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IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK TRIAL DIVISION

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					IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK
TRIAL DIVISION
JUDICIAL DISTRICT OF NEWCASTLE




                                                                                        1992 CanLII 2679 (NB Q.B.)
Date: 19920928
Docket: N/M/74/92


IN THE MATTER OF THE ESTATE OF CLIVE WISHART, late of Tabusintac, in
the County of Northumberland and Province of New Brunswick,


-and-


IN THE MATTER OF AN APPLICATION for opinion, advice or direction of the
Court and/or for an Order directing the Executors with respect to the Estate of Clive
Wishart.




BEFORE:                        The Honourable Mr. Justice Thomas W. Riordon
HELD AT:                       Newcastle, New Brunswick
DATE OF HEARING:               August 31, 1992
DATE OF DECISION:              September 28, 1992



COUNSEL AT HEARING:

John L. McAllister - representing the Executors of the Estate of Clive Wishart, Mr.
Myles Wishart and John Wishart

Denis Lordon Solicitor for Max Wishart

G. Robert Basque Solicitor for the Canadian Federation of Humane Societies and
New Brunswick Society for the Prevention of Cruelty to Animals Inc.

  Geri Mahoney - Solicitor for Lorne Harding, Rev. Julien Theriault and Marianna
                                      Palmer
                                         DECISION

RIORDON. J.:




                                                                                                   1992 CanLII 2679 (NB Q.B.)
       Should Barney, Bill, Jack and King be put to death or should the Court
intervene and render invalid the expressed direction of their now deceased owner?

       The present application is brought by Myles Wishart and John Wishart,
Executors of the Last Will and Testament of Clive Wishart for the opinion, advice
and direction of the Court with respect to one paragraph of the Will of the late Clive
Wishart. That particular paragraph is in the following terms:

       "6. I DIRECT AND DECLARE that my Executors have my horses shot by the Royal
       Canadian Mounted Police and then buried."

       The Royal Canadian Mounted Police informed the Executors of the Will that
they will not be involved in the death of the horses without a specific Court Order
and review by their own legal counsel.

       The fate of the four above-named horses Barney, Bill, Jack and King must
now be determined.

       This direction to shoot four horses has resulted in a strong public protest of
objection across the country. One can speculate that if the subject animals were
pigs rather than horses, such opposition would not have been forthcoming. The
horse is and always has been highly regarded by mankind and rightfully so:

       "John Trotwood Moore, in a tribute to the horse, wrote: "Wherever man has left his
       footprint in the long ascent from barbarism to civilization we will find the hoofprint of
       the horse beside it." According to Western

[Page 2]


       European mythology and folklore, all the great early civilizations arose among
       horse-owning, horse-breeding, and horse-using nations; those in which the horse
       was either unknown or in the feral, or untamed, state were backward and no great
       forward movement of mankind was made without the assistance of the horse. So
       consistently was this the case that the glorified figure of "the man on horseback"
       became the symbol of power. The image of the horse was stamped upon man's
       coinage, sculptured on his temples, and even elevated to his pantheon and
       worshiped as divine." (Encyclopaedia Britannica, 1970 edition, Vol. II, page 701.)




                                                                                              1992 CanLII 2679 (NB Q.B.)
       Religious writings acknowledge the importance of the horse, one example is
found in II King, ch. 2, Verse 11 of the Holy Bible:

              "And it came to pass, as they still went on, and talked, that, behold, there
       appeared a chariot of fire, and horses of fire, and parted them both asunder; and
       Eli'jah went up by a whirlwind into heaven." (Holy Bible, 2 Kings, ch. 2, verse 11.)

       Petitions to save the horses have been signed. Concerned citizens from
both Canada and the United States have written to the Court, to counsel and to
newspapers. Radio talk shows have debated the subject. One letter that
demonstrates the interest that this has caused was posted from Vancouver to "The
Judge, Tabusintac Court House, Tabusintac, New Brunswick" and is entirely in the
elementary printing of a young child and is as follows:

                                                            "4470 ANGUS
                                                            VANCOUVER

       DEAR JUDGE,

              PLEASE DON'T LET ANYONE KILL THE HORSES

              I LOVE HORSES BUT MY DAD WON'T LET ME HAVE ONE.

              I WILL BE SAD IF THEY GET KILLED.

