Supreme Court of Canada
MacDonell v. Purcell, 23 S.C.R. 101
Date: 1894-02-20
The Right Reverend
Alexander MacDonell and Others (Defendants) Appellants;
and
Michael Purcell and
Others (Plaintiffs and Defendants) Respondents.
The Right Reverend
James Vincent Cleary and Others (Defendants) Appellants;
and
Michael Purcell and
Others (Plaintiffs and Defendants) Respondents.
1893: October 24, 25, 26, 27, 28, 30, 31;
1894: February 20.
Present: Fournier, Taschereau, Gwynne,
Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Will—Revocation—Revival—Codicil—Intention to
revive—Reference to date—Removal of Executor—Statute of Mortmain—Will executed
under mistake—Ontario Wills Act R.S.O. (1887) c. 109—9 Geo. 2 c. 36 (Imp.)
A will which has been revoked cannot, since
the passing of the Ontario Wills Act (R.S.O. [1887] c. 109) he revived by
a codicil unless the intention to revive it appears on the face of the codicil
either by express words referring to the will as revoked and importing such intention,
or by a disposition of the testator’s property inconsistent with any other
intention, or by other expressions conveying to the mind of the court, with
reasonable certainty, the existence of the intention in question. A reference
in the codicil to a date of the revoked will, and the removal of an executor
named therein and substitution of another in his place, will not revive it.
Held, per King
J. dissenting, that a codicil referring to the revoked will by date and
removing an executor named therein is sufficient indication of an intention to
revive such will more especially when the several instruments are executed
under circumstances showing such intention.
Held, per
Gwynne and Sedgewick JJ., that the Imperial Statute, 9 Geo. 2 c. 36 (the
Mortmain Act) is in force in the province of
[Page 102]
Ontario, the courts of that province having
so held (Doe d. Anderson v. Todd, 2 U.C.Q.B. 82; Corporation of
Whitby v. Liscombe 23 Gr. 1), and the legislature having recognized it as
in force by excluding its operation from acts authorizing corporations to hold
lands.
Held, per
Gwynne J., that a will is not invalid because it was executed in pursuance of a
solicitor’s opinion on a matter of law which proved to be unsound.
APPEAL and cross-appeal from a decision of
the Court of Appeal for Ontario
affirming, but varying, the judgment at the trial which held the will of
Patrick Purcell made in May, 1890, and revoked by another will in January,
1891, to be revived by a subsequent codicil.
In May, 1890, Purcell made a will by which he
devised a large portion of his property to religious corporations to be used
for charitable purposes. Some time afterwards he consulted a solicitor who
advised him that the Imperial statute 9 Geo. 2, ch. 36, the statute of
mortmain, was in force in Ontario and by reason of its provisions these
bequests might fail and a great deal of his property be left undevised. After
receiving this advice Purcell executed a new will disposing of his property in
a different manner and after doing so he took other advice as to the statute of
mortmain being in force and its effect upon the first will, which was expressly
revoked by the later instrument, and in March, 1891, he executed the following
codicil prepared by another solicitor who knew nothing of the will of January,
1891, or the revocation of that of May, 1890.
I will and devise that the following be
taken as a codicil to my will of the 14th day of May, 1890, A.D.:
I hereby revoke the appointment of Jas. A.
Stuart, my late bookkeeper, to be one of the executors of this my will, and in
his place and stead I appoint John Bergin, of the town of Cornwall,
barrister-at-law, with all the powers and duties heretofore conferred upon the
said Jas. A. Stuart, as in my said will declared.
[Page 103]
In witness whereof, I have hereunto set my
hand this 16th day of March, 1891, A.D.
|
P.
PURCELL.
|
|
Signed, sealed and published and
delivered by Patrick Purcell as a codicil to his last will and testament, in
the presence of us who in his presence, at his request, and in the presence
of each other, have hereunto affixed our names as witnesses.
|
|
|
GEORGE
MILDEN,
R.
FLANNIGAN,
|
Not long after executing this codicil Purcell
died and proceedings were taken to have it declared that the will of May, 1890,
was revived by said codicil and was the last will of the testator. The court of
first instance held that it was so revived and should take effect from its
date. On appeal to the Court of Appeal, that court affirmed the decision but
varied it by declaring that the revived will only took effect from the date of
the codicil. From that decision an appeal was taken to this court by the
religious corporations affected by the decision as to the date from which the
revived will would operate, such date being less than six months before the
testator’s death which would cause the devises to lapse under the Mortmain Act.
The next of kin took a cross appeal from that part of the decision which held
the will of May, 1890, revived.
The facts of the case are set out more fully in
the judgments of Mr. Justice Gwynne and Mr. Justice Sedgewick in this
court.
The argument proceeded as if there had been but
one appeal before the court.
S.H. Blake Q.C. and Anglin for the
appellants on the main appeal, the religious corporations affected by the date
as to which the revived will took effect. The argument on that point is omitted
as it was not dealt with by the court in giving judgment. The learned
[Page 104]
counsel then argued the question raised
by the cross-appeal.
The codicil sufficiently indicated the intention
of the testator to revive the will of May, 1890. In the Goods of Turner; In the Goods of
Reynolds;
McLeod v. McNab.
A will may be revived by implication; Newton
v. Newton;
In the Goods of Atkinson.
The statute of Mortmain is not in force in
Ontario; Ray v. Annual Conference of New Brunswick; In re Robson The doctrine of stare
decisis will not prevent this court from holding it not in force,
notwithstanding the decisions of the Ontario courts to the contrary. Hart v.
Frame;
In re Nathan.
Latchford for the respondent, the St.
Patrick’s Orphan Asylum, and MacTavish Q.C. for the respondents, the Good
Shepherd Nuns, argued that the will of May, 1890, was revived by the codicil.
Robinson Q.C. and
Moss Q.C. for the testator’s next of kin, respondents in the main appeal
and appellants in the cross-appeal. It cannot be well contended that the will
of January, 1891. was void for having been executed on erroneous advice on
matters of law. To effect such a result the error must appear on the face of the
will Jarman on Wills; Newton
v. Newton (4); Attorney General v. Lloyd.
Since the passing of The Wills Act a revoked
will cannot be revived by a codicil in this form. In the Goods of Steele; McLeod v. McNab
(3); Marsh v. Marsh.
[Page 105]
Leitch Q.C. for
the executors of John Purcell one of the next of kin, referred to Dudley v.
Champion;
Brown v. McNab.
Blake Q.C. and Anglin
were heard in reply.
FOURNIER J.—I am of opinion that the appeal
should be dismissed and the cross-appeal allowed.
TASCHEREAU J.—I would allow cross-appeal and
dismiss principal appeal. I adopt Chief Justice Hagarty’s view, and the reasons
given by his lordship, that the will of January, 1891, is Purcell’s last will,
and that the will of 1890 was not revived by the codicil.
