The last will and testament of Charles Vance Millar (1853-1926) has garnered more attention in Canada than any other. It started a "Bay Derby", aka "Stork Derby", inspired a movie, a book and kept a small army of lawyers busy (and wealthy) in the courts for years.

Act 1, Proof Of My Folly

Charles Millar was a lawyer practicing in Toronto, and a lifelong bachelor. In fact, he was a King's Counsel, an archaic variety of Canadian and English legal peerage (now known as Queen's Counsel). Millar, like many other lawyers, was also an entrepreneur, the owner of a company that specialized in the delivery of mail to British Columbia (the BC Express).

On June 7, 1921, he wrote his will (pictured, adjacent); a small document for Mr. Millar, but a giant leap into the lives of so many Canadian beds.

For five years, the will was a secret as Mr. Millar, as was his right at law, continued to live. When he died of a heart attack at the age of 73, on Halloween, October 31, 1926, his executor filed the will with the Ontario Surrogate's Court.

That is when the fun really began.

The preamble to the will practically speaks for itself:

"This will is necessarily uncommon and capricious because I have no dependants or near relations and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime".

last will of Charles Vance MillarImmediately, the will left no doubt as to be testator's sense of humour. A property in Jamaica was left to three lawyers Millar knew despised each other. He gave stocks in a brewery to religious leaders known for their prohibitionist views.

Up to and until §9 of the Will, all was well, as the testament ordered the payment of certain debts ... some money to the housekeeper.

But then, the coup de grâce:

"9. All the rest and residue of my property wheresoever situate, I give, devise and bequeath unto my Executors and Trustees named below in Trust to convert into money as they deem advisable and invest all the money until the expiration of nine years from my death and then call in and convert it all into money and at the expiration of ten years from my death to give it and its accumulations to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act. If one or more mothers have equal highest number of registrations under the said Act to divide the said moneys and accumulations equally between them."

Act 2, The Stork Derby

Once the newspapers got a hold of the Will, the stork derby was on and it raged in a Depression-torn Toronto for 10 years. The Will and the money was socked away to be reopened on the 10th anniversary of his death, for payment to the woman or women who won his derby.

Lots can happen in ten years. On October 29, 1929, the world was hit by the crash landing of the Great Depression, when the stock market tanked. The economy took ten years to recover, and Canada suffered more than the United States, and Ontario worse than any other province. By 1933, 30% of the labour force was unemployed. Two out of ten Canadians lived off government assistance. Millar's will caused a lot of sex in Toronto as men and women had yet another reason to prefer inexpensive forms of entertainment.

Barbara Mikkelson in The Great Stork Derby, described the times as follows:

"Following hard on the heels of the easy money of the 1920s, the (Great) Depression hit struggling families doubly hard. Jobs are difficult to find and did not pay much …. Small families headed by one wage earner were fighting to get by. A significant number of families lacked even that one income. In 1933, between a quarter and a third of all working age Canadians were unemployed.

"A bequest that had been little more than a curiosity during the halcyon days of the 1920s became the only beacon of hope for a brighter future to a few lucky families…. The media track the event with growing interest in the mothers in the race became household names. In those dark, grim days, even those families not part of the baby race themselves cheered on those who were. For those few years, there was a way out; there was a fairy godmother to believe in."

In 1934, the Dionne quintuplets were born nearby, in Niagara Falls, Ontario. Perhaps as a reflection of government policy at the time to orphan social policy from the protection of law, as the Ontario courts would soon do in rejecting any public policy argument in Re Millar, the quintuplets were taken from their parents, adopted by the Ontario government as wards of the state, and put up as a circus show, for paid public viewing.

Act 3, Justice Middleton I

Somewhere in the environs of the decade after Charle V. Millar's death, the call of cash beckoned and a remote next-of-kin surfaced and hired a lawyer to attack the will. The argument was that the will was so outrageous that it ought not to be probated by any court of law. When lawyers reach for this Hail Mary, they refer to it as "public policy".

Soon the battle was joined by lawyers purporting to represent mothers who each claimed to of won the contest.

Anyway, back in the court room, before Justice Middleton, experts argued that if the will were allowed, it would encourage immorality, the birth of children out of wedlock and:

"… encourage and cause mothers to have children in rapid succession, and that it is common knowledge among sociologists and social workers that the infant mortality rate is increased by this."

In his decision of November 20, 1936, Middleton would have none of it. In a case still read by law students today, on the matter of public policy in law, Middleton rejected the arguments made by the so-called experts.

But Middleton reserved on one important aspect: who is the ultimate beneficiary. Thus, Act 3 had ended but the Charles Vance Millar show was far from over.

