Supreme Court
of Canada
Connell v. Connell
(1906), 37 S.C.R. 404
Date: 1906-04-14
Richard Connell and
Others (Defendants) Appellants;
and
William Connell and
Martin Connell (Plaintiffs) Respondents.
1906: April 2, 3, 14.
Present: Sedgewick, Girouard, Davies,
and Idington JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Will—Promoter—Evidence—Subsequent conduct of testator—Residuary devise—Trust.
In proceedings
for probate by the executors of a will which was opposed on the ground that it
was prepared by one of the executors who was also a beneficiary there was
evidence, though contradictory, that before the will was executed it was read
over to the testator who seemed to understand its provisions.
Held, Idington J. dissenting, that such
evidence and the facts that the testator lived for several years after it was
executed and on several occasions during that time spoke of having made his
will and never revoked nor altered it, satisfied the onus, if it existed, on
the executor to satisfy the court that the testator knew and approved of its
provisions.
Held, also, that where the testator’s estate was worth some $50,000 and he had no children it
was doubtful if a bequest to the propounder, his brother, of $1,000 was such a
substantial benefit that it would give rise to the onus contended for by those
opposing the will.
APPEAL from a
decision of the Court of Appeal for Ontario reversing the judgment of Mr.
Justice Britton in favour of the defendants.
The proceedings in
this case were instituted in the Surrogate Court for probate of the will of
James Connell by the plaintiffs, his executors, and were resisted by his
brothers and sisters, who claimed that the will
[Page 405]
was prepared by
one of the plaintiffs, who took a benefit under it and that it was not executed
in the manner required by law. The case was removed into the High Court by
order.
The will was
prepared by William Connell, one of the plaintiffs, at the testator’s house where he was confined to his bed and apparently
very ill. William Connell testified that it was signed by the testator in the
presence of the two subscribing witnesses, both of whom, however, swore
positively that it was not. The trial judge believed the latter and held that
the will was not properly executed.
William Connell,
who prepared the will, received a legacy of $1,000 and a large portion of the
estate was left to Martin Connell, the other executor. The evidence was
conflicting as to whether or not the will was read over to the testator before
execution, but the Court of Appeal, which reversed the judgment at the trial as
to the execution, held, also, that the fact of the testator living for sixteen
years longer without revoking or altering it satisfied the onus on William
Connell to establish that he knew and approved of its terms.
Watson K.C. for the
appellants. This case turns almost entirely on the credit to be given to the
respective statements of the witnesses concerning the circumstances attending
the preparation and execution of the will. As to this the ruling of the judge
at the trial should not have been disturbed. Village of Granby v. Ménard; Kirkpatrick v. McNamee;
Royal Electric Co. v. Paquette;
Montgomerie & Co. v. Wallace-James.
[Page 406]
Whiting K.C. and Middleton (French
K.C. with them) for the respondents.
A.A. Fisher
watched the case for the widow.
The judgment of
the court was delivered by
DAVIES J.—I agree with the judgment of the Court of Appeal
delivered by Mr. Justice Maclennan and would dismiss this appeal.
The two points
argued at great length before us were, first, non-compliance in the execution
of the will with the statutory requirements, and, secondly, that the
substantial benefits alleged to be conferred upon William Connell, the
draftsman of the will, raised an onus upon him of satisfying the court that the
testator knew and approved of the contents of the instrument.
We have had
occasion very lately to consider the latter question very fully in the case of
The British & Foreign Bible Society v. Tupper,
and there can be no doubt that the rule as contended for by Mr. Watson as laid
down in Barry v. Butlin;
Fulton v. Andrew;
and Tyrrell v. Painton,
is the correct rule. But I concur with the Court of Appeal in thinking that
such onus, if applicable here, has been satisfied by the evidence given and the
facts that the testator after executing his will recovered his usual health,
lived for sixteen years afterwards, on several occasions spoke of having made
his will and never revoked nor altered it.
