Leeper Estate v. Leeper, (1996) 76 B.C.A.C. 277 (YukCA)

JudgeSouthin, Cumming and Hinds, JJ.A.
CourtCourt of Appeal (Yukon Territory)
Case DateApril 23, 1996
JurisdictionYukon
Citations(1996), 76 B.C.A.C. 277 (YukCA)

Leeper Estate v. Leeper (1996), 76 B.C.A.C. 277 (YukCA);

    125 W.A.C. 277

MLB headnote and full text

John F. Leeper on behalf of The Estate of the Late John Francis Leeper (plaintiffs/respondents) v. Blake Leeper (defendant/appellant)

(YU00270; YU00273)

Indexed As: Leeper Estate v. Leeper

Yukon Court of Appeal

Southin, Cumming and Hinds, JJ.A.

May 31, 1996.

Summary:

A father's estate sued one of his sons for a debt owing to the father at the time of his death. The trial judge allowed the action. The son appealed. The estate cross-appealed respecting the awarding of equitable interest on the debt, should statutory interest be disallowed.

The Yukon Court of Appeal allowed the appeal in part, and allowed the cross-appeal.

Interest - Topic 3516

Statutory interest - On judgments - Pecu­niary judgment defined - A son was indebted to his late father - The father's estate sued, not for recovery of the money, but for a declaration of a right to set off the debt against the son's legacy - The Yukon Court of Appeal held that the estate was not entitled to recover statutory inter­est under s. 35(3)(a) of the Judicature Act, because the estate was not "... entitled to a judgment for the payment of money ..." - The court however awarded the estate equitable interest on the balance owing after set-off, from the date of the father's death, at the prime rate less two percent, adjusted quarterly, simple interest - See paragraphs 59 to 68.

Practice - Topic 1854

Pleadings - Counterclaim and set-off - Set-off - Rule in Cherry v. Boultbee - A son owed money to his late father, but the father's estate's claim against the son for the debt was statute-barred by the six year limitation period in s. 2(1)(f) of the Limi­tation of Actions Act - The Yukon Court of Appeal held that the estate's representa­tive could apply the son's legacy in full or part satisfaction of the debt, regardless that the claim was statute-barred - See para­graphs 26 to 30.

Cases Noticed:

Cherry v. Boultbee (1839), 2 Keen 319; 4 My. & Cr. 442 (L.C. Ct.), appld. [para. 27].

Akerman, Re: Akerman v. Akerman, [1891] 3 Ch. 212, appld. [para. 28].

Courtnay v. Williams, [1843-1860] All E.R. Rep. 755 (L.C. Ct.), refd to. [para. 28].

Will of Bickerdike, In The: Bickerdike v. Hill, [1919] V.L.R. 62 (Aust. S.C.), refd to. [para. 61].

Statutes Noticed:

Judicature Act, R.S.Y.T. 1986, c. 96, sect. 35(1) [para. 44]; sect. 35(3)(a) [para. 43]; sect. 35(7) [para. 45].

Limitation of Actions Act, R.S.Y.T. 1986, c. 104, sect. 2(1)(f) [para. 26].

Authors and Works Noticed:

Halsbury's Laws of England (1980) (4th Ed. Reissue), vol. 32, p. 55, para. 109 [para. 60].

Williams, Mortimer and Sunnucks on Executors, Administrators & Probate (17th Ed. 1993), p. 646 [para. 27].

Counsel:

James D. Spears, for the appellant;

D. Geoffrey Cowper, for the respondents.

This appeal was heard in Vancouver, British Columbia, on April 23, 1996, before Southin, Cumming and Hinds, JJ.A., of the Yukon Court of Appeal. The decision of the court was deliverd by Hinds, J.A., on May 31, 1996.

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2 practice notes
  • Hutchinson Estate v. Hutchinson, 2006 ABQB 418
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 20 Junio 2006
    ...the personal representatives have pled the common law right of retainer. Based upon this legal principle and Leeper Estate v. Leeper (1996), 76 B.C.A.C. 277, I am unable to find Alan has established that it is plain and obvious that this action cannot succeed. CONCLUSION [52] The personal r......
  • Moody Estate, Re, 2011 ABQB 222
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 28 Octubre 2010
    ...paragraphs 16 to 33. Cases Noticed: Cherry v. Boultbee (1839), 4 My. & Cr. 442 (L.C.), consd. [para. 3]. Leeper Estate v. Leeper (1996), 76 B.C.A.C. 277; 125 W.A.C. 277 (Yuk. C.A.), refd to. [para. Biton v. Philp, [1943] O.J. No. 294 (H.C.J.), refd to. [para. 17]. Hutchinson Estate v. H......
2 cases
  • Hutchinson Estate v. Hutchinson, 2006 ABQB 418
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 20 Junio 2006
    ...the personal representatives have pled the common law right of retainer. Based upon this legal principle and Leeper Estate v. Leeper (1996), 76 B.C.A.C. 277, I am unable to find Alan has established that it is plain and obvious that this action cannot succeed. CONCLUSION [52] The personal r......
  • Moody Estate, Re, 2011 ABQB 222
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 28 Octubre 2010
    ...paragraphs 16 to 33. Cases Noticed: Cherry v. Boultbee (1839), 4 My. & Cr. 442 (L.C.), consd. [para. 3]. Leeper Estate v. Leeper (1996), 76 B.C.A.C. 277; 125 W.A.C. 277 (Yuk. C.A.), refd to. [para. Biton v. Philp, [1943] O.J. No. 294 (H.C.J.), refd to. [para. 17]. Hutchinson Estate v. H......

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