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INTRODUCTION. fTHHE Probate Courts of New Brunswick are established by Chapter 52 of the Consolidated Statutes and amendments thereto, and are regulated by that chapter, except in cases where no provision is made, in which cases the principles governing the Practice of the Courts of Probate in England apply. The chief matter of practice left unprovided for in our Statutes is in contentious buwness, and in order to obtain the rules and proceedings governing this branch, we must look to the English practice. It is not the intention in this work to attempt any history of Probate Courts, or to trace the gradual development of the Courts in England ; that has been done by able and learned writers. But there has been no work ever published on Probate Practice in this Province, and our statutes respecting it being dissimilar in many respects to those of other Provinces of the Dominion, as well as those of England, it has seemed difficult to readily obtain forms and rules of procedure directly applicable to a considerable number of cases constantly arising in our Courts. 6 INTRODUCTION. This is more especially true in contentious business, the forms being generally given by the Act for the ordinary non-contested cases. This being the case, although I have felt no little hesita- tion in undertaking what seemed to me a rather difficult task, I have thought that a small work showing the prac- tice followed by the Courts in the different Counties, and the construction put upon the various sections of the Act, citing cases where the matter has gone on appeal to the Supreme Court, and giving full appendix of forms might prove of some value to the profession, so have prepared the follow- ing work in the hope that it may be of some service if not to the lawyer of large experience at least to the student and the beginner. In giving forms not prescribed by Chapter 52, I have, whenever possible, taken those that have been used by some of the Probate Courts in the Province, so that the forms contained in the appendix are either those referred to in the Act itself, or have passed the ordeal of a contest in the Probate Court. This fact should make them reasonably certain of being correct. After considerable thought as to what form this work should take, I decided to publish the Act in full, following each section with the remarks and notes concerning it, believing that in this way any desired reference could be made more readily than by a fuller comment, in which reference only is made to the Act. INTRODUCTION. f The statute of Distributions being intimately connected with Probate Practice and questions under it constantly arising in the Probate Court, I have inserted that Act with notes and comments similar to those in reference to the Probate Act. And no matter bearing the remotest relation to a Probate Court being complete without costs, I have added a table of fees. While I desire to gratefully acknowledge kind assistance from all members of the profession to whom I have spoken about the preparation of this book, I feel that my thanks are especially due to E. C. Skinner, Esquire, to whom I am indebted for much valuable aid and information. Moncton, N. B., June 12th, 1891. C. A. STEEVES. COUETS OF PROBATE. 1. The Judges of Probate already appointed, Appointment or hereafter to be so, by the Governor m Council, ° '""''" in the several Counties in this Province, shall have power to take the Probate of Wills, and grant administration of the estates of deceased persons, in the manner hitherto in use, and per- form the other duties as hereinafter directed to be performed, subject to the rules and directions by this chapter prescribed ; and shall continue in oflp.a and be in all respects author- ized to act as such Judges of Probate until some other i;<;rson8 shall be appointed in their stead. 2. The Governor in Council may appoint a Appointment Registrar of Probates for each County, who shall '"'''"''• have the keeping of all books and papers belong- ing to the Probate Court. 3. The Judges of Probate and Registrars shall »«» *»<* respectively be sworn to the faithful performance "««^^''" *** of their duties before they enter thereon. This oath is administered by It will be presumed that a person acting as Surrogate, has taken the oath of oflSce; but if he has not, his acts will not be invalid if he has 10 LAW AND PIUCTICE AS TO Judge not to act in cases in which he is interested. been appointed to the office. Crookshank v. McFarlane, Beard, et al, 2 AL 5ii. 4. The Judge of Probate shall not grant Probate or Letters of Administration, or take other pro- ceedings as such Judge in any estate in which he is interested as heir, next-of-kin, executor, administrator, legatee, creditor, or otherwise howsoever. i^t'erested^'' 5. When the Judge of Probate is so interested, be^appointeV° ^he Governor in Council on the application of toact pro Aac j-^jg j^jg^ ^f Probato, or the party entitled to probate or administration, or to take or have taken any proceeding in any estate, or of any other person interested in such estate, may specially appoint some other person in his stead pro hac vice to act as such Judge of Probate in such matter, who in respect thereto shall have all the powers incidental to the office of Judge of Pro- bate for all purposes connected with such estate, for which he shall be especially appointed ; pro- vided that nothing in this chapter shall interfere with the regularly appointed Judge of Probate, in respect to any other estate. ap^ohuett By Chapter 10 of the Acts of 1882, page 25, SrSatS-^i* is provided that where a Judge of Probate after the granting of probate becomes by any means interested in any property, real or per- sonal, the title or right to which is dependent upon the will of any testator or upon any letters of administration, a Judge pro hac vice may be appointed to act in such matter. comes inter ested after granting of probate. PROBATE AND ADMINISTRATION. 11 6. In case of the sickness or absence from the ^'^ c«*e Judge IS sick, or Province of the Judge of Probate for any County, *^|e^^t ^<^^ the Governor-in-Council may specially appoint |^^®;^°^«r»o'^- some other person in his stead, who shall be^^^'^^'^otctiu sworn to the faithful performance of the duties '^'^^*®*'^- of his office, and shall have all the powers inci- dent thereto during the sickness or absence from the Province of the Judge of Probate for the County for which such temporary appointment is made. 7. No Judge of Probate or his professional ^''■^"^^e to ° ^ actas proctor. partner shall act as proctor, attorney or counsel for the collection of any debt, claim or demand relating to any estate in the County of which he is such Judge, and upon the allowance of which he shall or may be called upon to adjudicate ; and no Judge of Probate or his professional part- ner shall be Proctor or Advocate in any matter pending or to be brought before such Judge. 