Supreme Court of Canada
Mayhew v. Stone, (1896) 26 S.C.R. 58
Date: 1896-02-18
Edward Mayhew, Administrator De Bonis Non of Zachariah Mayhew, Deceased (Plaintiff) Appellant;
and
Mary Jane Stone (Defendant) Respondent.
1895: October 25; 1896: February 18.
Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL IN EQUITY OF PRINCE EDWARD ISLAND.
Administrator—Payment of claim against estate—Death of administrator—Administration de bonis non—Unadministered asset.
APPEAL from a decision of the Court of Appeal in Equity of Prince Edward Island reversing the judgment of the Master of the Rolls in favour of the plaintiff.
The Chief Justice of the court below stated the facts as follows in his judgment:
This is an appeal from a judgment of the Master of the Rolls, decreeing the respondent a trustee for the appellant, as administrator de bonis non, of the sum of $1,000 received by her from the administratrix of the estate of Zachariah Mayhew, deceased, and also directing the transfer on request by the respondent to the
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appellant of the sum named. Previous to the hearing of the case on the merits the Master of the Rolls granted an injunction restraining the respondent from withdrawing from the Dominion Savings Bank in Charlottetown the sum mentioned, which injunction is still in force.
It appears by the evidence given at the trial that Zachariah Mayhew was twice married. His first wife died many years ago, leaving nine children. In 1861 he married Sarah Stone, a widow, having four children, of whom the defendant is the youngest. Mayhew was a farmer in easy circumstances. He settled his sons comfortably on farms near him, and made ample provision for his daughters, who were all well married. The daughter who married most recently received from him in cash a portion equal to about $800. The children of his second wife resided with him, and his two stepsons were provided for in the same manner as his own children. One of his step-daughters married, and the defendant was the only one of the two families who remained with him. She was about 13 years old at the time of her mother's marriage. She resided with Mayhew for 32 years, working and attending continuously to his business and for many years to the management of his farm which, until a year or two before his death, in March, 1893, was a somewhat large one.
In March, 1893, shortly after Mayhew's death, his wife administered to his estate, sold the movable property, and advertised for claims against the deceased. The defendant made a claim, and she and the administratrix went to Mr. Haszard, the latter's solicitor. The administratrix explained to Mr. Haszard that the defendant had a claim against her deceased husband's estate, and asked his advice regarding it. The solicitor advised her to pay it which she did about a month before
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she died. The plaintiff, who was appointed administrator de bonis non after her death, filed a bill to have defendant declared a trustee for the estate of the money so paid her and the master of the rolls gave judgment in his favour which was reversed by the Court of Appeal. The defendant also gave evidence at the trial of an agreement by Mayhew to provide at his death for payment to her of her service on the farm.
Stewart Q.C. for the appellant. The defendant has not proved any agreement to pay for her services her evidence on that head being uncorroborated. The case is, therefore, distinguishable from McGugan v. Smith ([1]), and Murdoch v. West ([2]).
That being so the money was improperly paid to her and can be recovered back. Fields v. White ([3]); In re Hulkes ([4]).
Davies Q.C. for the respondent. This case cannot be distinguished from McGugan v. Smith (1), and Murdoch v. West (2). The evidence brings it also within the decision in Walker v. Boughner ([5]).
In the absence of fraud or collusion the money cannot be recovered back.
TASCHEREAU J.—In this case we have unanimously come to the conclusion that the appeal should be dismissed. In fact, I would myself have done so at the hearing without calling on the respondent. My brother Gwynne will state the grounds upon which we have reached the determination of the appeal. To these reasons, as far as they relate to the law and facts of the case, I have nothing to add. But there is a feature of the appeal book which, as presiding over the court when the case was heard, I cannot allow to pass un-
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noticed. It appears that, after the judgments had been delivered in the Court of Appeal in equity, and after notice of this appeal had been given and security thereupon had been allowed, the Chief Justice, who had given the judgment of the court, filed at the prothono-tary's office a document styled "memorandum to be annexed to my judgment in this case, and to be considered in connection therewith." That document is nothing else but an answer to the judgment delivered in open court by the Master of the Rolls who had given a dissenting opinion. To this "memorandum" is attached an opinion of the Vice-Chancellor in the same sense, that is to say in answer also to the Master of the Rolls, though he, the Vice-Chancellor, had in court simply concurred with the Chief Justice without any remarks. Now, that these documents should not have formed part of this appeal book is self-evident. The Master of the Rolls however, who settled the case, not only allowed them to go in, though objected to, but further added to these glaring irregularities by himself putting upon the appeal book as part of the case a document in the shape of a replication to his colleagues' answers to his opinion. So that we have the opinion, the answer to it, and the replication. With all due respect for the learned judges, this last document, as the other ones it purports to answer, cannot be considered by this court as forming part of the case.
