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Now I have agreed to become your real solid father as hard and fast as you can wish.


Then followed a close correspondence between them, over twenty letters being written, which resulted in her coming to live with him. She arrived in Winnipeg on the 25th December. He went to meet her at the station, took her to his house, and they lived together as father and daughter until he died suddenly on the 6th June, 1903. He sent her for some time to one of the public schools, and afterwards to St. Mary's Academy, sometimes as a boarder and sometimes as a day scholar.

After his death, a will was found, dated the 5th December, 1881, by which D. C. Kinsey bequeathed all his property to David Young, his heirs, executors, administrators and assigns, and appointed John McDonald and Sedley Blanchard as his executors. David Young, who was a friend of D. C. Kinsey, died in August 1887. Sedley Blanchard died in 1886 and John McDonald in 1890.

On the 8th June, 1903, letters of administration with the will annexed were issued to The National Trust Company.

The plaintiff brought this action against The National Trust Company and against J. II. Brock and R. Young, executors under the will of the late David Young, alleging among other things that, by agreement in writing dated 18th November, 1899, and by subsequent agreements both verbally and in writing, D. C. Kinsey, in consideration of his natural love and affection for the plaintiff, agreed with and promised her to give, devise and bequeath to her his real and personal property at his death, and, in further consideration thereof, the plaintiff agreed with the said D. C. Kinsey to reside and make her home with him and to act as and perform the duties of a daughter

to him and to look after and care for him.

The statement


of claim further alleged that the plaintiff on her part had Argument. performed the agreement, and the said D. C. Kinsey had left her nothing. She asked that the Court pronounce against the will of the said Kinsey, and revoke the grant of probate thereof, and declare that the said D. C. Kinsey had died intestate, or in the alternative that it might be declared that the will of the said D. C. Kinsey in favour of the said David Young had lapsed and was of no effect whatever. She asked further to have the said agreement specifically performed.

The defendants, The National Trust Company and Brock and Young, filed separate statements of defence, in which they admitted the material allegations of the plaintiff's statement of claim, and submitted their rights to the Court to be dealt with as, under all the circumstances, should to the Court seem proper.

A. Haggart, K.C., and R. A. C. Manning for plaintiff. Plaintiff alleges an agreement by Kinsey to leave his estate to her; she has performed her part and asks the representatives of Kinsey, her father, to perform his part. The devise to D. Young had lapsed: Jarman on Wills, vol. 1, p. 307; Williams on Executors, 9th ed., vol. 2, p. 1,072; Theobald on Wills, 5th ed., p. 665. An infant is a special favorite of the law. If a contract is for the benefit of an infant, the infant can enforce it. As to the contract, the correspondence between Kinsey and his daughter, the relations between them and the enforcement of the contract: Fry on Specific Performance, ss. 283, 307, 312, 327. There was a binding contract in writing between these two strangers, Kinsey and the plaintiff. There was a definite proposal in writing and a definite acceptance in writing; the letters between them had all essentials of a contract which the Court could enforce. In his letters to plaintiff Kinsey proposed to

1904 adopt her and acknowledge her as his child and lawful Argument. Leir. There were all the elements of a proposition. It is not necessary that an acceptance be in writing, an acceptance by acts or conduct is sufficient; here the acceptance was in writing as well as by acts and conduct, see the letters from plaintiff to Kinsey. The contract was fully executed by plaintiff she was entitled to have it specifically performed, entitled to have made good to her the representations which induced her to change her whole course of life: Roberts v. Hall, 1 O.R. 388. The contract by Kinsey was that he would give plaintiff what he would have when he died: McDonald v. McKinnon, 26 Gr. 12. The Court will enforce a verbal agreement where the consideration has been executed: Halleran v. Moon, 28 Gr. 319; Fitzgerald v. Fitzgerald, 20 Gr. 410; Ridley v. Ridley, 34 Beav. 478; Coles v. Pilkington, L.R. 19 Eq. 174; Hammersley v. Baron De Biel, 12 Cl. & F. 45; Proale v. Soady, 2 Giff. 1; Coverdale v. Eastwood, L. R. 15 Eq. 121; Loffús v. Maw, 3 Giff. 592. Maddison v. Alderson, 8 A. C. 467, will be relied upon by the defendants. The plaintiff accepts and adopts the law as laid down in that important case. The reasons for reversing the decision of the trial Judge there do not exist here. The cases are clearly distinguishable. There the only evidence of the alleged contract was that of the defendant, the housekeeper. Here the evidence is conclusive, the plaintiff's consistent story corroborated by the admissions of the deceased to several respectable disinterested witnesses, and by the correspondence between the deceased and the plaintiff. There the alleged service was consistent with the relationship that existed before the making of the alleged contract. Here the service was unequivocally referable to the contract alone. In that case there was not such a part performance as to take the case out of the Statute. Here there was a com