8. In case of any deceased person being an Ju^ge may • 11.. ,, „ , ,,. grant admiu- mnabitant oi any County, and dvmg at anv i*'**"^'*'^^ "^ T ii«.,,. •'o ., person being place, or not bemgan mhabitant of this Province *" inhabitant I . . > etc. leavmg assets m any County thereof, the Judge of Probate of such County may take probate or grant administration, and shall in either case have exclusive jurisdiction over all the estate of^pimve eKciu- such deceased person in the Province. The evident meaning of this section is that on the death of any person, whether an inhabitant of the Province or not, leaving assets in more tiou. rn,...,-.o,..^^,..-^--„,.,......->.,.,^-,.«.,,,~..^.,^v 13 LAW AMD PBACTIOE AS TO appf^ation i™ ^^^^ ^^^ County, the party entitled to probate Sffirat?*n ®^ administration may apply to the Judge of sfve^urildk-"' P^o^ate for any County in which such assets proljerty in the "^^y ^® ** the time of the death of deceased, but Province. ^^q^j. q^qq g^gjj application is made, the Judge to whom it is made shall have exclusive jurisdiction over all the estate of such deceased person in the Province. f^ Application for 9. The application to the Judge of Probate for mentaryorof letters testamentary or of administration, shall adminiBtra- *' tion. be by petition of the party entitled by law or of one or more of the creditors of the deceased, setting forth the time and place of the death of the deceased, and the amount of his estate, real and personal, and such other particulars as may be necessary ; the same to be verified on oath before such Judge. And the Judge may examine any other person upon oath relating to the alle- gations of the petition. If the petition be opposed or there appear to be parties having prior or equal rights to such administration not assenting, or the claim there- to may be doubtful, a citation shall issue. Before granting letters of administration, the Judge shall take from the persons applying therefor, a bond (A) with two sureties to be approved of by him, according to the form in the schedule, or to the like effect, which shall be filed in the Regis- try of his Court ; provided always, that where any oath prescribed by this chapter is required to be taken before the Judge of Probate and the party to make such oath lives out of the County Bond. Oath to be taken out of tbe county. PROBATE AND ADMINISTRATION. 13 in which such Judge has jurisdiction, or by reason of age or sickness is unable to appear before such Judge, the oath of such party taken in writing before any person duly authorized by such Judge shall have the same effect as if taken before such Judge. The petition which may be in the form No. 1 Form of in the appendix, in addition to the time and *** * "'° place of his death, and the amount of his pro- perty, must stace the name of the widow (if any) and all of the children (if any) of the deceased, and their additions and places of residence res- pectively, and in case there shall be no children, then the names and additions of all the nearest of kin in equal degree, and their representatives with their several places of residence ; and in case any of the persons whose names are required to be stated, are married women or infants, the names and additions of the husbands or guard- ians of such infants (if any) with their places of residence : provided that in case any of the above particulars are sworn to be unknown to the peti- tioner, and the Surrogate to whom the same shall be presented, shall deem it unnecessary under the circumstances of the case that the same should be stated, such particulars may be * omitted. Earle's Rules, page 263, rule 1. By chapter 30 Amdarits may of the Acts of 1878, this petition may be sworn before°I°om- before any Commissioner for taking affidavits toSidngafflfi' be read in the Supreme Court. The citation »n'he°8upr«>n» from No. 2 C, in the appendix, except in citing *"^" MHTrfin '^'^^^^^'^"""^-'■'""■iTIfl If - llf • if i!:J •If LAW AND PRACTICE AS TO ; executors to prove a will in solemn form, noted under sec. 64 post, need not contain the names,, additions and residences of the widow, children, or next-of-kin. •' . '. r intermeddiinR. Bond No. 3 A, in appendix. Any intermed- dling with the goods of a deceased person makes the person who so intermeddles executor de son tort. Kieth v. Perks, 2 Kerr, 552 ; Crookshank V. McFarlane, 2 All. 544; Powell v. Watkin, 5 Allen, 258. ■ ■ •. . Administra- tion on tlie petition of a crerlitor. Irregularly granted. ¥. ' ! Order of pre- cedence. The Probate Court has jurisdiction to grant administration without a citation on an estate of a person dying in the Province, on the petition of a person alleging himself to be a creditor of the deceased ; and that he died without leaving any next-of-kin. Doc. dem. Shore v. Gearon, 1 Han. 144. If administration is irregularly granted appli- cation should be made to the Probate Court to revoke it. Ibid. Administration irregularly granted remains good until revoked by the pro- per Court. Orookslumk v. McFarlane, et al., 2 All. 544. .. Administration is in general granted in the following order of precedence. 1. A husband or wife. 2. Children. 3. Grandchildren. 4. Great- grandchildren. 5. Father. 6. Mother. 7. Brothers and sisters. 8. Grandfathers and grandmothers. 9. Nephews and nieces, uncles or aunts. 10. Great-grandfathers or great-grandmothers. 11.. Great-nephews. ,. -. PROBATE AND ADMINISTRATION. m 10. If objection be made to lettt ra testamen- objection to tary being issued to any person without security, grantld.^ °^ the Judge after enquiry, may order a bond (A) to be given for the due administration of the estate as in case of intestacy. ,, , r Bond 3 A in appendix. Form of bond. Mode of proceeding under this section is for the party interested who objects to letters testa- mentary being issued without security to file a caveat setting forth the grounds of the objection, and then on letters testamentary a citation is issued citing all parties interested to appear and show cause why letters testamentary should not be granted. , ^ . , • • 11. If any executor of the will of any deceased Esecutor person, knowing of his being named and appoin- duce win.^""' ted as such, shall not within thirty days next after the death of the testator, cause such will to be proved and recorded in the Registrar's office of the County where the deceased person last dwelt, or present the said will and renounce the executorship thereof ; every such executor shall oa failure to (without just excuse for the delay) forfeit the*pe»a.uy.^ ** sum of twenty dollars every month from and after the expiration of the said thirty days, until he shall cause probate of such will to be made, or present the same as aforesaid; every such for- feiture may be sued for and recovered in any Gourt of competent jurisdiction at the suit of any of the heirs, legatees or creditors of the testator. Form of Renunciation with affidavit in proof Form ofre- thereof. No. 29 in appendix. /--.r^.. ..;,., > """"i^ti^"- 1 t V i le LAW AND PRACTICE AS TO J?eo'iI?tor"?OT°*' ^° executor renouncing his right to probate feits bequests. ^ ^jjj ^^^ |;Jjq execution of the will, thereby forfeits any bequest to him contained in the will. Paton v. Hickson, 26 G. R. 102. Cannot renounce after . 