GWYNNE J.—The question before us is, which of
two instruments, the one bearing date the 14th day of May, 1890, and the other
the 10th day of January, 1891, was the true last will and testament of Patrick
Purcell, deceased, and as such entitled to be admitted to probate. In
determining this question the rule to be applied is, that the court should
proceed upon such evidence of the surrounding circumstances as, by placing it
in the position of the testator, will the better enable it to read the true
sense of the words used in a codicil bearing date the 16th day of March, 1891,
and to determine whether the testator has upon it shown his intention to be to
revoke the instrument of January, 1891, and to revive that of May, 1890, which
had been absolutely and expressly revoked by that of January, 1891; accordingly
evidence of these surrounding circumstances was largely entered into and some
evidence was also received by the court below which, as I think, was not
admissible.
Upon the 14th May, 1890, Patrick Purcell, since
deceased, made his last will and testament in writing
[Page 106]
and thereby appointed Alexander Leclair, Angus
McDonald and James Stuart the executors of the said will. To them he devised
all his property, real and personal, of every nature and kind whatsoever and
wherever of which he should die possessed or entitled unto upon certain trusts
therein declared. It may be here said that the personalty consisted of about
one-tenth in value of the realty, the whole consisting in round numbers of
about $600,000. He then, in clauses numbered from 1 to 39 inclusive, made
devises in favour of his family and near relations and friends. To a few only
is it necessary to refer. The first three clauses contained devises in favour
of his wife. By the fourth he also devised to her five thousand dollars in
cash. By the tenth he devised to his niece, Catherine Forrestal, wife of
Alexander Leclair, two thousand dollars, if alive at his death, and if not the
same to go to her children then alive, share and share alike. By the eleventh
to his niece Isabella Forrestal, five thousand dollars. By the thirteenth to
his sister Bridget McDonald, two thousand dollars. By the fourteenth to Miss
Ada Fisette, two thousand dollars. By the eighteenth he devised that his
executors should have power, should they deem it advisable, to expend the sum
of one thousand dollars in ornamenting his family burying ground at Flanagan
Point, and also the sum of one thousand dollars for a monument over his grave
unless he should have done so himself before his death.
By the twenty-first clause he devised to Emily
Nash, wife of Donald A. Cameron, of the township of Charlottenburgh, for her
own separate use and benefit, the mortgage money which her husband might owe
the testator at the time of his death.
By the twenty-eighth clause he devised to his
niece, Mary Forrestal, the sum of one thousand dollars.
[Page 107]
By the thirty-second clause he devised to his
adopted child, A.P. Tully, the sum of two hundred dollars.
By the thirty-eighth clause he devised to Miss
Victoria McVicar, of Port Arthur, the sum of two hundred dollars.
He then devised to his executors, for their
travelling expenses and in lieu of all commissions for administering his
estate, the sum of five hundred dollars each.
He then devised and directed that all the
residue of all his property, of every nature and kind whatsoever, should be
divided by his executors into twenty-seven parts, which they should dispose of
as follows:—
By the forty-first clause he devised and
directed that six of the said twenty-seven parts of the said residue should be
paid to the Roman Catholic Bishop of the diocese of Alexandria, in the province
of Ontario, at the time of his death, for distribution among the deserving poor
of all denominations in the county of Glengarry, and the education of boys
belonging to the said county as he might decide, according to his own
discretion, and not otherwise; and in the event of there being no bishop of the
diocese at the time of his death, then that the said six parts should be paid
to the next bishop of the said diocese appointed after his death.
By the forty-second clause he devised three
other parts of the said residue to be paid in equal shares to the superioresses
of the convents in the said county of Glengarry, to be expended by them in the
education, support and clothing of poor children, and the support and clothing
of indigent men and women in the said county of Glengarry.
By the forty-third clause he devised to the said
Roman Catholic Bishop of the diocese of Alexandria four other parts of the said
residue for distribution amongst the deserving poor of the town of Cornwall and
county of
[Page 108]
Stormont, and for the education and clothing of
boys belonging to the said town and county, as he might decide and according to
his own discretion, and not otherwise; and in the event of there being no
bishop of the said diocese alive at the time of his death, then that the said
four parts should be paid to the next bishop of the said diocese appointed
after his death.
By the forty-fourth clause he devised two other
parts of the said residue to be paid in equal shares to the superioresses of
the convents in the town of Cornwall and county of Stormont, to be expended by
them in the education, support and clothing of indigent men and women in the
said town of Cornwall and county of Stormont as they might respectively decide.
By the forty-fifth clause he devised that four
other parts of the said residue should be paid to the Roman Catholic Archbishop
of the archdiocese of Kingston, in the province of Ontario, at the time of his
death, for distribution amongst the deserving poor of the said archdiocese, and
the education and clothing of boys belonging to the said archdiocese, as he
might decide according to his own discretion; and in the event of there being
no archbishop of the said archdiocese alive at the time of his death, then that
the said four parts should be paid to the next archbishop of the said
archdiocese, to be expended as aforesaid.
By the forty-sixth clause he devised two other
parts of the residue to be paid in equal shares amongst the superioresses of
the convents in the said archdiocese of Kingston to be expended by them in the
education, support and clothing of poor children and the support and clothing
of indigent men and women in the said diocese as they might respectively
decide.
By the forty-seventh clause he devised four
other parts of the said residue to be paid to the Roman Catholic Archbishop of
the archdiocese of Ottawa at the time of
[Page 109]
his death for distribution among the deserving
poor of the said archdiocese as he might decide according to his own
discretion, and in the event of there being no archbishop of the said
archdiocese alive at the time of his death, then that the said four parts
should be paid to the next archbishop to be appointed for the said archdiocese
to be expended as aforesaid.
By the forty-eighth clause he devised one other
part of the said residue to the trustees of St. Patrick’s Orphan Asylum at
Ottawa for the benefit of that institution, and he devised one other part of
the said residue to be paid to the Good Shepherd Nuns of the city of Ottawa.
He then revoked all former wills by him
theretofore made.
Upon this will being executed the testator
deposited it for safe keeping in the surrogate court in the town of Cornwall
and he kept a copy of it in his own possession.
Prior to and in the month of November, 1890, he
evidently contemplated making considerable alterations in the bequests devised
by the will, for he had in his own handwriting entered upon the copy retained
by him certain alterations, as follows:—
1. Instead of the five thousand dollars in cash
devised to his wife by clause four he inserted two thousand.
2. Instead of the two thousand dollars devised
to his niece Catherine Forrestal by clause ten he inserted one thousand.
3. Instead of the five thousand dollars devised
to his niece Isabella Forrestal by clause eleven he inserted one thousand.
4. Instead of the two thousand dollars devised
to his sister Bridget McDonald by clause thirteen he inserted one thousand.
[Page 110]
5. He erased from clause eighteen the
devise of one thousand dollars which his executors were empowered to expend in
ornamenting his family burying ground at Flannigan Point.
6. Instead of the devise to Emily Nash in the
twenty-first clause of the mortgage monies which might be due to testator at
the time of his death by her husband, he inserted the sum of five hundred
dollars.
