Citation: Quinan v. MacKinnon et al. Date: PESCTD 14 Docket: GSC Registry: Charlottetown

Transcription

1 Citation: Quinan v. MacKinnon et al. Date: PESCTD 14 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: AND: ALBERT QUINAN APPLICANT JUSTIN and MAE MacKINNON, JAMES BRYAN, ESTATE OF GEORGE MacPHEE, FRANCES MacDONALD, ROBERT MacPHEE, THERESA MacDONALD, HELEN HOLLAND, ERIC MacPHEE, JOAN BAUER, PAULA WALSH RESPONDENTS Before: The Honourable Madam Justice Linda K. Webber Karen M. MacLeod - Solicitor for the Applicant Allen J. MacPhee, Q.C. - Solicitor for Justin & Mae MacKinnon Place and Date of Hearing Charlottetown, - Prince Edward Island November 22, 2000 Place and Date of Judgment - Charlottetown, Prince Edward Island February 15, 2001

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3 Citation: Quinan v. MacKinnon et al PESCTD 14 Docket: GSC BETWEEN: ALBERT QUINAN APPLICANT AND: JUSTIN and MAE MacKINNON, JAMES BRYAN, ESTATE OF GEORGE MacPHEE, FRANCES MacDONALD, ROBERT MacPHEE, THERESA MacDONALD, HELEN HOLLAND, ERIC MacPHEE, JOAN BAUER, PAULA WALSH RESPONDENTS Supreme Court of Prince Edward Island - Trial Division Before: Webber J. Heard: November 22, 2000 Judgment: February 15, 2001 (5 pages) Declaration/Real Property Interests STATUTES CONSIDERED: Probate Act, R.S.P.E.I. Cap. P-21; Prince Edward Island Rules of Civil Procedure, Rule CASES CONSIDERED: Re Farrell s Estate (1983), 44 Nfld & PEIR 251. Karen M. MacLeod - Solicitor for the Applicant Allen J. MacPhee, Q.C. - Solicitor for Justin & Mae MacKinnon

4 WEBBER J.: [1] This is an application by Albert Quinan, pursuant to Civil Procedure Rule 14.05, for a determination of the rights and ownership interests in certain lands at New Harmony, Prince Edward Island. All parties with an interest in the lands were served with a notice of the proceedings. While several attended the hearing, only Justin and Mae MacKinnon participated. [2] Although the application was founded in an alleged dispute between at least the applicant and the MacKinnons as to the title to the property in question, during the hearing the parties agreed on the applicable documents of title and both the applicant and the MacKinnons took the same position as to the ultimate resolution of ownership interests. The only differences identified were with respect to whether or not in the past the MacKinnons had acted or taken positions which interfered with the applicant s ownership interests. However, since the issue before me relates to title, such actions are not relevant and were not considered. [3] There are three parcels at issue, identified as the North 100, the South 100, and the 50 acre parcel. The legal descriptions of the parcels are annexed to this decision. North 100 and 50 acre parcels [4] The North 100 acre parcel became the property of Basil M. Bryan through his father James 1929 Will. Basil Bryan purchased the 50 acre parcel from Sarah Whitty in After Basil died intestate in 1972, Letters of Administration were issued to Albert L. Quinan in 1973 who conveyed equal interests in these parcels to Basil s surviving brother and sisters, Georgina Quinan, Damien Bryan, and Bertha MacPhee. [5] The Estate Deed from Albert L. Quinan as Administrator of the Estate of Basil M. Bryan purported to convey the property to Basil s brother and sisters as joint tenants and not as tenants in common. However, during the hearing both counsel acknowledged that the Probate Act, R.S.P.E.I. 1988, Cap. P-21, requires a conveyance on an intestacy to the heirs as tenants in common. [6] Damien Bryan deeded his interest in the 50 acre parcel to Justin and Mae MacKinnon in In 1983 he deeded his interest in the North 100 parcel to Justin MacKinnon.