I desire also to
say that the benefit which gives rise to the onus embodied in the rule laid
down by
[Page 407]
Baron Parke in
Barry v. Butlin
must be a substantial one and that a small bequest or one made to the draftsman
in common with others of a class to which he belonged and which owing to his
relationship to the testator he might naturally expect would not necessarily
give rise to the onus mentioned in the rule. And so in this case having regard
to the value of the testator’s estate at the time he made the will,
and to the fact that he had no children, I would greatly doubt that the $1,000
bequests to his brother William and to William’s
daughter by themselves would, considering the other bequests, give rise to the
onus contended for.
So far as the
residuary devise is concerned declaring that such residue
should be
placed in the hands of my executors hereinafter named and to be disposed of by
them as they might think proper,
it is, I think,
not an absolute gift to the executors as individuals, but one simply in trust
and must fail because the trust is so indefinite. It does not contain any
express words of gift, but simply a disposing power with directions to the
executors as to such disposition which directions fail because of their
indefiniteness, and for want of adequate expression of the trust intended. Yeap
Cheah Neo v. Ong Cheng Neo.
at pp. 390-2, seems to be conclusive on the point.
Then with respect
to the execution of the will the only point upon which the evidence of the
witnesses to the will and the two Connells, William and Martin, is at variance
is the signing by the testator of the will in the manner they describe in the
actual presence of the witnesses.
Of course such
signing was not absolutely neces-
[Page 408]
sary. A previous
signing with an acknowledgment by the testator in the presence of the two
witnesses would be sufficient. It seems to me that this was probably what took
place, and if so it would go far to reconcile the apparently conflicting
testimony. That the signature is that of the testator there is no question, and
it is equally true that it was there signed when the witnesses signed their
names. It may have been so signed by the testator in the manner William and
Martin describe, but just before the witnesses entered the room, a theory quite
consistent with every word Mr. McFadden, the witness, swore to and which would
reconcile the conflicting evidence.
The crucial point
would be then: Was James, the testator, fully conscious of what was being done
at the time the attestation clause was read to the witnesses and when they
signed and was this done at his request?
Looking at all the
evidence I have no difficulty in agreeing that he was so conscious and that
there was a legal acknowledgment by the testator in the presence of both
witnesses of the signing of the will by him.
IDINGTON J. (dissenting)—The late James Connell died on or about the 30th day of
May, 1903.
On the 9th day of
January, 1887, he signed a document now propounded as his last will. The
learned trial judge held that this was not executed in presence of two
witnesses as required by law and therefore void. He also held that by reason of
the executor, William Connell, who drew the will, being a beneficiary, and the
other circumstances attendant upon the execution being such as to arouse
suspicion, the executors had failed to satisfy the conscience of the
[Page 409]
court as required
in such cases by the rules laid down in Barry v. Butlin,
and the application of the same principles as lie at the foundation of these
rules as illustrated by the case of Tyrrell v. Painton.
I quoted in the
recent case of British and Foreign Bible Society v. Tupper,
decided in this court last term, the rules in Barry v. Butlin11. In
Tyrrell v. Painton12, at page 157, Lindley L.J. says:
The rule in
Barry v. Butlin;
Fulton v. Andrew;
and Brown v. Fisher,
is not, in my opinion, confined to the single case in which a will is prepared
by or on the instructions of the person taking large benefits under it, but
extends to all cases in which circumstances exist which excite the suspicion of
the court; and whenever such circumstances exist, and whatever their nature may
be, it is for those who propound the will to remove such suspicion and to prove
affirmatively that the testator knew and approved of the contents of the
documents, etc.
The deceased was a farmer who at the
date of the document in question was worth from forty to fifty thousand
dollars. He had six brothers and three sisters; his father, still living, a
very aged man; and his wife, to whom he had been married and with whom he had
lived happily for fifteen years, still living.
