Lahay v. Brown, [1958] SCR 240

Supreme Court of Canada

Lahay v. Brown, [1958] S.C.R. 240

Date: 1958-04-01

Kathleen Lahay (Plaintiff) Appellant;

and

May Adelene Brown, Executrix of the Estate of William Eli Brown and the said May Adelene Brown (Defendant) Respondent.

1957: November 18, 19, 20; 1958: April 1.

Present: Kerwin C.J. and Taschereau, Rand, Cartwright and Abbott JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Evidence—Corroboration—Claim against estate of deceased person—Agreement to make will—The Evidence Act, R.S.O. 1950, c. 119, s. 12.

The plaintiff alleged that one B, for whom she had acted as housekeeper and nurse for many years, had promised, if she remained with him, to make a will leaving his entire estate to her. B died and by his will he directed that one-third of the residue of his estate be paid to the plaintiff and the other two-thirds to the defendant, his widow and executrix. The plaintiff sued, claiming, inter alia, specific performance of the alleged agreement to leave her the entire estate. The trial judge believed the plaintiff’s evidence as to the making of the agreement but dismissed her claim under this head because there was no corroboration as required by s. 12 of the Ontario Evidence Act. These findings were affirmed by the Court of Appeal.

Held (Rand J. dissenting): The judgments below must be affirmed. The evidence relied upon by the plaintiff as corroboration of her evidence was equally consistent with B having promised to see that the plaintiff was “well paid” for her services as with a promise to make a will solely in her favour. Facts, though independently established, could not amount to corroboration if, in the view of the tribunal of fact, they were equally consistent with the falsity as with the truth of the evidence that needed corroboration.

Per Rand J., dissenting: The fact that B had previously made and later destroyed a will leaving all his property to the plaintiff was, when read in the light of all the other circumstances of the case, sufficient corroboration of her evidence that he had contracted to make such a will. Loffus v. Maw (1862), 3 Giff. 592 at 604, quoted with approval.

APPEAL from a judgment of the Court of Appeal for Ontario[1], varying a judgment of Spence J. Appeal dismissed, Rand J. dissenting.

The plaintiff was for many years housekeeper and nurse to Dr. William Eli Brown. Dr. Brown’s second wife, Grace Huff Brown, suffered a stroke in 1945, and the plaintiff’s

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duties became much more onerous from then until Mrs. Brown’s death in 1949. Mrs. Brown, by her will, bequeathed her entire estate to the plaintiff. The plaintiff was given as remuneration $20 a month until 1954, and $30 a month thereafter. She alleged that in addition Dr. Brown had promised in 1945, after his wife’s stroke, that she “would be well paid” if she stayed with him, and that in 1950 and again in 1954, he had said that if she stayed with him until his death he would make a will leaving her his entire estate.

In 1954, shortly before the second promise above referred to, Dr. Brown married the defendant. He died on February 8, 1955, and by his will he appointed the defendant his executrix, and directed that one-third of the residue of his estate (of about $41,000) should be paid to the plaintiff and two-thirds to the defendant.

The plaintiff sued, claiming (1) specific performance of the contract to make a will in the plaintiff’s favour, and, alternatively, damages in the value of the estate; (2) $15,000 for work and services at the rate of $5 a day; (3) delivery of certain chattels or proceeds of chattels forming part of the estate of Grace Huff Brown. The trial judge dismissed the action under head 1, awarded the plaintiff $18,150 under head 2, and granted relief under head 3. The Court of Appeal reduced the amount awarded under head 2 to $10,950, but otherwise dismissed the appeal. The plaintiff appealed in respect of head 1 only.

Lewis Ducan, Q.C., and W.B. Williston, Q.C., for the plaintiff, appellant.

John J. Robinette, Q.C., for the defendant, respondent.