5 Page: 2 [7] Georgina Quinan died in 1992 leaving to her son Albert L. Quinan, through her Will, her interest in the North 100 and the 50 acre parcels. The 1997 Estate Deed from Albert L. Quinan, Executor of the Estate of Georgina Quinan, to Albert L. Quinan purported to convey a ½ interest in these lands. However, it was acknowledged at the hearing and I find Georgina only had an undivided 1/3 interest to convey. [8] Bertha MacPhee died intestate in Letters of Administration were issued to Robert MacPhee and Frances MacDonald in 1999, but no conveyances were ever made of her interest in the North 100 and 50 acre parcels. [9] Therefore, with respect to the North 100 and the 50 acre parcels, I find as follows: 1) an undivided 1/3 interest in the 50 acre parcel vests in Justin and Mae MacKinnon; 2) an undivided 1/3 interest in the North 100 acre parcel vests in Justin MacKinnon; 3) an undivided 1/3 interest in the North 100 and 50 acre parcels vests in Albert L. Quinan; and 4) an undivided 1/3 interest in the North 100 and 50 acre parcels vests in the estate of Bertha MacPhee. South 100 acres [10] Walter G. Bryan obtained title to the South 100 acres through his father James 1929 Will. Walter died intestate in 1965 leaving six brothers and sisters as heirs: Georgina Quinan, Roland Bryan, Damien Bryan, Bertha MacPhee, Martha Bryan, and Basil Bryan. In 1966 Letters of Administration of the Estate of Walter G. Bryan were issued to Basil Bryan but Basil died in 1972, intestate and without having conveyed this property in his capacity as Administrator of the Estate of Walter G. Bryan. Letters of Administration de bonis non of the Estate of Walter G. Bryan were issued to Albert L. Quinan in 1973 and he then, pursuant to the Probate Act, conveyed equal interests in the South 100 acres to each of the six brothers and sisters. At the time of this conveyance Martha, Basil, and Roland were deceased.

6 Page: 3 [11] The Estate Deed from Albert L. Quinan as Administrator of the Estate of Walter G. Bryan purported to convey the property to the six brothers and sisters as joint tenants and not as tenants in common. However, during the hearing both counsel acknowledged that the Probate Act requires a conveyance on an intestacy to the heirs as tenants in common. [12] The affidavit filed by Albert Quinan indicates that Martha and Basil died as single persons and without Wills. Roland is said to have been married with one son but his wife and son are now deceased. Roland also died intestate. Letters of Administration have never been taken out for Martha or Roland. [13] With respect to the Estate of Basil Bryan, while Letters of Administration were issued to Albert L. Quinan in 1973, Basil s interest in the south 100 acres was never dealt with by his estate. [14] With respect to Martha Bryan and Roland Bryan, who died apparently without a Will, prior to the conveyance of their interest in the South 100 acres to them in 1973, their estates will have to be administered to convey their interests to those who stand to inherit pursuant to the Probate Act. Also, Basil Bryan s Estate will have to convey his interest in the south 100 acres to his surviving brothers and sister. If those conveyances had been made in accordance with the evidence produced on this application, i.e. that there were no heirs other than the above-mentioned surviving brothers and sister and upon administration the property would pass equally to the survivors, then each of Georgina Quinan, Damien Bryan, and Bertha MacPhee would have been vested with an undivided 1/3 interest in the South 100 acres. However, until the estates are administered, such a determination is not possible. There may be debts or other legitimate claims by creditors of these estates that need to be satisfied. Steele J. in Re Farrell s Estate (1983), 44 Nfld & PEIR 251, reviews the issue of when an heir on an intestacy becomes truly vested with property from the estate of the deceased. He concludes, and I agree, at p. 256:... the freehold land does not become part of the assets of the heir in the absence of a proper deed from a duly appointed administrator.... [15] Bertha MacPhee died, intestate, in While Letters of Administration were issued with respect to the Estate of Bertha MacPhee to Robert MacPhee and Frances MacDonald, no conveyance was ever made with respect to Bertha s interest in the south 100 acres. In addition, nine children are identified in the Petition for Grant of Administration for the Estate of Bertha MacPhee, but I was advised at the hearing was that she was survived by

