ERIC HUTTON June 15 1952



ERIC HUTTON June 15 1952


Not only did the cynical Toronto lawyer offer a fortune to the woman hearing most children in the decade after his death, but he willed race track and brewery stock to clergymen, left his summer home in Jamaica to three reputed enemies and got more newspaper space than Lindbergh did


OCTOBER 31, 1926, was a Sunday and the elevators were not running in the Crown Life building on Yonge Street, Toronto. So Charles Millar, an impatient man when anyone disputed his recollection of a point of law, ran up the three flights of stairs to his office. George Anderson, a post-office official, and Charles Kemp, Millar’s law partner, followed at a more leisurely pace.

When they entered his office Millar already had a law hook open on his desk and his pink, totally bald head was bent over it. His long expressive face, which could change so quickly from sardonic to humorous, was tightened in concentration as he searched for the technicality over which the three men had disagreed, amiably but emphatically, during an expansive luncheon in the nearby King Edward Hotel. With a grunt of satisfaction Millar jabbed his forefinger at the page, turned to speak to Anderson and Kemp and suddenly slumped in his chair.

The events of the next three days followed the usual pattern of mourning for a substantial citizen. Obituaries in the four Toronto papers were long and laudatory. (The Telegram’s heading, though, seems rather archaic for less than twenty-six years ago: “Lawyer, Sportsman, Business Man Expires

Without A Moment’s Warning In His Law Office.”) Millar, a prominent lawyer and financier, left an estate which was eventually worth close to a million dollars.

He was buried at Aylmer, Ont., near the farm on which he had been horn seventy-three years before. The funeral in Toronto can only be described as distinguished. Judges, government officials, lawyers, company executives, hotel magnates, stockbrokers and an aggregation described somewhat vaguely as “the sporting fraternity”


crowded by the hundreds into Millar’s big frame house at 75 Scarboro Road to hear Rev. T. H. Cotton deliver a eulogy on his life and deeds. Four second cousins were among those present.

That was the last time a clergyman was to say a good word about Millar; the last time the great majority of his friends, relatives and acquaintances were to speak of him with respect; certainly the last time any newspaper wras to print a dignified item concerning him. Overnight Charles Vance Millar underwent a posthumous change from a rich respectable stuffed shirt into a fabulous character who was to receive more conversational and newspage space in Toronto than any other subject between World Wars I and II. And that included Lindbergh’s trans-Atlantic flight and the stockmarket crash.

The reason why Millar’s fame was greater during the decade after his death than in the seventy-three years before it was that he left a will the like of which had never been seen before and probably never will be seen again.

The very phrase “Millar Will” has become part of Ontario’s folklore. To most people, however, that term recalls only the final clause of the will, in which a reticent and rather stiff-necked bachelor bequeathed the bulk of his fortune to the woman who, in the ten years following his death, happened to give birth in Toronto to the largest number of children. Most of the long-term deploring and viewing-with-alarm in high places centred around this “stork derby” clause. But when the terms of the will were first made public to start a career as a ten-year wmnder, clauses five, six and seven were considered equally combustible. In t he 3'ears to come distant relatives and some people whose only connection was the name “Millar” fought vainly to have the controversial will disallowed. ,

Clause five bequeathed “to Hon. W. E. Raney, A. M. Orpen and Rev. Samuel D. Chown each one share in the Ontario Jockey Club, provided that three years from my death each of them becomes enrolled as a shareholder.” But Millar directed that if any one of the three declined membership in the racing organization, all the shares, which had a value of fifteen hundred dollars each, were to revert to the estate.

The plot of clause five’s little drama was that Judge Raney, former attorney-general of Ontario, and Dr. Chown, former head of the Methodist Church in Canada, were sworn enemies of horse racing in general and betting in particular. Raney, as attorney-general, had been Millar’s personal opponent at committee hearings on a private bill which sought to expand racing in Ontario. Abe Orpen, on the other hand, was the colorful personality who operated Dufferin race track in competition with the Jockey Club’s Woodbine Park. Millar sought, via the inducement of fifteen hundred dollars each, to make these three men partners.

