Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
This is a 'will-in-context' study of a Toronto bequest of the 1880s that shows how a testator's ideological commitment to freedom of willing and his retention of high-powered legal talent to actualize that commitment were derailed by a hapless or avaricious executor, unpredictable real-estate markets, a lethargic court, and eccentric beneficiaries. It also suggests that self-made private law like contracts, trusts, and wills may be as doctrinally, textually, or administratively contradictory, indeterminate, or unpredictable as state-made public or regulatory law has often been shown to be.
Cette étude d’un « testament-en-contexte » d’un legs à Toronto dans les années 1880 montre comment l’engagement idéologique d’un testateur à l’égard de la liberté de legs a été déraillé, malgé son utilisation des meilleurs avocats pour actualiser cet engagement, par un exécuteur soit impuissant soit avare, par un marché de l’immobilier imprévisible, par des tribunaux complaisants, et par des bénéficiaires excentriques. L’étude permet aussi de conclure que les documents de droit privé faits par le particulier comme les contrats, fiducies et testaments peuvent être aussi contradictoires, indéterminés ou imprévisibles du point de vue doctrinaire, textuel ou administratif, que les documents de droit public ou réglementaire faits par l’État.
1 The will was almost certainly prepared by the Toronto law firm of Mulock, Tilt and Miller, since the Martin family used that firm exclusively for legal services between about 1860 and 1920. Because William Mulock was, by 1886, a Liberal Member of Parliament in Ottawa, Nicholas Miller or James Tilt was most likely the draftsman.
2 “William Martin Will,” Death Records-Ontario, Etobicoke Township, York County, FHL 1846467, Cert. 021041-1888. That will is one and a half longhand pages in length, in four paragraphs, all of which are reproduced in this portion of the text or infra, text at note 45. Mrs. William Martin’s “dower” was irrelevant to those testamentary events, because she died in 1872. Statutory reforms to Ontario’s married women’s property law were similarly irrelevant to the composition or administration of William’s will, or to its beneficiaries, because those changes were complete (on their own terms) by 1878.
3 William’s personal property inherited outright by James was said on probate to have been worth $6,200, and all but $900 of that amount had apparently been spent by James by his death in 1896. See “William Martin Probate,” 14 October 1887; “James Martin Probate,” 4 March 1896.
4 See generally http://gpih.ucdavis.edu/files/Ward-Devereux_P_1872-78.xls.
5 Compare Threedy Debora, “Legal Archeology: Excavating Cases, Reconstructing Context,” 80 (2006) Tulane Law Review: 1197; Gordon Robert, “Simpson’s Leading Cases” Michigan Law Review 95 (1997): 2044.
6 See, e.g., Brian Simpson A. W., Leading Cases in the Common Law (Oxford: Oxford University Press, 1995); Tucker Eric, et al., eds., Property on Trial (Toronto: Irwin, 2012).
7 See, e.g., Phillips Jim, “A Low-Law Counter-Treatise: Absentees to Wreck in British North America’s First Justice of the Peace Manual,” in Law Books in Action, ed. Fernandez Angela and Dubber Marcus (Oxford: Hart, 2012) 202; Girard Philip, “Themes and Variations in Early-Canadian Legal Culture: Beamish Murdock and his Epitome of the Laws of Nova Scotia,” Law and History Review 11 (1993): 101.
8 See Hagopian John, “The Use of Land Registry Offices for Historical Research,” Ontario History 87 (1995): 77; Kolish Evelyn, “L’histoire du droit et les archives judiciares,” Cahiers de droit 34 (1993): 289.
9 See Maute Judith, “Peevyhouse v Garland Coal and Mining Co. Revisited,” Northwestern Law Review 89 (1995): 1341; Brian Simpson A. W., “Contracts for Cotton to Arrive,” Cardozo Law Review 12 (1989): 287; Brett Code W. E., “The Salt Men of Goderich in Ontario’s Court of Chancery,” McGill Law Journal 38 (1993): 519.
