Brumwell Estate, Re, (1984) 65 N.S.R.(2d) 293 (CA)

JudgeHart, Jones and Morrison, JJ.A.
CourtSupreme Court of Nova Scotia (Canada)
Case DateSeptember 11, 1984
JurisdictionNova Scotia
Citations(1984), 65 N.S.R.(2d) 293 (CA)

Brumwell Estate, Re (1984), 65 N.S.R.(2d) 293 (CA);

    147 A.P.R. 293

MLB headnote and full text

Brumwell's Estate and Brumwell v. Caldwell

(S.C.A. 01254)

Indexed As: Brumwell Estate, Re

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Morrison, JJ.A.

September 11, 1984.

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 personal 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, in a judgment reported (1984), 61 N.S.R.(2d) 316; 133 A.P.R. 316, 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 personal estate. The residuary beneficiaries appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

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 Court of Appeal affirmed the application of 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.

Statutes Noticed:

Intestate Succession Act, R.S.N.S. 1967, c. 153, sect. 2(1), sect. 2(2) [para. 4].

Counsel:

Harry D. Thompson, for the appellants;

Martin A. Smith, Q.C., and Simon L. Gaum, for the respondent.

This appeal was heard on September 11, 1984, before Hart, Jones and Morrison, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On September 11, 1984, Hart, J.A., delivered the following judgment orally for the Court of Appeal.

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