1907 June 24. [RIDDELL, J.] RE ASHMAN. Distribution of Estates-Absentee Next of Kin-Advertisement for Creditors and The administrators of the estate of an intestate, who died in 1906, inserted three times in a newspaper published at the place in Ontario where the intestate was residing at the time of his death, an advertisement headed "Notice to Creditors," given pursuant to R.S.O. 1897, ch. 129, calling upon "all creditors and others having claims against the estate" of the deceased to send them in to the solicitor for the administrators by a named date, and stating that after such date they would not be liable to any person of whose claim notice should not have been received. One of the next of kin, who would, if alive, have been entitled to a distributive share of the estate, had left Canada, in 1876, and no communication had since been received from him or information about him, except that soon after his departure a sister of his heard that he was in Oregon, and in 1895 an aunt heard that he was dead. Diligent inquiry was made for him in 1882, but he was not then found. No one had even heard of his marrying. No claim was made on his behalf upon the estate: Held, that the advertisement was sufficient; that it covered next of kin; and that the absentee would be barred if he were hereafter to make any claim; and therefore the administrators should divide the assets amongst those entitled as though the absentee were assuredly dead without ever having had issue. APPLICATION by the Royal Trust Company, the administrators of the estate of Albert Edward Ashman, deceased, under Rule 938 (g), for the opinion of the Court as to the proper course to be taken, in the circumstances set out below. The application was heard by RIDDELL, J., in the Weekly Court at Ottawa, on the 22nd June, 1907. Horace Pratt, for the applicants. June 24. RIDDELL, J.:-Albert Edward Ashman, late of Ottawa, died on the 19th April, 1906, intestate; on the 8th May, 1906, the Royal Trust Company were appointed administrators of his estate. An advertisement was inserted in the Ottawa Citizen of the 19th May, 26th May, and 3rd June, 1906, in the following form: "NOTICE TO CREDITORS. "Notice is hereby given, pursuant to R.S.O. 1897, chapter 129, that all creditors and others having claims against the estate of Albert Edward Ashman, late of the city of Ottawa, in the county of Carleton, agent, who died on or about the 19th day of April, A.D. 1906, are required, on or before the 10th day of June next, to send to the undersigned solicitor for the administrators the full particulars of their claims and the nature of the securities (if any) held by them. And further take notice that after such last mentioned day the administrators will proceed to distribute the assets of the deceased among the parties entitled thereto, having regard only to the claims of which they shall then have notice, and the said administrators will not be liable to any person or persons of whose claim notice shall not have been received by them. "Dated the 17th day of May, 1906. "The Royal Trust Company, "By Horace Pratt, "104, Sparks street, "their solicitor herein." Such claims of creditors as were received were paid, all the property turned into money, and the accounts passed by the surrogate court of the county of Carleton; by this court also the administrators were allowed their commission. The deceased left a widow; and two sisters and a brother also put in a claim as next of kin. Before the distribution of the assets, by accident the solicitor for the administrators learned, from inquiry following a casual remark by one of the beneficiaries, that the deceased had had another brother. Further inquiry elicited the information that this brother had left Canada in 1876, without, so far as can be discovered, stating where he was going; that not long afterwards it was heard by one of his sisters that he was in Oregon; that an aunt had heard about 1895 that he was dead; and that no word had been received from him by any of his friends, so far as is known, although diligent inquiry has been made from persons who would be likely to have heard from him. Moreover, his father died about 1882, leaving some property in which he would have an interest if he were alive; but diligent inquiry at that time did not result in finding him. No one had ever heard of his marrying. There is a small sum, amounting to $156.43, to which, were he alive, he would be entitled. The administrators ask the opinion of the Court as to the proper course in the premises. I think that, in view of the advertisement and the failure on the part of the brother to make any claim, he would be barred if he were hereafter to make any claim. Riddell, J. 1907 RE ASHMAN. Riddell, J. 1907 RE ASHMAN. Our statute R.S.O. 1897, ch. 129, sec. 38, is the same as the English statute 22 & 23 Vict. ch. 35, sec. 29, and that is considered in Newton v. Sherry (1876), 1 C.P.D. 246. In that case the Court held that the statute, in referring to "creditors and others," intended to cover next of kin; and that the statute is applicable to claims for distributive shares of the assets, as well as to claims for debts and demands in the nature of debts. Then is the advertisement sufficient? No doubt, if the administrators had any reason to believe that the brother was living in any particular part of the world, they should advertise there; or if they had any reason to believe that, though deceased, he had left children, they should have advertised where the children might reasonably be expected to be living. But here there was no reason to believe either that he was living or that he had ever married; the estate was a very small one; and I do not think the administrators were called upon to do more than they did. It was vigorously contended in Re Cameron, Mason v. Cameron (1893), 15 P.R. 272, that an advertisement of this kind should have been made in the Ontario Gazette; but the contention was unsuccessful, and I think rightly so. I think that the administrators should divide the assets amongst those entitled thereto as though the brother were assuredly dead without ever having had issue.. Costs out of the estate. 