Whitman v. Hudgins, (1984) 65 N.S.R.(2d) 64 (CA)

• Judge: MacKeigan, C.J.N.S., Jones and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 22, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 65 N.S.R.(2d) 64 (CA)

Whitman v. Hudgins (1984), 65 N.S.R.(2d) 64 (CA);

    147 A.P.R. 64

MLB headnote and full text

Whitman v. Hudgins

(S.C.A. 01290)

Indexed As: Whitman v. Hudgins

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Jones and Pace, JJ.A.

October 22, 1984.

Summary:

A will devised funds to the trustee to be held for the benefit of the testator's grandson until the grandson's daughter (born in 1981) reached 21 years of age. Funds were also devised to the grandson's daughter upon the same trust conditions. The grandson applied for an order to terminate the trusts and to direct the trustee to pay over the balance of the trust funds, relying on the rule in Saunders v. Vautier.

The Nova Scotia Supreme Court, Trial Division, in a judgment not reported in this series of reports, dismissed the application. The grandson appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal and ordered that the trust be terminated.

Trusts - Topic 8443

Termination of trusts - By request of beneficiary - Where applicant is sole beneficiary - A will devised funds to be held in trust for the benefit of the testator's grandson until the grandson's daughter reached 21 years of age (2003) - Funds were also held in trust for the daughter until the year 2003 - The grandson would receive the bulk of the income from both funds and eventually any accumulated income - There was no specific gift over should the grandson not live until 2003 - The grandson was also the main residuary beneficiary - The Nova Scotia Court of Appeal held that the grandson was entitled to terminate the trust by invoking the rule in Saunders v. Vautier.

Cases Noticed:

Saunders v. Vautier, 41 E.R. 482, appld. [paras. 5, 6].

Re The Last Will of Charles H. Townshend, 16 M.P.R. 69, refd to. [para. 5].

Halifax School for the Blind v. Chipman et al., [1937] S.C.R. 196, refd to. [para. 6].

Fast v. Van Vliet, 51 W.W.R.(N.S.) 65, dist. [para. 11].

Authors and Works Noticed:

Feeney, Canadian Law of Wills, vol. 2, p. 185 [para. 7].

Halsbury's Laws of England (4th Ed.), vol. 50, p. 187, para. 334 [para. 9].

Counsel:

C.H. Durland, Q.C., and W.B. Gillis, for the appellant;

H.D. Thompson and C.L. Dalziel, for the respondent.

This appeal was heard on September 18, 1984, before MacKeigan, C.J.N.S., Jones and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On October 22, 1984, Jones, J.A., delivered the following judgment for the Court of Appeal.