Lottman and Teichberg v. Stanford, Ungerman, Lottman, 31 NR 1

JudgeMartland, Ritchie, Dickson, Estey and McIntyre, JJ.
CourtSupreme Court of Canada
Case DateJanuary 29, 1980
JurisdictionCanada (Federal)
Citations31 NR 1;6 ETR 34;(1980), 31 N.R. 1 (SCC);107 DLR (3d) 28;[1980] 1 SCR 1065;1980 CanLII 32 (SCC)

Lottman v. Stanford (1980), 31 N.R. 1 (SCC)

MLB headnote and full text

Lottman and Teichberg v. Stanford, Ungerman and Lottman

Indexed As: Lottman and Teichberg v. Stanford, Ungerman, Lottman

Supreme Court of Canada

Martland, Ritchie, Dickson, Estey and McIntyre, JJ.

January 29, 1980.

Summary:

This case arose out of an application by a life tenant of the residue of an estate claiming entitlement to a payment of a percentage of the value of unconverted real estate, which was not providing her with sufficient income, in effect requesting that the Rule in Howe v. Lord Dartmouth be extended to apply to real property as well as personalty. The trial judge dismissed the application and refused to extend the Rule to real property to order the conversion of unproductive real property. The Ontario Court of Appeal allowed the life tenant's appeal and extended the Rule to include non-productive real property. The remaindermen appealed.

The Supreme Court of Canada allowed the appeal and restored the judgment of the trial judge. The Supreme Court of Canada set out the Rule in Howe v. Lord Dartmouth and refused to extend it to real property.

Executors and Administrators - Topic 2312

Duties and powers of executors and administrators - Power or duty to convert non- income producing assets - Duty to convert wasting personalty - Rule in Howe v. Lord Dartmouth - Application of - The Supreme Court of Canada stated the Rule in Howe v. Lord Dartmouth: where residuary personalty is settled on death for the benefit of persons who are to enjoy it in succession, the duty of the trustees is to convert all such parts of it as are of a wasting or future or reversionary nature, or consist of unauthorized securities, into property of a permanent and income-bearing character - The Supreme Court of Canada held that the Rule was applicable only to personalty and refused to extend it to real property.

Cases Noticed:

Howe v. Lord Dartmouth (1802), 7 Ves. Jr. 137; 32 E.R. 56, dist. [para. 1].

Royal Trust Company v. McMurray and Crawford, [1955] S.C.R. 184, appld. [para. 1].

In re Earl of Chesterfield's Trusts (1883), 24 Ch. D. 643, dist. [para. 10].

In re Lauer and Stekl (1974), 47 D.L.R.(3d) 286 (B.C.C.A.), affirmed (1975), 54 D.L.R.(3d) 159 (S.C.C.), appld. [para. 11].

In re Cameron (1901), 2 O.L.R. 756, dist. [para. 11].

Clark, Re (1903), 6 O.L.R. 551, dist. [para. 11].

Prime, Re (1924), 25 O.W.N. 522, dist. [para. 11].

Pears (No. 1), Re (1926), 31 O.W.N. 235, dist. [para. 11].

Rutherford, Re, [1933] O.R. 707, dist. [para. 11].

Bingham, Re (1930), 66 O.L.R. 121, dist. [para. 11].

In re Woodhouse, Public Trustee v. Woodhouse, [1941] Ch. D. 332, refd to. [para. 11].

Authors and Works Noticed:

Hanbury's Modern Equity (4th Ed.), p. 241 [para. 1].

Counsel:

D.K. Laidlaw, Q.C., for the appellants;

P.D. Isbister, Q.C., and D. Hager, for the respondent Emma Lottman;

Martin R. Kaplan, for the respondents, Sam Stanford, Harry Ungerman and the executor Guaranty Trust Co. of Canada.

This case was heard on March 21 and 22, 1979, at Ottawa, Ontario, before MARTLAND, RITCHIE, DICKSON, ESTEY and McINTYRE, JJ., of the Supreme Court of Canada.

On January 29, 1980, McINTYRE, J., delivered the following judgment for the Supreme Court of Canada:

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