                                                            FROM
                                                            JENNIFER"
[Page 3]


       The decision the Court has a responsibility to make cannot be based on
sentiment or public opinion but must be based on legal principles in accordance
with the law of the land. In the Missouri Court of Appeal's decision of Eyerman et al
v. Mercantile Trust Co., N.A. et al, 524 South Western Reporter (2d) Series 210 at
page 220 reference is made to a paper written by the American jurist, Benjamin
Cardozo on the subject of the role of a judge. The following is stated:

               "In his treatise on The Nature of the Judicial Process, p. 141, Mr. Justice




                                                                                                 1992 CanLII 2679 (NB Q.B.)
       Benjamin Cardozo discussed the role of the judge as a legislator and warned: "The
       judge, even when he is free, is still not wholly free. He is not to innovate at
       pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of
       beauty or of goodness. He is to draw his inspiration from consecrated principles.
       He is not to yield to spasmodic sentiment, to vague and unregulated benevolence."

       The role of the Court was addressed in the case of Sereda v. Consolidated
Fire and Casualty Insurance Co., [1934] O.R. 502 (C.A.):

               "The Court is not a self-created body with original powers; it is not a
       benevolent autocrat with full powers to act as it should think fit; the Court is an
       institution organized by the people through their representatives for the purpose of
       giving to those applying to it their rights according to law, the law not being made
       by the Court but laid down for it by authority."

       Rule 16 of the Rules of Court provides for applications of this nature. The
relevant provisions are:

       "16.04 By Notice of Application

               Where an Act or rule authorizes an application or motion to the court
       without requiring the institution of an action, a Notice of Application (Form 16D)
       may be used and in addition thereto, a proceeding may be so commenced where
       the relief claimed is

[Page 4]


       (a)     for the opinion, advice or direction of the court on a question affecting the
       rights of any person in respect of the administration of the estate of a deceased
       person or in respect of the administration of a trust.

       (b)     for an order directing the executors, administrators or trustees to do or
       abstain from doing a particular act in respect of an estate or trust for which they are
       responsible."
       Clive Wishart died on May 13th, 1991 at the age of 64, his Last Will and
Testament is dated July 18th, 1990. By a decision in the Probate Court of this
Judicial District dated June 15th, 1992, I concluded that the Will of Clive Wishart




                                                                                        1992 CanLII 2679 (NB Q.B.)
should be admitted to Probate and accepted as a valid and proper Last Will and
Testament. The validity of that Will was contested by Max Wishart, a brother of
Clive Wishart. Contrary to what has been stated in the media, the Court did not at
that time direct that the horses be shot.

       The validity of that Will was contested by Max Wishart on the ground of
testamentary capacity. Many witnesses were called to testify at that hearing and
the evidence did establish that at all material times Clive Wishart did have
testamentary capacity and that was my decision in the application for Probate of
the Will.

       It is undisputed that Barney, Bill, Jack and King were treated by Clive
Wishart as pets; he was concerned with their welfare and did not want them to be
abused. The solicitor who took instructions and prepared the Will of Clive Wishart
testified at

[Page 5]


the hearing of the Probate Court before me which took place on December 30th
and 31st, 1991. That solicitor, Mr. William Munroe, was asked at that hearing why
Clive Wishart directed that his horses be shot. It was his reply that Mr. Wishart did
not want his horses to fall into the hands of anyone who might abuse them. Mr.
Munroe in his testimony said that a similar provision directing that the horses be
put to death was contained in an earlier Will.

       At the Probate hearing Myles Wishart, one of the named Executors, said that
Clive Wishart loved his horses and had purchased them to get them away from
horse hauling matches and that he observed him feeding the horses sugar.
Geraldine Christie, his sister, said that her brother Clive loved his horses and
animals and when they would visit, he would take them to see his horses shortly
after their arrival. She said his "horses were treated royally". Myles Harding said at
that hearing that the horses were pets more than anything else. Mauns Beattie
said that Clive Wishart was good to his horses but did not need four of them.




                                                                                               1992 CanLII 2679 (NB Q.B.)
Without question Clive Wishart was always very concerned about the well being of
his four horses.

       Clive Wishart, just like any other citizen has, had the right and privilege to
make a Will to bequeath and dispose of his property. Section 2 of the Wills Act, ch.
W-9, S.N.B. provides in part:

       "2. A person may by will devise, bequeath or dispose of all real and personal
       property, whether acquired before or after making his will, to which at the time of
       his death he is entitled either at law or in equity..."