10 See generally Braucher John, et al., Revisiting the Contracts Scholarship of Stewart Macaulay (Oxford: Hart, 2013); Campbell David, et al., Changing Concepts of Contracts: Essays in Honor of Ian Macneil (Basingstoke, UK: Palgrave, Macmillan, 2013); Coutu Michel and Guibentif Pierre, eds., “Legal Pluralism as a Paradigm for Jurisprudence: Reflections on Jean-Guy Belley,” Canadian Journal of Law and Society 26 (2011): 215–467.
11 See Ziff Bruce, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trusts (Toronto: University of Toronto Press, 2000); Constance and Nancy Backhouse, The Heiress and the Establishment (Vancouver: University of British Columbia Press, 2004); Ian Kyer C., “The David Fasken Estate,” in Essays in the History of Canadian Law: A Tribute to Peter Oliver ed. Phillips Jim, et al. (Toronto: University of Toronto Press, 2008) 410, 421–33. See also Grenon Gerald, Adding Context: Wright v Tatham and the Origin of the Implied Hearsay Rule (Winnipeg: Manitoba Legal History Project, 1993); Orkin Mark M., The Great Stork Derby (Don Mills: General, 1981).
12 See “Elizabeth McLean Martin,” Globe (Toronto, ON), 23 February 1905; Martin v Martin, 22 May 1906 (Ont. H Ct J); Grant # 8558, York County Land Registry Office (hereafter YCLRO), 26 May 1906. See also Martin v MacNab, infra note 85.
13 There are no available court files or bench books for those judgments, or records of action taken under them, perhaps because the courts’ involvement in those cases was more often administrative than judicial.
14 See generally Rande Kostal, “Historicizing the Common Law: Brian Simpson and the Limits of Influence,” American Society for Legal History – Annual Meeting, 10 November 2012; Krier James E., “Facts, Information, and the Newly-Discovered Record in Pierson v Post,” Law and History Review 27 (2009): 189.
15 That seeming irony animated much of the commentary on this essay by Dick Risk. See “R. C. B. Risk to Blaine Baker,” 9 August 2014.
16 An introduction to facilitative law can be found in Sugarman David and Rubin Gerry, eds., Law, Economy and Society, 1750–1914 (Abingdon, UK: Professional Books, 1984) 9–12, 67.
17 See, e.g., Coffee John C., “The Mandatory/Enabling Balance in Corporation Law,” Columbia Law Review 89 (1989): 1618; Arthurs Harry W., Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985).
18 See, e.g., Telfer Thomas, “Ideas, Interests, Institutions and the History of Canadian Bankruptcy Law, 1867–1880” University of Toronto Law Journal 60 (2010): 603; Craven Paul, “The Modern Spirit of the Law: Blake, Mowat, and the Breaches of Contract Act, 1877,” in Essays in the History of Canadian Law: in Honor of R. C. B. Risk, ed. Baker G. Blaine and Phillips Jim (Toronto: University of Toronto Press, 1999) 510.
19 See, e.g., Macdonald Roderick A., “Pour la reconnaissance d’une normativité implicite et inférentielle,” Sociologie et société 18 (1986): 47; Belley Jean-Guy, Le contrat entre droit, économie, et société (Cowansville, PQ: Blais, 1988).
20 See, e.g., Knutsen Eric S., “Keeping Settlements Secret,” Florida State University Law Review 37 (2010): 945; Macdonald Roderick A., Access to Justice in Canada Today (Toronto: LSUC, 2005).
21 See e.g., Glenn H. Patrick, The Cosmopolitan State (Oxford: Oxford University Press, 2013); Niezen Robert, Truth and Indignation: Canada’s Truth and Reconciliation Commission on Residential Schools (Toronto: University of Toronto Press, 2013); Robertson Cassandra Burke, “The Impact of Third-Party Financing on Transnational Litigation,” Case Western Reserve Journal of International Law 44 (2011): 159.
22 See, e.g., Reisman Michael, Law in Brief Encounters (New Haven: Yale University Press, 1999); Sunstein Cass, “Social Norms and Social Roles,” Columbia Law Review 96 (1996): 903.
23 See e.g., Macaulay Stewart, “Images of Law in Everyday Life,” Law and Society Review 21 (1987): 185; Marquis Greg, “Doing Justice to British Justice,” in Canadian Perspectives on Law and Society, ed. Pue Wesley W. and Wright Barry (Ottawa: Carleton University Press, 1988) 43.