7. Instead of the devise in the twenty-eighth
clause to his niece Mary Forrestal of one thousand dollars he inserted five
hundred.
8. Instead of the devise of two hundred dollars
to A.P. Tully in the thirty-second clause he inserted “his choice of the
horses;” this was inserted in the handwriting of Weldon the testator’s clerk
by the testator’s directions and was the only alteration not made in testator’s
own handwriting.
9. Instead of the six of the twenty-seven parts
of residue devised to the Roman Catholic bishop of the diocese of Alexandria
for distribution amongst the deserving poor of all denominations, he inserted
the words “two thousand for deserving poor of all denominations.”
10. Instead of the devise of three parts of said
residue to the superioresses of the convents in the county of Glengarry he
inserted the words one thousand. And instead of the devise of other four parts
of the said residue to the Roman Catholic bishop of the diocese of Alexandria
he inserted the figures “1,500.” Here he appears by the evidence to have
stopped; although crosses in red pencil are drawn across the subsequent clauses
of the will it does not appear when they were so drawn.
Sometime in the month of November, 1890, the
testator went into the office of Mr. D.B. Maclennan, a solicitor of
thirty years, standing practising in Cornwall, and asked him if he would have
any objection to
[Page 111]
act as executor under his will to which Mr.
Maclennan having assented he left the office. Then we find that the testator
gave to his confidential clerk the copy of the will in which he had made the
alterations aforesaid, and directed him to copy it out clean as altered up to
the end of the thirty-ninth clause. In the copy so handed to the clerk to copy
the name of James Stuart was erased and in his stead were inserted the words
D.B. Maclennan, Barrister, Cornwall; and at the end of the clauses devising
five hundred dollars to each of his executors, were added the words “and to
D.B. Maclennan in full for his professional and law expenses $1,000 extra,” and
this additional clause which was not in the will of May, 1890.
“I devise to James Meagher the most southerly
house and lot situate in Gladstone, East Cornwall, lately owned by D.H.
McKenzie, and on his death to my adopted son A.P. Tully, absolutely forever
should he be alive at the time of his death.” The testator’s clerk having
copied out clean the copy of will as so altered, the copy so prepared up to the
devise of the residence, that is to say, to the end of the thirty-ninth clause,
remained in the testator’s possession until the 10th day of January, 1891, when
the testator having been ill for some days caused the following letter to be
written by his clerk and sent to Mr. Maclennan.
“SUMMERSTOWN,
JANUARY, 10, 1891.
“D.B. MACLENNAN, Esq., Cornwall.
“DEAR, SIR,—I wish you to come here immediately
and bring my will, now in the Probate Court in Cornwall, with you. This will be
your authority for getting said instrument.
“P.
PURCELL.
“Wire me if they do not give you my will.
“P.P.”
[Page 112]
Upon receipt of this letter Mr. Maclennan went
to the Surrogate Court, got the will he was directed to get and taking it with
him went to Mr. Purcell’s house. He there, in Mr. Purcell’s presence and at his
request, opened the sealed packet in which the will was and read it. After
having read it Mr. Purcell asked him what he thought of the provisions made in
it for the bishops and other charitable bequests; thereupon Mr. Maclennan
informed him that in his opinion the bequests would fail or prevail according
to the proportion which his personal estate should bear to his lands and
mortgages, and that under a will, drawn as it was, if he was correct in his
opinion about the charitable bequests, a large portion of his estate would pass
as undevised to his widow and next of kin. About this time the clean copy made
by Mr. Purcell himself up to clause forty of the will of 1890 was
produced, and Mr. Purcell asked Mr. Maclennan to write down what he wished to
be done in regard to the charitable bequests in order to have the will so begun
completed. Mr. Maclennan accordingly took down Mr. Purcell’s instructions
and therefrom made a draft will from clause forty to the last clause inclusive
which is as follows:—
I direct that the bequests made in the five
next preceding paragraphs of this my will be paid out of my personal estate,
other than such as may be secured by mortgage on real estate, and I hereby
revoke and annul all former wills made by me.
He thereupon procured the clauses so drafted to
be added by Mr. Purcell’s clerk to that which had already been written over by
him up to clause forty, which being done the will so prepared was on the same
10th day of January duly executed by Mr. Purcell as and for his last will and
testament. When Mr. Maclennan, in taking instructions for drafting the clauses
from clause forty inclusive, had reached the end of the charitable bequests he
asked the testator what he wished
[Page 113]
to do with the residue, to which he replied, “I
will do nothing with it.”
I have dealt at large with this evidence for the
purpose of showing that this will was executed after the greatest deliberation
on the part of the testator, and that the will of May, 1890, was in the most
express terms revoked and annulled by it. A couple of days afterwards, viz., on
the 12th January, 1891, Mr. Purcell’s clerk by Mr. Purcell’s direction
addressed and sent to Mr. Maclennan a letter saying:
Mr. Purcell wishes you to change the
bequest to Bishop Macdonell of Alexandria from ten thousand to five thousand
dollars and to insert a clause that upon his demise his will shall be inserted
in the leading local newspapers. You know how to act in regard to this clause.
Yours
truly,
GEORGE
MELDEN,
For
P.P.
Upon receipt of this letter Mr. Maclennan had a
new will written out with this alteration made in it and sent it enclosed
addressed to Mr. Purcell. It does not however appear to have been ever executed
by Mr. Purcell.
Now here we have been asked to say, first, that
the will of May, 1890, was only revoked in consequence of the advice of Mr.
Maclennan (and indeed of others also) which was to the effect that the
provisions of the Imperial statute, 9 Geo. 2, c. 36, were in force in Ontario;
secondly, that such advice was erroneous; thirdly, that being erroneous the
will of the 10th January, 1891, should be held to have been executed under
mistake; and fourthly, that it should therefore be regarded as never having had
any effect. For this contention there does not seem to be any foundation in law
or in fact. In answer to it however, it may be said: first, the suggestion that
the testator proceeded solely upon the advice given him as to the provisions of
the statute of Geo. 2 being in force in Ontario, is altogether an assumption
[Page 114]
which we are not warranted in making; secondly,
that the testator acted upon the belief that the advice given him was sound may
be admitted, but there is no authority for holding that the advice upon which
the testator proceeded turning out to be unsound would avoid the will executed
upon that advice.
Thirdly, the judgment in Doe Anderson v. Todd, delivered in 1845, which
held that the provisions of the statute of 9 Geo. 2 were in force in Upper
Canada, was followed by several decisions in the courts of Upper Canada and
Ontario until 1875, when Ferguson v. Gibson,
and Whitby v. Liscombe,
were decided. This latter case having been carried to the Court of Appeal the
law as laid down in Doe Anderson v. Todd17 was there
affirmed. That judgment has ever since been not only undoubtingly followed by
the courts of Ontario, but may be said to have been recognized by the legislature
as sound law by the insertion, in acts authorizing corporations to hold lands,
of the non-obstante clause used in 3 & 4 Wm. 4 ch. 78, referred to
in Doe Anderson v. Todd17, and Whitby v. Liscombe19:—
The acts of Parliament commonly called the
statutes of mortmain or other acts, laws or usages to the contrary
notwithstanding.
