Supreme Court of Canada
Marks v. Marks, (1908) 40 S.C.R. 210
Date: 1908-05-05
Annie Jane Marks (Plaintiff) Appellant;
and
Susan Elizabeth Marks (Defendant) Respondent.
1908: March 11, 12; 1908: May 05.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE SUPREM COURT OF BRITISH COLUMBIA.
Construction of will—Description of legatee—Devise "to my wife"—Bigamous marriage—Evidence—Burden of proof.
A devise made in a will "to my wife" was claimed by two women, with both of whom the testator had lived in the relationship of husband and wife.
Held, per Idington J.—That, even if the first marriage was assumed to have been validly performed, all the surrounding circumstances shewed that, by the words "to my wife," the testator intended to indicate the woman with whom he was living, in that relationship, at the time of the execution of the will and thereafter up to the time of his death.
Held, per Duff J.—That the woman who claimed to have been first married to the testator had not sufficiently proved that fact, and that the other woman, who was living with the testator as his wife at the time of the execution of the will and up to the time of his death, was entitled to the devise.
Held, per Davies and Maclennan JJ. dissenting.—That the first marriage was sufficiently proved and, consequently, that the devise went to the only person who was the legal wife of the testator.
Fitzpatrick C.J. was of opinion that the appeal should be dismissed.
Judgment appealed from (13 B.C. Rep. 161) affirmed, Davies and Maclennan JJ. dissenting.
APPEAL from the judgment of the Supreme Court of British Columbia affirming the decision by the
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Chief Justice, at the trial of the issue, ordering a judgment to be entered in favour of the defendant.
The material circumstances of the case are stated in the judgments now reported.
R. Cassidy K.C. for the appellant.
J. Travers Lewis K.C. for the respondent.
THE CHIEF JUSTICE.—I am of opinion that this appeal should be dismissed with costs.
DAVIES J. (dissenting).—I concur in the opinion stated by Mr. Justice Maclennan.
IDINGTON J.—The testator, Alfred John Marks, then resident in the Town of Nelson, in British Columbia, made his last will and testament there, on the 6th of May, 1904. He devised certain real estate described as lot No. 10, in Nelson, on trusts expressed by words I quote (so far as relative to questions raised herein), to pay, out of the rents and profits, a mortgage,
and pay my wife, during her life, the sum of fifty dollars, monthly, * * * and while continuing the said monthly payment to my wife as aforesaid, my trustees shall pay quarterly all the surplus left out of the rents and profits so issuing and arising from said lot ten to my children, Harriet Ann, Euphia Jane, and Alfred Edwin, in equal shares.
And, after decease of my said wife, upon trust, that my trustees shall sell and convert into money the said lot and divide the proceeds of such sale and conversion among said children * * * in equal shares.
These were children of an early marriage by a wife who had died in their infancy and previous to the alleged second marriage now in question.
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The appellant alleges she was, after the first wife's death, married to the testator in Buffalo, in the State of New York, in the year 1873.
The respondent was undoubtedly, unless for such bar as the said Buffalo marriage created, married to him in British Columbia, on the 19th March, 1902; lived with him as his wife until his death, on the 8th of October, 1904, and was fully recognized meantime as his wife.
The contention is now set up that we are bound in law, no matter what we may consider to be the intention of this testator, under all the facts and surrounding circumstances which I think we are entitled and bound to consider in the interpretation of this will, to hold that the appellant is entitled to receive the bequests made by the said will to the wife of the testator in the language expressed above, if in truth she is shewn by the evidence to have been duly married to the testator, and not legally divorced from him, and, hence, at his death, his wife in law. And, as a clear consequence, apparently (though that is not to be disposed of here), the time of distribution must be the death of appellant and not that of the respondent.
In other words, it is claimed that there cannot be any one who can answer to that description "my wife" except the one person who may in law be decided to be such.
I do not think the law so binds us.
Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.
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This proposition may seem to be in conflict with language that has been occasionally used by eminent authority. Expressions are here and there found to suggest that the will must first be read and if the particular language in question is free from ambiguity and in its primary or ordinary meaning consistent with all else in the will, no extraneous circumstances can be brought in evidence.
The case of Charter v. Charter illustrates, better than any other I know of, how these expressions may be correctly used and applied. When they have been so applied as to exclude the surrounding circumstances, I cannot find such application to have been material or necessary for the determination of the case there in hand. Nor can I find any case that has expressly decided it would ever be improper to introduce and properly use such surrounding circumstances. I only refer to this lest such cases might be said to have been overlooked.
