Commander Leasing Corp. v. Aiyede Estate and Aiyede, (1984) 1 O.A.C. 135 (CA)

• Judge: Zuber, Thorson and Robins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 12, 1984
• Jurisdiction: Ontario
• Citations: (1984), 1 O.A.C. 135 (CA)

Commander Leasing v. Aiyede Estate (1984), 1 O.A.C. 135 (CA)

MLB headnote and full text

Commander Leasing Corp. Ltd. v. Aiyede Estate and Aiyede

Indexed As: Commander Leasing Corp. v. Aiyede Estate and Aiyede

Ontario Court of Appeal

Zuber, Thorson and Robins, JJ.A.

January 12, 1984.

Summary:

Commander leased six sculptures to Aiyede. After the death of Aiyede, Commander sued Aiyede's estate for rental arrears. The trial court allowed Commander's claim against the executrix as executrix of the estate but dismissed the claim against the executrix personally. Commander appealed.

The Ontario Court of Appeal allowed the appeal and held the executrix personally liable for the rental arrears because she distributed the estate without paying Commander's valid outstanding claim.

Executors and Administrators - Topic 5203

Actions against executors - Personal liability, misconduct, devastavit - The Ontario Court of Appeal stated that the distribution of an estate by an executor, without paying a valid outstanding claim, constitutes misconduct known as a devastavit, for which the executor will be held personally liable (see paragraphs 10 to 12).

Executors and Administrators - Topic 5217

Actions against executors - Personal liability, practice - The Ontario Court of Appeal referred to the proper procedure to be followed in proceeding to personal judgment against an executor (see paragraphs 13 to 15).

Executors and Administrators - Topic 5246

Actions against executors - Defences, plea of plene administravit (a plea that no assets remain out of which the plaintiff's claim can be satisfied) - The Ontario Court of Appeal stated that where an executor fails to set up the plea of plene administravit he must be taken to admit that he has assets to satisfy the plaintiff's judgment (see paragraph 10).

Cases Noticed:

Re Marvin, [1905] 2 Ch. 490, refd to. [para. 8].

Marsden v. Regan, [1954] 1 All E.R. 475, refd to. [para. 8].

Schneitzer v. Breckon, [1921] O.W.N. 22, refd to. [para. 8].

Brown v. Fox (1921), 31 Man. R. 365, refd to. [para. 15].

Statutes Noticed:

Rules of Practice (Ont.), rule 71 [para. 14].

Authors and Works Noticed:

Williston and Rolls, The Law of Civil Procedure (1970), vol. 1, p. 172 [para. 8].

Williams on Executors (16th Ed. 1982), p. 803 [para. 9].

Counsel:

Ian A. Blue, for the appellant/plaintiff, Commander Leasing;

Douglas Quirt, for the respondent/defendant, Aiyede Estate and Shirley L. Aiyeda.

This appeal was heard by Zuber, Thorson and Robins, JJ.A., of the Ontario Court of Appeal on December 22, 1983.

The judgment of the Court of Appeal was delivered orally by Robins, J.A., and released on January 12, 1984.