Clause six gave one share in the Kenilworth Jockey Club, Windsor, “to each duty ordained minister of a Christian church (except one Spracklin, who shot a hotelkeeper) resident at my death in the towns of Walkerville, Sandwich and the city of Windsor, and earning an annual salary expounding the Scripture to the sinners there.”

There are two or three extraordinary features in this clause. The obvious one was Millar’s perversity in willing race-track stock to ministers, the natural enemies of betting; but Millar added insult to injury— his Kenilworth stock was worth exactly half a cent per share. His specific exclusion of “one Spracklin, who shot a hotelkeeper,” was a clue to one facet of his personality, which will be discussed later.

In clause seven of his will Millar left one share

of O’Keefe Brewing Co. stock “to each Protestant minister exercising his clerical function at an annual salary and resident in Toronto at the time of my death, and to each Orange Lodge in Toronto.” (The O’Keefe company had been founded by Roman Catholics.)

Actually, even the seemingly innocent clauses of Millar’s famous will contained hidden implications. The very preamble warned that what was to follow' was no conventional testament : “This will is necessarily uncommon and capricious because I have no dependents or near relatives and no duty rests on me to leave any property at my death, and w'hat I do leave is proof of my folly in gathering and retaining more than I required during my lifetime.”

He started the disposal of his fortune by gett ing something off his conscience: “To A. L. Gourlay

of the J. J. McLaughlin Co., Toronto, I give ten thousand dollars as he lost approximately that sum in a business transaction with me.” That would appear to be the only one of his multitudinous deals in which he felt he had a moral, if not a legal, obligation to a man be had bested.

Certainty others did not share that feeling. One man declared ruefully, a few' weeks after Millar’s death, that the latter had “taken me for at least a hundred thousand dollars.” Another man sued the Millar estate for twenty-five thousand over an unusual deal. Millar, he claimed, had sold him some underwater lots in the Detroit River, promising that earth dug to make the Windsor-Détroit, tunnel, for which Millar was drawing up incorpora-

tion papers, would be supplied to bring the lots’ surface above water and convert, them into tremendously valuable real estate. After Millar died no signed agreement, to supply the fill could be produced, and the man was stuck with some acres of water.

It was not like Millar to fail to keep a verbal contract. Abe Orpen once said that he had had “hundreds of deals with Charlie Millar, with never a word in writing.” But, Orpen added, that was because he knew that Millar would not break his word, yet very likely he would have tried to break a written contract if he could find a weak spot in it..

Millar was an expert at spotting loopholes in contracts or agreements. One of Toronto’s most prominent, lawyers later admitted: “Most of my

success is due to a few' words of advice Millar once gave me: “Always let the other fellow write the

contract. Then you can see where he leaves you an opening, and when you act he hasn’t a leg to stand on because he wrote it..’ ”

The only “straight” bequests in Millar’s wdll were five hundred dollars to his housekeeper, a Mrs. Wilson, and one thousand to C. H. Kemp, who shared his law office and his home. But even these comparatively niggardly bequests had deeper implications.

When Col. John Bruce, a court registrar who helped draw' up the will and wrho witnessed it, asked Millar why he left money to people he did not know but passed up persons who had worked for him long and

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Charlie Millar's Million-Dollar Joke

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faithfully (his secretary for twenty years received nothing) Millar replied blandly: “If I left them money they

would be glad when I died. I don’t want anybody to look forward to my death.”

Thus Millar’s gift of his summer home near Kingston, Jamaica, was not meant to bring joy to the recipients, P. Galt, KG, J. D. Montgomery and James Haverson, KG. Millar believed these three legal lights were not friendly with each other and he apparently hoped that joint ownership of the property would lead to open dissension.

It does not require a psychiatrist to discern that there were a number of motivations influencing Millar when he drew up his will. As a matter of fact,

! a couple of psychiatrists were asked by I a newspaper to analyze the probable workings of Millar’s mind. They took a look at the evidence and begged off.

