3ME LIVRAISON.

10. HON. J. H. GRAY: Assimilation of the Statutory Laws

of Ontario, Nova Scotia, and New Brunswick

PAGE

249

20. D. GIROUARD: Le Droit Constitutionnel du Canada. 263

30. C. ROSELIUS: Introductory Lecture to the Study of

40. HON. J. H. GRAY: The Riel-Scott Affair

50. D. GIROUARD: The Treaty of Washington

302

60. H. H. MOSES: Writ of Prohibition

360

70. P. E. NORMANDEAU: Re-registration of Real Rights

368

80. LA RÉDACTION: La Jurisprudence Comparée de la

Cour d'Appel

377

4ME LIVRAISON.

10. HON. ISAAC F. REDFIELD: The History and Success

of Law Reform through the Agency of Legislation

40. HON. S. H. GRAY: Wills and Intestacy

417

50. D. GIROUAND: Constitutional Law-Church and State 431

60. HON. J. H. GRAY: The Election Laws

457

REVUE CRITIQUE

DE

Legislation et de Jurisprudence.

THE "FRASER INSTITUTE" CASE.

The importance of this case induces the Editors of La Revue Critique to publish the arguments of Counsel before the Court of Appeals, September term.

An action was brought by John Fraser and others, Appellants, as heirs-at-law and representatives of the late Hugh Fraser, their brother and uncle, demanding the nullity of a certain devise and bequest contained in his last will and testament, executed before J. C. Griffin and colleague, notaries, at Montreal, on the 23rd April, 1870.

The declaration set forth that by this will the said Hugh Fraser, after several bequests therein enumerated, did appoint the Honorable John J. C. Abbott and John Cowan, two of the Respondents, his executors for the purpose of carrying out the provisions of his will, and did divest himself in their hands of his moveable estate and effects to the end that they might pay the legacies, and immediately after to transfer the balance of the moveable property to a certain fund vested by the will in the fiduciary legatees and trustees in the terms following, to wit:

"

17th. "I nominate and appoint the said Honorable John J. "C. Abbott and John Cowan my executors for the purpose of carrying out the provisions of this my will, and I divest myself "in their hands of my moveable estate and effects to the end "that they may pay the foregoing legacies, raising the necessary "funds therefor in the most convenient manner without any unnecessary sacrifice, and immediately thereafter to transfer VOL. II.

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No. 3.

66 over the balance of my moveable estate to the fund which, by "the provisions of this my will, is vested in my trustees and "fiduciary legatees hereinafter named.

18th. "I give, devise and bequeath the whole of the rest and "residue of my estate real and personal, moveable and immove"able of every nature and kind whatsoever, to the said Honor"able John J. C. Abbott and to the said Honorable Frederick "Torrance, hereby creating them my universal fiduciary legatees, "and it is my will and desire that they do hold the same in "trust for the following intents and purposes, namely, to estab"lish at Montreal in Canada, an institution to be called the ""Fraser Institute," to be composed of a free Public Library, "Museum and Gallery, to be opened to all honest and respect"able persons whomsoever, of every rank in life without distinction, without fee or reward of any kind, but subject to such "wholesome rules and regulations as may be made by the governing body thereof from time to time for the preservation of "the books and other matters, &c., and for that purpose to pro"cure such charter or act of incorporation as my said Trustees "may deem appropriate to the purpose intended by me, namely "to the diffusion of useful knowledge by affording free access to "all desiring it to books, to scientific objects and subjects, and "to works of art; and to the procuring such books, subjects "and objects as far as the revenue of my estate will serve after "acquiring the requisite property and erecting appropriate build"ings and after paying expenses of management, making always "the acquisition and maintenance of the Library the leading object to be kept in view. And it is my desire that three persons should be named by my said Trustees to compose with "them the first board of governors of the "Fraser Institute," "which, it is my desire, shall always be composed of five persons

66

professing some form of the Protestant faith, with power to "them to supply any vacancy caused by death or resignation, or "by any crime or offence, the conviction whereof shall vacate "the tenure of office of the offender. And it is further my will "and desire that my friend the Honorable John J. C. Abbott "shall be the first President of the "Fraser Institute," and shall "retain that position during his life; and so soon as the requi"site charter shall have been obtained containing all the powers necessary to carry out my design herein contained, I desire "that the residue of my estate and effects, after deduction of the

66 expenses of the management thereof, shall be forthwith con"veyed over to the corporation to be thereby formed, to be called "the "Fraser Institute" for the purposes herein declared.

