Baldwin v. Mooney / In re estate of Peter Donald, Deceased, [1929] SCR 306

Supreme Court of Canada

Baldwin v. Mooney / In re estate of Peter Donald, Deceased, [1929] S.C.R. 306

Date: 1929-03-20

In re Estate of Peter Donald, Deceased

M. Edith Baldwin (Plaintiff) Appellant;

and

William T. Mooney and Others (Defendants) Respondents,

1929: February 7; 1929: March 20.

Present: Duff, Mignault, Newcombe, Lamont and Smith JJ.

ON APPEAL FROM THE COURT OF KING’S BENCH, SASKATCHEWAN

Will—Construction, as to beneficiaries—Share of person predeceasing testator to go to such person’s “children”—Adopted child—Effect of foreign law declaring rights of child adopted under that law.

A testator, who died April 17, 1922, domiciled in Saskatchewan, by his will provided for division of part of his estate equally among seven persons, including S., and directed that “should any of the parties mentioned * * * predecease me, the share which such party would have received had he or she survived me is to be divided equally between the children of the party who would have received said share.” S., who was domiciled in the State of Washington, predeceased the testator, leaving only a child whom he and his wife had adopted under the laws of Washington, by which laws such child is declared to be to all intents and purposes the child and legal heir of his adopter, entitled to all rights and privileges and subject to all the obligations of a child of the adopter begotten in lawful wedlock.

Held: The child did not take under the will. No principle was applicable from the rule applied to determine the legitimacy of children born before their parents’ marriage. The question was not one of status, but was whether the adopted child was a person such as described in the bequest. There being nothing in the will or the circumstances to indicate its use otherwise than in its ordinary sense, the word “children” (under Saskatchewan law as it stood at the time in question) did not include an adopted child[1].

Judgment of Bigelow J. (23 Sask. L.R. 111; appealed from per saltum) affirmed.

APPEAL (per saltum, by leave of the Court of Appeal for Saskatchewan[2]) from the judgment of Bigelow J.[3] dismissing the appellant’s (plaintiff’s) application,

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made by way of originating notice, in the Court of King’s Bench, Saskatchewan, for an order directing the executors of the will of the late Peter Donald, deceased, to pay to the appellant, as guardian of the estate of James W. Speedie, an infant, all moneys at the commencement of the proceedings or thereafter during the minority of said James W. Speedie payable to him out of said deceased’s estate.

The following facts were, for the purpose of the appeal, admitted by the parties:

1. [Nature of the proceedings, as above set out].

2. The said Peter Donald died on April 17, 1922, domiciled in the province of Saskatchewan, having made his last will and testament bearing date April 26, 1920, letters probate whereof were granted to the respondent executors out of the Surrogate Court, Judicial District of Kindersley, in the province of Saskatchewan, on August 12, 1922.

3. The said Peter Donald by his said will directed his executors to divide one-twelfth of the residue of his estate excepting one section of land equally share and share alike among seven persons, one of whom was Andrew Speedie, of Seattle, Washington, U.S.A.

4. The said Andrew Speedie died on August 20, 1920, domiciled in the State of Washington, U.S.A.

5. That the said Peter Donald, deceased, by his will provided as follows:

Should any of the parties mentioned in this my will, except the said Margaret Fleming, predecease me, the share which such party would have received had he or she survived me is to be divided equally between the children of the party who would have received said share.

6. That at the commencement of these proceedings the estate of said Peter Donald, deceased, had been partially distributed and that the share of the portion distributed which the said Andrew Speedie would have received had he survived the testator was at the commencement of these proceedings approximately $980, which sum is held in reserve by the respondent executors, and that the value of the estate of said deceased undistributed at the commencement of these proceedings was approximately $332,000.

7. That the said Andrew Speedie died leaving surviving him James W. Speedie, an adopted child, adopted under the laws of the State of Washington, U.S.A., who was born on May 2, 1909, and no other child or children.

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8. That the appellant is guardian of the person and estate of said James W. Speedie under letters guardianship issued out of the Superior Court of the State of Washington on October 18, 1927.

9. That the said James W. Speedie was adopted by the said Andrew Speedie and his wife the appellant (then named Mary E. Speedie) as their son in accordance with the laws of the State of Washington and that the order of adoption under such laws was made on June 15, 1914, in the Superior Court of the State of Washington. The said order provides as follows:

It is hereby ordered that the said minor child be adopted by said petitioners and from this day he is to all intents and purposes the child of the petitioners Andrew Speedie and Mary E. Speedie and that his name be changed to James Waterbury Speedie.

