Murphy v. Small et al., (2004) 270 N.B.R.(2d) 44 (CA)

• Judge: Rice, Daigle and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 29, 2004
• Jurisdiction: New Brunswick
• Citations: (2004), 270 N.B.R.(2d) 44 (CA);2004 NBCA 36

Murphy v. Small (2004), 270 N.B.R.(2d) 44 (CA);

    270 R.N.-B.(2e) 44; 710 A.P.R. 44

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.B.R.(2d) TBEd. MY.003

June Murphy, in her own right (appellant) v. Patricia Small, Lee Dexter, Lynn Dickie, Mark Dexter, Karl Dexter, Sharon Flatt, Steven Murphy, Her Majesty the Queen in Right of the Province of New Brunswick As Represented by the Minister of Training and Employment Development (New Brunswick Community College - Moncton, the Rector and Church Wardens of St. George's Church in the Parish of Carleton (St. George's Anglican Church), Corporation of the Parish of Musquash (St. Anne's Anglican Church), Governing Council of the Salvation Army in Canada (Saint John Salvation Army) (respondents) and Estate of Valsas F. Dexter (respondent)

(108/03/CA; 2004 NBCA 36)

Indexed As: Murphy v. Small et al.

New Brunswick Court of Appeal

Rice, Daigle and Larlee, JJ.A.

April 29, 2004.

Summary:

The testator entered into a purchase and sale agreement for the sale of a 2.6 acre portion of a 4.8 acre property that he had willed to Murphy. The sale closed after the testator's death. An application was brought to determine whether the proceeds of the sale of the 2.6 acres went to Murphy or to the residuary beneficiaries.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unre­ported in this series, ruled that the proceeds went to the residuary beneficiaries. Murphy appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Contracts - Topic 7105

Novation - General - What constitutes novation - [See Wills - Topic 5000 ].

Wills - Topic 4143

Failure of gifts - Implied revocation - Ademption - Gifts subject to ademption - [See Wills - Topic 5000 ].

Wills - Topic 4146

Failure of gifts - Implied revocation - Ademption - What constitutes an ademp­tion - [See Wills - Topic 5000 ].

Wills - Topic 5000

Construction - General - General principles - Ascertainment of intention of testator - The testator made a will in which he be­queathed a 4.8 acre property to Murphy as follows: "... to June Murphy in her own right, my house at Rothesay ... unless the said house and contents shall have been disposed of by me in my lifetime ..." - The testator entered into a purchase and sale agreement for the sale of a 2.6 acre portion of the property - Unforeseen problems prevented the sale from closing prior to the testator's death on May 4, 2002 - On June 30, 2002, Murphy, as executrix and in her own right, agreed to extend the closing date - After the sale closed, an issue arose as to whether the proceeds went to Murphy or to the residual beneficiaries - The New Brunswick Court of Appeal affirmed that the proceeds went to the residual benefi­ciaries where: (1) the testator did not in­tend for the 2.6 acres to form part of the bequest of "my house at Rothesay"; (2) the 2.6 acres was disposed of during the life­time of the testator and that portion of the gift to Murphy adeemed; (3) s. 20(2) of the Wills Act, an exception to the ademp­tion rule, was not applicable since the testator expressed a contrary intention by his will; and (4) the June 30, 2002, agree­ment did not constitute a novation.

Cases Noticed:

National Trust Co. v. Fleury et al. - see Fleury Estate v. Fleury Estate.

Fleury Estate v. Fleury Estate, [1965] S.C.R. 817, consd. [para. 9].

Lucas-Tooth v. Lucas-Tooth, [1921] 1 A.C. 594, consd. [para. 10].

Church v. Hill, [1923] 3 D.L.R. 1045 (S.C.C.), consd. [para. 14].

McArthur v. McArthur Estate, Madden, McArthur and McArthur (1982), 45 N.B.R.(2d) 10; 118 A.P.R. 10 (Q.B.), consd. [para. 21].

McLean (A. Neil) Estate of, Re (1969), 1 N.B.R.(2d) 500 (C.A.), refd to. [para. 26].

DiMambro Estate, Re, [2002] O.T.C. 900 (Sup. Ct.), refd to. [para. 28].

National Trust Co. v. Mead, [1990] 2 S.C.R. 410; 112 N.R. 1; 87 Sask.R. 161, consd. [para. 34].

Statutes Noticed:

Wills Act, R.S.N.B. 1973, c. W-9, sect. 20(2), sect. 22 [para. 25].

Authors and Works Noticed:

Feeney, T.G., The Canadian Law of Wills (4th Ed. 2000), pp. 15.1, 15.2 [para. 20].

Counsel:

Stephen J. Ritchie, for the appellant, June Murphy;

Shelly G. Courser, for the respondents, Lee Dexter, Lynn Dickie, Mark Dexter, Karl Dexter;

Sharon Flatt and Steven Murphy appeared in person;

Chantal M. Cormier, for the respondent Her Majesty the Queen in Right of the Province of New Brunswick As Repre­presented by the Minister of Training and Employment Development;

Gregory S. Sinclair, for the respondent the Rector and Church Wardens of St. George's Church in the Parish of Carle­ton, Corporation of the Parish of Mus­quash, and Governing Council of the Salvation Army;

G. Peter Hyslop and Sylvie Bérubé, for the Estate of Valsas F. Dexter.

This appeal was heard on January 28, 2004, by Rice, Daigle and Larlee, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered on April 29, 2004, by Larlee, J.A.