Brumwell Estate, Re, (1983) 61 N.S.R.(2d) 316 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: December 09, 1983
• Jurisdiction: Nova Scotia
• Citations: (1983), 61 N.S.R.(2d) 316 (ProbCt)

Brumwell Estate, Re (1983), 61 N.S.R.(2d) 316 (ProbCt);

    133 A.P.R. 316

MLB headnote and full text

Re Brumwell's Estate

(No. 37364)

Indexed As: Brumwell Estate, Re

Nova Scotia Probate Court

County of Halifax

Allen, Registrar of Probate

December 9, 1983.

Summary:

A testator left mortgaged property to a beneficiary. The will was silent as to whether the mortgage was to be paid off or not. The executor of the estate paid $43,002.00 out of the estate to partially discharge the mortgage. The residuary beneficiaries objected and applied for a determination as to whether the beneficiary was entitled to take the property free and clear of the mortgage or subject to the mortgage.

The Nova Scotia Probate Court held that since the Intestate Succession Act was silent on the matter and the Descent of Property Act did not apply to deaths after September 1, 1966, the common law applied and the beneficiary was entitled to have the mortgage paid off out of the estate.

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - The Nova Scotia Probate Court held that in interpreting statutes "no matter how much we may wish to reach a desired result, subjectively, judges cannot use fictitious devices and clever philosophical arguments to reach a decision adverse to the express intent of the legislature; simply because they cannot agree with the consequences that would otherwise result" - See paragraph 10.

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - The Nova Scotia Probate Court referred to the general rule that rules of construction are to be used only to give an intelligible meaning to unintelligible, confusing and ambiguous words or sentences; where the words are clear, precise and unambiguous they must be given their ordinary and grammatical meaning - See paragraph 15.

Statutes - Topic 6106

Operation and effect - Effect on earlier statutes - General - Effect of partial limitation - Section 2(2) of the Intestate Succession Act stated that "the Descent of Property Act does not apply to cases of death on or after the commencement of this act" - The Nova Scotia Probate Court held that the Intestate Succession Act did not repeal or amend the Descent of Property Act, but merely restricted its application to cases of death arising before the Intestate Succession Act became law - See paragraph 25.

Wills - Topic 7530

Construction - Quantity of interest taken - Real property - Discharge of encumbrance by estate - A testator left mortgaged property to a beneficiary - The will was silent as to whether the mortgage was to be paid off or not - The Nova Scotia Probate Court applied the common law rule that the mortgage was to be paid off out of the estate, because the beneficiary was entitled to take the property free and clear from all encumbrances unless the will provided otherwise - See paragraph 6.

Cases Noticed:

R. v. Liverpool Justices, [1883] Q.B. 638, refd to. [para. 11].

Re Jenkins, [1931] 2 Ch. 218, refd to. [para. 12].

Chatenay v. Brazilian, [1891] 1 Q.B. 79, refd to. [para. 13].

Coxford v. Universal Insurance Company, [1936] 2 K.B. 235, refd to. [para. 14].

Barrow v. Fordree, [1932] A.C. 676, refd to. [para. 15].

Warburton v. Loveland, 1 Hud. & Bro. 623, refd to. [para. 15].

Statutes Noticed:

Intestate Succession Act, R.S.N.S. 1967, c. 153, sect. 2(1) [para. 23]; sect. 2(2) [para. 24].

Interpretation Act, R.S.N.S. 1967, c. 151, sect. 6(1)(e), sect. 6(1)(y) [para. 21]; sect. 23(1)(b) [para. 22].

Authors and Works Noticed:

Feeney, Canadian Law of Wills-Construction, p. 177 [para. 6].

Maxwell on Interpretation of Statutes (9th Ed.), p. 55 [para. 13].

Craie on Statute Law, pp. 112 [para. 17]; 121 [para. 18]; 348 [para. 19].

Counsel:

Harold D. Thompson, for the applicants;

Simon L. Gaum, for the executor;

A. Martin Smith, for the devisee.

This application was heard before Allen, Registrar of Probate for the County of Halifax, of the Nova Scotia Probate Court, who delivered the following judgment on December 9, 1983.