[Page 6]


At page 438 of Vol. 4 of the Encyclopaedia of Words and Phrases, Legal Maxims,
Canada, 3rd Edition, the following is stated:

               "(Can.) The will of a man is the aggregate of his testamentary intentions, so
       far as they are manifested in writing duly executed according to the statute."

A Will is an instrument that allows a person upon his death to distribute his assets
to beneficiaries of his choice.

       The expressed intentions of a testator should be followed. There are
however exceptions. Except in those exceptional circumstances, executors have a
duty and responsibility to carry into effect the intentions of a testator. Black's Law
Dictionary defines executor as:

       "EXECUTOR. A person appointed by a testator to carry out the directions and
       requests in his will, to dispose of the property according to his testamentary
       provisions after his decease. In re Lamb's Estate, 122 Mich. 239, 80 N.W. 1081; In
       re Sipchen's Estate, 180 Wis. 504, 193 N.W. 385, 387; Ricks v. Johnson, 134
       Miss. 676, 99 So. 142, 146.

               A person to whom a testator by his will commits the execution, or putting in
       force, of that instrument and its codicils. Fonbl. 307.

              Appointment as executor of person on whom will casts affirmative duty to
       collect debts, adjust claims and make distribution of assets, is validated. In re




                                                                                                1992 CanLII 2679 (NB Q.B.)
       Hazen's Estate, 175 Misc. 851, 25 N.Y.S. 2d 293, 295, 296.

              One to whom another man commits by his last will the execution of that will
       and testament. 2 Bl. Comm. 503.

              Person or corporation empowered to discharge duties of a fiduciary,
       appointed as such by testator in his will. In re Watkins' Estate, 113 Vt. 126, 30 A.2d
       305, 310."

       Why did Clive Wishart direct that his four horses be shot? In light of the fact
that he held them in such high regard, and from what he told his solicitor Mr.
Munroe, there can be no

[Page 7]


question that he did not want the horses to be abused if he was not able to provide
for their welfare. There is, in my view, reason to believe that Clive Wishart would
have wanted his horses to live if he had been aware that they would be attended to
and properly cared for and not abused. The evidence is clear that he had a great
love for his horses and he was undoubtedly unaware that others would be
prepared to provide and care for them and not abuse them. I of course have now
the benefit of information that Clive Wishart did not have when he made his will.
Many qualified persons are prepared to care for the horses. The New Brunswick
Society for the Prevention of Cruelty to Animals Inc., which has operated in New
Brunswick for in excess of 115 years, is prepared to take an active role to see that
the horses are properly placed and properly cared for.

       The New Brunswick Society for the Prevention of Cruelty to Animals
(S.P.C.A.) is affiliated with the Canadian Federation of Humane Societies. The
New Brunswick S.P.C.A. has among its objects the prevention of cruelty to animals
and the encouragement of consideration for all animals. James A. Little the Chief
Inspector of the New Brunswick S.P.C.A. has inspected a number of persons who
have expressed interest in acquiring the horses. The New Brunswick S.P.C.A. has
undertaken to provide supervision to protect the welfare of the horses. The




                                                                                                   1992 CanLII 2679 (NB Q.B.)
willingness of this organization to assist in the placement of the horses and to
participate after placement in a supervisory role is exemplary and should ensure
that the horses will not be abused. This should satisfy what I see,

[Page 8]


from what I have heard, as the real intention and desire of Clive Wishart, that the
horses not be abused and be properly cared for.

       Should I be mistaken in my conclusion as to the real intention of Clive
Wishart, legal authority is clear that although the general rule is that the intention of
a testator should be followed, it is not permitted to be performed where to carry it
out would be contrary to public policy.

       Reference can be made to the decision of the Cayuga County, New York
Surrogate Court decision of Will of Pace reported in 400 New York Supplement, 2d
488. At pages 491 and 492 the Court reviewed a number of cases. I quote that
review:

