King v. McHendry

King v. McHendry

Because at dissolution the first community consisted only of bare necessaries of insignificant value and exempt from seizure, there was nothing to include in an inventory; consequently the survivor's failure to make an inventory or procès-verbal de carence did not produce the penal legal consequence of continuation of community, and the plaintiff's claim for continuation fails.

Citation
(1900) 30 SCR 450
Parties
Appellants (defendants): Patrick King et al.; Respondents (plaintiffs): Ellen McHendry et vir.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 June 1900
Procedural Posture
Appeal (civil Family Law/community Property) / Final Appeal to the Supreme Court of Canada From Court of Queen's Bench for Lower Canada (appeal Side)
Outcome
Appeal allowed; action dismissed with costs.
Legal Topics
Community Property, Continuation of Community, Inventory Requirements, Procès Verbal De Carence, Tripartite Community, Requirement of Demand During Survivor's Life
Source Language
English
Family Law Property Law Succession Civil Procedure Community Property Continuation of Community Inventory Requirements Procès Verbal De Carence +2 more

Case Brief

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Parties

Patrick King et al.

Appellants (defendants)

Ellen McHendry et vir.

Respondents (plaintiffs)

Procedural Posture

Appeal (civil Family Law/community Property) / Final Appeal to the Supreme Court of Canada From Court of Queen's Bench for Lower Canada (appeal Side)

Legal Issues

  1. 1 Whether an inventory or procès-verbal de carence is required when common assets at dissolution are de minimis and exempt from seizure
  2. 2 Whether omission to make such inventory effects a continuation of community
  3. 3 Whether the demand for continuation must be made during the lifetime of the surviving spouse

Ratio Decidendi

Because at dissolution the first community consisted only of bare necessaries of insignificant value and exempt from seizure, there was nothing to include in an inventory; consequently the survivor's failure to make an inventory or procès-verbal de carence did not produce the penal legal consequence of continuation of community, and the plaintiff's claim for continuation fails.

Court Disposition

Appeal allowed; action dismissed with costs.

Orders

  • Appeal allowed with costs.
  • Action dismissed with costs to the appellants in all courts below.