise of

Article Seventeenth by non-usage. It is of course true that a legatee can renounce to a legacy pursuant to

article 646 C.C.Q ., but such a renunciation must be express, and unlike the acceptance of a legacy under

article 637 C.C.Q ., cannot be tacit. [ 60 ] There was no evidence on which the trial judge could rely to hold that Patricia and Daniel had expressly renounced to the exercise of the rights contemplated in

Article Seventeenth. In any event, its provisions are not properly speaking a legacy to Patricia or Daniel. Rather,

Article Seventeenth is a provision that places the Zahler Property in the hands of the Estate, in trust, and contemplates either Patricia or Daniel becoming owner upon the accomplishment of two conditions: the payment of the stipulated purchase price and the concurrence of two of the Executors and Trustees. As such, it does not bequeath the Zahler Property to either of them [ 61 ] Third, I would note that neither party contended in their proceedings in the Superior Court that

Article Seventeenth was unclear and required

interpretation. Indeed, they would have been hard pressed to advance such an argument since they both sought, in their own way, to invoke it. It is not disputed that when interpreting a will, the testator's intentions must be examined at the time of the execution of the will. [4] [ 62 ] Fourth, neither party took advantage of the options open to them pursuant to

article 1294 C.C.Q ., which provides as follows: 1294. Lorsqu'une fiducie a cessé de répondre à la volonté première du constituant, notamment par suite de circonstances inconnues de lui ou imprévisibles qui rendent impossible ou trop onéreuse la poursuite du but de la fiducie, le tribunal peut, à la demande d'un intéressé, mettre fin à la fiducie; il peut aussi, dans le cas d'une fiducie d'utilité sociale, lui substituer un but qui se rapproche le plus possible du but original.

Si la fiducie répond toujours à la volonté du constituant, mais que de nouvelles mesures permettraient de mieux respecter sa volonté ou favoriseraient l'accomplissement de la fiducie, le tribunal peut modifier les dispositions de l'acte constitutif. 1294.

Where a trust has ceased to meet the first intent of the settlor, particularly as a result of circumstances unknown to him or unforeseeable and which make the pursuit of the purpose of the trust impossible or too onerous, the court may, on the application of an interested person, terminate the trust; the court may also, in the case of a social trust, substitute another closely related purpose for the original purpose of the trust.

Where the trust continues to meet the intent of the settlor but new measures would allow a more faithful compliance with his intent or favour the fulfilment of the trust, the court may amend the provisions of the constituting act. [ 63 ] They not having done so, and the terms of

Article Seventeenth being unambiguous, it was not open to the trial judge to effectively nullify it. [ 64 ] Finally in this respect, the trial judge sought to avoid inequality between Daniel and Patricia by holding that the significantly

enhanced value of the Zahler Property and the Zahler House today, as opposed to the $5,000 purchase price contemplated in

Article Seventeenth of Harry Miller's Will, made its application in 2005 inconsistent with the testator's intention. That inequality, however, would exist today in exactly the same manner, whenever either Daniel or Patricia might have exercised the option

Article Seventeenth contains, whether in 1966 or at any time thereafter. It is not when

Article Seventeenth was acted upon that creates a disparity. Rather, it is the passage of time, whenever it may have been acted upon after Harry Miller's death , that creates the disparity. That is not something that can give rise to the necessity to interpret the Will under the guise of

Article Seventeenth being ambiguous. A provision that was unambiguous in 1966 did not become ambiguous in 2005 because of the date when the option was purportedly exercised. [ 65 ] The involvement of Daniel's son Scott in acting on behalf of the Estate with his father in transferring the Zahler Property and the Zahler House to him is really where the crux of the problem lies. Based on the evidence she heard, the trial judge can hardly be said to have committed a reversible error in concluding that Scott was in a position of conflict as between his father and his aunt.

It is easy to see where his loyalties lay in determining whether he should sign the Deed of Sale as an Executor and Trustee of his grandfather's estate. [ 66 ] The existence of that conflict is borne out by Scott's apparent reliance on what he was told by his father, as reflected in affirmations in the Deed of Sale that are contrary to the evidence the trial judge heard. [ 67 ] The Deed of Sale contains a factual assertion that the trial judge found to have been unproven to the effect that Harry Miller had de facto gifted the Zahler Property to Daniel during his lifetime.

Since that is a declaration Scott makes along with his father in the Deed of Sale, one can only assume that Scott relied on what he was told by Daniel. After all, Scott would not have been of an age, if he was born at all, to have known personally when this de facto gift would have supposedly been made prior to Harry Miller's death in 1966. [ 68 ] Furthermore, the Deed of Sale contains a further inaccuracy when Daniel declares as part of his obligations as purchaser to continue to pay all property taxes due and to become due, as he had done since 1966.

Here again, the evidence was otherwise, as the Estate was shown to have paid municipal and school property taxes during certain of the years after 1966. Scott would therefore again have had to rely on what his father told him, which a reasonable inquiry would have shown to be inaccurate. [ 69 ] I appreciate that Scott replaced Miriam as an Executor and Trustee in 1998 with the approval of Patricia. That did not relieve him, however, from his legal obligation of neutrality between Patricia and Daniel in the circumstances presented when they each sought to invoke

Article Seventeenth. [5] [ 70 ] Whether or not Scott's decision to acquiesce to his father's desire to become owner of the Zahler Property and the Zahler House was a reasonable one is beside the point. It is not the reasonableness of the decision that determines whether a conflict exists, but the circumstances that require the decision to be made in the first place. Those circumstances are such that Scott, even in the best of good faith, could not act with the required impartiality and independence from his father. After all, he grew up and lived in the Zahler House with his parents.