I am content to adopt and act upon the following language of Lord Cairns, in Charter v. Charter:
The court has a right to ascertain all the facts which were known to the testator at the time he made the will, and thus to place itself in the testator's position in order to ascertain the bearing and application of the language he uses.
And substantially reiterated in the case of BathurstErrington, at page 706:
In construing the will of the testator * * * it is necessary that we should put ourselves, as far as we can, in the position of the testator and interpret his expressions as to persons and things with reference to that degree of knowledge of those persons and things which, so far as we can discover, the. testator possessed.
Having, in light of such surrounding circumstances, come to the conclusion I am about to express,
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it is not necessary to determine absolutely the status of either party hereto as wife.
I, therefore, assume for the present that the appellant was duly married to the testator, as she alleges; though, even if in truth so, there may be great doubt of the fact having been duly proven here.
Needless, therefore, for me to go into more detail of the history presented than what in a general outline is necessary in order to find these surrounding facts and circumstances that were known to the testator and which can be properly considered here, and hence determine what the testator meant by the words "my wife" when used in his will.
Immediately after the alleged Buffalo marriage, the appellant and the testator lived as man and wife with her father and mother in Kincardine, in Ontario, for three months and then took up house there. He was a house-painter, but so shiftless and improvident that he could not maintain his wife and sold everything in the house and left her at the end of eighteen months or a couple of years. He returned to Kincardine some months later, but in the course of a year or so he left her finally in 1878 and never saw her again.
They had no family. She then started to work as a milliner to support herself.
He wandered out west, kept thousands of miles away from her (except once when, in 1892, he was visiting in Ontario and Michigan, where she had lived meantime), and took, in course of time, to keeping tavern in Nelson, in British Columbia.
The respondent became his housekeeper in such business and they thereafter lived, from 1894, as man and wife, and, finally, got married as I have stated.
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The appellant had drifted over to Michigan and there formed the acquaintance of a man named Franckboner, became his housekeeper and, in 1888, took his name and lived with him as his wife. In the place where they lived, they had so managed things that everybody, on their adopting this mode of life, assumed they had been married and treated them accordingly until Franckboner died, in 1897. She then passed as his widow and, as one result, she got their dwelling house conveyed to her. She relates all this and yet denies she ever was married to Franckboner.
In 1892, the testator for some unexplained reason visited Kincardine and saw, amongst others, the appellant's mother; whom he met apparently on a friendly footing. We are left to speculate as to the reson for this visit and the results of it; as we are in a good many other respects where we should not have been, in regard to many things, in this curious history.
It is most improbable, when we come to consider the sequel, that the mother, whom she visited occasionally (though I cannot find her doing so as under the name of Mrs. Franckboner as early as 1892), was ignorant, or that he was left in ignorance by her, and by the appellant's sisters whom he saw on the same occasion in Detroit, of the Franckboner connection the appellant had formed.
We have to connect with such probabilities as arise thereon the fact, distinctly proven, that by a letter of the 22nd of April, 1904, he wrote her, in reply to a letter of hers, and addressed her as "Annie Franklan," having, as the letter explains, not been able to make out the correct spelling of her name. He addresses
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her as "dear Annie" and signs as "your friend, A. J. Marks."
She swears she had received, but destroyed, several earlier letters than this from him within the preceding five or six months and that the earliest of these was the first she had heard directly from him since he left her in 1878.
She attempts to give the contents of these previous letters. We may assume, as against her at least, that such letters were written and that she has correctly recalled the nature of the contents.
In the light of the previous history I have set forth, I cannot read these alleged contents of the missing letters or the contents of the one of the 22nd of April, 1904, which is placed before us, without being impressed with this,—that the writer had long before not only heard of the change of name of the appellant, but also that she was no more his wife, whatever she may have been. The entire absence of any inquiry on the subject of how her change of name and all else in her situation came about leads to the conclusion that he had heard her history before then, and that, if ever he had been married to her, she had become divorced from him.
Many trifling incidents cropping out of this correspondence tend to confirm such conclusions.
The will was written on the sixth of May following the last of the said letters. The testator was ill, he was going away for his health and wrote her from Spokane on the 10th of May, 1904, four days after the date of the will and acknowledged a letter he had received from her, evidently at Nelson, and I think probably answering the one above referred to of the 22nd of April. The times, the places, the circum-
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stances, including the preparation for his trip, point to the receipt of her letter as taking place a few days before the will was made. How do these people address each other? The testator continued to subscribe himself as "your friend" and address her as "dear Annie." We are asked to find that the will of the writer intended to refer to this woman as his wife.