1 11 i • • 1 intermeddling, mtermeddled With the estate. Action for not producing will. Pleas. An executor cannot renounce after he has Long V. Symes, 3 Hogg, 771 ; Badenach, deceased, 3 Sw. & Fr. 465. But once an executor has renounced he can- not retract and take Probate of the Will. Allen V. Park, 17 C. P. 108. A married woman cannot renounce without the consent of her husband, so as to enable the Court to grant administration to another party in bis absence unless he has been cited and does not appear. Jacques, deceased, 5 No. G. A. 294 ; Cook v. Cooper, 2 Lee, 388. In an action under the Revised Statutes, cap> 136, sec. 10, which is identical with this section, except that such forfeiture is to be sued for and recovered in the Supreme Court instead of any Court of competent jurisdiction, to recover the penalty for not proving a will, the declaration stated the making of the will by M. and appoint- ing the defendant executor, of which he had notice, that he did not prove it in the Probate Court or register it in any office of the Registrar of Probates for the County of N. where the deceased dwelt, or renounce the executorship within thirty days, though he had no just excuse for the delay. Pleas, Ist. — That the defendant did prove and PROBATE AND ADMINISTRATION. 17 record the will in the Registrar's office of the County of N. where the deceased last dwelt. 2nd. — That after the death of M., the plaintiff with the defendant's consent, took possession of all the personal property of M., and still had the use and enjoyment thereof; and that all the debts and funeral expenses being paid, the will was proved aud recorded in the office of the Registrar of deeds and wills for the County of N., wherein all M.'s real estate was situated ; and that the plaintiff entered into the possession of and still possessed such real estate, wherefor the defendant did not prove the will in the Pro- bate Court or renounce the executorship thereof. Held, on demurrer, that the pleas were bad ; Held. that the Registrar mentioned in cap. 136, sec. 10, was the Registrar of Probates, and not the Registrar of Deeds. Wagner v. Hutchinson, vol. 22 N. B. R. 1. 12. Whoever shall be found guilty of suppres- JjgprosBing sing any will, shall be liable to the same penalty, recoverable in the same manner, as in the next preceding section. 13. The executor of a sole or surviving executor foflw^sur"?' * of any will, shall not be the executor to the first Jfi^i^^i.^rbe*"'" testator's will, but he may have administration Im teBtator-s* with the will annexed. ^^' The executors of a deceased administrator ^j^^ecut^o^r of a have no right to file an account of his adminis- administrator. tration in the Probate Court ; uor has the Judge of Probate any authority to pass such an account if filed. In re Isaac G. Frost, 1 Han. 127. B.P.A. 2 HiiiMIH mmmitm li hi ;f Appraisers to he appointed. Inventories to be Hied. LAW AND PRACTICE AS TO If an administrator dies without having filed an inventory or account, and his executors have assets in their hands belonging to the original estate, a Court of Equity will compel them to account. Ibid. An administrator cum testamento annexo died without having filed any account of his adminis- tration. Held, that the Judge of Probate was right in refusing to pass accounts filed by the executors of the deceased administrator, of his administra- tion until an administrator de bonis non of the original testator's estate was appointed. Ex parte, Isaac G. Frost, 6 Han. 482. 14. The Judge on granting administration or letters testamentary, may as often as he thinks fit, appoint, by warrant (B) two or more disinter- ested persons to appraiso all the estate of the deceased, and the appraisers shall each receive for their services two dollars per day. Form of warrant and oath to be administered thereon. No. 5 B, in appendix. 15. One or more inventories shall with the aid of the appraisers, (when appraisers are appointed in the estate) be made and returned by the executor to the Registrar within three months, unless further time be allowed by the Judge ; and every executor or administrator who shall not file an inventory of the estate which he represents within the time allowed by law for that purpose, shall after being required PROBATE AMD ADMINI8TAATI0N. 19 80 to do by the Judge of Probate by citation to be applied for by any person interested, file sach inventory within such time as the Judge may appoint; and shall for every neglect whensoever ing^oto'do* ' made, be liable to pay the costs of such proceed- cobib* ^° ^*^ ings, to be taxed and recovered as in other cases. Form of Inventory No. 6, in appendix. 16. The inventory shall be made on oath and 1,°^^°^°/^^" contain the particulars of all the real and per- "*'*' sonal estate of the deceased. An examined copy of an inventory filed by the administrator in the Eegistry of the Court of Probate pursuant to the Act of Assembly, 3 Vic. cap. 61, is admissible in evidence, and the original need not be produced. Cunlife v. More- house, 2 Kerr, 311. 17. Any legal claim against any person shall Legal claim not be discharged by his being appointed execu- "jy being made «^ X I. executor. tor or administrator of the estate of the deceased ; but such claim shall be assets of the estate. 18. Property discovered after the making of Property ais- any inventory shall be appraised in the manner inventory, aforesaid ; and an inventory thereof be returned within three months after such discovery. 19. The executor shall pay the debts of the rayment of deceased according to their legal priority, in classes ; debts of the same class in equal pro- portions, without preference for a debt due or suit commenced, or judgment obtained against the executor, or a claim of the executor ; provided that in the administration of the estate of every No preference for specialty debts. '. '■ ! Not to affect any lien. Claim to be certified by affidavit. Actions not suijpeuded.l LAW AND PRACTICE AS TO person who shall die on or after the first day of July in the year of our Lord, one thousand eight hundred and seventy-eight, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed, or other instrument under seal, or is otherwise made or constituted a specialty debt, or has heretofore been treated as of the class of specialty debts ; but all the specialty and simple contract creditors of such person shall be treated as standing in equal degree and be paid accord- ingly out of the assets of such deceased person ; provided always that the aforegoing proviso shall not prejudice or affect any lien, charge, or other security, which any creditor may hold or be entitled to for the payment of his debt ; and further provided that no debt shall be paid by the executor until the same be certified by affidavit. Actions against executors or administrators are not suspends' for eighteen months. Gunliffe V. Moorehouse, 2 Kerr, 311. Obtaining affidavit not condition precedent to right to sue. Mar- shall V. Armstrong, 21 N. B. R. 102. White, App., and Riley, Eesp., 24 N. B. R. 476. Action against executor after eigliteen montlis. 