A. H. Herbert July 1 1921


A. H. Herbert July 1 1921



A. H. Herbert

Ethel M. Chapman

IN writing one of his inimitable screeds for the London News some years ago, Gilbert Chesterton said that in spite of all things—revolutions, wars, earthquakes, social reform, crime, scientific discovery, glorious epochs, and transcendent genius—the most vital and interesting facts to the human individual, birth and death, still remained the same. And that is absolutely true. However recur rent the intelligence of such occur rences be, they never lose their grip upon the imagination, nor fail to im press our sensibilities with their mys tery and inevitability.

Yet upon death, the most tragic and majestic of all human experience, the grossness of our worldliness has set a regrettable seal of vulgarity in the matter of its attendant ceremonies— wills. What a man has accumulated from birth to death he is justly allowed to hand down to the living, and parliaments and law books and pettifogging lawyers profess to guard these bequests as sacred.

The making of wills is perhaps the chief episode that unveils and betrays the weaknesses and sins of the accredited exponents of our much vaunted halls of justice—the lawyers. In the next place men taunt the fair sex with their enigmatical, illogical and perverse contrariety of disposition, whilst they (creatures of simplicity, steadfastness and sound judgment) arrogate to themselves the virtues of consistency, intelligence, social justice, fair dealing, and perspicacity. Back and forth between the sexes speeds the shuttle of accusation. “A woman never knows a man until she lives with him,” accuses the female. “A man never knows a woman however long he lives with her,” retorts the male. But to both these very true and pertinent conclusions should be submitted a further established fact, that never by any possible means can you wholly gauge the trüfe inwardness of a man, until he is dead and you have read his will. Also, if you really and truly desire to settle the exact status woman occupies in the esteem, affection and regard of mankind go to the surrogate court and study the probates of men’s wills. Throughout a long experience of handling many wills, dictated by men diverse in manners, habit and class, in but one instance alone did I ever read a single document wherein the husband treated his wife as a creature equal in intellectual and moral value with himself. And then, in the last apportionment of an estate somewhere between twenty and thirty thousand dollars, the man provided for his Wife and five or six children, after this fashion:

“to my beloved wife Jane

Jones I leave all my real and personal

“Signed, William Jones. “Witnesses, Wm. Jones, Jr., H. Wilson, M. D.”

The law of Ontario entitles a woman to at least one-third of her husband’s estate at death. And most carefully the husband provides that when he specifies certain sums and gifts for her maintenance, it is to be in lieu of

dower. But it should always be borne in mind by widows in this province that it lies within their right to reject these special provisions in favor of their legitimate share of the estate, their dower—one-third.

With all due apologies to the farming community, it must be said that nowhere do the wife and daughters of men suffer ranker injustice than from the last testaments of the active and retired farmer. To his sons the rustic will leave farms and mortgages and western lands unrestricted; to his wife and daughters, alas, the bequests are too often only partial or niggardly in the extreme. If the daughter marries she provides for herself; if she does not, she must cling to the religious axiom, “the Lord will provide.” To my mind now comes the case of an aristocratic farmer whose brother was well-known in Toronto financial circles as a man of affairs. This pretentious rustic, dressy and pompous in his living, had one son and one daughter. The latter was kept at home to work, was taught to play the piano, and treated to a modest trip to England. The son was left the farms, when the other three retired to town, on condition that the father and mother get so much wood, potatoes and fruit a year along with an annuity of six hundred dollars. But should the husband die, the annuity was to be reduced to three hundred. Fortunately the wife died first. The daughter living at home, accustomed to leisure and country dances and dress, without even the business equipment of a common stenographer, reached the age of twenty-five when the home was broken up. Then her father died, and whilst his will left the farms entirely to her brother, along with a few thousand, more or less in cash, the daughter’s legacy reached the munificent sum of three hundred dollars.

Another retired farmer with two sons and four daughters, all well and comfortably settled and married, ended his days with a wife and a fifth unmarried daughter in a small country town. The interest on their meagre capital of $3,000 yielded them a frugal living. Three or four offers of marriage were rejected dutifully by the daughter at home. When she reached the age of 55 her parents died. The father divided his capital amongst his children and even grandchildren and the homekeeper got barely $1,000 all told. She then found herself the half-educated relic of a bygone generation, forced to get out and learn a trade, or sponge on her relations absorbed in their own family cares. The most remarkable feature about these two instances, however, is that they are perhaps the most promising examples in a great and overwhelming sea of injustice.

Now it is generally understood that to make a will lucid, succinct, satisfactory and inexpensive, the services of a lawyer are indispensable. Technically speaking, the services of a lawyer who has brains and honesty and sound judgment, are well worth paying for. But in Ontario a man can

quite satisfactorily make his own will. All that is necessary is that he write down his instructions and sign them in the presence of two witnesses, who shall likewise write their names as witnesses at the same time, all three persons in the presence of each other.

It is always advisable, indeed, almost peremptory, where the deceased has property or at any future date might inherit property, to have the will registered in the registry office. In certain cases in Ontario where an estate does not exceed a certain value, some $1,000 or $2,000, it is not necessary to have the will probated. The probate, of course, empowers the executors to administer the estate, but it is not necessary that the will be probated to admit it to registration in the registry office.

The making and probating of wills, however, differs slightly in the different provinces. In the Province of Alberta the same requisites for making a will obtain as in Ontario. There is no dower, but a widow has the same right in lands as in personal property. Manitoba follows suit in the matter of signatures, and witnesses, but in the case of a holograph will, which is entirely written, and signed by the testator himself, there is no need of attesting witnesses.

In New Brunswick, however, a will must be in writing and signed as heretofore by testator and two witnesses.4 Likewise, Nova Scotia and Saskatchewan demand that a will be written and signed as above.

Nowhere in Canada, I ’believe, is the will of a person under twenty-one years of age deemed valid, and in Alberta, Ontario, Manitoba and . New Brunswick no attesting witness to a will can receive a devise therefrom, whilst in Saskatchewan even the husband or wife of a witness is debarred as beneficiary. In the case of a man dying intestate, in New Brunswick, a widow has dower, and in Alberta, Ontario, Manitoba and Quebec the widow is entitled to a third share in the real estate.

Thé Province of Quebec differs greatly in its civil code from its federated sisters, though it makes the same provisions for the encompass«ment of holograph wills. But it provides, also, for notarial testaments and documents under the English form, both of which demand slightly different execution and procedure toi the common instrument signed by witnesses and testator.

That a woman should hold a onethird dower interest in her husband’s estate whilst he lives has always seemed to me a fairly rational arrangement. But when he dies that she should not immediately become entitled to an entire half interest has always been a puzzling mystery. Some men, of course, emphatically endorse her right to equal share in worldly wealth, and their wills acclaim the fact in no uncertain terms, but a lot of conjugal bequests keep well within the one-third limit, and take care to stipulate for the withdrawal of that, if she marry again.