I would have undoubtedly reached the same conclusion if one of Patricia's children had been named to replace Miriam as an Executor and Trustee, and that child had favoured the interest of Patricia over Daniel insofar as the application of

Article Seventeenth is concerned. [ 71 ] I do not mean to suggest that Scott is always in a conflict of interest with respect to the administration of the Estate of his grandfather.

The conflict arises, however, when he has to choose, as he was called upon to do so here, between his father and his aunt. [ 72 ] Since there are other proceedings between the parties that are pending in the Superior Court that remain to be adjudicated that will necessarily consider the ownership of the Zahler Property, I need not go into detail as to what the parties should have done had Scott declined to be the deciding vote as between his father and his sister.

That being said, they could have specifically addressed the matter to the Superior Court for directions given Scott's conflict. [ 73 ] The question also arises whether Daniel was in a conflict when he acted as an Executor and Trustee, together with Scott, to transfer the Zahler Property and the Zahler House to him. This is a more delicate issue in that

Article Seventeenth provided that the transfer could be effected on the terms and conditions there provided with the approval of two of the three Executors and Trustees, one of whom was Daniel. Harry Miller may have intended that the approval include that given by the independent Executor and Trustee, his accountant, but the Will does not so provide. In any event, that individual renounced his charge and was replaced by Patricia in 1967, and the Will made no stipulation that the Third Executor and Trustee had to be someone who was not a member of the Miller family. Patricia was thus in the same position as Daniel insofar as the application of

Article Seventeenth is concerned. This means that if the third Executor and Trustee had been so inclined, Patricia could have effected the sale of the Zahler Property and the Zahler House to her for the stipulated price of $5,000. [ 74 ] Given the text of

Article Seventeenth and the equivalent position of Patricia and Daniel under its terms, I cannot see how either of them would have been in a conflict with respect to the other by acting together with the third Executor and Trustee, provided the latter was not in a conflict, to sell the Zahler Property and the Zahler House to whichever one of them so applied. [ 75 ] Daniel also contends that the trial judge took account of irrelevant factors in her determination of the outcome.

Given the conclusion at which I have arrived concerning Scott's conflict, it is unnecessary to consider this submission. [ 76 ] Finally, Daniel seeks, as an alternative submission, a declaration that in addition to his being the owner of the Zahler House at 285 [Street A] on the Zahler Property, that he also be declared owner of its various appurtenances and dependencies, as more fully described in the conclusions of his factum. [ 77 ] Despite the fact that Patricia did not constitute herself an incidental appellant for the purpose of striking the conclusion in the judgment of the Superior Court declaring Daniel to be the owner of the Zahler House, in my view the decision of the trial judge to do so was ultra petita .

Apart from seeking the dismissal of Patricia's action and her removal as a Co-executor and Trustee of the Estate of Harry Miller, the only other conclusion of the defence to the action was to declare, to the extent necessary, Daniel's title to the Zahler Property and the Zahler House, as established by the Deed of Sale, to be ratified and confirmed, notwithstanding Patricia's failure to sign it.

[ 78 ] Undoubtedly, the trial judge sought to display an even-handed approach to the parties, however, the declaration she issued cannot be considered to have been a lesser and included one in the conclusions of Patricia's action or Daniel's defence. The issue before the Court related to the validity of the Deed of Sale despite the fact that Patricia did not sign it, without reference to any distinction between the ownership of the land and the house, and without reference to any other means of acquisition apart from the Deed of Sale.

Accordingly, the trial judge could no more declare Daniel the owner of the Zahler House than she could declare Patricia the owner of the Country House. The fact that there may have been evidence on the subject adduced at trial did not entitle the trial judge to adopt such a conclusion in her judgment in the absence of properly framed proceedings. [ 79 ] Although I consider this conclusion in the judgment to be ultra petita , it cannot be struck it in the absence of an incidental- appeal and a formal request to that effect from Patricia.

The declaration in the judgment that Daniel is the owner of the Zahler House therefore stands. [ 80 ] That being said, l would decline to embellish the ultra petita nature of the conclusion by adding to it in the manner Daniel proposes. [ 81 ] In any event, the issue of the extent of the appurtenances and dependencies of the Zahler House was not addressed at trial, which emphasizes the impossibility for the Court to accede to Daniel's request, even if the conclusion in the judgment had not been ultra petita .

Moreover, as the Court has consistently emphasized, it will not hear an argument raised for the first time in appeal where there is an evidentiary vacuum. [6] VI CONCLUSION [ 82 ] To summarize,

Article Seventeenth is clear and did not require

interpretation because of the passage of time. Neither party considered it ambiguous since they both purported to invoke it, and neither party tacitly renounced to invoke it by non-usage for 39 years, even if such renunciation was possible, which it is not. Nevertheless, the trial judge correctly held as a fact that Scott, as the son of Daniel, was in a position of conflict, which means he should have declined to act, leaving it to the parties to find some other solution, judicial or otherwise.

Although the trial judge's conclusion holding that Daniel was the owner of the house on the Zahler Property was ultra petita , the Court cannot strike it in the absence of an incidental appeal by Patricia, which means that the declaration to that effect remains in force. It follows that the Court should not give effect to Daniel's subsidiary conclusion to have him declared owner of the various dependencies and appurtenances of the Zahler House. [ 83 ] I would therefore dismiss the appeal with costs. ALLAN R. HILTON, J.A.