His will was not
spoken of by deceased until, when very ill, suffering from pneumonia, the
doctor in attendance advised the summoning of any relatives the now deceased
might desire to see. Three of his brothers, Richard, William and Martin, in
consequence of messages thus received visited the deceased on the evening in
question. The daughter of Richard was also in attendance. The brothers, William
and Martin, who are named as the executors of this alleged will, were with the
deceased in his bed-room from
[Page 410]
some time between
nine and ten o’clock in the evening until two o’clock next morning. Richard had been recommended to
retire to rest about ten o’clock. No one came into the room
during this period except deceased’s wife, on one or more occasions, for
the purpose of attending to her duties as his nurse. She was not told of a will
being made. She was not consulted by either of the brothers. They received
paper, pen and ink from some one in the house between nine and ten, and were
using writing material when she passed into the room. When she entered
conversation ceased. Being an intelligent woman she drew the inference that the
business going on was the making of the will for her husband. Some time after
midnight on one of the occasions of her going into the room the husband asked
her whether she would like money or property, and she replied she would be
satisfied with whatever he determined in that regard. Nothing more was said to
her.
The document now
propounded as the last will was the product of the labour of the four or five
hours thus spent.
The wife was only
given a lot of trifling value in Prescott, the household furniture, the
privilege of keeping a portion of the dwelling house as long as she wished, and
the sum of three hundred dollars annually in lieu of dower, as long as she
remained a widow. The daughter, and I think the only child of William Connell,
a girl about ten years of age, was to receive one thousand dollars; the
daughter of Martin another one thousand dollars; a sister of deceased one
thousand dollars; William himself one thousand dollars; the brother Richard,
who was a labouring man, one hundred dollars a year during the term of his
natural life; and the father was to be taken care of. Subject
[Page 411]
to these charges
all his real estate, except the Prescott lot, was devised together with
chattels and farm implements to his brother Martin. And then, after making
these provisions, the residuary bequest was made as follows:
It is also my
will that the residue of my property, heretofore not disposed of, such as
mortgages, notes, moneys or security for money, after paying my just debts out
of the same, be placed in the hands of my executors hereinafter named, and to
be disposed of by them as they may think fit and proper.
The real estate
then consisted of 400 acres of lands worth, according to William Connell’s very conservative estimate, $20,000. Making allowance
for the narrowness of view such men as the deceased sometimes have upon such a
subject, one cannot reconcile the provision made for the deceased’s wife as in accord with the dictates of ordinary human
feeling. It was not what the deceased a few months afterwards told his wife he
had left her; she tells the story as follows:
What did he
say? A. He said I left you a home here so long as you wish to stay, and all
that was in the house, or all that is in the house, and the best horse and
carriage that is on the place, and if I wished to live there, the best cow—and if I wished to leave there they were to build a good
house for me on a lot that we owned in Prescott, they were to build a good
house for me, and I was to go there, and I was to get my firewood and my
provisions, such as butter, cheese, eggs, just what a farm would produce, pork
and beef and all such things, just what a farm would produce, my provisions,
what I needed off the place, and $300 a year, and he said—I may not have it all—I
wanted to leave you more, but Will. said that was plenty for you, and he says
anyway I did not will my money at all. Then he told me three different parties
that he was going to leave money to, but there is no need of mentioning their
names. He told me three different ones, and he said anyway that will is no
good, and he says now I will destroy that will or have it destroyed—destroy that will—that is what he said at that time, and
I don’t know whether he said at that time
that he never would make a will—whether it was at that time or whether
it was another time. It may have been that time and it may not.
[Page 412]
We are asked by
these brothers Martin and William to believe that the deceased not only was a
meaner man than this statement of his understanding of the supposed will would
lead us to believe him, but they also ask us to suppose that he wilfully mis‑stated
to his wife what the will contained. Is that possible? Is it probable? I
certainly do not think so. It would do more honour to the name of Connell, of
which and the perpetuating of it we have heard so much, to refuse to impute to
the deceased all that we are asked thus to impute.
If he understood,
when he heard the will read, what was read he could not imagine that it
contained all the additional provisions this statement of the wife shews. If he
did not understand the reading of the will then the plaintiffs are not entitled
to have this document established as his will. The very suspicions that the
principles governing such a case require to be removed have not been removed,
and therefore plaintiffs’ case must fail.
