Thorne v. Thorne, (1903) 33 SCR 309

Supreme Court of Canada

Thorne v. Thorne, (1903) 33 S.C.R. 309

Date: 1903-04-20

Horace Thorne and Others (Defendants) Appellants;

and

William H. Thorne and Others (Plaintiffs) Respondents.

1903: April 6, 20.

Present: Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Mills JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Will—Devise of all testator’s property—Chose in action.

A devise of all “my real estate and property whatsoever and of what nature and kind soever” at a place named does not include a debt due by the devisee, who resided and carried on business at such place, to the testator.

Judgment of the Court of Appeal (4 Ont. L.R. 682) affirmed.

APPEAL from a decision of the Court of Appeal for Ontario^[1] affirming the judgment of the Divisional Court in favour of the plaintiffs.

William Thorne, then residing in England and having considerable property at Holland Landing, Ont., made the following bequest by his will;—

“I give, devise and bequeath my mill, tannery, houses, lands and all real estate and property whatsoever and of what nature or kind soever at Holland Landing, in the Province of Canada West aforesaid to my nephew William H. Thorne, his heirs, executors, administrators and assigns absolutely, but charged and chargeable nevertheless with and I hereby charge the said Holland Landing property with the payment of the annuities next hereinafter mentioned, namely, one annuity or yearly sum of eight hundred dollars to be paid by my nephew William Henry Thorne, out of

[Page 310]

such property to my wife Patience Margaret Ann Thorne by equal yearly payments for her life.”

At the time of testator’s death a firm of which the devisee, W.H. Thorne, was a member owed him nearly $18,000, and both he and the executors considered that such debt did not pass by the devise and he paid a portion of it to the estate. They agreed also that the devisee and not the estate should pay the annuities. The defendants, who are annuitants, now claim that the debt did pass and that the executors should refund the amount paid on account of it.

This contention was raised in an action by the surviving executors against the estate of the deceased executor for delivery up of the books and securities, and for an injunction which, on the hearing, was turned into a motion for judgment and the other parties added.

The only question to be decided is whether or not the said indebtedness passed by the devise.

D.O. Cameron and Blain for the appellants. The debt passed by the devise. The residence of the debtor determines the locality of the debt. Earl of Tyrone v. Marquis of Waterford^[2]; Guthrie v. Walrond^[3]; In re Prater Designe v. Beare^[4]; In re Robson^[5].

Certain words were deleted from the will and should not be looked at in construing it. Manning v. Purcell^[6]; Inglis v. Buttery^[7].

S.H. Blake K.C. and Saunders for the respondents other than W.H. Thorne. The words deleted may be looked at; Williams on Executors, (9 ed:) vol. 1, p. 485; Shea v. Boschetti^[8]; In re Harrison^[9]; and they

[Page 311]

shew that only the mill, tannery and lands and property connected therewith were derived.

Choses in action have no locality. Fleming v Brooke^[10]; Marquis of Hertford v Lord Lowther^[11].

It is unsafe to rely upon decisions on other wills where the language and situation of the parties are different. In re Jodrell^[12]; In re Tredwell^[13]; In re Palmer^[14], overruling Humble v Shore^[15].

Lee for the respondent W.H. Thorne. This respondent was mulcted in costs by the Divisional Court, but did not appeal to the Court of Appeal. I now ask to be allowed to contend that the costs were improperly imposed and to file a factum.

THE CHIEF JUSTICE.—This case involves the construction of the will of one William Thorne who died at Toronto in 1868. The appellants have undertaken the arduous task of convincing us that the testator did not mean what he said, and what he was taken by all the interested parties to have said during the thirty years following his death. The material words in that will upon this controversy are as follows:

I give, devise and bequeath my mill, tannery, houses, lands and all my real estate and property whatsoever, and of what nature or kind soever, at Holland Landing, in the Province of Canada West aforesaid, to my nephew, William Henry Thorne, his heirs, executors, administrators and assigns, absolutely.

At the time of the testator’s death a large sum, nearly $18,000, was due him by a firm doing business as lessees of the said mills at Holland Landing, of which the said devisee, William Henry Thorne, was a partner. And the only question is whether or not the gift to him includes the debt so due by the said firm to the

[Page 312]

testator. The Divisional Court and the Court of Appeal held that it did not. And that conclusion seems to me unassailable. The judgments are reported at page 682, vol. 4 Ont. L.R., sub nomine, Thorne v. Parsons, and I do not see that I could add anything to the opinions delivered by the learned judges who passed upon the different questions raised by the parties. No new points were taken before us. I read the will as if it said simply: “I give all my real property situate at Holland Landing to my nephew William Thorne.” Indeed, taking the will altogether and the residuary devise and bequest it provides for, the construction contended for by the appellants would perhaps be as untenable even if the will had merely said: “I give all my lands and property situate at Holland Landing to W.H. Thorne.” If that testator at his death had left a debtor in Toronto, but no real or other personal property of any kind, and had intended to bequeath the sum due to him by that debtor, to his nephew, he would not merely have said: “I bequeath my property in Toronto to my nephew.” In ordinary parlance a chose in action is not called property.

The appeal is dismissed with costs.

A motion was made on the part of W.H. Thorne for leave to file a factum as appellant on the question of costs to which he contends that, as trustee, he should not have been condemned by the Divisional Court. That motion must be dismissed with costs. He has no standing as an appellant in this court. He was served as respondent by the appellants with a notice of this appeal. But that does not make him an appellant, or entitle him ipso facto to the benefit of an appeal.

SEDGEWICK, GIROUARD and MILLS JJ. concurred in the dismissal of the appeal and the motion.

[Page 313]

DAVIES J.—I am of opinion, for the reasons given by Mr. Justice Street, in the Divisional Court, and Mr. Justice Moss, in the Court of Appeal, that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant Horace Thorne: D.O. Cameron.

Solicitor for the other appellants: F.J. Blain.

Solicitors for the respondents except W.H. Thorne: Kingsmill, Hellsmuth, Saunders & Torrance.

Solicitor for the respondent W.H. Thorne: Lee & O’Donoghue.