Certainly Millar believed that every man had his price. He often used that scornful phrase in conversation and claimed to have ample evidence of its truth. For example, there was one prominent man on whom a client of Millar’s wanted to serve a summons. Hut the man proved very elusive. After several weeks of failure Millar took charge: “The summons will be in our man’s hands tomorrow, and he’ll sign the receipt.”

Millar placed the summons in a neat box and sent it to the man with all S express charges paid. The value of the i contents was marked as twenty-five dollars on the label. The recipient not ! only accepted the package but signed a receipt for it. Millar would chuckle when he told the story: “No man can resist accepting a prepaid package [ valued at twenty-five dollars. A lesser value might not tempt him, a larger i one might make him suspicious. A I twenty-five-dollar something-for-noth¡ ing is just about right for most men.”

One of Millar’s favorite pastimes was to sit on the veranda of the old Queen’s Hotel and watch the reaction of men, women and children, rich and poor, old and young, to the sight of a dollar bill lying on the sidewalk. Millar would drop the bill on the ground when no one was in sight, then sit in an inconspicuous corner, partially hidden by a newspaper, to study the facial expressions of passers-by when they first spotted the bill, then underwent brief conflict deciding whether to pick it up or ignore it. “It was an education in human nature by itself,” Millar told friends.

Millar probably regarded those dollar bills as an investment in learning —he was not given to tossing away money for nothing. One Toronto lawyer recalls dining with Millar in the old Russell House in Ottawa about ten years before Millar died. After dinner Millar suggested that they toss to decide who should pay for both meals.

“Gharlie,” asked the other lawyer drily, “how much are you worth?”

Millar missed the irony of the question and took it literally. He scribbled figures on the tablecloth for several minutes then answered: “Just $487,000.”

A week later the other lawyer went to see Millar. He was solicit ing donations for a home for underprivileged children and asked Millar for a hundred dollars. The latter threw up his hands in horror. “No, no, I can’t do it,” he said.

“But a few days ago you told me you were worth marly half a million.”

Millar was adamant. “I can’t do

it. I won’t do it. I ... I’m supporting my poor old mother.”

Millar’s streak of thrift probably dated back to his early years as a lawyer. Although he was a brilliant student and won several prizes, after he was called to the bar he was paid only three dollars a week by the law firm he joined. That was not enough to live on, even in those days. The manager of the Queen’s Hotel, a man named McGaw, came to Millar’s rescue by giving him a room and meals on credit. McGaw did more than that. He threw Millar the hotel’s legal business and referred to him guests who needed legal advice.

With this help Millar was soon out of the financial woods, but he never forgot his debt of gratitude to McGaw. For twenty-three years he lived in a single room at the Queen’s, long after he had entered the big-income bracket as a corporation lawyer and landlord of a dozen Toronto houses. His gratitude even showed, quixotically, in his will when he excluded Rev. Mr. Sprack-

lin from inheriting even a half-cent share of stock because he had shot a hotelkeeper. Hotelkeepers were automatically Good Guys in his complex assessment of the human race.

Millar did not buy a home of his own until his father died and he had to “support his poor old mother.” It was then that he built the big home on Scarboro Road and installed his mother there. She died, at a great age, only three years before M illar.

Millar’s home life was exemplary, if dull. During the days of his poverty, he confided to a few close friends, he had fallen in love with a beautiful young girl, member of a socially prominent Toronto family. His story was that the girl loved him but that a three-dollar-a-week lawyer, son of a farmer, did not suit her parents. Whatever the facts, nothing came of the romance. Millar never went courting again.

“I would not say that he became a woman-hater,” a friend said after his death, “but he incorporated women into his belief that everyone had a price—and he never cared to spend much money.”

Six nights a week Millar would have one drink before dinner and be in bed at nine-thirty. One night a week he had a few friends in for poker at low stakes and then he might have two drinks after dinner. But even on these gala nights he insisted on breaking up the party by ten-thirty.