20. Where an executor has applied the assets to the payment of debts, olr any proportion there- of, of which he had notice, and eighteen months have elapsed since the date of the letters testa- mentary or of administration, and a creditor shall afterwards bring an action for any demand PROBATE AND ADMINISTRATION. against him, it shall be a good defence to such action that such assets have been applied before he had notice thereof; but such defence must be specially pleaded ; the proof of such notice shall be on the plaintiff; but he may as in other cases, take judgment for such demand or any part of it to be levied of future assets, as is provided for in the next following section. 21. In any suit against an executor, the defen- Notice of debts dant if he plead that he has fully admrnisteredj^^^ may, shew under a notice for that purpose to be given with such plea, the delivery of which notice may be proved ore temis or by affidavit on the trial (that there are debts of a prior class unsatisfied, or that there are debts unpaid of the same class with that on which the suit is brought, and the defendant shall on such issue be charge- able only for such part of the assets in his hands as shall remain after satisfying the debts of the prior class if any), and as shall be a just propor- tion to the other debts of the same class with that on which the suit is brought; provided always that the defendant shall not be allowed to give evidence of any such debt not particularly specified in the notice, and the plaintiff may on Plaintiff may i 1 , . , , , . , . ... . «>^'e evidence tne trial under any replication loinins issue on ti^^t claims are ,, .J, I-,, , not bona Jid«- tne said plea shew that the debts mentioned in the said notice, or any of them, are not bona fide debts, or that they are not chargeable against the estate ; and the plaintiff may, as in other cases, take judgment for the whole or part of his debt to be levied of future assets j and in any 22 LAW AND PRACTICE AS TO proceedings upon such judgment for future assets, the defendant shall be chargeable only with the just proportion of such future assets, payable to the plaintiff upon the principle hereinbefore described for the payment of the debts of deceased persons. Plaintiff may It is Competent for a creditor in an action at prove that * asBots came to law agamst the executor, where the amount of whicil'bohVs"*^^^^®'^^^ ^° question, to prove that assets came into not accounted, [^[q possessiou for which he has not accounted in the Surrogate Court. Harrison v. Morehouse, 2 Kerr, 584. Time may be granted an executor to plead. 22. Time may be granted to an executor in an action brought against him, if it appear to the Court or a Judge thereof, that he require further information respecting the estate to enable him to plead. Legacy when 23. Where any certain legacy is or shall be certain or j o ,/ tafnt'*ma° *bo" ''^^^'^^^*^®*^ ^y ^"^y P®^^®° ^^ ^^^ will, and also sued for. when any residuary or uncertain legacy is or shall be by the account of any executor, reduced to a certainty, every such legacy and legacies may be sued for and recovered at common law, and co-executors, being residuary legatees, may have actions of account against each other. Executor to render an account with- in eighteen months. 24. Every executor shall render an account of his administration to the Judge of Probate, unless he otherwise allow, within eighteen months from the probate or administration, and after that may be cited to do so on the application of any PROBATE AM) ADMINISTRATION. 23 person interested, and for every neglect be shall ^'1^,*'^*^'°' forfeit the sum of twenty dollars each month from the time appointed by the citation to render such account. And he shall be liable to pay the costs of the proceedings upon the citation, such costs to be taxed and recovered as in other cases ; or the administrator may be superseded by the Executor may ''IT •'be Buapoiulod. appointment of another person, and the Judge may make such order respecting the estate unad- ministered as he may deem just. 25. On the filing of any accounts, a citation on fliingac- o J ' counts cita- (C) may issue on the application of the party *'«" *'° '8»"e- filing the same or of any person having an interest therein, requir'ng all parties interested to appear before the Judge at a time not less than thirty days from its date, to attend the passing thereof. In the passing and allowance of the adminis- Judge nothing •^ "^ to do with trators' accounts, the Judge of Probate has advance on ' ° passing nothing to do with any sum advanced to any of accounts, the next-of-kin, because it does not form any portion of the assets of the deceased which have come into the hands of the administrators. It is not until he comes to make the distribution that any question of the advancement can arise. In re Ford, 1 P. &. B. 551. 26. Every executor shall produce vouchers for Executors to all his expenditures ; he may be examined on oath vouchers. by the Judge of Probate touching the eflects and distribution of the estate ; and may be allowed any payment not exceeding twenty dollars with- out voucher, if he swear to the same. i^^ vu 11.; I 24 Numbering accounts and vouchers. LAW AND PRACTIOE AS TO Accounts should be neatly filed and numbered, and vouchers with corresponding numbers and in same rotation be ready on another file ; in this way a voucher for each payment can be produced and referred to without confusion or loss of time. 27. The Judge in passing the accounts may low to any executor for property perished or is lost without his fault. Judge may allow for pro- i . , pertyiost. allow to any executor for property which has No executor to make any profit out of the estate. Commiesion. Subpoenas. Publishing citations. 28. No executor shall make any profit out of the estate, but the Judge may allow him on the money and personal property received over and above all necessary expenses, a reasonable com- mission not exceeding five per centum. In case of there being more than one executor or administrator, the commission allowed to all must not exceed five per cent, of the money and personal property received by them. The Judge has no authority to allow five per cent, to each. 29. The Probate Court may issue subpoenas for witnesses or for the production of papers, and by attachment (H), punish disobedience thereto, or for refusing to testify after appearing in such Court in like manner as any court of record in similar cases. Subpoena No. 7 D, and attachment No. 8 H, in appendix. 