24 See generally Atiyah Patrick S., The Rise and Fall of Freedom of Contract (Oxford: Clarendon, 1979) 219–568; Brian Simpson A. W., “Innovation in Nineteenth-Century Contract Law,” Law Quarterly Review 91 (1975): 247.
25 See generally D’Agostino E., Contracts of Adhesion (Cham, UK: Springer, 2015); Dawson John P., “Economic Duress” Michigan Law Review 45 (1946): 1.
26 See generally Hirsch Adam J., “Default Rules in Inheritance Law,” Fordham Law Review 73 (2004): 1031; Langbein John H., “The Contractual Basis of the Law of Trusts,” Yale Law Review 105 (1995): 625.
27 See James D. Martin and G. Blaine Baker, www.newtorontohistorical.com/MartinFamily.html. Without Jim Martin’s primary-source research for that earlier paper, the completion of this essay would have been a much greater challenge than it was.
28 William’s other siblings ultimately settled in Toronto, Meaford, and Berkeley, Ontario, Harbor Grace, Newfoundland, and Kankanee, Illinois.
29 West half of lot 2, concession 1, Etobicoke Township, York County; west half of lot 4, concession 1, Etobicoke Township, York County. See also Miles and Co., Illustrated Historical Atlas of York County (Toronto: Wilson, 1878) 6.
30 See Mortgage # 59405, YCLRO, 14 September 1855; Martin v Goldthorpe (Vesting Order # 82176, Upper Canada Court of Chancery, 4 April 1861); Miles, supra note 29, at 6.
31 Lot 12, concession 3, South Orillia Township, Simcoe County. See Instrument # 53774, Simcoe County Land Registry Office (hereafter SCLRO), 16 June 1869; Instrument # 53775, SCLRO, 24 June 1869.
32 See Grant # 2021, SCLRO, 19 October 1885.
33 See, e.g., “Samuel Lindley and Anne Martin Marriage Certificate,” Christchurch Mimico, 20 December 1853; “Robert Martin Autobiography,” currently in the possession of Brian Stephens of Kamloops, British Columbia.
34 See generally Fairburn M. Jane, Along the Shore: Rediscovering Toronto’s Waterfront Heritage (Toronto: E. C. W. Press, 2013) 305–87; Currell Harvey, The Mimico Story (Toronto: Town of Mimico, 1967) 20–59.
35 See generally Keel William J., Christchurch, Mimico: 1827–1927 (Toronto: Keel, 1987). The Martins were members of that “high church” congregation for about seventy-five years.
36 See generally Berry Susan, A History of Education in the Lakeshore Area (Toronto: Wylie, 1966) 1–4, 19–24. James’ book prizes are currently in the possession of Ronald L. Martin of Mississauga, Ontario.
37 See, e.g., “James Martin to Alexander Keith,” 26 March 1895; “Alexander Keith to James Martin,” 23 January 1893. Correspondence mentioned in the text, as well as that cited in notes 44 and 47, infra, is currently in the possession of James D. Martin of Brampton, Ontario.
38 See “William Martin Probate,” supra note 3.
39 “James Martin,” Orillia Packet (Orillia, ON), 21 February 1896.
40 See Martin and Baker, supra note 27. See generally Anon., Ontario Ladies’ College (Whitby: Ontario Ladies’ College, 1965) 1–7; Gagan David, A Necessity Among Us: The Owen Sound General and Marine Hospital (Toronto: University of Toronto Press, 1990) 28–56.
41 See Martin and Baker, supra note 27. See also Harvie Fred W., The Harvies of Orillia (St. Catharines, ON: Lincoln Graphics, 1977) 145–56.
42 “James Martin Will,” 14 July 1888.
43 That property was the east half of lot 9, concession 1, South Orillia Township, Simcoe County. See also “James Martin Probate,” supra note 3. Daughters Mary and Edna, who had reached the age of twenty-one, each conveyed their interest in it to their step-mother for $1 two weeks after their father’s death. The other six children did the same in the spring of 1918 (with Mrs. William Martin, Jr. barring her dower), after the youngest of them had reached her majority. See Grant # 4616, SCLRO, 5 March, 1896; Grant # 16211, SCLRO, 14 May 1918.
