In what circumstances will a testator's executors be entitled to a portion of income which had not been used for maintenance and education of the legatee?
Ontario, Canada
The following excerpt is from Hammond (Re), 1934 CanLII 23 (ON CA):
It was argued that this is in conflict with Barber v. Barber (1838), 3 My. & Cr. 688. I do not so read the decision. There there was a gift or a series of gifts and there was a direction that the income should be applied for the maintenance and education of the legatee until he should attain a certain age. Up to that time the gift of the principal was contingent, the beneficiary died under age and upon the construction of the will it was held that the infant’s executors were entitled to the entire income which had not been expended for maintenance or education. On the wording of the will the testator could not have considered the interests upon the income to have been made contingent as the principal of the legacy was.
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