Low v. Gemley

Low v. Gemley

An executrix who, without necessity, places estate funds under the exclusive control of an agent and fails to exercise required supervision and precautions is culpably negligent and personally liable for losses from that agent's misappropriation, even if the agent had prior good reputation; beneficiaries cannot be made to suffer for the executrix's abandonment of duty.

Citation
(1890) 18 SCR 685
Parties
Appellant Executrix: Dame Anne Shaw Low; Respondent Tutrix for Minors: Dame Anne Jane Gemley; Plaintiff Legatee (attained Majority During Proceedings): Maud H. Low
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
11 December 1890
Procedural Posture
Appeal Estate/accounts (executor Accounting) / Final Appeal Decision of the Supreme Court of Canada on Appeal From Court of Queen's Bench (quebec)
Outcome
Appeal dismissed with costs; judgments below affirmed in part and executrix held personally liable for misuse of estate funds by her agent.
Legal Topics
Executor Liability, Delegation to Agent, Misappropriation by Agent, Duty of Supervision and Care, Account Reformation
Source Language
English
Trusts and Estates Agency Equity Succession Civil Procedure Executor Liability Delegation to Agent Misappropriation by Agent +2 more

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Parties

Dame Anne Shaw Low

Appellant Executrix

Dame Anne Jane Gemley

Respondent Tutrix for Minors

Maud H. Low

Plaintiff Legatee (attained Majority During Proceedings)

Procedural Posture

Appeal Estate/accounts (executor Accounting) / Final Appeal Decision of the Supreme Court of Canada on Appeal From Court of Queen's Bench (quebec)

Legal Issues

  1. 1 Is an executrix personally liable for misappropriation of estate funds by an agent she appointed?
  2. 2 Did the executrix exercise due care and supervision in delegating investment powers to the agent?
  3. 3 Can the executrix avoid liability because the agent was a notary of good standing and a long‑time family friend?

Ratio Decidendi

An executrix who, without necessity, places estate funds under the exclusive control of an agent and fails to exercise required supervision and precautions is culpably negligent and personally liable for losses from that agent's misappropriation, even if the agent had prior good reputation; beneficiaries cannot be made to suffer for the executrix's abandonment of duty.

Court Disposition

Appeal dismissed with costs; judgments below affirmed in part and executrix held personally liable for misuse of estate funds by her agent.

Orders

  • Reformation of the accounts as ordered by the courts below
  • Executrix to hand over to the tutrix/minors the portions of the estate established by the corrected accounts