Lunn v. Barber

Lunn v. Barber

Defendant, having acquiesced in the Master's praecipe order and proceeded to trial without appealing, cannot now challenge the plaintiff's capacity; the trial judge's factual findings stand; however, because the notes were in Ontario at the decedent's death and s.18(3) may apply, the proceedings must allow for ancillary administration in Ontario — the appeal is allowed and the trial judgment is restored conditional on filing an Ontario grant of letters of administration with the will annexed and adding the grantee as a party, with proceedings stayed until done.

Citation
[1950] SCR 108
Parties
Plaintiff/appellant: Williamina D. Lunn, Administratrix with the Will Annexed of George Wellington Lunn; Defendant/respondent: Samuel W. Barber
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
5 December 1949
Procedural Posture
Civil Appeal (estates; Contract on Promissory Notes) / On Appeal From the Court of Appeal for Ontario to the Supreme Court of Canada
Outcome
Appeal allowed; judgment at trial restored subject to filing of an Ontario grant of letters of administration with the will annexed and an order adding the grantee as party; proceedings stayed until those steps are taken
Legal Topics
Ancillary Administration, Situs of Debts, Revivor of Actions, Praecipe Under Rule 301, Succession Duty S.18(3), Party Acquiescence/estoppel
Source Language
English
Estates Conflict of Laws Civil Procedure Succession Duty/taxation Negotiable Instruments Ancillary Administration Situs of Debts Revivor of Actions +3 more

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Parties

Williamina D. Lunn, Administratrix with the Will Annexed of George Wellington Lunn

Plaintiff/appellant

Samuel W. Barber

Defendant/respondent

Procedural Posture

Civil Appeal (estates; Contract on Promissory Notes) / On Appeal From the Court of Appeal for Ontario to the Supreme Court of Canada

Legal Issues

  1. 1 Whether a foreign administratrix may maintain an action in Ontario where negotiable instruments were within Ontario at the decedent's death
  2. 2 Whether defendant's acquiescence in a Master's praecipe order and failure to appeal estops him from challenging the administratrix's capacity
  3. 3 Whether s.18(3) of the Succession Duty Act prevents transfer of assets out of Ontario without consent and requires ancillary administration

Ratio Decidendi

Defendant, having acquiesced in the Master's praecipe order and proceeded to trial without appealing, cannot now challenge the plaintiff's capacity; the trial judge's factual findings stand; however, because the notes were in Ontario at the decedent's death and s.18(3) may apply, the proceedings must allow for ancillary administration in Ontario — the appeal is allowed and the trial judgment is restored conditional on filing an Ontario grant of letters of administration with the will annexed and adding the grantee as a party, with proceedings stayed until done.

Court Disposition

Appeal allowed; judgment at trial restored subject to filing of an Ontario grant of letters of administration with the will annexed and an order adding the grantee as party; proceedings stayed until those steps are taken

Orders

  • Allow the appeal and restore the judgment at trial upon filing in this Court of an Ontario grant of letters of administration with the will annexed and upon an order adding the grantee as a party, all at the plaintiff's expense
  • Stay all proceedings until ancillary administration (Ontario letters of administration with the will annexed) has been obtained and the ancillary administrator is made a party