30. Citations shall be published by posting them up three weeks before the return thereof in 1 PROBATE AND ADMINISTRATION. ip. three public places in the County, and >^lso by insertion in a newspaper at least once a week for the same time (if any printed in the County, and if none, then in some newspaper published in the Province to be named by the Judge in his order) or by personal service if directed by the Judge. 81. The sheriff, or other ministerial officer sberitr to serve ' papers. to whom any process may issue out of the Court, shall execute and return the same accord- ing to the exigencies thereof : and neglecting to do so, be subject to an action at the suit of any person injured. 32. All testimony taken before a Judge of Pro- Testimony to •^ , ° be reduced to bate in any matter over which he has cognizance writing. shall be by him reduced to writing and filed with the other papers in the case. 33. When all the witnesses to any will are wiien aii wit- '' nesses to a will dead, or some are dead, and others reside out of ^re dead wiwi eoce proof of the Province or the whole do so reside, the '^^"'^^"^.''^g ' may be given. Judge of Probate m??jy grant probate of such will on proof by viva voce testimony of the handwriting of the witnesses and testator, together with the facts of the death and non- residence aforesaid to the satisfaction of the Judge, unless the will be required to be proved in solemn form, in which case, and also in all > cases when the Judge may deem it desirable, a commission may upon citation be ordered by the or a commiB- "* •' sion may issue. Judge, directed to one or more persons to take m LA.W AMD PRAOTIGE AS TO Viva voce proof of will. w m V- the testimony of the witnesses to the will, with such other testimony as may be necessary in such manner and under such directions as respects the expenses thereof, as may be mentioned in the said commission. In cases where a will is proved by viva voce, testimony under this section, the petition does not differ in any way from the ordinary form ; the necessary facts must be had from the witness produced to prove the same. The Judge will take the evidence of the handwriting of the tes- tator, and of the witnesses to the will, of their death or non-residence, etc., and will reduce the same to writing. On this being done, he will make the order for the probate, and the evidence will be filed with the petition and will. Proceedings ou When the cxccutor resides abroad, the practice comnussiou. '^ is as follows : The proctor or some one acquain- ted with the fact, signs a petition in the usual form for probate in the name of the executor and swears to the same. The facts necessary for the petition may be sworn to by any one acquainted with them, and need not necessarily be sworn to by the petitioner. All the law requires is that the petition be verified on oath, and the Judge may examine any person on oath touching the allegations in the petition. When the petition is sworn to, an order for filing the same is made by the Judge. Thereupon a petition will be made on behalf of the executor, which will shew the facts stated in PROBATE AND ADMINISTRATION. the first petition, with the additional statement that the executor resides out of the Province, or whatever else the exigencies of the case may require, and that the executor desires to have a commission issued to have him sworn in as exe- cutor. This petition may be made and sworn to by the proctor or any other person acquainted with the facts. On filing this petition, a com- mission under the hand of the Judge and seal of the Court will be issued, directed to some person selected by the Judge ; in practice this is gener- ally a notary-public ; authorizing such person to administer to the executor the oath of an execu- tor, which oath is set out in full in the commis- sion. The proctor will then prepare a return to the commission to be forwarded to the commis- sioner with the other papers. To swear in an executor, the original will must to swear iu an , . . executor on be sent to him attached to the commission, commission, although before this is done, the proctor is required to give an undertaking that the will will be returned to the Court. A carefully prepared copy of the will must be made and examined by the registrar and filed in the Court, so that a copy of the will will be had in case the original should by any means be lost or destroyed. On the return of the commission properly executed, probate of the will is granted in the usual form. If the commissioner is a notary, this return must be under his notarial seal. Vfl'!^«ifK<'^';sK^*wS*.>^^.T,'j^'»««f»^^ 28 Form of com- miesion. LAW AND PRACTICE AS TO Form of commission where executor resides outside of the province, and return thereto^ which with necessary alterations may be used when it may be required to take the testimony of witnesses to a will. No. 10, in appendix. 34. If all the witnesses to any will reside out Commission may issue if to a^win^reside °^ *^® Couuty whsre by law the will must be out of the county. Form of commission. proved, but within this Province, and none of them can attend to prove the same from age,, infirmity, sickness, or other good cause, a com- mission may issue in the manner before men- tioned, with the same powers to any other part of the Province, to take the proof of the due execution of the said will. Form of commission and return thereto when witnesses to a will reside in the Province, but outside of the County where will is required to be proved. No. 9, in appendix. !|tl : I Judge to tax costs. Section amended. Executiob for non-payment of costs. 35. The Judge shall tax costs in all matters before him, and order the payment out of the estate or otherwise as he may direct, for which the party shall have execution. (E.) This section is amended by section 5, chapter 30 of the Acts of 1878, which latter section will be noted below. Execution Form, No. 11 E, in appendix. This form has always been rather confusing to me. It requires the sheriff to levy of the goods PROBATE AND ADMINISTRATION. 29 and chattels of , (evidently mean- ing the executor or administrator), and for want of goods and chattels to take the body of the said ^ (the executor or admin- istrator), and deliver him to the keeper of the . gaol ; making the executor or administrator per- sonally liable in all cases, and leaving him only his common law remedy against the estate for money advanced or paid by him. This is the apparent reading though I have doubted whether this is the intention of the Act. In any case this execution should only be issued after citation personally served calling upon the executor to shew cause why it should not issue. 36. If from a deficiency of personal estate to Judge may . grant license pay the debts, it becomes necessary to apply the to seii real real estate therefor, the Judge of Probate may grant a license to the executor to sell the same on application as hereinafter provided. 