10. That at the time of said adoption the said Andrew Speedie and James W. Speedie were and the said James W. Speedie still is domiciled in the State of Washington, U.S.A.

11. That the said Order of adoption was made pursuant to section 1698 of Remington’s Compiled Statutes of Washington, which section is as follows:

Upon the compliance with the foregoing provisions, if the court shall be satisfied of the ability of the petitioner or petitioners to bring up and educate the child properly, having reference to the degree and condition of the child’s parents, and shall be satisfied of the fitness and propriety of such adoption, the court shall make an order setting forth the facts and declaring that from that date such child, to all legal intents and purposes, is the child of the petitioner or petitioners, and that the name of the child is hereby changed.

12. That the effect of the said order of adoption according to the laws of the State of Washington is as set forth in section 1699 of the said Compiled Statutes, which section is as follows:

By such order the natural parents shall be divested of all legal rights and obligations in respect to such child, and the child shall be free from all legal obligations of obedience and maintenance in respect to them, and shall be, to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in lawful wedlock: Provided, that on the decease of parents who have adopted a child or children under this chapter and the subsequent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin, and not to the next of kin of such adopted child or children.

13. That the said sections 1698 and 1699 were in force on and for some time prior to June 15, 1914, and are now

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in full force and effect as laws of the said State of Washington.

14. That under the laws of the State of Washington the guardian of an infant domiciled and resident therein and appointed by the courts of such State has power to receive and give legal discharges for all moneys payable to such infant whether the same be payable by persons residing within or beyond the said State and that under the laws of said State it is the duty of such a guardian to collect all debts and demands due to his ward.

Bigelow J.[4], following Burnfiel v. Burnfiel[5], which he held was applicable and binding upon him, held that the said James W. Speedie did not take under the will as a “child” of the said Andrew Speedie.

G. W. Forbes for the appellant.

Avery Casey K.C. for the respondents.

The judgment of the court was delivered by

Smith J.—Peter Donald died domiciled in Saskatchewan on 17th April, 1922, having made his will dated 26th April, 1920, which was duly probated in Saskatchewan.

By this will the testator directed his executors to divide one-twelfth of the residue of his estate, excepting one section of land, equally among seven persons, one of whom was Andrew Speedie, of Seattle, Washington, U.S.A. Another clause of the will provided as follows:

Should any of the parties mentioned in this my Will, except the said Margaret Fleming, predecease me, the share which such party would have received had he or she survived me is to be divided equally between the children of the party who would have received said share.

Andrew Speedie died on the 20th day of. August, 1920, leaving surviving him James W. Speedie, adopted as a child under the laws of the State of Washington, but no other child. The statute of this State authorizes the court, upon compliance with its provisions, to make an order declaring that from and after that date such child, to all legal intents

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and purposes, is the child of the petitioner or petitioners, and such an order was made, declaring the child James W. Speedie to be the child of said Andrew Speedie and his wife Mary E. Speedie. The statute declares that by such order the child shall be,

to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in lawful wedlock.

Andrew Speedie having died before the testator, the question is: Does the adopted child James W. Speedie, under the clause of the will quoted above, take the share that Andrew Speedie would have taken had he survived the testator? The appellant, as guardian of the infant James W. Speedie, on an originating notice in chambers applied to the Court of King’s Bench in the Judicial District of Regina for an order directing the executors to pay to her as such guardian the moneys payable to the infant in respect of the share of Andrew Speedie, which motion was dismissed on the ground that the infant James W. Speedie was not entitled to the share bequeathed to Andrew Speedie as his child under the clause quoted.

By reason of conflicting decisions in the various provinces on the point in question, an appeal from the order in chambers is taken direct to this Court by leave obtained from the Court of Appeal of Saskatchewan.

The appellant submits that the principle adopted in the English cases cited, in reference to children made legitimate according to the law of the domicile of the father, applies to children adopted as in this case. It is admitted that there is no direct authority for this proposition in this court, nor in English decisions, but four cases decided in our provincial courts are cited, viz.: Re Throssel[6]; Robertson v. Ives[7]; Purcell v. Hendricks[8]; In Re McAdam[9]. These cases are at variance with the decision of the Court of Appeal for Saskatchewan in Burnfiel v. Burnfiel[10].