              "[1-3] The age old rule of law in New York State is that the intention of the
       Testator should be followed except where it is in violation of public policy. In re
       Larkin, 9 N.Y. 2d 88, 211 N.Y.S. 2d 175, 172 N.E. 2d 555 (1961). Also in the
       opinion of this court, the intention of the maker of a will should not be carried out
       when the results would be absurd, abhorrent or a waste of the assets of an estate.
       Sometimes it is necessary to look to sister states for guidance. When the purpose
       of the testator is merely capricious and will benefit no one by its performance, the
       courts will not compel its execution. Eyerman v. Mercantile Trust Co., 524 S.W. 2d
       210 (Mo. App. 1975): Brown v. Burdett, 21 Chan. Div. 667 (Eng. 1882); Colonial
       Trust Co. v. Brown, 105 Conn. 261, 135 A. 155 (1926). In re Scott's Will, 88 Minn.
       386, 93 N.W. 109 (1903); Scott on Trusts && [sic] 62.14, 124.7 (2nd Ed. 1956).
       Public policy is to be found in the constitution, statutes, and judicial decisions of the
       state and nation. Hollis v. Drew Theological Seminary, 95 N.Y. 166, 171-2 (1884); In
       re Rahn's Estate, 316 Mo. 492, 291 S.W. 120; Martin v. Ahrens 274 U.S. 745, 47 S.
       Ct. 591, 71 L. Ed. 1325 (1927).




                                                                                                  1992 CanLII 2679 (NB Q.B.)
              In a case much like the present one, the testatrix directed her executor "to
       cause our home. . . to be razed and to sell the land". The court refused to allow the
       demolition on the grounds that the testatrix's purpose was merely capricious and
       violative of public policy in that it was detrimental to the decedent's estate,
       neighboring lands and the community as a whole. Eyerman

[Page 9]


       v. Mercantile Trust Co. supra. The court noted that "although public policy may
       evade precise, objective definition, it is evident . . . that this senseless destruction
       serving no apparent purpose is to be held in disfavor. A well ordered society
       cannot tolerate the waste and destruction of resources . . .". Id. 524 S.W. 2d at
       217.

              [4] To violate public policy the act in question need not be something which
       the testator could not have done with his own land while he was alive. There is a
       greater need for the protection of the community interests after the death of the
       testator. Although a person may wish to deal capriciously with his property, while
       he is alive, his self-interest will usually prevent him from doing so. After his death
       there is no such restraint and it is against public policy to permit the decedent to
       confer this power upon someone else where his purpose is merely capricious.
       "Such considerations however have not tempered the extravagance or eccentricity
       of the testamentary disposition here on which there is no check except the courts."
       Eyerman v. Mercantile Trust Co., supra.

              In the early English case of Brown v. Burdett, 21 Chan. Div. 667 (Eng.
       1882) the testatrix devised her house in trust with directions that the doors and
       windows be boarded, shuttered, bricked and sealed for twenty years and thereafter
       pass to the named beneficiaries as tenants in common. The provision of the will
       was found void.

              In Colonial Trust v. Brown, 105 Conn. 261, 135 A. 555 (1926), the court
       invalidated the provision of a will restricting construction of a building more than
       three stories in height and forbidding leases for more than one year. The land was
       in the central business district and a prime area for an office building or store.
       Harm to the public was found, in that it would tend to inhibit the natural growth of
       the community. The court stated:




                                                                                                    1992 CanLII 2679 (NB Q.B.)
                "The restrictions militate too strongly against the interest of the beneficiaries
                and the public welfare to be sustained, particularly when it is to be
                remembered that they are designed to benefit no one, and are harmful to all
                persons interested, and we hold them invalid as against public policy." Id. at
                564."

[Page 10]


       On the topic "conditions against public policy" at pages 248 and 249 of the
text, The Canadian Law of Wills: Construction, by Thomas G. Feeney the following
is stated:

                "It may be in the interest of the public or the Crown that a condition should
       not be performed and such a condition is said to be contrary to public policy and
       void. Whether or not a condition is contrary to public policy may vary from time to
       time; today many conditions formerly held void may be held valid because of
       changes in public opinion. There is no question, however, that a condition inciting
       the commission of crime, or any act prohibited by law, or one intended to induce
       the separation of husband and wife, or one which is an unreasonable restraint on
       marriage, or one tending to deprive a parent of control over his children, or a
       condition which will operate beyond the limit of the rule against perpetuities, is
       void."

       A very thorough review of cases was made by the Missouri Court of Appeals
in the 1975 decision of Eyerman v. Mercantile Trust Co. (supra). In that case the
testator directed in his Will that a house in a residential subdivision be demolished.
The demolition would reduce the value of the house and land from $40,000.00 to
$650.00. The extensive review at pages 214 to 217 of the decision I quote in its
entirety:

                "Destruction of the house harms the neighbors, detrimentally affects the
       community, causes monetary loss in excess of $39,000.00 to the estate and is
       without benefit to the dead woman. No reason, good or bad, is suggested by the
       will or record for the eccentric condition. This is not a living person who seeks to
       exercise a right to reshape or dispose of her property; instead, it is an attempt by




                                                                                                1992 CanLII 2679 (NB Q.B.)
       will to confer the power to destroy upon an executor who is given no other interest
       in the property. To allow an executor to exercise such power stemming from
       apparent whim and caprice of the testatrix contravenes public policy.

              [8] The Missouri Supreme Court held in State ex rel. McClintock v.
       Guinotte, 275 Mo. 298, 204 S.W. 806, 808 (banc 1918), that the taking of property
       by inheritance or will is not an absolute or natural right

[Page 11]


       but one created by the laws of the sovereign power. The court points out the state
       "may foreclose the right absolutely, or it may grant the right upon conditions
       precedent, which conditions, if not otherwise violative of our Constitution, will have
       to be complied with before the right of descent and distribution (whether under the
       law or by will) can exist." Further, this power of the state is one of inherent
       sovereignty which allows the state to "say what becomes of the property of a
       person, when death forecloses his right to control it." McClintock v. Guinotte, supra
       at 808, 809. While living, a person may manage, use or dispose of his money or
       property with fewer restraints than a decedent by will. One is generally restrained
       from wasteful expenditure or destructive inclinations by the natural desire to enjoy
       his property or to accumulate it during his lifetime. Such considerations however
       have not tempered the extravagance or eccentricity of the testamentary disposition
       here on which there is no check except the courts.

              In the early English case of Egerton v. Brownlow, 10 Eng. Rep. 359, 417
       (H.L.C. 1853), it is stated: "The owner of an estate may himself do many things
       which he could not (by a condition) compel his successor to do. One example is
       sufficient. He may leave his land uncultivated, but he cannot by a condition compel
       his successor to do so. The law does not interfere with the owner and compel him
       to cultivate his land, (though it may be for the public good that land should be
       cultivated) so far the law respects ownership; but when, by a condition, he attempts
       to compel his successor to do what is against the public good, the law steps in and
       pronounces the condition void and allows the devisee to enjoy the estate free from
       the condition." A more recent application of this principle is found in M'Caig's
       Trustees v. Kirk-Session of the United Free Church of Lismore, et al., 1915 Sess.
       Cas. 426 (Scot.). There, by codicil to her will, testatrix ordered certain statues




                                                                                                1992 CanLII 2679 (NB Q.B.)
       erected to honor her family in a tower built in the form of an amphitheater on a hill.
       Balustrades were to be erected so that even the public would have no access
       inside the tower. Special provision was made for keeping out the public and the
       ground enclosed was expressly declared to be a private enclosure. There were no
       living descendants of any member of the family who might, if so permitted, take
       pleasure in contemplating the proposed statues. The court states at 434: "If a
       bequest such as in Miss M'Caig's codicil were held good, money would require to
       be expended in perpetuity merely gratifying an absurd whim which has neither
       reason nor public sentiment in its favor." In striking down the provisions

[Page 12]


       of the codicil, the court further notes that there is indeed a "difference between
       what a man, uncognosed [sic], may do at his own hand, and what the law will
       support under the provisions of his will . . . therefore, without being illegal in the
       sense of being contrary to any express rule of the common law or contrary to any
       statute, the principle of public policy will prevent such post-mortem expenditure.
       Whether the act is sufficiently contrary to public policy to warrant the court's
       interference must depend on the degree to which it is against public policy." The
       court further observed that the erection of the eleven statues "would be of no
       benefit to anyone except those connected with the carrying out of the work, for
       whose interest she expresses no concern." M'Caig's Trustees v. Kirk-Session of
       the United Free Church of Lismore, et al., supra at 438. In the case subjudice,
       testatrix similarly expressed no such concern; nothing in the will or record indicates
       an intent to benefit any razing company called upon to destroy her beautiful home.

