Court of Appeal

CASE NO.                                                     VOL. NO.                                           PAGE

LORAN DEMONE and                                 - and -            EDMUND R. SAUNDERS

MERILYN HENDRY                                     

Applicants                                                                  Appellant

C.A. No. 156820                                           Halifax                                    ROSCOE, J.A.

    (Orally)

                                    [Cite as: Demone v. Saunders, 1999 NSCA 145]

APPLICATON HEARD:                             November 23, 1999

DECISION DELIVERED:                           November 23, 1999

WRITTEN RELEASE OF ORAL:             November 24, 1999

SUBJECT:               Civil Procedure Rule 62.18 - application to quash appeal  Probate Act, R.S.N.S. (1989), c. 359, s. 31(2): removal of Executor

SUMMARY:              An Executor of an estate was removed pursuant to s. 31(2) of the Probate Act after failing to file security as previously ordered. The executor appealed. The new Administrator of the Estate and a beneficiary applied pursuant to Civil Procedure Rule 62.18 to quash the notice of appeal on the basis that the appeal was frivolous and vexatious and that the appellant had not perfected the appeal.

ISSUES:                    Was the appeal absolutely unsustainable?

RESULT:                  Application to quash the appeal granted with solicitor/client costs. The appeal was absolutely unsustainable. The grounds of appeal were a substantial duplication of those considered in a previous appeal. (See: Crouse Estate v. Saunders [1999] N.S.J. No. 184; [1999] S.C.C.A. No. 317).