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

CourtProbate Court of Nova Scotia (Canada)
Case DateFebruary 08, 1991
JurisdictionNova Scotia
Citations(1991), 102 N.S.R.(2d) 147 (ProbCt)

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

    279 A.P.R. 147

MLB headnote and full text

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:

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9 practice notes
  • MacCulloch (Bankrupt), Re, (1991) 111 N.S.R.(2d) 271 (ProbCt)
    • Canada
    • Nova Scotia Probate Court of Nova Scotia (Canada)
    • December 12, 1991
    ...temporarily suspended the powers of the widow as executor because of the conflict between her interests and those of the estate (see 102 N.S.R.(2d) 147; 279 A.P.R. 147 ). In further proceedings the Nova Scotia Probate Court ordered that the suspension be lifted and the widow be reinstated ......
  • MacCulloch v. McInnes, (2000) 184 N.S.R.(2d) 40 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • May 2, 2000
    ...MacCulloch (Bankrupt), Re (1992), 108 N.S.R.(2d) 130 ; 294 A.P.R. 130 (C.A.), refd to. [para. 53]. MacCulloch (Bankrupt), Re (1991), 102 N.S.R.(2d) 147; 279 A.P.R. 147 (Prob. Ct.), refd to. [para. MacCulloch (Bankrupt), Re (1992), 115 N.S.R.(2d) 131 ; 314 A.P.R. 131 (S.C.), refd to.......
  • Winter Estate, Re, (2001) 197 N.S.R.(2d) 385 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • May 25, 2001
    ...between executor and beneficiaries - [See Executors and Administrators - Topic 384 ]. Cases Noticed: MacCulloch (Bankrupt), Re (1991), 102 N.S.R.(2d) 147; 279 A.P.R. 147 (Prob. Ct.), refd to. [para. Martin, Re, [1978] 4 W.W.R. 515 (Sask. Surr. Ct.), refd to. [para. 18]. Meatyard, Re, [1903]......
  • Winter Estate, Re, (2002) 202 N.S.R.(2d) 5 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • February 13, 2002
    ...appointed in the 1992 will as well. "To paraphrase Justice Haliburton in the MacCulloch decision ( Re MacCulloch (Bankruptcy) (1991), 102 N.S.R.(2d) 147, at p. 156) I conclude that Ivo Winter has done nothing unlawful. I am not satisfied on the facts which are not in dispute that he is......
  • Request a trial to view additional results
9 cases
  • Winter Estate, Re, (2001) 197 N.S.R.(2d) 385 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • May 25, 2001
    ...between executor and beneficiaries - [See Executors and Administrators - Topic 384 ]. Cases Noticed: MacCulloch (Bankrupt), Re (1991), 102 N.S.R.(2d) 147; 279 A.P.R. 147 (Prob. Ct.), refd to. [para. Martin, Re, [1978] 4 W.W.R. 515 (Sask. Surr. Ct.), refd to. [para. 18]. Meatyard, Re, [1903]......
  • Winter Estate, Re, (2002) 202 N.S.R.(2d) 5 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • February 13, 2002
    ...appointed in the 1992 will as well. "To paraphrase Justice Haliburton in the MacCulloch decision ( Re MacCulloch (Bankruptcy) (1991), 102 N.S.R.(2d) 147, at p. 156) I conclude that Ivo Winter has done nothing unlawful. I am not satisfied on the facts which are not in dispute that he is......
  • MacCulloch (Bankrupt), Re, (1991) 111 N.S.R.(2d) 271 (ProbCt)
    • Canada
    • Nova Scotia Probate Court of Nova Scotia (Canada)
    • December 12, 1991
    ...temporarily suspended the powers of the widow as executor because of the conflict between her interests and those of the estate (see 102 N.S.R.(2d) 147; 279 A.P.R. 147 ). In further proceedings the Nova Scotia Probate Court ordered that the suspension be lifted and the widow be reinstated ......
  • Beatrice Watson-Acheson Fdn. v. Polk, [2006] O.T.C. 542 (SC)
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • June 22, 2006
    ...executrix "stand aside" is a suitable alternative for removal, counsel for Ms Polk also relies on MacCulloch Estate (Re) , 102 N.S.R. (2d) 147, 279 A.P.R. 147 (N.S. Court of Probate) and in particular to this paragraph: In summary, it appears that an executor whose administration ......
  • Request a trial to view additional results

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