The act of the Ontario Legislature, 55 Vic. ch.
20, although passed after the decease of the testator, shows clearly that the
provisions of 9 Geo. 2, ch. 36 were regarded by the legislature as having been
always in force in that province as they had been held by the courts to be.
That act is entitled, “An Act to amend the law relating to mortmain and
charitable uses,’ and by the 8th section it is enacted that:—
Money charged or secured on land or other
personal estate arising from or in connection with land, shall not be deemed to
be subject to the provisions of the statutes known as “the statutes of mortmain
or
[Page 115]
charitable uses,” as respects the will of a
person dying after the passing of this act.
If, therefore, it had been relevant to the
question before us, and I think it is not, to inquire whether the advice given
by Mr. Maclennan was sound or not, it could not, I think, be doubted that it
was quite sound.
Then evidence was given of a conversation which
his medical attendant, Dr. Bergin, had with the testator on the 12th January,
1891, and the following day, and of what Dr. Bergin had done in consequence of
such conversations, under which John Bergin, Dr. Bergin’s brother, came to be
employed to draw the codicil of the 16th March, 1891. This evidence was
tendered with the view of establishing that from the 12th or 13th January,
1891, the testator entertained the intention of appointing Mr. John Bergin, who
drew the codicil, to be an executor of his will.
All that that evidence appears to me to show,
and this it shows very clearly, is that for some reason or other the testator
kept Dr. Bergin in ignorance of the fact of his having executed the will of
January, 1891. Except in so far as showing the circumstances attending the
preparation of the codicil by John Bergin the evidence has no bearing upon the
question before us, which is, simply: Does or does not the codicil so prepared,
and which was executed by the testator, show by its terms that the testator’s
intention was to revoke the will of January, 1891, and to revive in its place
that of May, 1890? In so far as a case like the present, wherein a question
arises the determination of which must be arrived at by the light of the
surrounding circumstances, can be governed by a judgment in a case where a like
question arises to be determined also by the light of its surrounding
circumstances, I think that the judgments in the cases of In the Goods of
Steele,
[Page 116]
and In the Goods of Turner, the latter being decided in 1891, are the
nearest to the present case, and which we should follow.
Placing ourselves then in the position in which
the testator was when he executed the codicil in question it is to my mind
inconceivable that the testator could have contemplated by that codicil and the
language used therein that he was expressing an intention to revoke the will of
Jan. 7th 1891, which he had had prepared with so much deliberation, and revive
in the stead that of May 1890, which with like deliberation he had expressly
revoked and annulled; utterly inconceivable, if his intention had been to
revoke the one and revive the other, that no words expressing such intention
should have been inserted. John Bergin who drew the codicil had no knowledge of
the existence of the will of January 1891, or of any will but that of May 1890.
He had no instructions to prepare a codicil which should have the effect of
revoking the will of Jan. 7th 1891, and of reviving that of May 1890. When he
drew the codicil he believed, although erroneously, the will of May, 1890, to
be in full force and effect as the testator’s last will and testament and that
Stuart was still one of the executors of such will. He, therefore, when
preparing the codicil never intended to prepare one which should have the
effect of reviving a will which he believed to be in full force and effect in
law and in fact. The language which he used in the codicil is, therefore,
naturally quite in accord with his belief as to then continuing and existing
validity in law and in fact of the will to which he was preparing a codicil.
The only thing which the language used by him in the codicil professes to do is
to revoke what he believed to be an existing valid appointment then force of Stuart
as one of the executors of an instru-
[Page 117]
ment then existing in full force and effect as
the last will and testament of the testator, and if that belief had been well
founded the codicil would have had its intended and expressed effect. The language
used is: “I hereby revoke the appointment of James A. Stuart,” &c., to be
one of the executors of this my will and in “his place and stead I appoint John
Bergin, &c., &c.”
Now the appointment of Stuart as an executor of
that will had already been revoked and annulled by the will of January 1891, so
that the codicil so worded could have no effect as it could not revoke an
appointment which had already been revoked; failing to have the effect
intended, namely, of revoking a valid instrument in full force and effect as
the testator’s will, I cannot see upon what principle the language so used,
which was perfectly applicable if the will of May 1890, had then been in full
force and effect as the person using the language believed it to be, can be
construed as showing an intention to revoke the will of January, 1891, by which
Stuart’s appointment as an executor should be annulled and that of John Bergin
substituted in his place; it would be necessary to construe it as first
revoking the will of January 1891, which is not expressed in it and thereby of
reviving in its integrity the will of 1890, including the appointment of Stuart
and then revoking the appointment of Stuart as an executor of such revived
will. In other words the will of May, 1890, must be revived before the codicil
revoking the appointment thereof can take effect.
In the judgment of Sir J.P. Wilde, in In the
Goods of Steele,
he says:—
I therefore infer that the legislature
meant that the intention of which it speaks should appear on the face of the
codicil either by express words referring to a will as revoked and importing an
intention to revive the same or by a disposition of the testator’s property
inconsistent with any other intention or by some other expressions convey-
[Page 118]
ing to the mind of the court with
reasonable certainty the existence of the intention in question. In other words
I conceive that it was designed by the statute to do away with the revival of
wills by mere implication.
And he refers to the judgment of Sir C. Creswell,
in Marsh v. Marsh,
wherein that learned judge expresses himself of opinion that the intention of
the legislature was to put an end equally to implied revocations and implied
revivals.
Placing myself, therefore, in view of the
surrounding circumstances, as well as I can in the position of the testator
when, upon the 16th March, 1891, he executed the codicil of that date, it fails
by its language to convey to my mind with any degree of certainty, or indeed I
may say at all, that there existed in the mind of the testator the intention of
revoking thereby the will of January, 1891, which he had executed after the
utmost apparent deliberation, or of reviving the will of May, 1890, which with
like deliberation he had revoked and annulled by the will of January, 1891. The
only intention shown by the codicil is an intention to revoke an appointment
assumed to be still valid and subsisting in a will also assumed to be then in
full force as the last will of the testator, and as the will to which the
codicil is professed to be made a codicil and the appointment professed to be
revoked had then no such existence the codicil fails to have any effect. I am
of opinion, therefore, that the will of January, 1891, was not revoked thereby,
and that upon the decease of the testator that instrument constituted his sole
last will and as such is entitled to be admitted to probate. It would serve no
useful purpose to attempt to offer any affirmative explanation of what the
testator’s real object in executing that codicil may have been any more than of
his object in designedly, as it would seem, keeping
[Page 119]
his medical attendant, Dr. Bergin, in ignorance
of the fact of his having executed the will of January, 1891.
It is sufficient to say that the codicil does
not upon its face show an intention to revoke the will of January, 1891, and to
revive that of May, 1890.
