C. A. 1902 MCCLENAG HAN v. PERKINS. The only matters in the report now material were the following, namely, an item of $1,275 in the plaintiff's surcharge. The evidence shewed that the defendant was the executor of the estate of his father Lyman Perkins, and, as such executor, he passed his accounts in the Master's office in an action of Armstrong v. Perkins. In these accounts which were put in he credited himself, as executor of that estate, with certain payments made to himself as executor of Mrs. Hinton's estate in respect of her share in his father's estate-the Lyman Perkin's estate. One of these was an item of $1,200, which was credited in the accounts filed in the Armstrong v. Perkin's suit, as paid to the estate of Mrs. Hinton on 30th April, 1883. The defendant's explanation of this was that he paid Mrs. Hinton $1,275 in small sums prior to her death, and that he credited them only on the 30th April, 1883, after her death, which took place on 25th December, 1882, because he had not made them before. He said he had no vouchers for these payments, and the only documentary evidence he produced was a pocket diary shewing entries of them in his own handwriting under the respective dates. The Master held that his evidence related to a matter occurring before the death of the testatrix, and required to be corroborated under sec. 10 of the Witnesses and Evidence Act, R.S.O. 1897, ch. 73. The Master, therefore, charged the executor with the said sum of $1,275, as due by him to the testatrix Victoria Elizabeth Hinton, as the executor of Lyman Perkin's estate, and alleged by the executor to have been paid to her before her death, but which was credited to her by him in the accounts of the Lyman Perkins estate after the date of her death. The other matter related to a devise to the defendant under the will of Matilda S. MacGillivray. This was a devise of certain lands "unto my brother George Washington Perkins, his heirs and assigns absolutely, for his and their sole and only use forever, free from all encumbrances," with a direction for the payment of a mortgage thereon, and any other encumbrance that might be on said land at the time of her death out of her personal estate, and that the payment of the encumbrance should be a first claim on her personal estate. C. A. 1902 The Master found that the devise was given him in his capacity of executor, and intended as a compensation to him for his personal services in the management of the estate, and MCCLENAGthat he was not therefore entitled to any further sum by way of compensation out of that estate. He allowed the executor $1,900 as compensation for his personal services in the management of Mrs. Hinton's estate. From this report the executor appealed to a Judge sitting in Weekly Court on the grounds that the executor should not have been charged with the $1,275, as the evidence shewed such sum had not been received by him; and that notwithstanding the devise under the will of the said M. S. MacGillivray, he should have been allowed compensation for his services out of that estate. There was a cross-appeal by the plaintiff on the ground that the $1,900 allowed for compensation out of Mrs. Hinton's estate should not have been allowed. On March 27th the appeal came on for argument before Falconbridge, C. J. sitting in the Weekly Court. The learned Chief Justice confirmed the finding of the Master as to the $1,275. He did not deal with the question as to whether the devise to the defendant was in lieu of compensation for his services as executor, being of the opinion that the defendant, by his careless management of the estate, was not entitled to any compensation at all. The defendant appealed to the Court of Appeal. On April 23rd the appeal was heard before OSLER, MACLENNAN, Moss, and GARROW, JJ.A. T. A. Beament, for the appellant. As to the $1275 item, the appellant was entitled to shew that this amount had been paid out by him, and how it had been disposed of, and it was not necessary that his evidence should have been corroborated Section 10 of the R.S.O. 1897, ch. 73 does not apply, as it was not an event occurring during the lifetime of the deceased: Staebler v. Zimmerman (1894), 21 O.R. 266. The defendant was entitled to claim compensation in the MacGillivray estate. The devise was made to him in his individual capacity and not as executor. The testatrix's intention was that he should be a beneficiary in HAN V. PERKINS. C. A. any event. 1902 HAN v. PERKINS. Unless this was so there would be a lapse under the clause in the will for the appointment of new trustees: he MCCLENAG could resign his position as trustee, and the subject matter of the devise is not otherwise dealt with. The learned Chief Justice was of the opinion that it was not necessary to decide this point as he held that by reason of his alleged mismanagement he was not entitled to any compensation at all; and for the same reason he disallowed the $1900 compensation allowed by the Master in the Hinton estate. The alleged grounds of mismanagement are not sufficient to disentitle the defendant altogether from getting compensation, while all these matters were duly considered by the Master in fixing the amount of compensation allowed by him. The defendant, therefore, should be allowed compensation out of both estates: Archer v. Severn (1886), 13.O.R. 316; Hoover v. Wilson (1897), 24 A.R. 424. W. J. Code, for the respondents. The executor in bringing in his accounts in the Hinton estate admitted that this amount had been received by him as executor. The defendant admitted that the money