              In the case of In re Scott's Will, Board of Commissioners of Rice County v.
       Scott et al., 88 Minn. 386, 93 N.W. 109 (1903), the Supreme Court of Minnesota
       stated, when considering the provisions of a will directing the executor to destroy
       money belonging to the estate: "We assume, for purpose of this decision, that the
       direction in the codicil to the executor to destroy all of the residue of the money or
       cash or evidences of credit belonging to the estate was void." In re Scott's Will,
       supra at 109. See also Restatement, Second, Trusts & 124, at 267: "Although a
       person may deal capriciously with his own property, his self interest ordinarily will
       restrain him from doing so. Where an attempt is made to confer such a power upon




                                                                                                  1992 CanLII 2679 (NB Q.B.)
       a person who is given no other interest in the property, there is no such restraint
       and it is against public policy to allow him to exercise the power if the purpose is
       merely capricious." The text is followed by this illustration: "A bequeaths $1,000.00
       to B in trust to throw the money into the sea. B holds the money upon a resulting
       trust for the estate of A and is liable to the estate of A if he throws the money into
       the sea." Restatement, supra at 267.

              In Brown v. Burdett, 21 Chan. Div. 667 (Eng. 1882), the testatrix devised
       her house with directions that the doors and windows be boarded, shuttered,
       bricked and sealed, to be held by the trustees in this wasteful manner for twenty
       years and thereafter to the named beneficiaries as tenants in common. This
       provision was stricken by the court at 673: "I think I must 'unseal' this useless,
       undisposed of property." The provision of the will was void and found to be a nullity
       and the court

[Page 13]


       declared that the house and premises were undisposed of by will for a term of
       twenty years from the testatrix's death.

              In Restatement, Second, Trusts & 124(g), at 267, the writers suggest this
       hypothesis as an illustration of the principle involved in Brown v. Burdett, supra:

              "A devises a house and lot to B 'in trust' to block up the windows and doors
              and leave the house vacant for 20 years. B holds the house and lot upon a
              resulting trust for the estate of A and is liable to the estate of A if he blocks
              up the windows and doors."

              It is important to note that the purposes of testatrix's trust will not be
       defeated by injunction; instead, the proceeds from the sale of the property will pass
       into the residual estate and thence to the trust estate as intended, and only the
       capricious destructive condition will be enjoined.

              In Colonial Trust Co. v. Brown et al., 105 Conn. 261, 135 A. 555 (1926) the
       court invalidated, as against public policy, the provisions of a will restricting
       erection of buildings more than three stories in height and forbidding leases of
       more than one year on property known as "The Exchange Place" in the heart of the
       City of Waterbury. The court stated:




                                                                                                 1992 CanLII 2679 (NB Q.B.)
              "'As a general rule, a testator has the right to impose such conditions as he
              pleases upon a beneficiary as conditions precedent to the vesting of an
              estate in him, or to the enjoyment of a trust estate by him as cestui que
              trust. He may not, however, impose one that is uncertain, unlawful, or
              opposed to public policy.'

                                              …………………

              In the instant case, the length of time during which the testator directed that
              the property should remain in the trust, and the complete uncertainty as to
              the individuals to whom it would ultimately go, preclude any thought of an
              intent on his part to forbid the cumbering of the property by long leases or
              the burdening of it with large buildings, lest the beneficiaries be
              embarrassed in the development of it along such lines as they might
              themselves prefer. The only other purpose which can be

[Page 14]


              reasonably attributed to him is to compel the trustee to follow his own
              peculiar ideas as to the proper and advantageous way to manage such
              properties. That the restrictions are opposed to the interests of the
              beneficiaries of the trust and that they are imprudent and unwise is made
              clear by the statement of agreed facts, but that is not all, for their effect is
              not confined to the beneficiaries. The Exchange Place property is located at
              a corner of the public square in the very center of the city of Waterbury, in
              the heart of the financial and retail business district, is as valuable as any
              land in the city, and is most favorably adapted for a large building
              containing stores and offices, and the homestead is located in the region of
              changing character, so that its most available use cannot now be
              determined. To impress the restrictions in question upon these properties,
              as the statement of agreed facts makes clear, makes it impossible to obtain
               from them a proper income return or to secure the most desirable and
               stable class of tenants, requires for the maintenance of the buildings a
               proportion of income greatly in excess of that usual in the case of such
               properties, and will be likely to preclude their proper development and




                                                                                                    1992 CanLII 2679 (NB Q.B.)
               natural   use.   The    effect   of   such    conditions    cannot    but   react
               disadvantageously upon neighboring properties, and to continue them, as
               the testator intended, for perhaps 75 years or even more, would carry a
               serious threat against the property growth and development of the parts of
               the city in which the lands in question are situated. The restrictions militate
               too strongly against the interests of the beneficiaries and the public welfare
               to be sustained, particularly when it is remembered that they are designed to
               benefit no one, and are harmful to all persons interested, and we hold them
               invalid as against public policy." 1 c. 564. (Emphasis ours)

       See also Restatement, Second, Trusts & 166(b), pp. 348-349, and illustration at p.
       349.