Passing from that
to the other provisions of the will, we find no reason for leaving entirely out
of his consideration his other brothers and sisters, save in the case of his
brothers Thomas and John, with whom he, it is said, had had differences, the
effect of which may not possibly have been removed. Can it be said that the
explanations given with regard to the absence from home for such a length of
time and the supposition that the others were amply provided for removed all suspicion
that one may have in regard to their not sharing in his large estate?
Then let us
consider the residuary bequest. We find that the bequest implies a trust.
By reason of the
uncertainty of the trust as expressed it is void. The law implies another trust
and
[Page 413]
that is that the
executors as such receiving property in this manner must hold it for the
benefit of those who under the statute of distributions would be entitled to
share therein.
The executor who
drew the will as a result of this accident or design had thus given to him a
share in the testator’s estate that has in law the effect of
making him in addition to his bequest of one thousand dollars, a very
substantial legatee. The duty is, therefore, still more imperative than the
first bequest would have made it to make clear that the testator understood
what he was doing in this regard.
We find from the
following evidence of Martin Connell that what the deceased desired to have
done was to provide that the residue should be divided amongst the most needy
ones of the family.
Q. Then when
you were examined before you did not recollect anything about leaving it to the
discretion of you and your brother to divide. Your words were “He said for us to divide it amongst the most needy ones
of the family.” A. That is all right.
Q. That is
the only thing you said? A. That is all right.
* * *
Q. You are
asked here as to what had occurred and you say the way you understood it, he
said for us to divide it amongst the most needy ones of the family, that is the
way I understood it. A. That is the way I understood it at the time after I
asked him the question.
Q. Was that
the way you understood it at the time of your examination? A. Yes.
This statement he
alleges was made whilst William, after receiving instructions, had retired to
an adjoining room, to extend his draft notes and complete the preparation of
the will. Both are agreed that after the document had been finished it was read
over carefully to the deceased. It is quite clear that it did not purport to
carry out any such intention as was thus expressed. Had it been
[Page 414]
expressed in these
very words it mlight or might not have been any more effective in executing the
purpose of the deceased than as it stands.
It might, however,
have been then held as honestly written. That is what concerns us here. So
written and so read it might have been in accord with the testator’s purpose and be held as known and approved by him.
If any intelligent
effort had been made to express the clear purpose of the deceased these
executors (the most prosperous instead of the most needy of the family) would
have been excluded from the possibility of hoping to share in the benefits of
the residuary bequest. Now they stand to secure a share of the residue in
addition to other benefits if this is upheld as the will of deceased.
But did the
testator not tell William as well as Martin of what his purpose was? It took
four or five hours to prepare this short document. What were these three
brothers discussing during that time? We are left to speculate. Martin
persistently says he did not express any opinion upon any subject relative to
dispositions to be made in this proposed will. William, on the other hand, states
that on two or three occasions during the discussion Martin did venture an
opinion, but he fails to enlighten us upon what points such opinions were
expressed.
If Martin were the
almost dumb man that his evidence would lead us, if implicitly believed, to say
he was, during all this time, there would seem to be more need for explanation
of what consumed the time. The deceased was not likely in his then condition to
have taken up much time with the comparatively simple matters involved in the
provisions of this will, except those for the wife and those in the residuary
bequest.
[Page 415]
Only these
exceptions involved the necessity of prolonged discussion.
William Connell
was an experienced draftsman; he was a ready penman; he was an intelligent man
and one of quick apprehension.
The two subject
matters that required a good deal of consideration are those that give rise to
much suspicion. If we are to believe William’s
story, that regarding the provisions for the wife did not give rise to
prolonged, if any, discussion. This residuary bequest involved the disposition
of ten to fifteen thousand dollars worth of personal property, and according to
the wife possibly twenty thousand dollars of personal property. She knew his
affairs. She was an honest witness. She placed his personal estate at from
fifteen to twenty thousand dollars. Making every allowance for possible mistake
or bias on her part, no matter how honest, I think we are quite safe in saying
that the estimate just made of from ten to fifteen thousand dollars would be a
fair one to act upon. Counsel in the argument did not seriously gainsay this
estimate. It seems to me almost incredible that neither in regard to the amount
nor the mode of distributing this amount should there have escaped any remark
or discussion when such ample opportunity existed for mention thereof in
William’s presence. It was almost impossible
he could accept such a trust without asking how the proposed testator might
desire it to be executed.