was received by him during the lifetime, and his claim is that he paid it out to her during her lifetime. The matter, therefore, was one occurring before the death of the deceased, and came within sec. 10 of the R.S.O. 1897, ch. 73, and the Master was right in requiring corroboration of the defendant's evidence: Re Curry, Curry v. Curry (1900), 32 O.R. 150; Taylor v. Regis (1895), 26 O.R. 483. Then as to the devise under Mrs. MacGillivray's will. The devise itself and the whole context of the will shews that it was intended to include any compensation he might otherwise be entitled to for his care and services in administering the estate. The defendant, however, by his gross negligence and flagrant violation of his duties as trustee disentitled himself to claim any compensation at all, and therefore, as found by the learned Chief Justice, it was unnecessary to decide the point as to the effect of the devise; and for the same reason he also found he was not entitled to claim compensation in the Hinton estate, and therefore the finding of the Master fixing $1900 was properly disallowed : Williams on Executors, 9th ed., p. 1147; Boys Home v. Lewis (1901), 3 O.L.R. 208; Denison v. Denison (1870), 17 Gr. 306; Re Appleton, Barber v. Tebbit (1885), 29 Ch. D. 893. December 5. OSLER, J.A.:-On the first ground of appeal the sole question is whether it was necessary that the defendant's evidence in answer to the item of $1,275 in the surcharge should have been corroborated, or whether the Master was at liberty to act upon it if believed by him in the absence of corroboration, and to treat the surcharge in this respect as not proved. If the language of sec. 10 of the Evidence Act and the precise question which the Master had to determine are attended to, I think it will clearly appear that the section does not apply:" In any action or proceeding by or against the heirs, executors, administrators or assigns of a deceased person, the opposite or interested party to the action shall not obtain a verdict, judgment or decision therein in his own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence." The vital words of the section-those upon which in any given case its application hinges are "in respect of any matter occurring before the death of the deceased person." Now, the question before the Master was not whether the defendant's accounts, as executor of Lyman Perkins' estate were correct, nor whether he was a debtor to the estate of his sister, Mrs. Victoria Hinton, who died in December, 1882, in respect of money received by him for her in her lifetime, and not paid over to her or to her estate since her death, but whether the moneys, the subject of the surcharge, had come to his hands and been received by him in his capacity of her executor since her death. If the plaintiff could not prove that it had been received by him, as alleged, in his executorial capacity, the surcharge failed. What the plaintiff relied upon was an alleged admission made by the defendant in passing his accounts before the Master in a partition or administration action of Armstrong v. Perkins, as executor of the estate of his father, one Lyman Perkins, in which he took and received credit for the sum now C. A. 1902 MCCLENAG HAN บ. PERKINS. Osler, J.A. C. A. 1902 HAN บ. PERKINS. Osler, J.A. in question, as part of Mrs. Hinton's share or interest in that estate, as having been "paid to her estate," and thus received MOCLENAG by himself as executor on the 30th April, 1883. In taking the accounts of the Perkins estate, it was, except as a matter of strict accuracy, immaterial at what time the money was paid, whether to Mrs. Hinton herself in her lifetime or to himself as her executor after her death, and the form in which credit was taken created no estoppel upon the defendant in the present action. The defendant denied that he had received this sum after Mrs. Hinton's death, as alleged by the plaintiff, and his evidence in that respect did not require to be corroborated, and he explained the alleged admission in his accounts in Armstrong v. Perkins,by saying that the item he had then taken credit for consisted of a number of small sums paid to Mrs. Hinton in her lifetime, as executor of Lyman Perkins, which he had not made or added up until the 30th July, 1883, when preparing his accounts, and therefore credited them as of that date. The question therefore being whether he had received the $1,275 after Mrs. Hinton's death, viz., on the 30th April, 1883, it appears to me that the defendant was at liberty not only to prove by his uncorroborated denial, if the Master believed it, that he had not so received it, but also in the same way to explain or destroy the force of the alleged admission, the only evidence given by the plaintiff in support of the surcharge, by shewing why he had taken credit in the way he had in the accounts filed by him in the former suit. The matter for the Master to decide, therefore, being whether the defendant received this money as charged after Mrs. Hinton's death, and the only proof of that consisting of an alleged admission made by defendant since that time, I think the defendant's evidence was competent, even without corroboration, to shew the circumstances under which it was made and the reason for having made it in the form in which it appears, even although it may be necessary for the purpose of explanation to refer to matters which occurred before the death of the deceased, so long as these are not matters which directly come into judgment and form the subject of the decision in the present action. |