The appeal of the plaintiff below will be
allowed and that of all the other parties disallowed and an order will go to
the effect that the will of January, 1891, is alone entitled to be admitted to
probate. The costs of the plaintiffs’ appeal to be allowed to them out of the
estate. The other appeals to be dismissed without costs.
SEDGEWICK J.—In this appeal there are three
testamentary instruments to be considered, the will of the 14th May, 1890 (the
O’Gara will), the will of the 10th of January, 1891 (the Maclennan will), and
the codicil of the 16th of March, 1891; and the main question is whether that
codicil, purporting to be a codicil to the O’Gara will, revives that will, and,
as a consequence, revokes the Maclennan will. The answer to this question
depends largely upon the effect that is to be given to the 24th section of the
act respecting Wills, which
is as follows:—
No will or codicil, or any part thereof,
which has been in any measure revoked, shall be revived otherwise than by the
re-execution thereof or by a codicil executed in the manner hereinbefore
required, and showing an intention to revive the same, etc.
this section being an exact transcript of the
corresponding section in the Imperial Wills Act. The Maclennan will had revoked the O’Gara
will, and the subsequent codicil is in the words following:—
I will and devise that the following be
taken as a codicil to my will of the 14th day of May, 1890, A.D:—
I hereby revoke the appointment of Jas. A.
Stuart, my late bookkeeper, to be one of the executors of this my will, and in
his place and stead I appoint John Bergin, of the town of Cornwall,
barrister-at-law,
[Page 120]
with all the powers and duties heretofore
conferred upon the said Jas. A. Stuart, as in my said will declared.
In witness whereof, I have hereunto set my
hand this 16th day of March, 1891, A.D.
|
P.
PURCELL.
|
|
Signed, sealed and published and
delivered by Patrick Purcell as a codicil to his last will and testament, in
the presence of us who in his presence, at his request, and in the presence
of each other, have hereunto affixed our names as witnesses.
|
|
|
GEORGE
MILDEN,
R.
FLANNIGAN,
|
The Ontario Court of Appeal has held (Hagarty
C.J. dissenting) that the effect of this codicil, read in connection with the
surrounding circumstances, is to revive the revoked will to which it expressly
refers, and also to revoke the Maclennan will, the revival to take effect,
however, only from the date of the codicil.
Prior to the passing of the English Wills Act,
above referred to, the law was that if a testator made a codicil to a revoked
will (it being perfectly clear that the codicil related to that will), the
revoked will was thereby revived, and the revoking instrument thereby revoked.
The object of the statute was to do away with
the revival of wills by mere implication, and to make it clear that in the
codicil itself there must be some unequivocal expression of an intent on the
testator’s part to restore to life the revoked instrument.
It has been decided, over and over again, that a reference in a codicil to a
revoked will, by its date only, is not of itself a sufficient indication of an
intent to revive that will, and these decisions have been, in effect, approved
of by the Privy Council in McLeod v. McNab.
All we have in the present case is a codicil
referring to a revoked will by its date, and changing one of the
[Page 121]
three executors and trustees therein named,
nothing more. And the question comes down to this: Does such a codicil, within
the meaning of the statute, show an intention to revive the will to which it
purports to relate? Or, in other words, does a codicil which merely changes the
name of one of three executors named in a revoked will revive it?
Now a codicil to a will whether in force or
revoked must make some change in its dispositions It must do something. Leave
out of the present codicil the appointment of Mr. Bergin in place of Stuart and
it would be a mere piece of useless paper. The law is, as I have said, that the
reference by date to the O’Gara will does not, of itself, show an intention to
revive it. Does the substitution of one executor for another, and nothing more,
show that intention? If it does, then I can conceive of no codicil to a revoked
will which would not show that intention. A codicil must make some alteration
in the testament to which it relates. If that alteration, by reason of its
being an alteration, shows the reviving intention then the statute is meaningless.
No change in the old law has been effected by it.
It seems to me (I say it with deference) that in
the courts below the distinction has been lost sight of between an intention to
make a codicil to a revoked will and an intention to revive a revoked will. I
think it probably clear from the evidence that in the present case there was an
intention to make a codicil to the revoked will. The document on its face so
purports. The evidence does not lead to the conclusion that the testator made a
mistake as to the particular will he was dealing with, but if he intended to
revive that will and to revoke the later instrument the statute required that
he should say so, either in express terms, or in words that would convey to
ordinary minds with
[Page 122]
reasonable certainty the existence of both
intentions, the one as well as the other. The expression of the reviving
intention, as distinguished from the other intention, was as necessary as the
performance of any other statutory requirement; its execution in the presence
of two witnesses, for example, and the absence of such expression, it seems to
me, brings the codicil within the statute and prevents it from having the
effect contended for.
To return, however, to the particular terms of
the codicil. One cannot well pass judgment upon the relative importance of the
different provisions which a testator may make by his will, but it seems to me
that in ordinary cases the change by codicil of one of three executors named in
a will is a matter of little account At law an executor takes nothing
beneficially under a will. He is a mere machine. His duty, his sole duty, is to
realize the estate and distribute it as by the will provided. Apart from recent
statutes as executor he received no pay. He is an officer of the court only,
strictly accountable for the discharge of duty but entitled to no emoluments;
even if he is sole executor it is a barren honour, but when he is but one of
three it amounts to less. I should say that, in ordinary cases, a bequest or
devise is a matter of much more importance than the appointment to an
executorship. A beneficiary gets something. And suppose that in the present
case the only provision was that out of the residue of the estate one John
Smith was to be paid by the executors ten shillings. Would that indicate an
intention to revive the will? Observe how far reaching is the bequest. It is a
recognition of the executors as named in the will. It is a direction to them to
alter the original distribution of the estate. It is a taking away from the
residuary beneficiaries of perhaps to them a large sum of money, and it might
with equal
[Page 123]
force, it seems to me, be contended that such
codicil showed upon its face an intention to revive. If that be so then any
codicil must show a like intention, and the statute is words and nothing more.
In this view, so far, I understand that three of
the four learned judges of the appeal court agree with me; but Mr. Justice
Maclennan, (and with him Mr. Justice Osler,) have come to a different
conclusion, having reference to “the surrounding circumstances.” Let us look at
these “circumstances.” The O’Gara will had been executed on the 14th of May,
1890, and had been deposited on file with the registrar of the Surrogate Court
at Cornwall. It was a most elaborate document containing more than forty gifts
and devises of different kinds, and purported to dispose of all the property of
the testator, about nine tenths (speaking roughly) being set apart for what may
be called charitable purposes. Out of the three executors therein named was one
James Stuart. During the year 1890 the testator for some reason (not clear from
the evidence) had lost confidence in Stuart, and in the month of November he
called upon Mr. D.B. Maclennan, a solicitor practising in Cornwall, and
one of the leading members of the Ontario bar, and obtained his consent to act
as one of the executors of his will. In the mean time he (the testator) had
before him a copy of the O’Gara will. There was a question in his mind as to
the possible legality of the charitable dispositions therein contained, the
money for the purpose of satisfying them having to be raised from the proceeds
of the sale of impure personalty as well as real estate, and we find that he
went carefully over all the provisions of this will with his own hand, striking
out this provision and changing that, with a view of executing a new will based
upon his changed intentions. On the 10th of January following his man of
business by his directions, and in his
[Page 124]
name, wrote to Mr. Maclennan requesting him to
get the O’Gara will from the court and come to him. Mr. Maclennan on the same
day went to him with the O’Gara will and under his instructions prepared and
had executed another will substantially of the purport which the testator had
in his own hand made out upon the copy of the O’Gara will, previously in his
possession. By this will the O’Gara will was revoked. Mr. Maclennan was
substituted as an executor instead of Stuart, the charitable bequests were
enormously reduced and the residue was intentionally left undisposed of. It is
admitted on all sides that this will was perfectly valid as a testamentary
instrument, it being claimed however that having been executed as alleged under
mistaken advice as to the effect of the mortmain acts (to which I will refer
hereafter), the O’Gara will which it purported to revoke was not in law revoked
and that they both should be admitted to probate.
