Nelson et al. v. National Trust Co. et al.

Nelson et al. v. National Trust Co. et al.

No breach of trust or lack of fairness by the Trust Company was established and no error in principle was shown in the surrogate judge's fixing of compensation; therefore the Court of Appeal's allowance of $140,000 was not disturbed and the appeal was dismissed with costs. A new point not raised below and unsupported by evidence was not considered.

Citation
[1954] SCR 88
Parties
Appellant/plaintiff: Graham Morden Neilson; Appellant/plaintiff: Audrey Shields; Appellant/plaintiff: Shirley E. Pellowe; Respondent/defendant: National Trust Company Limited (Executor of the Estate of F.H. Morden Neilson); Respondent/defendant: The Official Guardian
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 February 1954
Procedural Posture
Appeal From Court of Appeal for Ontario Concerning Passing of Accounts and Executor Compensation / Supreme Court of Canada, on Appeal (hearing)
Outcome
Appeal dismissed with costs; Court of Appeal's allowance of $140,000 for executor compensation upheld.
Legal Topics
Executor Compensation, Passing of Accounts, Breach of Trust, Surrogate Court Review, Procedural Waiver of Issues
Source Language
English
Trusts Estate Administration Equity/probate Executor Compensation Passing of Accounts Breach of Trust Surrogate Court Review Procedural Waiver of Issues

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Parties

Graham Morden Neilson

Appellant/plaintiff

Audrey Shields

Appellant/plaintiff

Shirley E. Pellowe

Appellant/plaintiff

National Trust Company Limited (Executor of the Estate of F.H. Morden Neilson)

Respondent/defendant

The Official Guardian

Respondent/defendant

Procedural Posture

Appeal From Court of Appeal for Ontario Concerning Passing of Accounts and Executor Compensation / Supreme Court of Canada, on Appeal (hearing)

Legal Issues

  1. 1 Whether the trustee committed a breach of trust in administration or at passing of accounts
  2. 2 Whether the trustee disentitled itself to compensation and costs by its conduct
  3. 3 Whether there were errors in principle in the surrogate judge's method and result in fixing compensation

Ratio Decidendi

No breach of trust or lack of fairness by the Trust Company was established and no error in principle was shown in the surrogate judge's fixing of compensation; therefore the Court of Appeal's allowance of $140,000 was not disturbed and the appeal was dismissed with costs. A new point not raised below and unsupported by evidence was not considered.

Court Disposition

Appeal dismissed with costs; Court of Appeal's allowance of $140,000 for executor compensation upheld.

Orders

  • Appeal dismissed with costs.
  • Executor's compensation allowance of $140,000 affirmed.