Millar owned a successful racing stable, but his real hobby was rowing. For years he and Ghief Justice Armour, of the Ontario Supreme Gourt, owned a houseboat which they moored at the foot of York Street, and three or four afternoons a week in summer they were to be seen rowing lustily about the bay.

Millar came to be regarded as a man with the Midas touch. But the fact is that he made so many bad investments that his whole plan to create a bombshell of a will nearly fizzled for lack of big money. At his death his only large asset was a block of O’Keefe shares worth one hundred and four thousand dollars. On the other hand his portfolio of stocks included more than a million shares, in eight • com-

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parties, with a total value of sixteen dollars.

But for a stroke of posthumous luck Millar’s estate, after all other obligations and taxes, would have amounted to a few thousand dollars, which would scarcely have made the stork derby front-page news in every North American newspaper. The stroke of luck was possession of one hundred thousand shares in the Windsor-Detroit Tunnel Co.

When Millar died he did not even have those shares listed among his holdings. The tunnel, as someone put it, was still “only a gleam in some promoters’ eyes,” and the shares had no market value.

But the tunnel went through, the shares soared in value, and when Millar’s executors finally cashed them in to pay off the stork derby winners they realized nearly three quarters of a million dollars. This was the residue of the estate after the other provisions had been met.

In his earlier years Millar had no time for leisure. In the early Eighties he accumulated a holding of a dozen houses in lower-middle-class districts of Toronto. When depression struck a few years later he managed to hang on to his properties only by sheer hard physical work. The houses either could not be rented at all, or could bring a return not sufficient to keep them in repair. So Millar, after a full day at law, would don overalls and make the rounds of his houses, doing his own repairing and maintenance work to save money.

Millar personally was a strange mixture of painful shyness and irascibility. He was impatient of the fixed opinions of others. Once he listened to Abe Orpen and a group of professional horsemen talking about the technicalities of the racing game, and the great skill, knowledge and judgment required for success.

“Nonsense!” Millar declared. “I know nothing, absolutely nothing, about horses. But I’ll bet you I could succeed at it as well as the next man. 1 could win next year’s King’s Plate if I set my mind on it.”

The bet was covered by the sceptical horsemen. Millar promptly hired a trainer, commissioned him to buy the two best horses available in Ontario. The trainer bought Tartarean and another horse from the Livingstone stable. Tartarean and his stablemate ran first and second in the 1915 King’s Plate. But Millar was so shy that he stayed away from the Woodbine that day. He twice declined being made a king’s counsel because the honor would focus some public attention on him.

Although Millar’s law office was in the Crown Life building he carried no personal insurance and kept up a feud with insurance companies. In fact, he once forgot his shyness long enough to issue a public challenge to supporters of insurance to prove that it wasn’t “gambling pure and simple.” The circumstances were that Millar owned a horse, Lee Rose, which was entered in the Toronto Cup at Woodbine. Lee Rose was insured for fifteen thousand dollars. A month before the race the horse was accidentally killed.

Millar wrote the Toronto papers pointing out that the fifteen thousand dollars he had collected was a bet —“the insurance company bet me this large sum against a small sum that my horse would not die before a given date. I challenge all casuists and ethical authorities to show any difference between the insurance transaction and a bet that my horse would not run in the cup race. To anyone who can do this I will pay the fifteen thousand.” There were no applicants.

Was a Snub Behind it All?

On another occasion a seventy-fiveyear-old acquaintance came to Millar with his life savings, ten thousand dollars. “I’ll give you this money if you let me live in your house and be taken care of until I die,” he said.

“In other words,” said Millar, “you want to bet me that you will die before 1 spend the ten thousand on you. No, I know someone who will give you better odds than that.”

He took the old man to an insurance company, where he was offered a life income of twenty-four hundred dollars a year in exchange for his ten thousand in cash. It remained a source of satisfaction to Millar that ten years later the old man was still alive and had, as he put it, “been paid off at odds of nearly two and a half to one, with the odds getting juicier every year.”