Can we say that
the evidence given has removed all ground for suspicion that something of the
kind was said or referred to, and that the deceased did not in this regard know
or understand the contents of this document? As if it were not suspicious
enough already upon the bare statement of the purpose and
[Page 416]
effect of the kind
of clause which should have been in the will as contrasted with that which is
there, we find Martin Connell when giving his evidence on the trial attempting
to put a new gloss upon the statement made by the deceased to him in William’s absence.
He says:
Q. Then did
he say that was to be intended for you yourselves? A. Well, while William was
writing the will in the dining-room I asked him when I found out I was to be an
executor—asked, for my own information says I,
after your just debts are paid, what is your wish to be done with the residue
of your property, and he said to give it to the most needy ones of the family,
or do with it as you see fit.
Q. What did
he say again? A. He said to give it to the most needy ones of the family, or do
with it as you see fit, to dispose of it rather, he said, as you see fit.
He repeats twice
over, immediately after the evidence just quoted, the same expression of
dividing money amongst the most needy ones of the family or do with it what you
see fit, and it is only when a little later he is reminded of what he had sworn
to in his examination for discovery that he gives the evidence I have first
quoted. Why did he change the statement? Which is the true version? Can there
be any doubt upon the whole of this evidence that the purpose and intention of
the testator was as Martin Connell first stated it? Can any one believe that he
failed for two hours or more of giving instructions, as William’s evidence suggests, to give utterance to so simple a
thought?
Can we be quite
free from the suspicion that instead of having such a provision appear on the
face of this document, it was excluded, not by the intended testator, but by
the mind and hand of William Connell? Can we doubt that if the will had gone
un-
[Page 417]
challenged William
would have given himself a share and that share not the smallest?
Let us see so far
as his prevaricating evidence will enable us to see what he did think.
Q. Did you
think that was intended for your benefit and his benefit as your own property?
A. No, sir, I did not.
Q. Did you
know that it was not? A. Well, I supposed that if I took a share of it, I did
not think there would be much fault found with me.
Q. Did you
know from what he told you that that was not intended for you yourselves?
A. No, I did not know, because I believed that he intended part of that
for me.
Q. You
believed he intended part of it for you? A. Yes.
Q. How much?
A. A share.
Q. With whom?
A. With the rest, the rest of the family.
Q. Is that
what he told you? A. Yes.
Q. Then, why
didn’t you draw the will that way? A. He
did not tell it that way. I drew it as he told me.
Q. But you
say you knew from what he told you that he intended that to be divided equally
amongst the brothers and sisters? A. He never told me what he intended.
Q. You said
he did? A. No, I did not tell you.
Q. But at all
events you knew at that time that he intended that to be divided equally
amongst the brothers and sisters? A. I intended it at any rate if it came into
my hands.
Q. Did he
intend it? That is another question. I cannot answer you.
Q. Did you
ask him? A. I did not ask him, but I told you.
Q. Did you
have any idea of what he wished about that? A. I had no idea any more than my
own view. I never asked him, but I can tell you who did, if you like me to tell
you.
Q. Who did
ask him? A. My brother, when I was writing that document, he asked him, not in
my presence; I did not know he asked him; you ask him. He will come to the
stand.
HIS LORDSHIP:—You do not know what he asked him? A. Only what he told
me.
Q. You were
outside writing? A. I was outside writing, and my brother, I understood, asked
him this question, but I never asked him.
MR. WATSON:—But you understood that when you went in again? A. No, I
did not understand it at any time; I never understood it.
Q. Not from
your brother? When did your brother tell you? A. Here since this row commenced.
Q. You were
examined about this? A. Yes.
[Page 418]
Q. What did
you say? A. I don’t remember. I said before just about
as I said now, as near as I can remember.
Q. See if
this is true, “He did not, I think, intend the
property in the residuary clause for myself and my brother Martin or either of
us?” A. Not altogether.
