MacCulloch (Bankrupt), Re, (1991) 102 N.S.R.(2d) 147 (ProbCt)

• Court: Nova Scotia Probate Court
• Case Date: February 08, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 102 N.S.R.(2d) 147 (ProbCt)

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MacCulloch (Bankrupt), Re (1991), 102 N.S.R.(2d) 147 (ProbCt);

    279 A.P.R. 147

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In the Matter of the Estate of Charles E. MacCulloch, deceased

Indexed As: MacCulloch (Bankrupt), Re

Nova Scotia Probate Court

Haliburton, A./J.C.C.

February 28, 1991.

Summary:

Charles E. MacCulloch died in 1979 leaving a will under which Central Guaranty Trust and his widow were the executors. After protracted administration of the estate, including its bankruptcy, the remaining assets of the estate were $100,000 and a $1.8 million judgment against the widow. Both Central Guarantee Trust and the widow applied for removal of the other as executor.

The Nova Scotia Probate Court refused to remove Central Guarantee Trust, but temporarily suspended the powers of the widow as executor because of the conflict between her interests and those of the estate.

For judgments in other litigation in the MacCulloch Estate see 70 N.S.R.(2d) 410, 166 A.P.R. 410; 78 N.S.R.(2d) 300, 190 A.P.R. 300; 81 N.S.R.(2d) 219, 203 A.P.R. 219; 97 N.S.R.(2d) 300, 258 A.P.R. 300; 100 N.S.R.(2d) 89, 272 A.P.R. 89.

Executors and Administrators - Topic 383

Appointment, qualification and tenure - Executors - Removal - Conflict between executors - A trust company and the testator's widow were executors of his estate - After protracted administration, including the bankruptcy of the estate, conflict developed between the trust company and the widow - She applied for removal of the trust company as executor on the ground that it failed to communicate fully with her - The Nova Scotia Probate Court dismissed the application.

Executors and Administrators - Topic 384

Appointment, qualification and tenure - Executors - Removal - Conflict of interest - A widow was one of the executors (with a trust company) of her husband's estate, which went bankrupt during administration - The trustee in bankruptcy recovered a $1.8 million judgment against her, which judgment was the main remaining asset of the estate - None of the beneficiaries received their legacies - The trust company applied to have the widow removed as executor - The Nova Scotia Probate Court on the suggestion of the trust company suspended her powers as executor for a time, rather than remove her.

Cases Noticed:

Letterstedt v. Broers (1884), 9 App. Cas. 371, consd. [para. 35].

Mardesic v. Vukovich Estate (1988), 30 B.C.L.R.(2d) 170, consd. [para. 38].

Black, Black and Schaefer v. Black (1978), 34 N.S.R.(2d) 487; 59 A.P.R. 487, consd. [para. 39].

Hall v. Hall et al. (1983), 45 B.C.L.R. 154, consd. [para. 40].

Orenstein v. Feldman (1978), 2 E.T.R. 133 (Ont. H.C.), consd. [para. 41].

Re Martin, [1978] 4 W.W.R. 515, consd. [para. 42].

Statutes Noticed:

Probate Act, R.S.N.S. 1989, c. 359, sect. 31(1), sect. 31(2) [para. 33].

Trustee Act, R.S.N.S. 1989, c. 479, sect. 16(1) [para. 35].

Authors and Works Noticed:

MacDonnell, Sheard and Hull, Probate Practice (3rd Ed. 1981), Removal of Executor or Administrator [paras. 35, 36, 37, 44].

Counsel:

Patricia MacCulloch, for herself;

E.J. Flinn, Q.C., for Central Guaranty Trust Company.

This case was heard on February 8, 1991, at Kentville, Nova Scotia, before Haliburton, A./J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on February 28, 1991: