In determining how she should dispose of her estate, the testatrix decided to make the distribution as set out in the will, and the question is, in the words of Mr. Justice Duff (as he then was) in Walker v. McDermott [1930 CanLII 1 (SCC), [1931] S.C.R. 94, [1931] 1 D.L.R. 662 [B.C.]], whether or not she was acting as a judicious parent of the family seeking to discharge both her marital and parental duty, in this case parental duty. When all of the evidence is considered, I do not feel that the court in exercising its discretion should disturb the disposition made by the mother in this case. When all of the circumstances are considered, I think she did what was fair. She was entitled, in my view, to look at the situation of each child and look at the rights of each child. One of the rights of the child, of the dependent child, is to receive care from the state, and I think that it is well that we recognize in this day and age that to be some type of right and not a form of benign charity, but rather a fundamental right that all citizens have in this country that we will not have to suffer alone the consequences of severe disaster, at least when it comes to medical and physical care of people who are rendered truly dependent. That is a right to which all citizens are entitled.
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