The law in relation to the status of a child by legitimation is reviewed in In re Andros[11]. The following are extracts from the judgment by Kay J.:

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This will being an English will must, of course, be construed according to English law. That law requires that all who take under a gift to sons of a named father should be legitimate offspring.

* * * * *

A bequest in an English will to the children of A. means to his legitimate children, but the rule of construction goes no further. The question remains who are his legitimate children. That certainly is not a question of construction of the will. It is a question of status. By what law is that status to be determined. That is a question of law. Does that comity of nations which we call international law apply to the case or not?

He reviews the cases, and concludes that, owing to the conflict of authority, he must decide the matter for himself, and holds that a bequest of personality in an English will to the children of a foreigner means to his legitimate children and that by international law, as recognized in this country, those children are legitimate whose legitimacy is established by the law of the father’s domicile. In the case before him, an English will bequeathed property to the sons of T. E. Andros, who died domiciled in Guernsey. The plaintiff was a son of T. E. Andros, born in Guernsey in 1860, before his marriage there to plaintiff’s mother, which was in 1865. The subsequent marriage of his parents legitimated the plaintiff under the law of Guernsey. Applying the rule laid down, it was held that the plaintiff was to be deemed a legitimate child under the terms of the will and entitled to take. The rule, however, as stated is wider than the decision, and has been finally settled in more restricted form. Dicey’s Conflict of Laws, 4th ed., at p. 903, states the rule in terms, which the author says may now be laid down with confidence, as follows:

Our Courts hold that under the common law the question of a child’s legitimacy is to be determined by the law of the father’s domicil at the time of the child’s birth, taken together with the law of the father’s domicil at the time of the subsequent marriage of the child’s parents, and, when a person is legitimated under these two laws, fully admit his legitimacy.

This rule, first applied in case of a bequest of personality, was applied to a devise of real estate in In re Gray’s Trusts[12], but it was held in Birtwhistle v. Vardill[13], that it does not apply to inheritance of real estate.

It is the principle of the rule quoted above that, it is argued, applies here to the case of this adopted child. It will be noted that the rule does not apply to all illegitimate children legitimated by the law of the domicile, but only to

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those born in the domicile and legitimated by subsequent marriage of the parents in that domicile, as is illustrated by In re Goodman’s Trusts[14].

D., an unmarried woman domiciled in England, died intestate, leaving as her sole next of kin the children of two deceased brothers, one of whom had by Charlotte Smith three illegitimate children born in England. In 1870 he changed his domicile to Holland, where he had another illegitimate child by the same woman. He subsequently married this woman in Holland, whereby, under the law of that country, all these children became legitimate. It was held that the child born in Holland before the marriage was to be deemed legitimate and entitled to take as next of kin, but that those born in England were not next of kin.

It seems clear that there is no principle in the rule referred to that can be applied to an adopted child. The limitation as to parents marrying in the country of domicile can have no application in such case, and it was not suggested that the adopted child must be born in the domicile of the party adopting.

The bequest in this case is to “the children” of Andrew Speedie, and there is nothing in the will or the circumstances to indicate that these words “the children” were used otherwise than in their ordinary sense. The judgment in In re Andros[15], as stated above, lays it down-that “English law (which is Saskatchewan law) requires that all who take under a gift to sons of a named father should be legitimate offspring.”

Saskatchewan law therefore requires that the parties who take under this bequest to the children of Andrew Speedie shall be the legitimate offspring of Andrew Speedie, and the simple question is, does this adopted child come within that description? It seems perfectly clear that he does not, for the reason that he is not in fact the offspring of Andrew Speedie. It is not a question of status, but a question of whether this adopted child is a person such as mentioned and described in this bequest.

It is, of course, quite possible that the word “children,” as used in a will, may include adopted children or illegitimate children where the language of the will, coupled with

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the circumstances, indicates that the testator used the word in that sense, but there is nothing of that kind in this case.

The appeal must be dismissed.

In view of the decisions in the courts of three provinces being in conflict with the decision of the courts in Saskatchewan on the point in question, the appellant was not unreasonable in submitting her rights to the court, and in bringing them directly, as has been done, to this court. The costs, therefore, of the appeal and of the proceedings below of all parties as between solicitor and client will be out of the estate.

Appeal dismissed.

Solicitors for the appellant: Cross, Jonah, Hugg & Forbes.

Solicitors for the respondents: Casey, Dawson & Co.