Just what Millar expected his will to accomplish cannot, of course, be staled with any certainty. Col. Bruce, to whom Millar confided more than to any other associate, and who helped draw up the will, maintained that the stork derby clause and the gifts of brewery and race-track shares to ministers and public men were meant by Millar to be “a great lesson against the ‘holier than thou’ attitude,” a protest against the teaching that certain things are unqualifiedly bad and other things flatly good.

“Millar believed that a lot of human misery and poverty resulted from uncontrolled childbearing, which in turn he blamed on the ban against birth-

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control information then in force in Ontario. Charlie’s hope was that, by turning the spotlight on unbridled breeding and making us a laughing stock before the world, he could shame the government into legalizing birth control.”

On the other hand, there is evidence that Millar drew up that will solely because Sir Robert Falconer, president of the University of Toronto, failed to keep an appointment with him. It was the lawyer’s intention to discuss with Sir Robert the best procedure for leaving the bulk of his money to the university. He had told friends that his happiest years had been spent at the university and he intended it to have his money.

If the will was made in a mood of resentment it was a mood that was to endure for five years. It has been suggested that the will was no whim, since it was drawn up with such legal care that it survived ten years of attacks in courts and an attempt by the Ontario government to break it (on the grounds that if was “against public policy”). But James Haverson, KC, who knew Millar well, and was one of his “beneficiaries,” discounted that. “It was,” he declared, “impossible for Charlie Millar to draw up a bad legal document.”

Certainly none of Millar’s circle took the will seriously at first. Charles Kemp refused to discuss it at first. “I found some writing in a form that resembles a will,” he put it. “But it is not a will. It is a joke. We are searching for the actual will now and undoubtedly it will turn up.”

But no “real will” turned up. The “joke” was the last testament of Charles Millar. And a few months later Kemp, as chief counsel for the estate, found himself defending the strange document against attack from a dozen quarters—and defending it successfully. For the next ten years there was no time when the will was not before one or another court as Exhibit A in a lawsuit or application for an injunction. The favorite basis for taking the will to court was that the stork derby clause encouraged immorality and was against public policy.

Mr. Justice Middleton finally settled that point nearly eleven years after Millar’s death with this simple memorable ruling: “I cannot find that

reproduction of the human race is contrary to morals.”

The narrowest squeak the will had was late in the stork derby when a plump young redhead named Mae Clark turned up as a contestant. Mae was the mother of ten children, five by her husband and five by a later attachment. Millar’s will had made no mention of legitimate children but simply said that his accumulated residue was to be given after ten years “to the mother who has since my death given birth in Toronto to the greatest number of children as shown under the Vital Statistics Act.”

Millar’s second cousins saw their final and best chance of breaking the will. Their counsel, I. F. Hellmuth, KC, declared in court: “No one who

knew Charlie Millar doubts that he intended to include the mothers of illegitimate children.” If the court found that to be true the will might indeed be deemed to outrage public policy by encouraging the production of illegitimate children. But the court gave Millar’s intentions the benefit of the doubt. Millar did not intend, the judge ruled, to include illegitimate children.

If tho intention of the will was to create high public feeling, to lay bare the spectacle of thousands of clergymen torn between avarice and piety, to start an orgy of reproduction, then the shade of Charles Millar, looking on what he had wrought, can only conclude that the project was a flop.

There was a spate of words, but the indignation was largely synthetic and newspaper-created. One small group of clergymen, for example, dreamed up the idea of using their O’Keefe stock to vote the brewery out of existence until they found that their potential combined holding was a pitifully small minority.

Not-so-Squeamish Oranges

The Roman Catholic church probably handled the Millar will with greatest dignity and dispatch. Under its terms, priests in the Border Cities were entitled to a share of Kenilworth stock. The Catholic hierarchy announced briefly and with great finality that no priest wanted anything to do with it.