37. The executor shall, within ten vears from Executor to *' petition within his appointment, petition the Judge of Probate *«» y^^''^^. respecting the personal property received by him, the debts rendered against the estate, a descrip- tion of the real estate, with the value of each lot, or part thereof, if occupied, the name of the occupant, and the names and ages of the heirs, and devisees, to be verified on oath by the exe- cutor, upon which the Judge of Probate, after Judge may . , , , . . determine the citation, may hear the proofs ot the petitioner or legality of any .. -Ill .1 i.-i. claim or de- any person interested, and determine the validity "^and against or legality of any demand against the estate. T ! J :!m' ! ! I; I , H.||, "i!; so Judge if Batisfied may (;rant license. Form of license. Judge may order execu- tor to shew cause why real estate should not be sold. May order him to sell. Kxeeutor liable to pay costs if he does not comply. May bo fined. LAW AND PRACTICE AS TO This citation is in practice generally required to be personally served on all heirs and devisees living outside the Province. 38. If the Judge of Probate be satisfied of the matter of the petition, he may grant license for the sale of the real estate, or any part thereof, specifying portions, and if recessary, may grant further license. The license and acknowledgement thereon may be in the Form 12, in the appendix. 39. At any time after one yea. , and before the expiration of ten years from the probate or administration, on the application of any credi- tor of the estate, the Judge of Probate may make an order for the executor to shew cause why a sale of the real estate of the deceased person should not be made to satisfy his debt, and any other debts which may appear to be due, and the Judge on being satitied that the personal estate is not sufficient for the payment of such debts, may order the executor to sell and convey the real estate or such part thereof as may be neces- sary in the same manner as if a license had been granted. If the executor do not comply with such order he shall be liable to pay costs out of his own estate ; and if a second or other application be required for this purpose and be neglected, the Judge may fine him in a sum not exceeding forty dollars, with costs, and on non-payment of any such costs or fine he may issue a warrant to PROBATE AMD ADMINISTRATION. 31 arrest and imprison the executor till the same be o> iun'risoned. paid ; and so on, until he complies with the order for such sale. Petition of creditor under this section may be ^•^r'^? °' '' petition. in the usual form, with necessary alterations, praying that a citation be issued calling upon the executor to shew cause why real estate should not be sold. This citation should be served personally though it may be published in the usual way. 40. The Judge of Probate may on being satis- May order fied that it will be for the advantage of the heirs leasea. and devisees, and not injurious to the creditors, order the real estate or parts thereof, to be leased for a term not exceeding twenty-one years, such lease to be executed by the executor. The application under this section may be by the executor in the manner provided for sale of real estate or as near as may be. 41. The license or order to sell or lease shall License to be be registered by the registrar of the Court of'*'""'*'"''' ' Probate ; and every such license for the sale of real estate, or order for leasing the same, issued by any Judge of Probate, or a copy thereof, certified by the Registrar of Probates to be a true copy, and acknowledged and proved in manner following, that is to say : By the registrar of the Court acknowledging Nvheu opy his signature to such license, and when a copy another county J , . , , ^ . same to be IS required for registry in another County, m acknowledged ri 111.,.. . , by Kesistrar, lifce manner acknowledging his signature to the "»" proved by ** ° ° some person present. ui '■.rwp-'mrssm^T^ami m i t • Executor to give bond. iiii i % I, Form of bond. Sale to be to highest bidder. I ' I'? LAW AMD PRACTICE AS TO certificate of such copy before any person autho* rized by law to take acknowledgments of deeds and conveyances, or by proof of any such signa- ture by any person present at the time of signing the same before any of the authorities aforesaid, shall be registered in the office of the Eegistrar of Deeds in the County where the real estate is situate, and the same or a copy of such registry certified as in cases of registered conveyances by the Begistrar of Deeds, shall be evidence of such license in all Courts of this Province, without further proof. 42. Before such license or order shall be issued or be in force, the executor shall execute and file with the registrar, the bond, (F) with two sureties approved by the Judge of Probate, and he shall be thereupon entitled to, and may recover the rents and profits of such real estate accruing from the death of the testator or intes- tate, which shall be assets. Any such rent paid in good faith to any hei" or devisee, before notice of license shall not be recoverable from the tenant. Form 13 F, in appendix. 43. Every sale or letting shall be made to the highest bidder by public auction, after thirty days' notice thereof, posted up in three of the most public places in the County, and for four successive weeks at least once a week, in a news- paper printed in the county (if any, and if none, then in some newspaper published in the Pro- vince, to be named by the Judge in his order) PROBATE AND ADMINISTRATION. 33 specifying the parcels of land to be leased or sold. 44. The necesBary conveyances shall be execu- g°J|y*°|| ^ ted by the executor, in which the substance of ^^^e ^^^^/^^'iVu'to license shall be set forth, with an affidavit of the *>« indorsed, executor endorsed therein, that the premises mentioned therein were duly advertised and sold, which conveyance, or a certified copy there- of when duly registered, shall be evidence in any Court of such conveyance, and that all proceed- ings upon which the same is founded were rightly done. Form of deed with affidavit of executor to be Form of deed, endorsed thereon. No. 14, in appendix. 