Q. Is that
answer true or not? A. It is if it is put in a little fuller.
Q. It is not
true without a qualification? A. It just wants a little qualification.
Q. Then this
answer as it reads here is not correct? A. It is correct so far as it goes.
Q. The one I
read was, “He did not, I think, intend the
property in the residuary clause for myself and my brother Martin, or either of
us?” A. I consider I deserve part of this
as much as any man.
These two brothers
chose to put themselves in the position they are of having no one to
corroborate them.
They have not
given such evidence as to my mind should enable us to say either were so
absolutely honest as to constrain us to accept as undoubted fact all that they
have said. Their evidence is of the most unsatisfactory character. They were
discredited as witnesses by the learned trial judge, and reading the evidence
impresses me with the correctness of his judgment with regard to the
unreliability of them as witnesses.
I am driven to
conclude that the suspicions still exist which the rules and principles I have
adverted to required these executors to remove.
If that memory for
detail, evinced by them in relation to the execution of this document, had been
as serviceable in regard to everything connected with its preparation,
suspicion might have been dispelled. Conviction might have been substituted for
suspicion, but that conviction might still have supported the results the
learned trial judge arrived at.
The Court of
Appeal does not seem to have enter-
[Page 419]
tained the opinion
that if James Connell had died at the time the document in question was
prepared it could have been upheld upon such testimony.
The judgment of
that court seems rather to be that the onus is satisfied by the fact that the testator
soon recovered his usual health and lived for sixteen years afterwards and
allowed his will to stand without taking any steps to alter or revoke it. I am,
with the greatest respect, entirely unable to accept this conclusion. I am
unable after giving the matter the very greatest consideration to comprehend
that mere lapse of time can dispel the suspicions that surround this
transaction. The will, so called, remained with William Connell, and never was
seen nor read nor any of its contents, in relation to its vulnerable points,
mentioned directly or indirectly during all these sixteen years to the
testator.
The Court of
Appeal gives no reason why mere lapse of time should operate as they find.
Counsel for
respondents were unable to give any reason in support of such a view, save
this, that a testator or any one who had been defrauded when once free was
entitled to rescind the bargain induced by fraud or to revoke a will which did
not represent what its maker intended. I know of no law that restrains a man
after the lapse of many years from complaining of a fraud immediately he has
discovered it, if there be a reasonable explanation of why, by concealment or
otherwise, he was prevented from sooner asserting his right. I apply the same
doctrine to this will. The testator assumed, as his wife’s evidence shews, that the provisions for her were
entirely different from what they are. As he put them in telling her, they are
just such provisions as men like him are apt to make. First, they provide a
home; then the
[Page 420]
provisions for
daily food and maintenance, without going into the market to buy it, and then
the annuity to provide for clothing, medical attendance and general expenses.
Assume that
deceased believed what he was saying he had provided, he would with his narrow
views of life and regard for a woman’s position, possibly be content to
leave her in that way. He might not feel urged to reconsider that. Had he been
told, however, that the provision was of the character it really was and stands
in this will it is inconceivable that either he or his wife would have let the
matter rest there. The same is true in regard to the residuary bequest. If the
testator believed, as I have no doubt he believed, that his residuary estate
would go amongst the most needy ones of the family as he expressly desired,
then I might conceive him being satisfied. But had he been told that the
residuary bequest was in an entirely different sense so that William Connell
and Martin Connell would share therein and the brothers with whom the deceased
had differed and who were also wealthy, would share therein equally with the
most needy, he would undoubtedly have taken steps to see the will. All this
assuming that the will had in his mind any existence as a will.
Possibly his
inconsistent statements in that regard related to the failure to name those whom
he thought most needy.
It is unnecessary
in the view I adopt of the case to express any opinion upon the issue regarding
the execution and attestation of this document, but I would in any such case be
disposed to abide by the judgment of the trial judge on such a point.
I think the appeal
should be allowed with costs.
[Page 421]
Appeal
dismissed with costs.
Solicitors for the appellants: Maxwell
& Maxwell.
Solicitor for the respondents: J.T.
French.
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