               The term "public policy" cannot be comprehensively defined in specific
       terms but the phrase "against public policy" has been characterized as that which
       conflicts with the morals of the time and contravenes any established interest of
       society. Acts are said to be against public policy "when the law refuses to enforce

[Page 15]


       or recognize them, on the ground that they have a mischievous tendency, so as to
       be injurious to the interests of the state, apart from illegality or immorality." Dille v.
       St. Luke's Hospital, 355 Mo. 436, 196 S.W. 2d 615, 620 (1946); Brawner v.
       Brawner, 327 S.W. 2d 808, 812 (Mo. banc 1959).

               [9] Public policy may be found in the Constitution, statutes and judicial
       decisions of this state or the nation. In re Rahn's Estate, 316 Mo. 492, 291 S.W.
       120 (1927). But in a case of first impression where there are no guiding statutes,
       judicial decisions or constitutional provisions, "a judicial determination of the
       question becomes an expression of public policy provided it is so plainly right as to
       be supported by the general will." In re Mohler's Estate, 343 Pa. 299, 22 A. 2d 680,
       683 (1941). In the absence of guidance from authorities in its own jurisdiction,
       courts may look to the judicial decisions of sister states for assistance in
       discovering expressions of public policy. In re Rahn's Estate, supra at 125.

                Although public policy may evade precise, objective definition, it is evident
       from the authorities cited that this senseless destruction serving no apparent good




                                                                                                    1992 CanLII 2679 (NB Q.B.)
       purpose is to be held in disfavor. A well-ordered society cannot tolerate the waste
       and destruction of resources when such acts directly affect important interests of
       other members of that society. It is clear that property owners in the neighborhood
       of # 4 Kingsbury, the St. Louis community as a whole and the beneficiaries of
       testatrix's estate will be severely injured should the provisions of the will be
       followed. No benefits are present to balance against this injury and we hold that to
       allow the condition in the will would be in violation of the public policy of this state."

       Obviously public policy is a very general term, difficult to define and a
determination of what is against public policy can of course be subjective. In my
opinion, the destruction of four healthy animals for no useful purpose should not be
upheld and should not be approved. To destroy the horses would benefit no one
and would be a waste of resources and estate assets even if carried out humanely.
It is my conclusion that to destroy Barney, Bill, Jack and King as directed in the Will
at this time and in the

[Page 16]


present circumstances would be contrary to public policy. The direction in the Will
is therefore void.

       In reaching the above conclusion I in no way consider it to be a reflection
upon Clive Wishart nor do I intend in any way to direct any criticism toward him. I
think that he thought he was doing what he considered best for his horses. I do not
think that when he prepared his Will he anticipated that he would die only 14
months later.

       I am also requested to determine what should be done with the horses
should it be the decision that they live and not be destroyed. As I have decided that
the direction to shoot the horses is void, the result, in my opinion, is that the horses
are the property of the residuary beneficiaries named in the Will. The residuary
beneficiaries are Verlin Wright and Victor Hallberg of the State of Connecticut,
United States of America. It has been brought to my attention by the solicitor for
the Estate, Mr. McAllister, that Mr. Wright and Mr. Hallberg have no interest in the




                                                                                       1992 CanLII 2679 (NB Q.B.)
horses and they expressed the intention that the Court should decide what should
be done with the horses. The solicitor for Mr. Wright and Mr. Hallberg was served
with the present application and no representations were made to the Court on
their behalf.

       Assuming that Mr. Wright and Mr. Hallberg want me to decide who should
have the horses, which is what I understand they wish me to do, I do not think it
would be proper for me to make that decision at the present time. There is, in my
view, insufficient

[Page 17]


information available at this time to make a proper decision. I do not know that the
persons who are interested in acquiring the horses are prepared to accept and
agree to reasonable conditions.

       To make such a decision at this time without the benefit of further
information and without a proper agreement in place would not be responsible. It is
my opinion that rather than make that decision at this time a more appropriate
method would be to direct a Reference under Rule 56 of the Rules of Court and
appoint a referee as is therein provided for. This procedure will permit an informed
decision to be made. A copy of Rule 56 is appended to these reasons for the
convenience of the parties.