The judgment of Kerwin C.J. and Taschereau, Cartwright and Abbott JJ. was delivered by

CARTWRIGHT J.:—This is an appeal from a judgment of the Court of Appeal for Ontario[2] varying a judgment of Spence J. The judgment awards the appellant $10,950 (instead of the sum of $18,150 allowed at the trial), declares her to be the owner of a large number of chattels, awards her certain relief against the respondent in her personal capacity and declares that the legacy to the respondent of

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one-third of the residue of the estate of the late William Eli Brown does not discharge in whole or in part the debt of $10,950 for which judgment was given in her favour.

A cross-appeal by the respondent was abandoned and the only question before us is whether the appellant ought to have been granted the relief claimed in para. 1 of the statement of claim, that is, specific performance of an oral contract alleged to have been made by the late William Eli Brown, hereinafter referred to as “the deceased”, to leave the whole of his estate to the appellant, or, in the alternative, damages in the value of the said estate.

The appellant was employed from late in 1939 to the date of the death of the deceased, February 8, 1955, as his housekeeper and as companion to his second wife, Grace Huff Brown, during her lifetime. Grace Huff Brown suffered a stroke in 1945 and required detailed attention thereafter to the date of her death on March 7, 1949. Grace Huff Brown by her will bequeathed her entire estate to the appellant. The appellant lived in the deceased’s home in Orillia as a member of the family, was given her board and lodging and was paid $20 per month until 1954 and $30 per month thereafter.

The appellant says that in the year 1945, after Grace Huff Brown had suffered a stroke, she asked the deceased for extra pay and that in reply he said “she would be paid”. She says that in 1946 the deceased repeated this promise in the words that “she would be well paid” and that in 1947 he told her “to put in $100 a month to his estate”.

Further, the appellant deposed that in 1950 and again in 1954, shortly after the deceased’s marriage to the respondent on June 16, 1954, he said that if she promised to stay with him until his death he would leave her his whole estate and that she agreed to stay. The learned trial judge believed the appellant and accepted her evidence with respect to all these conversations with the deceased. He found that her evidence with respect to the statements made in 1945, 1946 and 1947 was corroborated but that her evidence regarding the promises made by the deceased in 1950 and 1954 to leave her his whole estate was not corroborated as required by s. 12 of The Evidence Act, R.S.O. 1950, c. 119.

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Aylesworth J.A., who delivered the unanimous judgment of the Court of Appeal, stated that having read all the evidence with great care he very gravely doubted whether, had he been trying the case, he would have accepted the appellant’s evidence as to her conversations with the deceased in which he was said to have agreed to leave her his whole estate. He concluded however that the Court should accept this finding of the learned trial judge. I share the doubt expressed by the learned justice of appeal but it is not suggested that we should disturb the concurrent findings of fact that these conversations were as deposed to by the appellant.

The appellant relies mainly on the following matters as furnishing corroboration of her evidence that the deceased promised to leave the whole of his estate to her in consideration of her promise to remain with him and look after him until his death.

First: the evidence of Weldon Fowler that in 1951 and 1952 the deceased told him on several occasions that he was going to leave all his money to the appellant and that he had made a will leaving everything to her.

Second: the following evidence of John Croft:

Q. Did Doctor Brown say anything to you about a promise? A. Yes. He told me that Mrs. Lahay had promised to stay with him as long as he lived and look after him.

Q. Did he say anything about what he would do because of that? A. Yes. He told me that Mrs. Lahay would not have to work again. He was going to look after her because she made that promise.

Third: the following evidence of the respondent:

Q. Well then, the question of the will of the late Doctor Brown. When did you learn that the Doctor had a will? A. Well, while I was ill, the Doctor came upstairs one day and said to me, “What do you think I did today?” I said, “I am not sure. I haven’t any—I haven’t lived with you long enough to keep track of what you do.” He said “I was out and made a will”. He told me that he had left one-third of his estate to Mrs. Lahay and two-thirds to me. He said, “What do you think of that?” I said—he said he had always told Mrs. Lahay if she stayed with him he would remember her. I said, “I am very glad that you made a will. If you made a promise, that was the thing to do, to keep it. I am glad you attended to it.”