There was another Catholic involvement in the will which the church rejected so emphatically that the clause was never even published as part of the will. This clause left five hundred dollars to the church for Masses for the soul of Major Joseph Kilgour, a Protestant.

Of three hundred and three Protestant clergymen in Toronto, ninetynine applied for their O’Keefe shares. The Orange Lodges were less squeamish and one hundred and three of one hundred and fourteen lodges accepted the stock. Most ministers were not reluctant to state the uses to which the proceeds were put. Rev. Trevor H. Davies, of Timothy Eaton Memorial Church, signed his cheque over to the Hospital for Sick Children. Rev. J. O. Johnston wrote the trustees that he was using the money to help the wives and children of men jailed for drunkenness. Rev. E. Crossley Hunter turned the money over to a university student to help him continue his education.

There was considerable wrangling among clergymen about whether they should accept the Kenilworth shares. But only half a dozen had applied before the discovery that the shares were valueless. The whole matter dissolved in a mixture of indignation and laughter.

Millar apparently had miscalculated on several points. If it was true that every man had his price, that price was not likely to be $58.20, the value of one O’Keefe share. Again, Millar did not realize that the moet straitlaced man can broaden his conscience a little in the name of charity. Certainly Judge Raney and Rev. Dr. Chown showed no embarrassment in handling their Jockey Club stock. On Aug. 27, 1927, they became members of the Ontario Jockey Club for five minutes. This formality was necessary under O. J. C. regulations providing that shares can only be disposed of by members. Another member of the club paid more than thre„ thousand dollars for the two shares, which was promptly endorsed to the Poppy Fund. Abe Orpen remained a member.

Looked back upon from the perspective of 1952 the stork derby launched by the Millar will, which caused sustained interest and excitement for ten years, becomes a dreary affair. Newspapermen who worked on the story seldom discuss it nowadays. One explained: “Looking back, the things I remember most are the smell of many children in bad houses; the unnatural talk about big money by tired women living on relief; the resigned resentment of husbands whose procreative powers had suddenly become world news.”

In fact, everyone heaved a collective sigh of relief when it was over. No monstrous childbearing resulted. The four winners were tied with nine children each, while elsewhere in the world women with no fortune at stake were recorded as bearing twelve and even fifteen children during the same tenyear period. Mrs. Dionne would have been an easy . inner had she lived in Toronto.

Mrs. Arthur Timleek, wife of a city waterworks employee; Mrs. Kathleen Nagle, whose husband was an unemployed carpenter; Mrs. John McLean, whose husband was a Department of Highways clerk and an amputation case from World War I, and Mrs. Alfred Smith, wife of a city fireman

these four were adjudged winners and received one hundred and sixtyfive thousand dollars each. Mrs. Mae Clark and Mrs. Martin Kenny, the latter a voluble and uninhibited little Canadien woman married to a silent Irishman, got twelve thousand five hundred dollars each, voted by the winners to prevent extended litigation. Mrs. Kenny claimed ten children, but most of them were unregistered or stillborn. Mrs. Grace Bagnato, longtime leader in the race, was ruled ineligible because three of her ten children, it was discovered, had not been registered.

Although the winners were in modest circumstances, all kept their heads in the face of wealth. The Timlecks bought a big old comfortable house and invested their money in bonds. The Nagles paid back eighteen hundred dollars they had received in city relief, bought a house and a car. The McLeans moved to a Niagara fruit farm. 'The Smiths bought a hotel at Elmvale, Ont.

Today, the last loose ends of the Millar story are still being tied up by occasional news reports, usually the deaths of the people involved. Most of Millar’s contemporaries are dead and now his beneficiaries are thinning. Mrs. Smith died in 1948 at forty-three; Mrs. Kenny died in 1950, aged forty-seven. Mrs. Bagnato’s death at sixty-one was the most recent.

It is only coincidence, of course, hut the cause of death, unusual in women, was heart attack in all cases—the same disease which killed Charles Millar and started one of the strangest trains of events in Canada’s history. ^