Evidently, on this trip in 1892, he did not think it worth while, though so near to her place of abode, to try to see her. Why did he refrain? I think he may be credited with some considerations of a respectable nature prompting him to assume that she, so long abandoned by him, was married again, rather than accuse her of simple adultery.
I refuse to believe that he ever looked upon the appellant, thenceforth, as his wife. Indeed, if we know no more, I do not think it would be an unfair inference to assume that he looked upon her as the lawful wife of another man. He was fully entitled to draw that inference. Why should I say he did not?
His treatment of her entitled her, if she had sought by legal methods, to have brought about that result. She says she did not. But am I to attribute to him a knowledge of that which she now asserts, and which is the most improbable part of her story, with the result of holding that he meant to designate her, when making the provision now in question for his wife? Am I to abandon all right of reason and common sense and impute to this testator an intention to provide for this appellant when the facts and circumstances surrounding the man repel any such thought?
At the date of this will the testator was informed (by appellant's assuming to address him as a friend named Mrs. Franckboner), as plainly as if she had
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said in so many words that she had, as she was entitled to on facts well known to him, procured a divorce and married again.
He acts on that, makes devises and bequests consistent therewith, and does not think it necessary to guard his designation by using a Christian name.
It seems to me quite as clear as if he had said in his will the woman who passes as my wife, by the name of Susan Marks, when it would have been held good by virtue of many authorities.
In Giles v. Giles, Lord Langdale, as Master of the Rolls, held as good a bequest by a testator named Giles to his wife Ann Giles, whom he married whilst her husband lived.
But there are the following cases which maintain the respondent's case, even without that.
In Pratt v. Mathew , at page 338, Sir John Romilly, the Master of the Rolls, held the phrase "to my wife" carried a bequest to her whom the testator had gone through the form of marrying, but whom, by reason of her having been a deceased wife's sister, he could not legally marry. And in the same case he held void a bequest to "my children hereafter to be born" though the said wife, so-called, with whom he lived until death, was then far advanced in pregnancy. We have here illustrated the contrast between the effect of the application of designatio personce and the force of the decisions as to after-born illegitimate children. Yet it had been urged that the phrase "to my wife" should be held applicable only to an after-taken wife whom he might legally have married.
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In Re Petts the same judge held that a woman who had a husband still living when she married the testator was entitled to legacies given "to my wife" and "my said wife," by the will of him with whom she contracted this second and void marriage.
In Re Howe, it was held, where separation by mutual consent had taken place and a ceremony of marriage gone through with another whom the testator had treated as his wife, that she took under the expression "my wife."
In Anderson v. Berkley, it was held by Joyce J., that a bequest "to my son's wife L., if she shall survive him" was good, though she who lived with the son was not in fact his wife. The son had held her out as his wife, but the judge declined to speculate how far this would have affected the testator's mind, if he had known the truth.
There are thus presented decisions arising upon almost every shade of description of a woman as wife when not such in law save this case which presents a choice between two I assume to have been married in good faith to the testator. Does that make any difference?
In the result, I find that there was ample ground for the testator supposing that, if he had ever married the appellant, she had become the lawful wife of another and was no longer his wife and that he could not, at all events, should not be held to have intended the words "my wife" when used in his will to designate any other than she whom he had so recently married, without any imposition on her part as to her real status.
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We are asked to assume not only that he meant to designate, in so speaking of "my wife," the presumable widow of another man, but also to make the inheritance of his children depend, for the time of its taking effect, on the death of that presumable widow, rather than on the death of her whom he daily greeted, in their correspondence, at the very time he was making such disposition of his estate, as "dear wife," whilst greeting the other as "dear friend."
In plain English, we are invited to accept as conclusive a chopping of legal logic rather than common sense.
I prefer to read the ordinary meaning, the primary meaning, of the words used when read in light of surrounding circumstances in accordance with common sense, rather than treat as sound law, not that which has ever been so expressed, but the deductions asked to be drawn as possible from an extension of language that never yet has been so applied as asked to such an extraordinary condition as exists here.
Indeed, I prefer to follow the warning implied in so many cases not to reduce the meaning of the language used to an absurdity.
Since writing the foregoing, the report of Re Wagstaff; Wagstaff v. Jalland, in the Court of Appeal, reaches me and shews that a bequest by a husband to a "widow" during widowhood, was good though in law never legally married to him.
This seems to help to maintain the line of reasoning I adopt.
I think the appeal should be dismissed. As to the costs I doubt if on an issue like this we have, where they are not by the terms of the issue given us to
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dispose of, any right to make them costs out of the estate. They should, it seems to me, have been reserved to await the determination of the issue or made by order directing the issue part of what we are to dispose of.