This will (the Maclennan will) was taken by the
solicitor to Cornwall to be placed on file and the revoked O’Gara will was left
with Mr. Purcell.
All this happened on the 10th of January. On the
following day, (the 11th), Dr. Bergin visited the testator. Dr. Bergin, who is
member of Parliament for the County of Stormont and a man of eminence in his
profession, had for years been Purcell’s medical adviser. Purcell had likewise
been in the habit of conversing with him on business matters and he (Dr.
Bergin) was more or less conversant with his affairs, knowing of the existence
and contents of the O’Gara will. In fact, shortly prior to the execution of the
Maclennan will a conversation had taken place between them respecting the
validity of the charitable bequests in the first will. At this visit on the
11th Dr. Bergin saw the O’Gara will left the day before by Mr. Maclennan, and
Purcell and he began conversing about it. Several
[Page 125]
things are certain in regard to what happened at
this conversation. First Purcell asked the Doctor to take this will to his
brother Mr. John Bergin, a practising barrister and solicitor at Cornwall, and
get a written opinion from him as to the validity of the charitable bequests
therein made. Secondly, Dr. Bergin called the testator’s attention to the fact
that Stuart was one of the executors and suggested a change to which he agreed.
There was a suggestion (it is not absolutely certain that it was the Dr.’s
suggestion) that John Bergin should be appointed in his place and (according to
Dr. Bergin’s account of Purcell’s statement) he, Dr. Bergin, was instructed to
get his brother, John Bergin, to draw up a codicil appointing John Bergin
executor in lieu of Stuart. Thirdly, Purcell concealed from the Doctor the
facts that the day before he had executed the Maclennan will, that Stuart was
no longer an executor and that the O’Gara will had been revoked. There is, I
think, only one explanation for this concealment, for it is impossible that on
this matter Purcell’s memory was in fault. He was then in a very weak state
physically, trying to recover from an illness brought on by excess in the
matter of stimulants to the inordinate use of which he was addicted. He was
afraid to tell the Doctor of the contents of the Maclennan will and
particularly of the fact that Mr. Maclennan had been made an executor. He
foolishly imagined that his Doctor, the medical man on whose skill and
attention he relied for the prolongation of his life, would be annoyed were he
to know that his own brother had been overlooked and another solicitor in. the
same town appointed, and he deliberately resolved to deceive him as to the
exact condition of affairs, which resolve he kept, for neither the Doctor nor
his brother ever knew of the existence of the Maclennan will until after
Purcell’s death, several months afterwards. He
[Page 126]
knew too that the O’Gara will then before them
had been revoked, that it was a mere piece of waste paper, and he thought that
the appointment of John Bergin as an executor of that instrument would have no
valid effect, the will of the day before being the only testament then in force.
It seems to me absolutely out of the question to
suppose that, by this time at least, his request as to the drafting of a
codicil for the simple purpose of changing an executor indicated an intention
to absolutely revoke and nullify the solemn instrument of the previous day and
to restore all the numerous bequests in the O’Gara will which the later
instrument had either reduced or eliminated altogether.
It was perfectly reasonable and natural that he
should be concerned about his charities and should be anxious for legal
certitude as to the extent to which he might go in that direction, for the
Maclennan will, as stated, had not disposed of the residue. There was perhaps
half a million of dollars to be dealt with and it is extremely probable that he
did contemplate either the making of a fresh testamentary disposition in
respect to that or the spending of it in his life time in the erection and
endowment of a hospital at Cornwall. At all events he is still uncertain. He is
seeking light. There is no manifestation of any wish in the meantime to undo
the work of yesterday.
We come now to the following day, the 12th of
January. Purcell is still thinking over his affairs. The Maclennan will had
given $10,000 to the Bishop of Alexandria, and the O’Gara will had contained a
clause that it should be published in the local newspapers, which clause had
been left out of the later will. Purcell now desires to reduce this bequest to
$5,000 and to restore the provision as to publication, and his man of business,
upon his instructions, writes to Mr. Maclennan the following letter:—
[Page 127]
SUMMERSTOWN,
January 12th 1.891.
D.B. MACLENNAN, Esq., Cornwall.
In re will.
DEAR SIR,—Mr. Purcell wishes you to change
the bequest to bishop Macdonell of Alexandria from ten thousand to five
thousand dollars, and to insert a clause that upon his demise his will shall be
inserted in the leading newspapers. You know how to act in regard to this
clause.
Your
truly,
GEO.
MILDEN,
for P.P.
This codicil was prepared and sent to Purcell but
it would seem that he died without his attention being again called to it.
Does not this letter, however, afford conclusive
evidence that up to this time at least he had no intention of revoking the
existing will, his instructions of the previous day in respect to Stuart and
John Bergin, to the contrary, notwithstanding?
It does not seem clear that when Dr. Bergin
returned home from his visit of the 11th that he asked his brother to draw the
codicil then referred to. He did, however, leave with him the O’Gara will and
obtained from him a few days afterwards a written opinion as to the validity of
the charitable bequests. This opinion the doctor handed to Purcell at the same
time giving him a message that he should get the best legal advice that he
could get in the province. Finally it was arranged that Dr. Bergin should take
the will with him to Toronto with a view of obtaining the opinion of S.H. Blake
Q.C. upon it. Dr. Bergin had a consultation with Mr. Blake on the 7th of
March and on the 9th and 10th of March he communicated the advice then given to
Purcell.
The following is the evidence of Dr. Bergin as
to what then followed. The same Mr. Blake is examining him:—
[Page 128]
Q. What passed between you and Purcell at
that meeting?—A. I told Mr. Purcell that you had said to me that you could not
look into the cases at such short notice and give an opinion, but that you
would look into it, and your opinion was that he ought to do what he proposed
to do or as much of it as he could at once in regard to these charitable
bequests; I think I told you that his intention was, so far as this part of the
country was concerned, to build a hospital and home for aged and indigent men
and women, and I urged upon him to do that, and that was his idea I believe,
and as I think there can be no doubt about it, but he had important interests
in Nova Scotia connected with a contract, and very much against my will he went
there.
