MacCulloch Estate, Re, (1981) 44 N.S.R.(2d) 666 (TD)

• Judge: Burchell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 19, 1981
• Jurisdiction: Nova Scotia
• Citations: (1981), 44 N.S.R.(2d) 666 (TD)

MacCulloch Estate, Re (1981), 44 N.S.R.(2d) 666 (TD);

    83 A.P.R. 666

MLB headnote and full text

Re MacCulloch's Estate; MacCulloch, Rhude, Classon and Central and Eastern Trust Company v. MacCulloch, MacCulloch, MacCulloch, MacCulloch, Heenan, MacCulloch and MacCulloch

(S.H. 30300)

Indexed As: MacCulloch Estate, Re

Nova Scotia Supreme Court

Trial Division

Burchell, J.

January 19, 1981.

Summary:

The executors of the testator's estate brought an application to determine whether a yacht passed under a clause of the will. The specific clause provided that all the testator's "articles of personal, domestic or household use or ornament" were to be given to his wife.

The Nova Scotia Supreme Court, Trial Division, held that the yacht did not pass to the wife. The court held that it was obliged to look beyond the language of the will and consider the circumstances surrounding its execution. The court stated that the true nature of the arrangements under which the yacht was devoted to both commercial and personal uses must have been understood by the testator. The court held that if the testator had intended to bequeath the vessel to his widow, he would not have risked a failure of the gift by using the kind of inaccurate descriptive language set forth in the clause of the will.

Note: See also Re MacCulloch's Estate (1980), 44 N.S.R.(2d) 679.

Wills - Topic 5000

Construction - General - Ascertainment of intention of testator - The Nova Scotia Supreme Court, Trial Division, stated that the primary function of a court of construction is to ascertain the intention of the testator - See paragraph 5.

Wills - Topic 5266

Construction - General - Particular words and phrases - Articles of personal, domestic or household use - The Nova Scotia Supreme Court, Trial Division, held that a yacht, used personally by the testator and his wife, the dominant use of which, however, was commercial at the time the will was made, did not pass to the widow as an article of personal, domestic or household use - See paragraphs 13 to 19.

Wills - Topic 8550

Evidence and proof - Extrinsic evidence - Surrounding circumstances to interpret will - The Nova Scotia Supreme Court, Trial Division, in the interpretation of a clause of a will, looked beyond the language of the will itself to consider the circumstances surrounding its execution - See paragraphs 7 to 19.

Cases Noticed:

In Re Chaplin, [1950] Ch. 507, refd to. [para. 8].

Re White, [1916] Ch. 172, refd to. [para. 9].

Re Pridham, [1953] 1 D.L.R. 782, refd to. [para. 9].

Re Reynold's Will Trusts, [1965] 3 All E.R. 686, refd to. [para. 9].

Re Collin's Settlement Trusts, [1971] 1 All E.R. 283, refd to. [para. 9].

Dean v. Rees, [1954] N.Z.L.R. 877, refd to. [para. 9].

In Re Bloomingdele's Estate, 142 N.Y.S.(2d) 781 (1955), refd to. [para. 9].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 9.02 [para. 1].

Counsel:

D.A. Stewart, for the plaintiffs;

S. McInnes, Q.C., and H.L. Morrison, for Patricia Bredin MacCulloch;

K.E. Eaton, for all the defendants except Patricia Bredin MacCulloch.

This case was heard before BURCHELL, J., of the Nova Scotia Supreme Court, Trial Division, at Halifax, Nova Scotia, on January 6, 1981.

The judgment of BURCHELL, J., was delivered on January 19, 1981.