Kotowski Estate, Re, (1987) 49 Man.R.(2d) 284 (QB)

• Judge: Glowacki, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 09, 1987
• Jurisdiction: Manitoba
• Citations: (1987), 49 Man.R.(2d) 284 (QB)

Kotowski Estate, Re (1987), 49 Man.R.(2d) 284 (QB)

MLB headnote and full text

In The Matter Of the estate of Fred Kotowski

(Suit No. 86-01-03525 (Probate))

Indexed As: Kotowski Estate, Re

Manitoba Court of Queen's Bench

Glowacki, J.

June 9, 1987.

Summary:

An executor applied to the court for advice and directions respecting the deceased's will.

The Manitoba Court of Queen's Bench delivered judgment accordingly.

Executors and Administrators - Topic 7205

Compensation - Right to compensation - Effect of bequest or legacy to executor - The Manitoba Court of Queen's Bench referred to the presumption that a legacy to an executor is given to him in that capacity - If, however, there is coupled with the bequest some endearing words or phrase, the presumption is rebutted - See paragraph 17.

Real Property - Topic 2167

Dower or rights of wife - Priorities - Dower v. beneficiaries' claims - The Manitoba Court of Queen's Bench held that where a widow elects to take under the Dower Act, all legacies, gifts and devises under the husband's will are to be charged rateably with the payment of the widow's dower interest - The court held that under s. 21 of the Dower Act the widow's share is to be considered "not as a debt but as if it were a debt of the testator at the time of his death" - See paragraphs 3 to 9.

Real Property - Topic 2241

Dower or rights of wife - Recovery of dower - General - [See Real Property - Topic 2167 above].

Wills - Topic 7300

Construction - Quantity of interest taken - Absolute interest - Absolute gift - Effect of subsequent words - A testator appeared to absolutely bequeath the residue of his estate in one paragraph, then immediately following again divided the residue (if the original residuary legatee failed to claim his share), then made certain specific bequests apparently conflicting with the disposal of all the residue - The Manitoba Court of Queen's Bench held that the specific bequests were valid; the residuary legatee would take only after payment of the specific bequests - See paragraphs 10 to 15.

Cases Noticed:

Morgan v. Altman (1961), 34 W.W.R.(N.S.) 452, consd. [para. 5].

Re Williams Estate (1983), 21 Man.R.(2d) 157, consd. [para. 5].

Canada Permanent Trust Company v. Kerrie, [1977] 4 W.W.R. 555 (Man. Co. Ct.), appld. [para. 7].

In Re Morice Estate (1939), 47 Man.R. 390 (S.C.); affd. in part [1943] S.C.R. 94 and 545, not appld. [para. 9].

Perrin v. Morgan, [1943] A.C. 399, refd to. [para. 13].

In Re Freedman; Royal Trust Company v. Freedman et al., [1974] 1 W.W.R. 577, dist. [para. 14].

In Re Kane Estate (1934), 42 Man.R. 265, dist. [para. 14].

In Re Greenaway Estate (1954), 12 W.W.R.(N.S.) 228, refd to. [para. 17].

Re Ross, [1976] 3 W.W.R. 465, refd to. [para. 17].

Statutes Noticed:

Dower Act, R.S.M. 1970, c. D-100; C.C.S.M., c. D-100, sect. 21 [paras. 4, 8].

Trustee Act, R.S.M. 1970, c. T-160; C.C.S.M., c. T-160, sect. 90(1) [para. 16].

Counsel:

Sheila Leinburd, for the executor;

A. Dobrowolski, for Jan Warnkewicz and Pawlina Keijs;

T. Hodgson, for Bill Orysiuk and Peter Oruck;

Julian R. Glowacki, Q.C., for Orest Kotowski;

G. Zazelenchuk, for Maria Kotowski.

This case was heard before Glowacki, J., of the Manitoba Court of Queen's Bench, whose decision was delivered on June 9, 1987.