7 Page: 4 ten children. [16] Damien Bryan deeded his interest in the South 100 acres to Justin MacKinnon in [17] Georgina Quinan died in 1992 leaving by Will her interest in the South 100 acres to her son Albert Quinan. An estate deed conveyed the property to him in This deed purported to convey a one-half interest in these lands. However, I find that at that time Georgina Quinan only held a 1/6 interest in the lands and so could only convey that 1/6 interest. [18] Therefore, with respect to the South 100 acre parcel, I find each of the following entitled to an undivided 1/6 interest: Costs 1) Albert L. Quinan, 2) Justin MacKinnon, 3) the estate of Roland Bryan, 4) the estate of Bertha MacPhee, 5) the estate of Martha Bryan, and 6) the estate of Basil Bryan. [19] The applicant seeks a portion of his costs from the MacKinnons, saying that the application was necessary to clarify the title to these lands. The MacKinnons take the position that the title documents were clear; the only issue that ever arose was a claim at one time by the applicant that he owned a greater interest in the lands in question. This position was never accepted by the MacKinnons. Ultimately the application as framed by the applicant contained the result sought by the MacKinnons and was agreed upon by them. They felt the need to appear to protect their interests since the applicant had alleged certain wrongdoing on their part. [20] I agree with the position taken by the MacKinnons. There was no real need for a court proceeding. The documentation set out the interests of the various parties and the failure to deal with the estate issues regarding Martha, Basil, and Roland Bryan. As well, the position initially taken by the applicant, based upon estate deeds erroneously conveying property by joint tenancy, appears to have created some of the problems the applicant states he came to this Court to resolve.

8 [21] I order $400 payable by the applicant towards the costs of the MacKinnons. February 15, 2001 J. SOUTH 100 ACRES APPENDIX A ALL that tract, piece and parcel of land situate, lying and being on Lot or Township Number Forty Five (45) in King s County in Prince Edward Island, Bounded and Described as follows, that is to say:- BOUNDED on the North by land devised to Basil Bryan by James Bryan; on the East by land of James MacDonald; on the South by land at one time owned by T. Dunphy and on the West by the New Harmony Road and containing ONE HUNDRED ACRES of land, a little more or less and being the homestead farm of the late James Bryan and devised by him to the said Walter G. Bryan. EXCEPTING and RESERVING thereout and therefrom that portion of the aforesaid land comprising 3.48 ACRES conveyed by James Bryan to King Edward the Seventh by a Deed of Conveyance dated the 26th day of March, A.D and registered with the Registrar of Deeds for King s County in Liber 34, Folio 608 NORTH 100 ACRES ALL that tract, piece and parcel of land situate, lying and being on Lot or Township Number Forty Five (45) in King s County in Prince Edward Island, Bounded and Described as follows, that is to say:- BOUNDED on the North by land at one time owned by C. Bushey and presently occupied by one Johnston; on the East by land at one time owned by John LaVie; on the South by land devised by James Bryan to Walter Bryan and on the West by the New Harmony Road and containing ONE HUNDRED ACRES of land, a little more or less and being the land devised to the said Basil Bryan by his father, James Bryan. BUT EXCEPTING and RESERVING thereout and therefrom that portion of the aforesaid land comprising 3.48 Acres conveyed by James Bryan to King Edward the Seventh by a Deed of Conveyance dated the 26th day of March, A.D and registered with the Registrar of Deeds for King s County in Liber 34, Folio ACRES

9 ALSO ALL that other tract, piece and parcel of land situate, lying and being on Lot or Township Number Forty Five (45) in King s County in Prince Edward Island, Bounded and Described as follows, that is to say:- COMMENCING at the Southwest angle of land owned by the heirs of the Estate of the late John Knight and from thence running Eastwardly to land owned by Mathias MacDonald; thence running Southwardly along the Western line of the Mathias MacDonald land to land in possession of Mrs. Gilbert Cheverie; thence running Westwardly along the Northern boundary of the said Mrs. Gilbert Cheverie s land to the New Harmony Road and thence running Northwardly along the said Road to the place of commencement and containing FIFTY ACRES of land, a little more or less and being thus described in a Deed of Conveyance dated the 24th day of April, A.D from Fideles Cheverie to James Whitty and later conveyed by Sarah Whitty to Basil Bryan by a Deed of Conveyance dated the 10th day of September, A.D and registered with the Registrar of Deeds for King s County in Liber 77, Folio 354.