Davis v. Auld et al.

Davis v. Auld et al.

The court held the appellant did not become administrator until the actual issue of letters of administration on November 6, 1931; the judge's fiat did not constitute a grant; because the respondents sued only as against an administrator and had not pleaded executor de son tort or trustee claims, and because statutory succession duty procedures and rules prevented earlier action and there was no proven lack of due diligence, the appellant was not liable for depreciation occurring before issuance of the letters and the trial judgment dismissing the action was restored.

Citation
[1938] SCR 304
Parties
Appellant / Defendant: David Reese Davis; Respondents / Plaintiffs: Ella W. Auld and others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
26 April 1938
Procedural Posture
Estates / Appeal to Supreme Court of Canada From the Appellate Division of the Supreme Court of Alberta
Outcome
Appeal allowed; trial judgment restored; action dismissed.
Legal Topics
Administrator Liability, Letters of Administration, Executor De Son Tort, Due Diligence, Conflict of Interest, Removal and Accounting, Statutory Delays in Succession Duties
Source Language
English
Estates Trusts Civil Procedure Succession Duties Equity Administrator Liability Letters of Administration Executor De Son Tort +4 more

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Parties

David Reese Davis

Appellant / Defendant

Ella W. Auld and others

Respondents / Plaintiffs

Procedural Posture

Estates / Appeal to Supreme Court of Canada From the Appellate Division of the Supreme Court of Alberta

Legal Issues

  1. 1 Whether a judge's fiat for grant constitutes a grant or whether administrative authority begins only upon actual issuance of letters of administration
  2. 2 Whether appellant could be held personally liable for depreciation of estate assets occurring prior to issuance of letters of administration
  3. 3 Whether appellant could be charged as trustee or executor de son tort absent appropriate pleading

Ratio Decidendi

The court held the appellant did not become administrator until the actual issue of letters of administration on November 6, 1931; the judge's fiat did not constitute a grant; because the respondents sued only as against an administrator and had not pleaded executor de son tort or trustee claims, and because statutory succession duty procedures and rules prevented earlier action and there was no proven lack of due diligence, the appellant was not liable for depreciation occurring before issuance of the letters and the trial judgment dismissing the action was restored.

Court Disposition

Appeal allowed; trial judgment restored; action dismissed.

Orders

  • Appeal allowed and judgment at trial restored (action dismissed)
  • Respondents to pay costs of the appeals to the Appellate Division and to the Supreme Court of Canada