Act 4, Justice Middleton II

Weeks later, the lawyers were back, this time before three judges of the same court sitting on appeal, a judicial beast known to legal historians as the Ontario Supreme Court Court of Appeal. The same arguments were made but the appeal rejected on February 23, 1937. The court was told by the lawyers that there would be no way to ever figure out who won the contest but the judges disagreed, saying that the identity of the individual would be a "simple question" for a judge with the proper evidence. In words which would no longer be politically correct, to say the least, the judge held that what Millar must of meant when he used the word "children" was legitimate children.Charles Vance Millar

Where there is money there are lawyers. The case was appealed to the Supreme Court of Canada but again, dismissed, and returned to Justice Middleton to figure out the winners. Justice Duff in Ottawa ridiculed the public policy arguments by writing:

"It is even suggested that in cases in which the husband ceased to be fecund in course of the race, the contestants might be tempted to resort to other males to do his office."

The judicial accident waiting to happen, happened. Back before Justice Middleton, in February of 1938, eight different mothers argued that they had won the stork derby. Four were qualified off the top, Annie Smith, Kathleen Nagle, Lucy Timleck and Isabel Maclean:

"Each of (these four) claimant mothers was shown to have had nine legitimate children within the material period of time, ten years from the death of Charles Millar, and it was declared that they were entitled to share in the fund…."

Two other claims were dismissed. Mrs. C. said that she had given birth to five legitimate and five illegitimate children for total of 10 but for the purposes of Millar's will, only the five born of the marriage counted.

As for Mrs. K., she had put up the names of nine children but the court was unable to accept her parentage of two of them.

That left the more controversial claims of Pauline Clarke and Lillian Kenny. Ms Clarke said that she had brought 10 children into the world in the decades immediately following the dead barrister's demise. Since the birth had to occur in Toronto, the court heard evidence as to whether or not the place little Margaret was born, on Beresford Avenue in York, was "Toronto" enough. No, thought Middleton. York was limitrophe to but distinct from Toronto.

The evidence went in and the judge decided that too many of the children were illegitimate. This put Ms Clarke below nine qualified children and she was out of the derby.

Ms Kenny put forward the allegation that she had been the mother to eleven children in the 10 years immediately after the lawyer's death. But Ms Kenny left a bad impression on the court and her claim was discounted by four children who were not born alive, still-born.

Middleton knew he was writing to an international press. He wrote in his judgment:

"I think that a child is live born when it proceeds entirely from the mother and becomes a separate living person. This generally is evidenced by the child establishing an independent blood circulation and its ability to breathe.

"A child born dead is not in truth a child. It was that which might have been a child.

"One cannot but recall the utterances of the witches in Macbeth who assured Macbeth that he need fear none of woman born, and Macbeth's disappointment when he found that they lied to the sense while 'keeping" promise to the ear', and he faced Macduff who was 'from his mother's womb untimely ripped."

Epilogue

That left only Annie, Kathleen, Lucy and Isabel to share $570,000 for their troubles, an enormous sum for anyone in the Depression-era. The press followed them mercilessly as they bought homes and cars. One family, Isabel's, disappeared not wanting their children to grow up in the media spotlight.

In the slums of Toronto as the Great Depression raged, who knows how many unwanted children roamed, many homeless, as a result of failed attempts at winning the stork derby. According to Time Magazine: "Rats killed one Kenny child." In his 1938 judgment, Justice Middleton gave a few scant details of the tragic circumstances of some of Mrs. Clarke's children, who "disagreed and quarrelled" with her husband and gave three children up for adoption.

Whether Charles Vance Millar intended it or not, the big winners was the Toronto estate law fraternity. True, they never got the Jamaica house because Millar had sold it before he died, but the gang reaped a rich harvest in legal fees.

Over 30 lawyers, nine judges and eight days of hearing, countless hours of affidavits, pleadings and preparation work, all for a single, 125-word clause in another lawyer's "uncommon and capricious" Will.

Irrelevant author-lawyer's note: an honourable mention to my mother who had seven children in less than ten years (between November, 1953 and October, 1963).

REFERENCES:

  • Duhaime.org, Famous, Outrageous and Strange Wills
  • Mikkelson, Barbara, The Great Stork Derby, January 19, 2011, published at Snopes.com and retrieved from the Internet on May 25, 2011 [www.snopes.com/pregnant/babyrace.asp]
  • Re Millar, [1937] 1 D.L.R. 127 (Ontario Supreme Court [High Court of Justice)
  • Re Millar, ]1937[ 3 D.L.R. 234
  • Re Millar, ]1938[ S.C.R. 1
  • Re Millar, ]1938[ 2 D.L.R. 164
  • Time Magazine, "Medicine: Fortune for Fecundity", September 28, 1936
  • Time Magazine, "The Commonwealth: Birth Race", December 20, 1926.
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