In Re the Estate of Sara Mecleneghan, Deceased., [1954] CTC 163

JUDSON, J.:—This is an appeal by Clara A. Lee, the residuary beneficiary under the will of Sara McCleneghan, from an assessment under The Succession Duty Act. She was assessed at the rates applicable to strangers under Section 6(3) of the Act. She claims that she should be assessed at the preferred rate under Section 6(1) of the Act because she was the wife of a child of the deceased within the meaning of the definition of ‘‘child’’ in Section 1(d) of the Act. She makes this claim because she says her late husband had either been adopted by the deceased while under the age of twelve years or was one to whom the deceased stood in loco parentis for a period of not less than five years.

It is necessary to review the facts concerning the early life of Arthur Lee, the husband of the appellant, as far as they are known. He was born at Hagersville on June 10, 1887. He was reputed to be an illegitimate son of George Lee, who was a brother of Sara McCleneghan. When he was three or four years old, his mother died. He was then taken to live in the house in which George Lee and Sara McCleneghan lived. This was on a farm in Wainfleet Township which was at that time owned and occupied by John Lee, the father of George and Sara. Sara’s husband, Thomas McCleneghan, was then dead. The household was therefore made up of John Lee, the owner, his two children George and Sara, and the child who had been taken in and who was always known as Arthur Lee. Arthur Lee was brought up in this household. He went to school in the district. He lived there until he was a young man. He was trained as a telegraph operator on the railway. Sara paid for his support when he was away from home taking his training. After he had completed his training, he was self-supporting and lived away from home, wherever his occupation took him. He married the appellant in 1919.

In some respects the evidence lacks precision as to dates, but it seems to me that Arthur Lee was brought up in this household from 1891 until about 1905. Sara was the housekeeper during this period for her father and brother. I am satisfied that during this period she gave Arthur Lee the care and attention that a child usually gets from his mother and that this affectionate relationship continued throughout their lives. Arthur’s origin was well known in the community and he knew that Sara was not his mother.

During the whole of the period when Arthur was a member of the household, John Lee was alive. He died in 1907 and left the farm to his son George. George and Sara continued to live on the farm until it was sold some time before 1919. George died in 1933 and left his estate to Sara. Arthur died in 1950. Sara died in 1952. Her will drawn in 1950 before Arthur’s death left the residue of her estate to Arthur and his wife, the present appellant, or the survivor of them.

The appellant puts her claim on two grounds. The first is that she is a spouse of an adopted child of the deceased and consequently entitled to the benefit of Section 12(4) of The Adoption Act, R.S.O. 1950, c. 7. This section, among other things, gives the spouse of an adopted child the right to pay duty at the rate which would have been payable had the adopted child been a child born to the adopting parent in lawful wedlock.

The obvious and simple answer to this submission is that The Adoption Act has nothing to do with the facts of this case because Arthur Lee was never adopted under its terms.

The second ground for appeal is that Arthur Lee was a child of Sara McCleneghan within the definition contained in Section 1(d) of The Succession Duty Act, R.S.O. 1950, c. 378, that she was the spouse of that child and consequently a daughter-in-law entitled to the preferred rate under Section 6(1). Section 1(d) reads:

“ 1 child’ means lawful child of the deceased, lineal descendant of any such child born in lawful wedlock, person adopted while under the age of 12 years by the deceased, person to whom the deceased during the infancy of such person stood in loco parentis for a period of not less than five years, or lineal descendant of any such adopted child or person ; ’ ’.

What does adoption mean under this definition? Since 1921 I think it has meant adoption under The Adoption Act. What it meant before the enactment of The Adoption Act in 1921 (1921, II Geo. V, c. 55) I do not know and I do not need to decide. I am well aware that the defintion of child as set out above was in The Succession Duty Act long before The Adoption Act of 1921. I know also that adoption had no legal meaning before 1921. There were so-called “Adoption Agreements’’ but they could not affect the legal relationship of parent and child. (Jackson v. Jackson, [1942] 2 D.L.R. 398.)

Did Sara McCleneghan stand in loco parentis to Arthur Lee for a period of five years during his infancy? I have already mentioned that I think that she took the place of his mother. Is this what the expression means? The phrase has had some judicial consideration in connection with the presumption in equity against double portions. One of the situations in which such a presumption arises is where the two provisions are made by a person standing in loco parentis to the donee. The problem in such cases as Powys v. Mansfield, 6 Sim. 528, and Bennett v. Bennett, 10 Ch.D. 474, was essentially the same as the present problem, namely, to determine whether one person stood in loco parentis to another. The whole matter is well summarized by Jessel, M.R., in Bennett v. Bennett at p. 477 where, after reviewing Ex parte Pye, 18 Ves. 140, and Powys v. Mams field, he says:

“So that a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child.”

The difficulty in the present case is that there was a household of three, all in some degree interested in Arthur Lee. I have no doubt on the evidence that it was really Sara MeCleneghan who brought him up and gave him the most care and attention. But one of the members of this household was Arthur Lee’s father. It was stated in In Re Lawes (1881), 20 Ch.D. 81 at p. 86, again in connection with the presumption against double portions, that a father stood in loco parentis with respect to his illegitimate child. Moreover, in Powys v. Mansfield it was held that no one could stand %n loco parentis to a child whose father was living and who resided with and was maintained by the father. It therefore seems to me that in this household it was George Lee, the father, and not Sara McCleneghan, the aunt, who stood in loco parentis to Arthur Lee.

There is another difficulty for the appellant in this case. By Section 6(1) the preferred rate is given to a daughter-in-law of the deceased, among other persons. Even if Arthur Lee were a child within the meaning of the definition section, this would not make his wife a daughter-in-law of Sara McCleneghan. Daughter- in-law surely means the wife of a son, not the wife of a person who may answer to a certain statutory definition.

The appeal is dismissed with costs.

Appeal dismissed