       I did consider appointing a committee to address this question to proceed by
way of arbitration, however, I believe that the appointment of a referee and
directing a Reference as I have decided is a preferable way to decide the question
of who should acquire one or more of the horses. Should the executors and the
parties consider that appointing a committee and proceeding by way of arbitration
would be a better and more efficient way to deal with this, I am prepared to re-
consider and weigh the merits of this procedure.

       Conditions of ownership should include:




                                                                                     1992 CanLII 2679 (NB Q.B.)
(1)    Prior inspection and approval by the New Brunswick S.P.C.A.;

(2)    A written agreement between the Estate and the New Brunswick S.P.C.A.
       and the new owner or owners that he, she or it will co-operate with the New
       Brunswick S.P.C.A. after acquiring ownership which agreement will include:

       (a)    Permission for regular inspections of the horses at reasonable times
              by officials of New Brunswick S.P.C.A. and their agents;

[Page 18]


       (b)    An undertaking to provide and pay for veterinary services when
              required and if so directed by the New Brunswick S.P.C.A. and to
              agree to follow advice and recommendations of the New Brunswick
              S.P.C.A. for the care of the horses;

       (c)    An undertaking to properly feed and care for the horse or horses in
              accord with accepted practices and not to abuse the horse or horses;

       (d)    Such other reasonable conditions as the parties may agree upon and
              the Court approve to ensure that the horses are not abused;

       (e)    An undertaking not to transfer ownership or possession to anyone
              who is not approved by New Brunswick S.P.C.A. and who will agree
              to these conditions and any transfer will be subject to these
              conditions.

       The referee who will be appointed shall conduct a hearing and hear
interested parties and in due course report to the Court as is provided for under
Rule 56 so that a decision that is reasonable and one based on complete
information can be made.
       I will hear counsel as to who should be appointed as the referee at an early
date and then decide after I hear from counsel who the referee should be. I will
then direct the Reference to the referee on this issue as to who should acquire




                                                                                         1992 CanLII 2679 (NB Q.B.)
ownership of one or more of the horses. I will also set out terms of reference for
the guidance of the referee.

       The Reference to determine this issue should be completed at an early date.
It will be the responsibility of the referee to review all applications from those who
are interested in acquiring ownership of one or more of the horses in question. The
referee shall consider recommendations of the New Brunswick S.P.C.A. and all
relevant information and report to the Court as is provided for

[Page 19]


in Rule 56. The report shall be completed as soon as conveniently possible and
with all due haste now that winter is fast approaching. The person, persons or
organization eventually approved for ownership should be prepared to enter into a
written agreement containing the above conditions of ownership and such other
reasonable conditions to ensure the welfare of the horses. Costs and expenses
shall be kept to a minimum, costs of the referee shall be an expense of the Estate.

       This direction of a Reference and provision for the appointment of a referee
is of course based entirely on the premise that the residuary beneficiaries named
in the Will want the Court to decide the question of who should acquire Barney,
Bill, Jack and King. If they do not want the Court to make this decision, the
decision is theirs to make. In all of the circumstances if the residuary beneficiaries
wish to make the decision on who should acquire one or more of the horses, a
written agreement should be completed which would contain the above conditions
and the agreement should be approved by the Court prior to its completion. If this
procedure is followed, I direct that the solicitor for the Estate complete the
necessary agreement or agreements and in due course apply to the Court on
Motion with supporting affidavits for approval. If the residuary beneficiaries want
the Court to make the decision, I ask that the Estate's solicitor, Mr. McAllister,
inform the Clerk of the Court in writing within 15 days of this date so that the
necessary procedures required under Rule 56 can be undertaken.

[Page 20]




                                                                                         1992 CanLII 2679 (NB Q.B.)
       A further application to the Court can be made if necessary for directions. I
am prepared to hear counsel as soon as conveniently possible on the appointment
of a referee and appropriate terms of reference. Assuming of course that the
residuary beneficiaries want the Court to decide who should acquire one or more
of the horses.

       There will be no order as to costs on this application except that the costs of
the Executors will be paid out of the Estate on a solicitor and client basis.



[S]
Thomas W. Riordon, J. C. Q. B.
1992 CanLII 2679 (NB Q.B.)
1992 CanLII 2679 (NB Q.B.)
1992 CanLII 2679 (NB Q.B.)

				
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