"In order to prevent any difficulty arising in the conduct of "the business of the trust hereby created, it is my will and "desire that Mr. Abbott, as the senior Trustee, shall have a "second or decisive voice in the event of any difference of opinion "between him and his co-trustee, and in the event of a vacancy

occurring in the said trust from any cause whatever whereby "the number of Trustees is reduced from time to time to one, "it shall be the duty of the other, and he is hereby authorized "to name a Trustee to fill the vacancy so occurring by a notarial "instrument to that effect, and thereafter the senior Trustee shall always have a second or decisive casting vote in any case of "difference of opinion.

"And I hereby confer upon my executors herein before named, "full power to settle and adjust all matters connected with my "moveable property, and upon my Trustees hereinbefore named, power to sell and realize such of my estate and effects as they "shall deem expedient to acquire property wherein to construct "suitable buildings, and to construct such buildings, and to "proceed in all respects with all diligence in the carrying out of "my desires herein before expressed up to such time as the pro"perty and estate hereby devised to them shall be conveyed over "to the "Fraser Institute."

"I desire that the term of office of my executors be continued 'beyond the term limited by law, and until the duties hereby "imposed upon them in the payment of special legacies be "completed, and it is my will that my executors and Trustees "shall be responsible each for his own default only; and lastly I hereby revoke and make void all former wills and codicils by "me heretofore made and I do declare this to be my last will "and testament.'

The declaration, after alleging the death without issue of the said Hugh Fraser, the births of the Plaintiffs, their relationship to the deceased, the possession of the estate by the Respondents, stated that the dispositions of the will above set forth were null and void, they being illegal and made in contravention of the formal disposition of the law, the sole intent and object of such bequest and devise being the establishment of a corporation or the creation of a body to which and in the interest whereof the

residue of the personal estate and the whole of the real estate of the said Hugh Fraser is given without any previous authority, enactment, statute or Letters Patent in due course of law first had and obtained to allow the same; that such bequest and devise is made to the Trustees and fiduciary legatees with the duty, obligation and for the sole purpose of transmitting the whole of the said estate, after deducting certain special legacies, to create and establish a lay corporation to be called the "Fraser Institute," to which the whole residue of the estate, moveable and immoveable, is intended to revert and for such object is by the will devised to the said Honorable John J. C. Abbott, and the Honorable Frederick Torrance, in their pretended capacity of Trustees or fiduciary legatees, which is null and void and in direct violation of law; That this disposition is moreover null and void, inasmuch as the same is made to a supposed future and anticipated corporation to be created after the death of the testator and which had no legal existence at the date of the will or at the time of the death of the testator, and consequently without any legal capacity to take or receive any such bequest or devise or any portion of

the estate.

The Appellants, by the conclusion of their action, demanded that the part of the will in question by which the testator ordered his executors to transfer the balance of his moveable estate, after payment of the legacies, to the fund vested by the provisions of the will in the Trustees and fiduciary legatees, and also the devise and bequest of the rest and residue of his estate real and personal, moveable and immoveable, to the said Honorable John J. C. Abbott and Frederick Torrance, to establish at Montreal the said "Fraser Institute," be declared illegal, null and void and set aside. And further, that the said Appellants be declared alone entitled to the residue of the said estate, and Respondents ordered to surrender the same to them and account for the rents and profits thereof, &c.

The Defendants pleaded to the action, and fyled, 1st, a de murrer, by which they pretended that it did not appear by the action that the testator had not the power to bequeath or that the Defendants had not power to take the property disposed of by the said will, or that Defendants had not or have not now power to hold. 2nd. A plea by which it was alleged that the property real and personal claimed by the Plaintiffs had been validly bequeathed to the Defendants, and more particularly to