45. When an infant's estate shall not exceed J"^* °'»y appoint a ^uar- the value of two thousand dollars, any Judge o{ii^ato-inta.Qts Probate within his jurisdiction, on petition of the infant verified by affidavit, may appoint a guar- dian for the person and estate of such infant, and shall take from the guardian a bond (I) in the name of such Judge, with one or more sufficient sureties, and on the application of the infant, his next friend, or any person interested, the Judge may, if satisfied of the necessity thereof, order the said bond to be put in suit in the name of the Judge for the time being, and on such terms as he shall therein prescribe. The Judge of Probate may also on appoint- ^{ayo'^" an *' '^^ allowance out ment of such guardian or any time afterwards, o^^t^ij| j°Ja°t^9' order an allowance to the infant out of the income support of the infant. of the estate, or if the income be insufficient for S.P.A. 9 •4 LAW AND PRACTICE AS TO Form of petition. W that purpose, then out of any available proceeds of such estate, for the maintenance and education of such infant ; and for good cause to him shewn, May cancel the the Judge of Probate may, on citation, cancel the appointment. • . . r j- j appointment of any guardian and appoint a new one in the place and stead of the one whose appointment has been cancelled. The petition which may be in the form No. 15 in the appendix, will be made by the infant addressed to the Judge of Probate as any other petition in which his name, age and residence shall be stated, then will be set out the nature and value of his property, and how he obtained the same, the name of his parents, and whether they are dead or living, and the necessity for the appointment of a guardian. This petition will be signed by the petitioner, if able to write, if not by some person for him, generally the person who is to be appointed guardian. Endorsed on the petition will be a consent by the person named as guardian to act as such, an affidavit of his having signed such consent, one as to the facts stated in the petition, and the relationship of the parties, and one by some one acquainted with the person proposed to be appointed guardian, stating the deponent's belief that he is a fit and proper person to be appointed guardian. Forms for these affidavits are given separately in the appendix, but they may be all included in one, and the affidavit be made by one person. 5 III I PROBATE AND ADMIi.'flSTRATION. Consent of guardian to act. Form No. 16 and S,n*S*to" No. 17 affidavits in appendix. »"*• These affidavits may be sworn to before a com- awmn'^itote missioner for taking affidavits in the Supreme J^f'tSlf^'g**"" Court. affldavita. Letters of Guardianship are granted by the oSrdia"®" Judge of Probate. Form No. 18. ^ ^'^^p- The guardian is not sworn to the discharge of oua'dian not his duties, the only security given by him for the proper administration of the estate is the bond, Bond. No. 19 1, in appendix, for double the amount of the infant's estate. The guardian may be called to account for his JSYccoun"*** administration of the estate as an executor or administrator may, and can get his discharge on a decree of the Court in the same way, that is by citation and having his accounts passed and allowed, and showing he has fully administered v the trusts reposed in him. When there are several infants, no one of|^^^'*J»°^|'°J=' whom has an estate exceeding $2,000.00, but the IJm '*** °' whole aggregating more than that sum, the Pro- bate Court may appoint a guardian for all the infants on their joint petition verified as in the case of a single infant. When the infant's estate is in excess of $2,000.00, or it is desired to sell real estate, the Probate Court has no jurisdiction, but appli- cation must be made to the Equity Court, where the mode of procedure is much the same. In case application is to be made for an allow- ance for the support and education of the infants. m 1 .1 I rli ! ' I.! 86 LAW AND PRACTICE AS TO } ^ !i the facts shewing the necessity for it should be stated in the petition. Action of tres- 46. An action of trespass on the case mav be pass by execu- •••iii r •• 'i lor for Injury maintained by the executor for anymiury to the to real estate. j j ^ real estate of the deceased, if he could have recovered in his life-time, and if committed within six months before his death, and the action be commenced within one year thereafter ; the like action may be maintained against any executor for an injury to the raal or personal estate com- mitted by the persoa he represents, if committed within the like time and the action be brought within six months from probate or administra- tion : the damages in the first case to be part of the personal estate, and in the second be payable (^ in the like order of administration as the simple contract debts of the deceased. By cap. 86, Con. Stat., it is provided that when- ever the death of a person is caused by such a wrongful act as would, in case death had not ensued, entitled the party injured to maintain an action, the executor or administrator may bring an action for the benefit of the wife, husband, parent or child, or either of them. Any expenses incurred or pecuniary loss sus- tained prior to his death by the person injured, in consequence of such injury, that may be recovered, becomes assets of the ertate in the hands of the executor or adT\}i%istrator ; all damages recovered by way of compensation for loss resulting from such death after deducting costs, expenses, etc., is to be divided amongst the Executor may have au action when death caused by wrong. PROBATE AND ADMINISTRATION. 37 several parties for whose benefit the action is brought. 47. Any person aggrieved by any decision of Any person the Judge of Probate may appeal therefrom to appeal, the Supreme Court, and such appeal shall be conducted in the manner following, to wit : — He to give notice, shall file a notice of the appeal and the grounds of the appeal, with a surety bond (G) in the ""'^ ''o"^- Registrar's oflice within thirty days after the making such decision, and thereupon all pro- ceedings in the case in the Probate Court shall be suspended until the appeal is determined, but the Supreme Court, or any Judge at Chambers, may upon special cause shewn, and upon such terms as the said Court or Judge may pre- Jh*8« /"^y ° . allow further scribe, allow an appeal at any time within six time for appeal months. Upon notice of appeal, grounds of appeal, and bond being filed as aforesaid, and fees paid, the Judge shall forthwith transmit to the Supreme Court a copy of all the proceedings in the case, with his decision and the reasons therefor, and upon the hearing of any such appeal, the Supreme Court shall decide questions of fact from the evidence sent up on appeal irrespective of the finding of the Judge of Probate in the Court below. The Supreme Court on an appeal from the supreme court * *^*^ on appeal will Probate Court will decide questions of fact from tfo^a'^y "lot the evidence sent up on appeal, irrespective of the finding of the Judge of the Probate Court. In re Ferguson, 21 N. B. R. 71. ■;'l ' ill !.' ' 88 LAW AND PSAOTICE AS TO By rule 'of Hilary Term, 1869, it is ordered thp* appeals from Courts of Probate be entered on the appeal paper after appeals from the decision of a Judge in Equity, and appeals from the Court of Divorce and matrimonial causes. Form of notice of appeal No. 20, and bond on appeal No. 21 G, in appendix. 