44 Those requests to the Court were made directly through the Mulock, Tilt, and Miller law firm, or through that firm by way of F. G. Evans at the Orillia law firm of McCarthy, Pepler, Evans, and McCarthy. See, e.g., “Mrs. James Martin in Account with F. G. Evans,” 27 December 1902; “Mr. Robt. M. Martin to F. G. Evans,” 10 January 1913.
45 “William Martin Will,” supra note 2. That clause may have been used obliquely by the Surrogate Court to justify its 1887 appointment of James as the estate’s trustee.
46 See, e.g., Martin v Martin, supra note 12; Indenture # 8553, YCLRO, 28 May 1906.
47 See “Martin to Keith, et al.,” Agreement # 4022, YCLRO, 6 March 1890; “James Martin, et al., to Thomas McDonald, et al. (composing the Mimico Syndicate) Conveyance,” 19 December 1891.
48 That inflation may have been due to the fact that the deal was an unsecured transaction, or to the fact that the land was in in a prime location. See generally Harris Richard, Unplanned Suburbs: Toronto’s American Tragedy, 1900 – 1950 (Baltimore: Johns Hopkins, 1996) 21–85; http://en.wikipedia.org/wiki/File:NewTorontoMimicoPlan1890.JPG.
49 “William Martin Probate,” supra note 3. Succession duties were not implemented in Ontario until 1892, with the result that limiting them could not have been a motive for James’ apparent under-valuation of the property for probate. See Succession Duty Act, 55 Vict. (1892), c. 6 (Ont.). Minimizing municipal property taxes, through under-valuation of the land, could, however, have been James’ goal.
50 See generally http://www.etobicokehistorical.com/new-toronto.html; “Toronto’s Growing Suburb – New Toronto,” Globe (Toronto, ON), 25 October 1890.
51 See generally Leith Alexander and Smith James F., Commentaries on the Laws of England Applicable to Real Property (Toronto: Rowsell and Hutchison, 1880) 130–36. See also Ziff Bruce, Principles of Property Law (Toronto: Carswell, 2010) 175–92.
52 Bradbury Cf Bettina, Wife to Widow: Lives, Laws, and Politics in Nineteenth-Century Montreal (Vancouver: University of British Columbia Press, 2011) 142–170; Johnson Trudi, “Women and Inheritance in Nineteenth-Century Newfoundland,” Journal of the Canadian Historical Association 13 (2006): 1.
53 See e.g., Ian Kyer C., Lawyers, Families, and Businesses: The Shaping of a Bay Street Law Firm, Faskens, 1863–1963 (Toronto: Irwin, 2013) 13–122; Moore Christopher, McCarthy, Tetrault: Building Canada’s Premier Law Firm, 1855–2005 (Toronto: Douglas and McIntyre, 2005) 13–54.
54 See e.g., O’Sullivan Daniel, Manual of Practical Conveyancing (Toronto: Carswell, 1882); Walkem Richard T., The Law Related to the Execution and Revocation of Wills (Toronto: Willing and Williamson, 1873). See also Christie James, Concise Precedents of Wills (London: Maxwell, 1857).
55 Hartog Cf Hendirk, Someday all this will be Yours (Cambridge: Harvard University Press, 2012) 144–205; Friedman Lawrence M., Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford, CA: Stanford Law Books, 2009) 111–24, 140–70.
56 Compare Walker David, A Legal History of Scotland (Edinburgh: Green, 2004) vol. 6, 1026–46; O’Grada Cormac, “Primogeniture and Ultimo-geniture in Rural Ireland,” Journal of Interdisciplinary History 10 (1980): 491.
57 See “Martin to Keith, et al.,” supra note 47. The offerees were Alexander Keith, James Fitzsimmons, Jessie Keith, James Morrison, Thomas McDonald, John Sheridan, Joseph Sheridan, Arthur Kitson, Joseph Barrett, and Peter Whitely.
