Indexed as:

Houston v. Oklobdzija

IN THE MATTER OF the Estate of Liuda Krakauskas, late of the

City of Windsor in the County of Essex and Province of

Ontario, homemaker, deceased

AND IN THE MATTER OF the Trustee Act, R.S.O. 1980, Chapter

512, and amendments thereto

Between

Vera Houston, applicant/appellant, and

Isok Oklobdzija, respondent

[1986] O.J. No. 2420

No. 137/84

 Ontario Supreme Court - Court of Appeal

 Toronto, Ontario

Houlden, Goodman and Tarnopolsky JJ.A.

February 12, 1986.

(2 paras.)

Practice -- Appeals -- Dismissal of appeals.

Appeal by Houston from a decision dismissing an application brought under section 37 of the Trustee Act.

HELD: Appeal dismissed. The application was premature because the proceedings in the Surrogate Court had not yet been concluded.

Statutes, Regulations and Rules Cited:

Trustee Act, s. 37.

Appeal from:

On appeal from Krever J. on November 20, 1984.

Counsel:

R.G. Colautti, for the appellant.

W.A. MacMillan, for the respondent.

The judgment of the Court was delivered by

1 HOULDEN J.A. (endorsement):-- In our opinion the application before Krever J. was premature since the matter had not yet been dealt with by the Surrogate Court. We are informed that a citation to bring in the will for probate has been filed in the Surrogate Court, and an appearance has been duly entered. In our opinion, the proceedings in the Surrogate Court should be continued and brought to a conclusion before an application is brought under s. 37 of the Trustee Act. Since our decision is based in procedural grounds, the decision of Krever J. should in no way fetter the discretion of the Surrogate Court judge hearing the citation proceedings.

2     The appeal will be dismissed. Costs of both parties of the appeal will be paid out of the assets of the estate.

HOULDEN J.A.

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