If ever there was a case wherein the costs should have, up to this appeal, come out of the estate, this certainly is one. The courts below have not so dealt with them, but only given the executors such costs, and I fail to see how we can interfere.
MACLENNAN J. (dissenting).—I think this appeal should be allowed.
One Alfred John Marks made his will on the sixth of May, 1904, at Nelson, B.C., and died there on the eighth of October afterwards.
By his will, he bequeathed an annuity of $50 per month to his wife, describing the legatee merely by the words " my wife," and "my said wife."
The plaintiff and defendant, respectively, claim to have been the lawful wife of the testator, at the date of his will and at the time of his death.
At the instance of the executors, an issue was directed to determine which of the two claimants is entitled to the bequest.
The issue was tried before the learned Chief Justice of British Columbia, who decided it in favour of the defendant, and his decision was affirmed on appeal to the Supreme Court. From that decision this appeal is brought.
The plaintiff's case is that she was legally married to the testator, at Buffalo, in the State of New York, on the 22nd of December, 1873; and. the defendant's
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case is that she was married to him on the 19th of March, 1902, at Nelson, in British Columbia.
It is clearly proved that, on the last mentioned date, the ceremony of marriage was performed between the testator and the defendant; and it is not disputed that this was a good marriage in law, unless the testator had then another living wife.
In my view of the case the only question in the appeal is whether there is sufficient evidence of the alleged marriage of 1873.
If the plaintiff has proved her marriage in 1873, she is entitled to succeed, for, in that case, she was the legal wife of the testator when he made his will; and no evidence is admissible to shew that the expressions "my wife" and "my said wife" contained in the will, as descriptive of the legatee, mean any other person than her who was then his legal wife.
In Ellis v. Houston, funds were directed by the testatrix to be divided between all the children of her brother. Some of them were illegitimate, born of the brother's wife before marriage, but treated by the testatrix as if legitimate. Held, that evidence could not be admitted to prove that the testatrix had directed the will to be so drawn as to include the illegitimate children and that she thought it had been so drawn.
In Re Fish; Ingham v. Rayner, in the Court of Appeal, there was a bequest to the testator's grandniece, without naming her. He had two grandnieces, one legitimate and the other illegitimate, and it was held that evidence could not be admitted to shew that the illegitimate niece was the one referred
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to in the will, although she was the one living in his house and called by him, his niece.
In Dorin v. Dorin, the testator married a woman by whom he had two illegitimate children, and by his will gave his property to his wife for life, and to dispose among our children by will, and, if no will, to be divided equally between my children by her. No children were born after the date of the will. Held, Cairns L.C., Hatherly, O'Hagan and Selborne L.JJ., that the personal estate, after the widow's life interest, was undisposed of, quoting Lord Eldon in Harris v. Lloyd :
I have not the least doubt that the testator meant illegitimate children, but I am clearly of opinion that there is not enough upon the face of this will to authorise me to carry that intention into effect.
In Hill v. Crook, the head-note says:
If there is a gift to children as a class, the law, if there is nothing in the will clearly to shew a contrary intention, will apply the gift to legitimate children only.
The effect of these cases I think is to establish the principle that in a will the word "children" or "niece," or other word expressing relationship, primâ facie means legal relationship, and no evidence dehors the will can be admitted to shew the contrary.
There are other cases to the same effect which might be quoted, and the only case which I have seen which might seem to decide otherwise is Re Howe, before Butt J., on a motion for probate. There a testator had, by mutual consent, separated from his wife, who had no issue, and, in her lifetime, went through a marriage ceremony with another, and, by the latter,
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had two children. By his will, he directed his property to be
divided equally between my two children, when the younger comes of age. The rest I leave to my wife, for her own use, to bring up the children, and after her death to be equally divided between my two children.
The motion seems to have been ex parte, and probate was granted to the second wife.
The learned judge seems to have thought there was enough on the face of the will, by the reference to the children, to shew that it was the second wife who was referred to.
The question then is whether there is sufficient evidence of the plaintiff's marriage to the testator in 1873. And it is proper to remark here that all the plaintiff's evidence, except that of one witness whose evidence is unimportant, was taken upon commission, and we are in a position to consider it with the same freedom as the learned judges below. This observation also applies to the defendant's examination for discovery, which was taken before the registrar and was read at the trial.
There are two classes of cases in which strict proof of a legal marriage is necessary, namely, indictments for bigamy, and actions for criminal conversation, — the one a criminal, and the other a quasi-criminal proceeding. In other cases, that is, in civil actions like the present, no such strict proof is required. Phipson on Evidence (3 ed.) 339; Piers v. Piers .