58 See generally Bilak Daniel, “The Law of the Land: Rural Debt and Private Land Transfer in Upper Canada, 1841–1867,” (1987), Histoire sociale/Social History 20 (1987): 179; Gagan David, “The Security of Land: Mortgaging in Toronto Gore Township, 1835–1895,” in Aspects of Nineteenth-Century Ontario, ed. Armstrong Frederick H., et al. (Toronto: University of Toronto Press, 1974) 140.
59 See generally Moore Christopher, The Law Society of Upper Canada and Ontario’s Lawyers (Toronto: University of Toronto Press, 1997) 204, 217, 240–1.
60 For insightful examination of ways that American testators and courts “skated close to the edge of the ice” making wills and administering estates, see Blumenthal Susannah, “The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America,” Harvard Law Review 119 (2006): 959, 1006–32.
61 See Grant # 5009, YCLRO, 12 January 1891. It is unclear whether Mimico Real Estate, or Elizabeth Martin, or the eldest grandchildren (who were then sixteen and eighteen years of age) became uncomfortable with the arrangement and “blew a whistle” loudly enough that the judiciary heard it.
62 For descriptions of the substantive work of that Court, see generally Klinck Dennis R., “Doing Complete Justice: Equity in the Ontario Court of Chancery,” Queen’s Law Journal 32 (2006): 45, 48–80; Brown Elizabeth, “Equitable Jurisdiction and the Court of Chancery in Upper Canada,” Osgoode Hall Law Journal 21 (1983): 275, 299–314.
63 “William Martin Probate,” supra note 3.
64 See, e.g., “Martin to Keith, et al.,” supra note 47.
65 See “William Martin Will,” supra note 2; text at notes 46–47, supra.
66 No pre-1890 reported Canadian case-law on that point has been discovered. And no notice seems to have been taken in those negotiations or judicial proceedings of the Settled Estates Act, R. S. O. (1877), 39 & 40 Vict., c. 30, which would presumably have enabled James (with the concurrence of his remainder-people or their guardians) to sell the fee simple in all of Chestnut Haven.
67 See Instrument # 40012, SCLRO, 29 June 1890; Instrument # 40013, SCLRO, 29 June 1890. The mortgage was discharged by Instrument # 2928, SCLRO, 18 July 1908.
68 York County’s land-registry records for the relevant area of Etobicoke Township show that “Samuel McKnight, Liquidator” took possession of bankrupt Mimico Real Estate’s property in 1896–97. He sold most of that land back to the company’s original stakeholders in the period leading up to the 1905 reorganization of that group by its initial investors. That restructuring, perhaps unsurprisingly, coincided with the opening of the Grand Trunk Railway Yards in New Toronto. The liquidator apparently did not deal with Chestnut Haven. See, e.g., Grant # 8140, YCLRO, 14 June 1904; Grant # 8209, YCLRO, 27 March 1905; Grant # 8211, YCLRC, 27 March 1905. See also http://www.newtorontohistorical.com/Railway.html.
69 In other words, Mimico Real Estate was about $15,800, or sixty percent, short of its obligation in respect of Chestnut Haven when its payments stalled.
70 See “Keith to Martin,” supra note 37.
71 Mortgage # 5010, YCLRO, 22 October 1890. See also Grant # 5009, YCLRO, 12 January, 1890. See generally Hunter Alfred T., A Treatise on Power of Sale under Mortgages of Reality (Toronto: Carswell, 1892).
72 See “Lot 5, concession 1,” York County – Etobicoke Township Land Registry Abstract Book, at 2 (17 May 1929). The mortgage was discharged on perfunctory application by the Court and Mimico Real Estate, despite thirty-five years of apparent default. That result might be explained by the expiry of prescription/limitation periods, by the final payment by the Court to the youngest Martin beneficiary thirteen years earlier, by the impending stock-market instability of 1929, or by bureaucratic inertia.
73 See, e.g., Brawn Dale, The Court of Queen’s Bench of Manitoba, 1870–1950 (Toronto: University of Toronto Press, 2006) 21–203; Girard P., et al., eds., The Supreme Court of Nova Scotia, 1754–2004 (Toronto: University of Toronto Press, 2004) 53–203.
74 See infra, text at note 88.
75 It is unclear why the Accountant of the Supreme Court, rather than an institutional or private trustee, was the designated manager of the estate.