Q. Did you see the will? A. I didn’t see the will nor know anything further about it, nor I didn’t really ask him anything further about it.

Q. About how soon after your marriage did that conversation take place? A. It must have been about a week, I would think it would be two weeks after. It might have been three; very shortly after.

* * *

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Q. You have told us about his promise to her and Mrs. Lahay’s promise to him. Does that not indicate that he considered himself indebted to her? A. Considering that I understand—he showed me his indebtedness by remembering her.

Q. Then there was an indebtedness, is that correct? A. Yes, I guess that is right.

Q. The Doctor admitted to you that he had an indebtedness to her? A. Yes.

Q. Did he feel he could discharge it by a will? A. By his will.

The learned trial judge, after reviewing the evidence with care, reached the conclusion that none of it afforded corroboration of the appellant’s evidence that the deceased had promised to make a will only in her favour; in his view everything relied on by the appellant was equally consistent with the deceased having expressed the intention, or having promised, that he would see that the appellant was “well paid” or that “she would be taken care of” or that “he was going to look after her”. This view of the evidence was expressly concurred in by the Court of Appeal.

It is well settled that facts, though independently established, will not amount to corroboration if, in the view of the tribunal of fact, they are equally consistent with the truth as with the falsity of the evidence of which corroboration is required. After a consideration of all the evidence I agree with the finding of the learned trial judge, concurred in by the Court of Appeal, that there is no corroboration of the evidence of the appellant on the vital question whether the deceased promised to leave the whole of his estate to her. It follows that I would dismiss the appeal and it becomes unnecessary to consider the submissions of the respondent, based on The Statutes of Frauds, R.S.O. 1950, c. 371.

The question of the proper order as to costs is made less difficult by the submission of counsel for the respondent that whatever the result of the appeal the costs of all parties should be paid out of the estate. Success was divided at the trial and in the Court of Appeal and while in this Court the appellant fails in her appeal the cross-appeal was not abandoned until the commencement of the argument of counsel for the respondent. The costs will not have been substantially increased by the claims made against the respondent in her personal capacity. Under the somewhat unusual circumstances of the case, I would

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therefore dismiss the appeal and the cross-appeal and direct that the costs of all parties in this Court and in the Courts below be paid out of the estate of the late William Eli Brown, those of the respondent in her capacity as executrix as between solicitor and client.

RAND J. (dissenting):—I am unable to agree that the evidence given by the claimant establishing the contract which the trial judge accepted and which in both the Court of Appeal and this Court is stated also to be accepted, was not corroborated by “some other material evidence”. The deceased’s second wife had died in 1949. The contract was entered into in 1950, the year the deceased retired from medical practice; in 1951 and 1952 on several occasions he told the witness Fowler, a near neighbour and a close friend, that he had made a will giving all of his property to the claimant; in 1954 he married again but told the claimant that he “needed” her more than ever; within two weeks or so he had made a new will which, apart from two legacies of $500 each, gave one-third of the estate to the claimant and two‑thirds to his wife. Within that time also, the latter had seen her husband destroy a will by burning it in the fireplace. The new will was made known to the wife on the day it was made while she was ill in bed, and the deceased, thinking apparently that explanation was needed for the gift to the claimant, put it on the ground of being indebted to her, to which he received his wife’s assurance, if he had made a promise to make provision, that that “was the thing to do”.

The fact of a will being made giving all the testator’s property to such a claimant may or may not be corroborative evidence of a contract to do so; that depends on the whole of the circumstances; and here the coincidence of the death of the second wife in 1949, the contract in 1950, the acknowledgment in 1951 or 1952 of having made a will with such a provision, the fact that in 1954, within days after his third marriage, he destroys a will and makes another under which the claimant receives half as much of the residue as the wife; the absence of near relatives and the fact that only two other legacies of $500 each were provided to a niece and a nephew: these circumstances taken together furnish an overwhelming probability that

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there was such an agreement and are, consequently, an ample corroboration of the claimant’s testimony.