The learned Judge Irving, who gave the principal judgment in the Supreme Court, cites at length from the Dysart Peerage Case, at page 489, in which the
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question was which of two persons was entitled to a peerage,—depending on the validity of the earlier of two alleged marriages.
In that case Lord Watson says:
I see no reason why the direct and uncontradicted testimony of the person alleging the marriage, if corroborated, to some extent, by the indirect testimony of others, and supported by the facts and circumstances of the case, should not receive effect. But it will always be necessary, in a case of that kind, to test very strictly the statements given in evidence, by a woman interested in establishing that she held, and holds, the honourable status of a wife, and not the degrading position of a mistress.
Mr. Justice Irving seems to have thought that this language required him to find some corroboration of the plaintiff's evidence of the actual ceremony of marriage. I think, with great respect, that is not so. It is her testimony generally, and not her evidence of the actual ceremony, which he thinks should be corroborated to some extent by that of others, and supported by the facts and circumstances of the case. Their Lordships do not go so far as to say that the same strict proof of the ceremony is required as in bigamy, or criminal conversation, but that the testimony of the plaintiff is to be tested very strictly, by reason of the serious issues involved.
I think it was not necessary to have any corroboration of the plaintiff's evidence of the actual ceremony, though I think even that is not wanting. There is the evidence of a marriage certificate, seen in due time afterwards by several witnesses, and references in letters of the testator written not long before his death to the plaintiff, and admitted in evidence without objection, corroborative of her story of the marriage. No attempt was made to cast any doubt upon the truth of her account of the ceremony, or upon its validity in law as related by her.
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But that is not all. The defendant admits, on her examination for discovery, that the testator told her before he married her, that he had been twice married and that his first wife was dead, and that he was separated from the second, that he shewed her a photograph which he said was that of his second wife, and which had the words "Mrs. Marks" on the back or side of it, in Mr. Marks's hand-writing.
Now I think all that is very strongly corroborative of the plaintiff's account of the actual marriage; and, when to that is added the evidence of co-habitation immediately afterwards as husband and wife, in perfect respectability, for two or three years, first for several months in the family of the plaintiff's father and mother, and, afterwards in a dwelling of their own in the same village, and their repute and reception as husband and wife in the community during the same period, all proved by witnesses of undoubted character and position, her case is, in my opinion, satisfactorily made out.
The law makes the plaintiff a competent witness on her own behalf, and, upon a careful perusal of the whole of the evidence, I see no reason why she should not be believed.
There is no suggestion that there was a divorce obtained by her or by the testator. The defendant says that she never asked the testator whether there had been a divorce; that, before he married her, he told her that the woman whose photograph he shewed her was his second wife, and she "supposed she was dead, or married, or something."
There is nothing to shew or suggest that the plaintiff was responsible for the separation which took place about three years after marriage, or for its long
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duration. The testator was unsuccessful in his business, sold out and went to the west, leaving his wife behind.
I think it is not necessary to dwell upon their respective histories during their later years, save to say that there is nothing in the plaintiff's history, as frankly related by her, to lead me to think that she is other than a truthful witness, or that her evidence is not to be relied upon.
I think the appeal should be allowed and that the issue should be found for the plaintiff.
DUFF J.—An ex facie valid marriage between the defendant and the testator and actual cohabitation by them as husband and wife from the time of that marriage until his death in 1904, are admitted.
It is also admitted that, from the year 1876, down to the year 1904, no communication of any kind took place between the testator and the plaintiff; and a correspondence begun in that year, whatever else it shews, certainly is not the sort of correspondence one would expect to pass between people regarding themselves as united by matrimonial ties. Moreover, the plaintiff, after the date when she alleges she became the wife of the testator, admittedly lived for many years with another man as his wife; received his property, after his death, and retained his name until, on the death of the testator, she made the claim which led to the present proceedings. I have no hesitation in saying that, in these circumstances,—apart from the effect of any presumption that the testator did not, in marrying the defendant, commit a criminal act,—a heavy burden of explanation rests upon the plaintiff.
That burden has not, in my opinion, been dis-
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charged. Outside of the circumstances mentioned, I find in the plaintiff's case so many grounds of suspicion that it would, I think, be wholly unsafe to accept it as sufficient to impeach the defendant's status as the wife of the testator—a status of which, as I have mentioned, she was in the actual enjoyment at the time of his death.
Appeal dismissed with costs.
Solicitor for the appellant: Robert Wetmore Hanington.
Solicitors for the respondent: Taylor & O'Shea.
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