76 See Grant # 4616, supra note 43. See also Grant # 16211, supra note 43.
77 See Martin v Martin, supra note 12; Grant # 8558, supra note 12.
78 See text at notes 90–96, infra.
79 See “James Martin Probate,” supra note 3.
80 See Grant # 8558, supra note 12.
81 See, e.g., Grant # 8583, YCLRO, 17 July 1906; Mortgage # 221, YCLRO, 26 March 1914.
82 See Grant # 2202, YCLRO, 18 September 1921; Mortgage # 2202, YCLRO, 18 September 1921.
83 See Will and Probate # 14669, SCLRO, 3 March 1943.
84 See “Robert Macmillan Martin Will.”
85 See Martin v MacNab (1980), Supreme Court of Ontario.
86 See Instrument # 972 (1909), Township 50, Range 3, W4, Alberta Land Titles Office. See generally Diehl Fred M., A Gentleman from a Fading Age: Eric Lafferty Harvie (Calgary: Devonian, 1989) 17–30, 65–82.
87 See text at notes 72–75, supra.
88 But see Young Brian, Patrician Families and the Making of Quebec: The Taschereaus and McCords (Montreal: McGill-Queen’s, 2014); Graham William H., Greenbank: Country Matters in Nineteenth-Century Ontario (Peterborough, ON: Broadview, 1988).
89 Large-scale, rather than single-case, studies could be undertaken to help flesh out the issue of “ordinariness,” as was done provisionally by Girard Philip and Vienot Rebecca, “Married Women’s Property Law in Nova Scotia, 1850–1910,” in Separate Spheres: Women’s Worlds in the Nineteenth-Century Maritimes, ed. Guildford Janet and Morton Suzanne (Fredericton: Acadiensis, 1994) 67. But the resources required to do collective or synthetic legal archeology would be very nearly prohibitive.
90 Reiter Cf Eric H., “From Shaved Horses to Aggressive Churchwardens,” in Essays in the History of Canadian Law: Quebec and the Canadas, ed. Baker G. Blaine and Fyson Donald (Toronto: University of Toronto Press, 2013) 460; Fernandez Angela, “The Ancient and Honorable Court of Dover,” Australia and New Zealand Law and History e-Journal (17 January 2011): 194.
91 See, e.g., C. Ian Kyer, “Gooderham and Worts,” in Baker and Phillips, supra note 18, at 335; Young Brian, In Its Corporate Capacity: The Seminary of Montreal as a Business Institution (Montreal: McGill-Queen’s, 1986) 3–37, 108–49.
92 See Wills Act, R. S. O. 1887, c. 109. See generally Adam Hirsch, “Freedom of Testation/ Freedom of Contract,” Minnesota Law Review 95 (2010): 2180.
93 Literature on legal transplants and imperialism thereby gets drawn into this mix. See, e.g., Dezalay Yves and Garth Bryant, Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago: University of Chicago Press, 2010); Sugarman David, “Who Colonized Whom?” in Professional Competition and Professional Power, ed. Dezalay Yves and Sugarman David (London: Routledge, 1995) 222.
94 See generally Schlegal John H., American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995); Hunt Alan, The Sociological Movement in Law (Philadelphia: Temple University Press, 1978).
95 See, e.g., Reisman, supra note 22; Drummond Susan G., Mapping Marriage Law in Spanish Gitano Communities (Vancouver: University of British Columbia Press, 2006); Weyrauch Walter and Bell Maureen, “Autonomous Law-Making: The Case of the Gypsies,” Yale Law Journal 103 (1993): 323.
* Faculty of Law (Emeritus), McGill University; Faculty of Law (Visiting), University of Toronto. I am grateful to Rande Kostal, Dick Risk and Mary Stokes, as well as to the 2014 Osgoode Society Legal History Workshop and to this law and society journal’s anonymous reviewers, for helpful commentary on an earlier version of this paper. Martin family members Eva Isabella Anderson Martin (1882–1990), Agnes Gray Martin (1895–1948), and Florence Helen Melrose Johnstone (1911–2005) had all prepared unpublished “family stories,” and, although none of them directed much attention to patriarch William Martin’s will, their notes were generally useful. Uncited references to family fact or lore in this text are based on those stories.
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