In Loffus v. Maw[3], Stuart V.-C., in dealing with a similar situation in which, instead of a contract, there was a promissory “representation”, said this:

No evidence of the representation can well be stronger than the actual preparation and production of the instrument, whether revocable or not…

The decision there that the service rendered was such a part performance as took the case out of the Statute of Frauds was overruled by Maddison v. Alderson[4]; but the relevancy and probative value of the existence of the will to the representation as it was viewed by a judge of wide experience in such matters was, of course, unaffected by that result.

As given by the evidence of the widow, from the occasion and the manner of disclosing to her the new will, it is clear that the deceased was a bit embarrassed by that circumstance and felt the necessity or desirability of an explanation. Under the influences of the new marriage, it was an easy transition in his atitude towards the claimant to come to view himself as a sort of tutelary guardian, to change his role from that of a master in a business relation with a woman who knew his pattern of living, was very competent, understanding and dependable, to that of benevolent patron. He took pains to emphasize, on that occasion, his “indebtedness”. This conduct itself adds contractual colour to his repeated statements to Fowler. Conceivably he vaguegly thought of himself at all times as more or less an indulgent benefactor but that subjective impression would have no relevance to the words he uttered and the meaning they conveyed to the claimant. It is beyond the slightest doubt, as the trial judge found, that corroboration was shown of an obligation toward the claimant that originated in 1945, and in view of the specific statement to Fowler, there is equally corroboration of the agreement of 1950 to include the whole of his property.

In 1950 he was a man of 70 and healthy except for psoriasis which he spoke of to the claimant as likely to grow more serious,—he died in fact of gall bladder trouble and jaundice—and from appearances might well have lived

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10 or more years longer, as his wife says she expected him to do. In that event, having retired from practice, his expenses, including the paltry $20 a month to the claimant, increased in 1950 to $30, might easily have consumed a substantial portion of what he possessed. Heavy medical and hospital outlays might have been called for or other contingencies might have had the same result, the total drain of which, happening at a time when the claimant would be approaching 60, might furnish her with far less than the most ordinary remuneration.

The words “all my property” relating to the death of a person are to be read as if they specified “all my real and personal property”, and the property becomes fixed at the moment of death. So far as the oral contract relates to an interest in land it is, under the Statute of Frauds, unenforceable, and Maddison v. Alderson, supra, precludes specific performance. But the question is whether or not a contract of that nature is to be looked upon as an entirety or as distributive in the sense of divisible, and I think there can be no doubt that it is to be viewed as the latter. Where the total consideration by the promisee is fully executed and all that remains is a will in general terms, it would be somewhat absurd to say that the transmission of each portion of the property was conditional upon or inseparably bound up with the transmission of the whole. If, for example, assuming corroboration, a will gave to the claimant only the real estate, could it possibly be said that no claim could be made under such a contract for the personalty which the statute would not affect? I should say clearly not. The contract in this case is, then, enforceable to the extent of the net worth of the personal estate.

One further question remains. Land was included in the assets estimated at the value of $22,000 of a total estate of $48,693.91. Against the latter were debts amounting to $7,720.06, leaving an estimated residue of $40,973.85. A question might be raised whether the debts should be paid out of the personalty in exoneration of the land or vice versa; but as it has not been argued, I express no opinion on it. With the determination of that question, there should probably be a right of election to the claimant as on a material breach, but this also I leave untouched.

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I would, therefore, allow the appeal, but since the majority of the Court are for dismissal there is no purpose in doing more than recording this dissent.

Appeal dismissed, RAND J. dissenting.

Solicitor for the plaintiff, appellant: Lewis Duncan, Toronto.

Solicitor for the defendant, respondent: A.E. McKague, Toronto.