38. Where a trustee or assignee acting under the trusts of a deed or assignment for the benefit of creditors generally, or a particular class or classes of creditors, where the creditors are not designated by name therein, or an executor or an administrator has given such or the like notices as in the opinion of the Court in which such trustee, assignee, executor, or administrator is sought to be charged, would have been given by the High Court in an action for the execution of the trusts of such deed or assignment, or an administration suit (as the case may be), for creditors and others, to send in to such trustee, assignee, executor or administrator, their claims against the person for the benefit of the creditors of whom such deed or assignment is made, or the estate of the testator or intestate (as the case may be), the trustee, assignee, executor or administrator shall, at the expiration of the time named in the said notices, or the last of the said notices, for sending in such claims, be at liberty to distribute the proceeds of the trust estate, or the assets of the testator or intestate (as the case may be), or any part thereof amongst the parties entitled thereto, having regard to the claims of which the trustee, assignee, executor or administrator has then notice, and shall not be liable for the proceeds of the trust estate, or assets (as the case may be), or any part thereof, so distributed to any person of whose claim the trustee, assignee, executor or administrator had not notice at the time of the distribution thereof or a part thereof (as the case may be); but nothing in this Act contained shall prejudice the right of any creditor or claimant to follow the proceeds of the trust estate or assets (as the case may be), or any part thereof, into the hands of the person or persons who may have received the same respectively. E. B. B. [IN CHAMBERS.] RE CANADIAN PACIFIC R.W. Co. AND BYRNE. Railway-Lands Required for-Infant Remaindermen-Tenant for Life-Order Authorizing Conveyance-Costs-Railway Act, R.S.C. 1906, ch. 37, secs. 183, 184. Where a widow was entitled to a life estate in certain lands and her infant children to the remainder in fee, and she had made an agreement with a railway company to sell them such part of the lands as they required for their right of way, at a reasonable price, approved by the official guardian on behalf of the infants, an order was made by a Judge under sec. 184 of the Railway Act, R.S.C. 1906, ch. 37, giving her power to sell the lands and the rights of the infants therein, which power, joined to her legal power as tenant for life, would enable her to sell and convey the fee; the purchase money to be paid into Court, and the company to pay the costs. Re Dolsen (1889), 13 P.R. 84, followed, the sections of the Act as it now stands being substantially the same as in the Act of 1888. MOTION by the widow of James Byrne for an order under secs. 183 and 184* of the Railway Act, R.S.C. 1906, ch. 37, allowing her to sell and convey the fee simple in certain land to the railway company. The facts are stated in the judgment. The motion was heard by RIDDELL, J., in Chambers, on the 25th A. D. Armour, for the applicant and the railway company. June 25. RIDDELL, J.:-James Byrne died in 1897, leaving a will which had the effect of vesting in his widow an estate for life in certain lands, with remainder to his children. The Canadian Pacific Railway Company desiring to purchase a right of way across this land, it was agreed by the widow with the railway company that they should pay the sum of $30 per acre for such land as they required. All the children are infants, but the price has been approved by the official guardian, and seems reasonable. An application is now made under secs. 183 and 184 of the Railway Act, R.S.C. 1906, ch. 37. The provisions of these sections are *183. All tenants in tail or for life, grevés de substitution, guardians, curators, executors, administrators, trustees and all persons whomsoever, as well for and on behalf of themselves, their heirs and successors, as on behalf of those whom they represent, whether infants, issue unborn, lunatics, idiots, femescovert or other persons, seized, possessed of or interested in any lands, may contract and sell and convey to the company all or any part thereof. 1907 June 25. Riddell, J. 1907 RE CANADIAN PACIFIC R.W.CO. AND BYRNE. precisely the same as those of the Railway Act, 1903, secs. 144 and 145. Section 144 of the Railway Act, 1903, is totidem verbis sec. 136 of the Act of 1888, 51 Vict. ch. 29; and sec. 145 is the same as sec. 137 of the Act of 1888 with trifling and unimportant verbal changes. The case is covered by Re Dolsen (1889), 13 P.R. 84, which should be followed. Under the provisions of sec. 184* of the Railway Act, I give power to the widow to sell and convey to the Canadian Pacific Railway Company the land mentioned and the rights of the infants therein. This power, joined to her legal power as tenant for life, will enable her to sell and convey the fee. The purchase money will be paid into Court, and the interest therein paid out to the widow for life; after her death the money will be equally divided amongst the children. If for any reason it be desired that the money should not be paid into Court, the matter may be mentioned. As in Re Dolsen, the railway company will pay the costs. * 184. When such persons have no right in law to sell or convey the rights of property in the said land, they may obtain from a Judge, after due notice to the persons interested, the right to sell the said land. 2. The said Judge shall give such orders as are necessary to secure the investment. of the purchase money, in such a manner as he deems necessary, in accordance with the law of the Province, to secure the interests of the owner of the said land. E. B. B. |