McLean (A. Neil) Estate of, Re, (1969) 1 N.B.R.(2d) 500 (CA)

• Judge: Bridges, C.J.N.B., Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 23, 1969
• Jurisdiction: New Brunswick
• Citations: (1969), 1 N.B.R.(2d) 500 (CA)

McLean Estate, Re (1969), 1 N.B.R.(2d) 500 (CA);

    1 R.N.-B.(2e) 500

MLB headnote and full text

Sommaire et texte intégral

Re A. Neil McLean Estate

Indexed As: McLean (A. Neil) Estate of, Re

Répertorié: McLean (A. Neil) Estate of, Re

New Brunswick Court of Appeal

Bridges, C.J.N.B., Limerick and Hughes, JJ.A.

April 23, 1969.

Summary:

Résumé:

The New Brunswick Court of Appeal held that bequests of shares of stock in Testator's will were specific legacies.

The New Brunswick Court of Appeal held that the legacies were adeemed when the Testator shortly before his death made an agreement to sell all of the shares of the company stock which were the subject matter of the bequests.

The New Brunswick Court of Appeal held in addition that Sections 20 and 21 of the Wills Act did not abolish the application of the doctrine of ademption but provided for a substitute gift under certain circumstances. Court held that the substitution under section 20 could only be made in circumstances where there was a separate contract or choses in action referable only to the subject matter of a specific bequest.

The New Brunswick Court of Appeal held that the contract or chose in action to which the Testator was entitled on his death referred to all of his shares of company stock and did not refer to the specific shares in each bequest made in the Testator's will; and accordingly Section 20 did not apply and the bequests were adeemed.

The New Brunswick Court of Appeal also held that paragraph 20 of the Testator's will, which authorized the executors in their discretion to appropriate part of his personal estate towards the satisfaction of any bequests, applied only to the distribution of the estate and did not apply to the vesting of any part of the estate.

Wills - Topic 4143

Failure of gifts - Implied revocation, ademption - Gifts subject to ademption - Interpretation - Whether gift of shares of company stock is a specific or general legacy - Whether gift of shares of company stock is adeemed - Whether section 20 of the Wills Act operates to prevent ademption (New Brunswick Court of Appeal).

Cases Noticed:

Church v. Hill, [1923] S.C.R. 642, folld.

Re Hughson, [1955] S.C.R. 498, folld.

Re Hawkins (1922), 91 L.J. Ch. 486, folld.

Sleech v. Thorington (1754), 28 E.R. 357, folld.

Millard v. Bailey (1866), L.R. 1 Eq. 378, folld.

Re Rose, [1948] 2 All E.R. 971, folld.

Re Sutherland (1968), 67 D.L.R.(2d) 68 (Alta.), folld.

Statutes Noticed:

Wills Act, S.N.B. 1959, c. 15, sect. 20(2), sect. 21(2)(b).

Counsel:

D.M. Gillis, Q.C., for the defendant/appellant, Helen Alexandra Earle;

F.S. Taylor, Q.C., for the plaintiff/respondents, Executors under the Will of A. Neil McLean, deceased;

Henry E. Ryan, Q.C., for the defendant/respondents, Turnbull, Turnbull and McLean.