It is unnecessary here for me to say more than to quote the following two cases :—In Brown v. Gugy ([6]), two of the judges in the court below who had dissented from the judgment of the court, without expressing their reasons in court, had prepared written opinions after the appeal to the Privy Council had interposed. Upon an objection taken by one of the parties that these opinions should not have formed part of the printed.
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record upon the appeal to the Privy Council, their Lordships said:
We must say with all respect for those learned persons that the course so pursued by them appears to us open to great objection. We think that their reasons for dissenting from their colleagues should have been stated publicly at the hearing below, and should not have been reserved to influence the decision in the Court of Appeal.
In Richer v. Voyer ([7]), it appeared that one of the judges of the court appealed from had communicated to one of the parties notes purporting to be his reasons for his judgment, though the certificate of the court stated that he had merely expressed his concurrence in the judgment. Their Lordships refused to look at those notes. The following passage in Broom's Constitutional Law ([8]), which commends itself to my opinion, has, here, its application:
A public statement of the reasons fur a judgment is due to the suitors and to the community at large, is essential to the establishment of fixed intelligible rules, and for the development of law as a science. The expressed reason of a judgment is so important an ingredient in it that the practice seems reprehensible of altering the reasoning publicly avowed as the basis of a judgment, and handing privately to the reporter other reasonings in support of it which had not been specified in open court. A judgment once delivered becomes the property of the profession and the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.
In this court we do not as a rule read our judgments, for the reason that the large majority of the members of the profession interested in the cases are unavoidably absent when we render them. We did read them for a few years, but eventually found that it was mere waste of time. The publicity required of our opinions is, however, secured by the delivery thereof to the reporters, so that the parties, or any one desirous to do so, may obtain a copy thereof immediately after the judgment is rendered.
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Gwynne J.—This action has been treated in the courts below and argued here as if it had been an action instituted by the respondent against the estate of Mayhew, deceased, to recover a sum of money claimed by the respondent to be due to her for services rendered to Mayhew in his lifetime. We do not think that is the light in which the case should be viewed, whatever might be the proper conclusion to be arrived at in such an action.
The respondent appears to have made a claim against the estate of Mayhew, deceased, for services which, whether or not an action would in law lie to recover compensation therefor, were undoubtedly rendered by her to Mayhew in his lifetime.
It is unnecessary to state the circumstances under which the services for which the claim was made were rendered. It is sufficient to say that the claim was made in the bonâ fide belief that it was a just and legal claim. As to the moral justice of it there cannot be, and never has been, any doubt, and as to the legality of it all that need be said upon that point is, that in view of the great difference of judicial opinion existing upon it in the courts below the respondent's belief in the legality of her claim, as well as in its moral justice, may be excused.
The administratrix of Mayhew's estate consulted able counsel upon the propriety of her paying the claim. Counsel, upon a statement of the facts made to him by the respondent and by the administratrix, who was well acquainted with all the facts of the case, and by a Mr. Ball, since deceased, who also professed to be well acquainted with all the particulars of the case and with the intention of the deceased Mayhew in respect thereof, advised the administratrix that the claim was a just one and proper to be paid, and upon his advice $1,000 was paid by the administratrix and
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accepted by the respondent in satisfaction of the claim, which was for a sum of money somewhat in excess of that amount. The administratrix of the Mayhew estate having since died letters of administration de bonis non of the estate of Mayhew, deceased, have been granted to the plaintiff by whom the present action is brought, and the sole question involved in the case is whether or not a sum of money so paid by the original administratrix to a person presenting a claim against the estate of which she was administratrix, can be regarded as an asset of the estate of Mayhew, deceased, not administered by the original administratrix, which has passed to the administrator de bonis non, and whether it can be recovered back by him as such administrator, and we are of opinion that it cannot. It is plain, we think, that the original administratrix upon payment of such a claim upon legal advice, could not afterwards, upon further advice taken, have recovered back money so paid upon the suggestion that the payment had been made under a mistake of law, and if she could not have recovered the money back the administrator de bonis non surely could not. In fine, we do not think that money so paid, however mistaken in law the payment may have been, as to which however we express no opinion, is an unad-ministered asset of the estate of Mayhew deceased, so as to vest in the plaintiff, as administrator de bonis non, a right of action to recover the money.
For this reason we are of opinion that the appeal must be dismissed with costs.
Sedgewick, King and Girouard JJ. concurred.
Appeal dismissed with costs.
Solicitor for the appellant: William S. Stewart.
Solicitor for the respondent: Francis L. Haszard.
[6] 2 Moo. P.C. (N.S.) 341.
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