Q. He went to Nova Scotia, and at what date
was it he went to Nova Scotia?—A. He went to Nova Scotia about the 12th or 13th
of April.
Q. What had taken place in the meantime
between this 8th or 9th March, when you returned from Toronto, in regard to
will or codicil?—A. He sent for me. He was taken ill with a sore hand. He had
injured his hand, been upset, and we were very much alarmed about blood
poisoning, and this was why I did not wish him to go away. On one of these
visits, the 14th or 15th, he said to me: “You have not brought the codicil yet
which I instructed you to have prepared long ago.”
Q. That was the 14th or 15th March he said
to you, you haven’t brought me the codicil which he had instructed you to
get?—A. Yes.
Q. What did you say to him, doctor, upon
that?—A. Yes, it must have been the 15th, because I said I would bring it down
tomorrow morning when I came.
Q. What was this codicil he referred to as
being the codicil he had spoken to you about?—A. It was the codicil to this
will of May, 1890, that was made in Ottawa, the O’Gara will it was called.
Q. And when was it he had spoken to you
about the codicil to this will?—A. After I came back from Toronto and told him
you thought, under the circumstances, that he ought to provide for keeping that
will alive.
Q. Then how long after that did you see Mr.
John Bergin and instruct him about the codicil?—A. That same day.
Q. And was the codicil prepared?—A. He gave
it to me that night.
Q. And you, having gotten it, what did you
do with it?—A. Well, I kept possession of it till I went down there.
The doctor went down on the 16th, on which day
the codicil was signed in his presence. At this time the original O’Gara will
was in John Bergin’s posses-
[Page 129]
sion, and upon the execution of the codicil the
testator requested the doctor to give it to his brother and to instruct him to
attach it to his will (the O’Gara will), which he subsequently did.
The testator died on the 1st of May following.
It is as well to insert here the further
evidence of Dr. Bergin as to the drawing of the codicil.
Mr. BLAKE.—Q. Was there, or was there not,
anything said subsequent to the 16th March, anything in the way of
recalling that codicil of that date or interfering with it in these
conversations you had?—A. Yes; he asked me whether my brother had sent the will
and codicil to me again, and whether you had approved of it, and I told him I
didn’t know; I felt satisfied.
Q. That is not what I am asking you. I am
asking whether anything was said as to recalling this codicil of the 16th
March, 1891, anything that expressed dissatisfaction with it, or the desire to
have it cancelled, or any matter of that kind? A. No. The only conversations I
had with him afterwards were more professional than any other, but they were on
almost every occasion coupled with his views as to the hospital, and the kind
of hospital he would build when he returned from Nova Scotia.
Q. Then there is this allegation that I
want you to speak to his lordship upon in the plaintiff’s statement of claim.
“The plaintiff charges that the codicil of the 16th March, 1890, (this is
clause 8), was executed at the instance of the testator’s legal adviser, etc.”
(reads clause). Is that a fact, did you suggest, or did your brother John
suggest, the execution of this codicil?—A. The first my brother knew of it was
the instructions I brought him from Mr. Purcell, and the first conversation
that occurred between Mr. Purcell and me on the question of this codicil
was on the 12th January, 1890, after having read the will and finding that
Stuart’s name was still on it. I asked Mr. Purcell when I went down there the
next day whether it was wise for him to retain Stuart as one of his executors,
and he said, “No, I intended to relieve him”; and he said, “Who am I to put in
his place?” I said, “You ought to have a good man, a business man, a man who
knows something of managing estates, a prudent man and a man who will see that
his brother executors do not fritter away the estate and divert it from the
purposes for which you intend it.”
Q. And so it came from Patrick Purcell?—A.
Whether he suggested or I suggested that John Bergin should be the executor, I
am not positive, because he repeated it over and over again, he is a proper
man, and afterwards when I told him that John would accept it he said that
[Page 130]
he was delighted. Then no further
conversation occurred between us after that in regard to the codicil until he
gave me the instructions, I think on the 15th or 14th to have that codicil
prepared; he said to me, “You haven’t brought that codicil as I instructed.”
Now I do not gather from all or any of these
facts as detailed by Dr. Bergin the slightest evidence of an actual intention
to revive the O’Gara will or revoke the Maclennan will. It was on the 14th or
15th March that Purcell said to the Doctor “You have not brought the codicil
yet which I instructed you to prepare long ago.” And these instructions must
have been given on the 11th or 12th of January, long before he had been advised
by Mr. Blake that the O’Gara will should be “kept alive.” Besides there is no
evidence that after that advice Purcell ever asked or suggested that a codicil
should be drawn of that character or having that effect. “It may, I think, be
doubted,” said Lord Penzance in Re Steele, “whether any testator, who bore in
mind that he had revoked his will and substituted another for it, ever really
sat down with the purpose of revoking his last will and reviving the former one
and set about the execution of that purpose by simply making a codicil
referring by date to the first will, without more. Would any lawyer advise such
a course, or would any unskilled testator imagine he could achieve the end by
such a method? The leading idea of revoking the one and reviving the other in
its place would surely find expression by some form of words in a paper
designed mainly for that object”.
And so I say in the present case that if Purcell
wanted to revoke the second and revive the first will he would have said so. He
would have used some form of words having that effect. The fact is that instead
of intending to give effect to the charitable dis-
[Page 131]
positions of the first will his intentions had
altogether changed. He proposed to reduce still further his bounty to the
Bishop of Alexandria, and “to build a hospital and home for aged and indigent
men and women” at Cornwall. How, in view of all these facts, can it be
contended that the surrounding circumstances show the intention claimed? There
may have been, and I think there was, an idea in his mind of making, at some
future time, some further testamentary disposition of the undisposed residue of
his estate. There was, however, no idea that, by the mere execution of the
codicil, he was restoring the first will and destroying the second. In
referring to the acts and words of the testator subsequent to the execution of
the Maclennan will I am not to be considered as holding that all such evidence
was admissible—that these were such surrounding circumstances as might be
considered in construing the different instruments. The evidence was brought
out, however, by those supporting the O’Gara will and on that ground I have
referred to it.
I had intended dealing with Mr. Blake’s argument
as to the alleged mistake of the testator to which I have referred, but I find
that so ably dealt with in Mr. Justice Gwynne’s judgment that I find it
unnecessary to add anything in respect to it.
If my view be correct it ends the case, and it
should be declared that the will of the 10th January, 1891, is the only
instrument entitled to probate.
KING J.—I agree with the learned judges of the
Ontario Court of Appeal who have found that the will of May, 1890, was revived
by the codicil of May, 1891, while appreciating the weight of the judgment to
the contrary of the learned Chief Justice of Ontario.