plete performance of the contract on the part of the 1904 plaintiff and by reason of that performance her whole Argument. course of life was changed.

C. P. Wilson and S. J. Rothwell for defendants, The National Trust Company. Two things must be proved to form a contract. (1) Plaintiff must have relied on the representations made by Kinsey, and she must have been induced to make the change she did by the representations of Kinsey of his future intentions. (2) There must have been an executed consideration, something complete: Fry, 131. In the eyes of the law Kin-ey and the plaintiff were strangers to one another. Where is the consideration for the alleged contract? The cases cited by Mr. Haggart are prior to 1883. Then the law was changed or rather the interpretation was changed: Loffus v. Maw, a previous case, was overruled. Where there is a contract to be performed in the future and there is nothing legally binding on the party claiming the benefit of the bargain, that contract cannot be enforced: Maddison v. Alderson, & A.C. 467. There must be mutuality, and the time of that mutuality is when the contract is entered into. There was nothing binding on the plaintiff here. She could have left at any time. The following cases have been decided since 1883-McGugan v. Smith, 21 S.C.R. 263; Cross v. Cleary, 29 O.R. 542; Walker v. Boughner, 18 O.R. 454.

I. Campbell, K.C., for defendants Brock and Young, the executors of David Young. These defendants are not making any aggressive defence. Their presence here to watch the case is necessary. Should plaintiff fail, and there be no next of kin coming in to claim the estate, these defendants will claim on moral grounds under The Escheats Act, R.S.M. 1902, c. 54. Both the plaintiff's position and that of the executors of David Young are referred to in that statute.


Haggart, K.C., in reply. While the contract is exeJudgment. cutory on both sides, the Court cannot decree specific DURUC, C.J. performance. But where the contract has been faithfully performed so far as the plaintiff is concerned, so that their status has become altered, the Court will enforce in specie the performance of the contract by the other party to it: Roberts v. Hall, 1 O.R. 388; Coverdale v. Eastwood, L. R. 15 Eq. 121; Dietrichsen v. Cabburn, 2 Phill. 57; Waring v. Manchester, 7 Hare, 482. An infant is a favorite of the law, the doctrine of mutuality is disregarded in his favour: Eversley, 720.

DUBUC, C.J.-As to the will of D. C. Kinsey in favour of David Young, it is a well established doctrine that, un-. less the legatee survives the testator, the legacy is extinguished. In such case, the legacy is said to lapse. Jar man on Wills, vol. 1, pp. 307, 308; Williams on Executors, vol. 2, pp. 1072, 1074. The author mentioned says, at p. 1074: "Even in a case where the legacy is given to a man and his executors, administrators and assigns, or to a man and his representatives, if the legatee dies before the testator, though the executors are named, yet the legacy is lost, for the words: 'executors, administrators and assigns, &c' are considered as only descriptive of the interest bequeathed, and those who take by representation only cannot be entitled to anything to which the person they represent never had any title." In support of said doctrine are quoted the cases of Elliott v. Davenport, 1 P. W. 83; Maybank v. Brooks, 1 Br. C. C. 84. There is not, however, any dispute about this point, as Mr. Campbell, counsel for the executors of David Young, stated that his clients do not claim that the will has not lapsed.

The only question, therefore, to be determined is whether the plaintiff is entitled to the estate of D. C.

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