Charles Vance Millar, a Toronto lawyer and financier, died on 31 October 1926 and left the rest of his estate to the mother who gave birth to the most children in Toronto over the next ten years. The press called it the Great Stork Derby. His next of kin tried to break the will, but on 22 December 1937 the Supreme Court of Canada upheld the clause, and in March 1938 a judge split the money between four mothers with nine children each.
A century on, it remains the classic case of an odd condition in a will surviving in court, and of how long such a condition can freeze an estate.
Who Charles Vance Millar was
The Canadian Encyclopedia describes Millar as a lawyer, sportsman and practical joker, born in Aylmer, Ontario, in 1854 (some accounts give 1853). Unmarried and without dependants, he called his will “necessarily uncommon and capricious”.
Wikipedia, citing Toronto’s Globe, puts the estate at about $322,000 at probate. A stake linked to the Detroit–Windsor tunnel, worth about $2 at his death, reportedly rose to over $100,000.
What the Stork Derby clause said
The famous gift is clause 9 of the will as the Supreme Court quoted it (some retellings call it the tenth). In plain terms:
- the executors held the residue in trust, invested it and turned it into cash;
- at ten years, they paid it to the mother who had “given birth in Toronto to the greatest number of children”;
- the count came from registrations under Ontario’s Vital Statistics Act, and tied mothers would share equally.
So the test was births registered in Toronto between 31 October 1926 and 31 October 1936, not where a woman lived.
The other gifts teased the city’s moralists. Brewery shares went to Toronto’s Protestant ministers and Orange Lodges, racing-club shares to ministers and opponents of betting. Wikipedia, citing Globe reports, says 99 ministers and 103 lodges took the brewery shares and each got $56.38 after the brewery was sold in 1928; Snopes says the clause came to nothing. A house in Jamaica went to three men who disliked each other, on condition they share it. It had already been sold, so that gift failed.
How Re Millar reached the Supreme Court of Canada
Justice William Middleton ruled first (reported in 1936), the Court of Appeal for Ontario agreed in 1937, and the Supreme Court heard the next of kin’s appeal on 4 November 1937. With the winners still unknown, the court appointed lawyers to argue for the mothers, in two groups. The court had two questions:
- Did “children” include children born outside marriage? No. Like the Ontario courts, it read the word as legitimate children only.
- Was the gift void as against public policy? Public policy, here, is the courts’ power to refuse to enforce a gift that would harm the public. The relatives said a cash prize for babies did exactly that.
The public policy test the court applied
Chief Justice Duff, writing for four of the five judges, quoted the British judge Lord Atkin: the doctrine applies “only in clear cases”, where harm to the public is “substantially incontestable”. Duff said the court could not affirm that rewarding large families with money would injure the state, still less that anything like unanimity on that view could be assumed. Justice Crocket agreed with the result but not with so strict a test.
The court did not call the clause wise; it found the harm not clear enough to override the owner of the money. It also ordered the costs of the executors and the mothers’ lawyers paid from the estate, so the money under dispute funded the dispute.
How the Millar estate was divided
The race ended on 31 October 1936; sorting the claims took until 1938. In March 1938 the Toronto Star reported that Justice Middleton had awarded a quarter share each to four mothers with nine qualifying children, calling it the “$500,000” Millar estate. Wikipedia, citing a 1944 Globe and Mail retrospective, says the estate was sold for $568,106 and each mother received $110,000; other accounts say $125,000. Two disqualified claimants got $12,500 each to drop their appeals. From Millar’s death to the award took more than 11 years.
What families use instead today
Millar used the bluntest tool, a fixed condition in a will. Families who want to shape behaviour now usually use a trust, which separates those who hold the money from those who benefit (see trusts and other holding structures), plus two softer tools:
- A letter of wishes: a signed note telling trustees how the settlor hopes they will use their discretion. It is usually not binding, so it can bend with circumstances.
- Conditions with a named decision-maker: trustees or a committee judge whether a condition is met, rather than a court years later.
Clear wording and a clear referee keep disputes out of court, much as written rules for family decisions do.
Freedom to leave money to strangers is not universal. In Ontario an estate normally follows the will, though spouses and dependants have claims (our Canada guide); Italy reserves a share for close relatives (the Zamparini dispute). Public policy also changes, so a condition upheld in 1937 might fare differently today.
A fair caveat
The Canadian Encyclopedia says it is still uncertain whether Millar meant the clause seriously or only to amuse his lawyer friends. Beyond the Supreme Court’s judgment, the story rests on newspapers and retellings that disagree on several figures, so we name the source for each.
Five lessons to take away
- Precise triggers survive. Official birth registrations gave the court a workable test.
- Courts enforce odd wishes unless the harm is clear. In 1937 the bar was harm “substantially incontestable”.
- Every word will be tested. The courts still had to rule on what “children” meant.
- A will must match what you still own. The Jamaica house had already been sold.
- The estate pays for the fight. Costs came out of the contested money, and the award took over 11 years.
Questions to bring to your advisors
If our will or trust sets a condition, could a stranger check from official records whether it has been met? Who decides when the wording is unclear, and where does the money go if a court strikes the condition out? Which wishes belong in a letter of wishes rather than the will? Does our will still match what we own? These are questions to bring to your advisors, not advice.