If express words of revivor are required to
revive a revoked will by a codicil the codicil in question here
[Page 132]
fails of that effect. But no particular form of
words is necessary. All that is required is that the codicil upon its face, and
giving to the words the sense in which the testator is to be taken to have used
them, shall show the intention to revive. This may be shown “either by express
words referring to a will as revoked, and imputing an intention to revive the
same, or by a disposition of the testator’s property inconsistent with any
other intention, or by expressions conveying to the mind of the court with
reasonable certainty the existence of the intention in question”. In so construing the language of the
codicil “the court ought always to receive such evidence of the surrounding
circumstances as, by placing it in the position of the testator, will the
better enable it to read the true sense of the words he has used”29.
One can see how a codicil referring to a previously revoked will by date might
contain in its substantive provisions nothing that would be any more consistent
with the revival of that will than with the confirmation of the revoking will.
In such case it might well be a question whether the testator had not mistaken
the dates, and really had in mind the real last will. An instance of this might
be where the codicil referring to a will of the date of the revoked will simply
made a bequest to a person not named in either will, or of an additional sum to
a person named in both, as, for instance, if the testator here had by the
codicil given a further sum to his wife. Such a provision would not add
anything to the weight to be given to the mere date as indicative of an
intention to revive the revoked will, for it would be as consistent with one
view as the other. But the codicil here goes beyond that. First it purports to
be a codicil to the will of May 14, 1890; it then makes a testamentary
provision for the more effectual carrying out
[Page 133]
of that will by the revoking of so much of it as
appointed Stuart as executor, and by the appointment in his place of Bergin, conferring
upon him in terms all the powers and duties conferred and imposed upon Stuart
as in the said will declared; and, as pointed out by Mr. Justice
Maclennan, declares that the will in which he is making this change is “this,
my will.” There can be no question as to which will is meant. Upon the face of
the codicil it is rendered certain by the reference to the date of the first
will, and by the reference to a person who was an executor of the first will
and not of the second. “Among pertinent circumstances that may be looked to”
[as Lord Hannen says in McLeod v. McNab,]
in order to get the true sense of the words the testator has used, must be
included the known contents of the revoking will of January 10, 1891. Similar
circumstances as to the change of an executor named in the first instrument,
but not in the second, were there held to lead inevitably to the conclusion
that the first instrument was the one referred to. Here independent surrounding
circumstances, not necessary to be detailed, justify the like conclusion.
The will of May 14th, 1890, being indisputably
intended and being known to be a revoked will (unless the revocation were per
incuriam) what is the proper conclusion to be drawn from a codicil calling it
“this my will” and cancelling the appointment of one of the executors named in
it and appointing another in his place, with the powers and duties conferred by
it? How could Bergin become an executor of such revoked will unless it were
intended thereby to be revive? How could he have the same powers and duties as
were conferred upon Stuart by that will unless it were to be a living will? I
think that some sensible mean-
[Page 134]
ing is to be given to a deliberate and authentic
act, and agree with the learned judges Burton, Osler, Maclennan and Robertson,
that the expressions used in the codicil show with reasonable certainty the
existence of an intention to revive. It is said that no unskilled testator
would imagine he could thus revive a will; but, before the present act,
testators, skilled and unskilled, were accustomed to do it by much less—by
simply making it plain that the codicil referred to the previously revoked
will.
It is not possible to explain all of Purcell’s
conduct. It presents difficulties to any view, the least, perhaps, if we could
think that the revocatory clause was executed per incuriam. I think, however,
that he ought to be credited with some sense and some honesty. The making of a
will was a serious thing with him, and his main concern lay in making provision
out of his large means for various charities. By his first will the great bulk
of his property was so devoted. It was only upon his being told that these
charitable gifts might largely fail that he conceived the idea of recasting
certain devises and bequests, and making such provision for charity as might be
conveniently made out of his personal estate, other than such as might be
secured by mortgage on real estate. This latter scheme he gave effect to by his
will of January 10th, 1891, upon an off-hand opinion received from Mr.
Maclennan in a brief interview. This will dealt with only about one-tenth of
his property. If Mr. Maclennan’s opinion had been otherwise there is no reason
for supposing that the charitable bequests, and indeed the whole will would not
have substantially remained as they were. The day after making the second will
he continued the inquiry into the validity of the charitable bequests,
introducing the subject to Dr. Bergin (whom he had telegraphed to two days
before, desiring to see him on
[Page 135]
business), showing to Dr. Bergin the first will,
and asking him to get the opinion of his brother (a solicitor) upon it. The
next day he suggested to Mr. Maclennan alterations in the second will, a fact
which shows, perhaps, merely that he was still acting on the advice that he had
received from Mr. Maclennan.
He did not tell Dr. Bergin of the tentative will
that he had made following upon Mr. Maclennan’s advice. Seeking further
advice he perhaps concluded to keep to himself the fact of having asked other
advice. But whatever the reason he did not tell Dr. Bergin. Dr. Bergin
advised the taking of the opinion of Mr. S. Blake Q.C., formerly a
vice-chancellor of Ontario, and Dr. Bergin was authorized to consult Mr. Blake.
Dr. Bergin says that Purcell said to him: “Take that to Mr. Blake and if he
thinks it requires a new will let him make it, or do whatever he thinks
necessary, and after that bring it back.” Purcell was informed that
Mr. Blake said that the will ought to be kept alive, which, as explained, meant
that in Purcell’s then state of health a new will might not turn out to be
executed long enough before the testator’s death to make good charitable
devises or bequests payable out of moneys charged on lands. Purcell then
requested that a codicil providing for the appointment of Mr. John Bergin as
executor instead of Stuart, which had been spoken of before, should be sent to
him for execution and it was so sent and is the codicil in question. Stuart had
been book-keeper for Purcell, but in the autumn previous differences had arisen
between them and Stuart then ceased to be Purcell’s book-keeper and went to the
United States. John Bergin was substituted for him as an executor of the
original will and was clothed with all the powers and duties by such will
conferred on Stuart.
[Page 136]
I cannot believe that (as suggested) this was
all a contrivance to mislead the Bergins. There is no assignable motive for
such a piece of duplicity. The reasonable view is that his mind had got back to
its first state and that he desired to revive the first will as his will, and
to provide effectually for the carrying of it out.
Having the misfortune to differ upon this point
from my learned brethren it is not at all useful to express an opinion upon the
numerous and weighty matters that have been so very ably discussed by the
several learned counsel.
Appeal dismissed and cross-appeal
allowed with costs.
Solicitors for appellant: J.A. Macdonell,
Anglin & Minty.
Solicitors for appellants Archishop of
Kingston and others: O’Sullivan & Anglin.
Solicitors for respondents, next of kin:
Maclennan, Liddell & Cline.
Solicitors for respondents Bergin and
others: Leitch, Pringle & Hackness.
Solicitors for respondents, St. Patrick’s
Asylum: Latchford & Murphy.
Solicitors for respondents, Good Shepherd
Nuns: O’Gara, MacTavish & Gemmill.
Solicitor for respondent, Tully: John
Bergin.
Solicitors for respondents McVicar:
Creasor, Smith & Notter.
Solicitor for respondent Isabella Stuart:
R. Smith.
Guardian of Infant defendants: John
Hoskin.
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