48. The forms now in use in the Probate Courts, or contained in this chapter, shall con- tinue to be the forms used in said Courts until altered by the Supreme Court ; and the Supreme snpremeCoart Court mav from time to time make such forms may alter rules. and ordain such rules and regulations for the conduct of business in the said Probate Courts as to the Supreme Court may seem right, subject to the provisions of this chapter. Forms now in use to be used, Supreme Court may order attachment against Judge neglecting to send proceed- ings. 49. The Supreme Court may order an attach- ment against any Judge neglecting to send the proceedings and decision on appeal perfected and fees paid. The costs in all cases before the Supreme Court shall be in the discretion of such Court and be paid out of the estate, or otherwise as the Court may direct, to be enforced by attachment or action on the bond. ^ ill I ■ i I I iiii Supreme Court 60. The Supreme Court may direct a feigned may direct * %i o feigned issues, issue for the trial of any question of facts arising upon an appeal, and exercise the power of grant- ing new trials thereon. . PROBATE AND ADMINISTRATION. 39 51. No bond given under this chapter, except n° ^o""* . to ^e " r » r put in suit given to the party interested, shall be put inofthe"E°ufr suit without an order of the Supreme Court in ^°^^^- Equity for that purpose being had, a copy of which order certified by the Registrar shall be evidence thereof and vest in the party interested and applying therefor a right to bring an action on such bond in his own name. The Supreme Court in Equity may also make supreme court 1 1 ii-i/^oiTi- . '" equity may such order as they think fit, for the delivering, order bond to . " " be delivered reading in evidence and returning the bond. to be read in '=' ° evidence. A recovery may be had upon such bond for any breach of the conditions contained in the bond. The sum recovered upon the bond, deducting Recovery may ^ ° be had on costs, shall be assets and be distributed by order bond. of the Judge of Probate, and the bond may be put in suit as often as necessary, but the whole amount recovered shall not exceed the penalty. The successful party shall be entitled to costs. In an application to put an administration AssiRnment of bond in suit, the Court will not determine whether there has been a breach of the bond. If the applicant make out a prima facie case of breach, and that he is a proper person to sue for it, he is entitled to an assignment. An assignment will not no refused, though there is a variance between the bond and the form given by the Act. In re Hunter, 1 Han. 23B. The non-payment of a debt does not per se constitute a b** '^ich of an administration bond well PT I — IH" ...«liiJlJ!S^I!l?Rp li-' H' I f 40 Applicatioa maybe made for distribution of the personal estate. Or for the pay- ment of any lefjacy. Citation to issue. Attachment may issue on failure to comply with order of Judge. The person to whom portion allotted to give bond. LAW AND PRACTICE AS TO and truly to admiDister according to law the goods and chattels of the intestate. Shirlock v. McGee, 1 All. 346. 52. Application may be made to a Judge of Probate in any estate over which he has jurisdic- tion at any time after the lapse of one year from the granting probate or administration by any person interested as heir, next-of-kin or legatee for the distribution of the personal estate of the deceased, in case the deceased had died intestate, or for the payment of any legacy or residuary per- sonal estate not devised, or delivery of specific chattel or thing claimed 'mder a will, where the deceased had not died intestate, which application shall be made by petition, upon which petition a citation shall issue and be personally served upon the executor, administrator, or trustee under the will, and upon the hearing thereof, the Judge may make a decree for the delivery or payment, as thecase may be, of such specific thing, chattel, distribution, share, or legacy, and with or without costs, as he may direct, and the party in whose favor such decree shall be made, shall have attachment (E) ; and no distribution of the goods of an intestate, or decree for the payment of a legacy, or delivery of a specific chattel or thing, shall be made as aforesaid, until one year after the granting probate or administration, except by special order of the Judge of Probate ; and every person to whom distribution may be allotted shall give a bond to the executor with sureties, PROBATE AND ADMINISTRATION. 41 such sureties to be approved of by the Judge, that if any debt of the intestate shall be after- wards sued for and recovered, or be otherwise duly made to appear, the distributee shall refund to the administrators his rateable proportion of the debt and costs incurred thereby. Petition in this case will be in the usual form Form of peti- . , , , , , c n L ,. , tiou, attach- with such statement of facts as the c^tuie of thement.aud order of case may require. distribution. Attachment form No. 30 K. distribution No. 32. Form of order of t^. The Supreme Court in Equity mav if they Equity court ,, . , . 1- ,. ' n may order rh'nk i upon summary application and upon executor to " '^ •■ A giyg security. due proof that an executor or administrator is washing the estate, order the executor or admin- istrator to give security or further security, as the case may be, for the performance of his duty, and if he shall not obey such order, shall cancel I'beuegiect to . " do so may his authority ; and the Court of Probate shall cancel ms •^ . authority. thereupon appoint another executor or adminis- trator, as the case may be, who shall have full power to proceed with the settlement of the estate, and pewornjance of the trusts ; provided, always, that the security to be given under this section sh ill be h-y bond to the Judge of Probate in such au amuant, with such sureties, and in such foria, a? tk ^ Supreme Court in Equity shall direct. This section is amended by cip. 30, Acts of 1878. section ss *' ' ' amended. 54. A will shall be proved in solemn form in Proo' of wui in '^ solemn form. manner following, to wit : — The executor or per- £ ! ! 43 LAW AND PRACTICE AS TO ill 8 1; son interested in the estate of the deceased shall present a petition to the Judge of Probate, which petition shall be according to the form now in use in the Probate Courts upon application for probate of a will, as near as may be, and shall be verified on oath before the Judge, but the peti- tion shall in addition to the other matters usually contained in such a petition have set forth therein forth namel** the namcs, ages, occupations, and places of resi- heirs^etc °* dence of the heirs, devisees, legatees and next-of- kin of the deceased ; and upon the petition being Citation. filed with the registr'^r. a citation shall issue, which citation shall b< ling to the form (C) as near as may be, but e names of all the heirs, devisees, legatees and next-of-kin afore- said, shall be set forth in said citation, and in all cases where the said heirs, devisees, legatees and next-of-kin reside in this Province, the said citation shall be served personally upon them, and be made returnable within at least two months from the time of issuing, and be so served at least thirty days before the return Heirs, devisees, thereof : and in case any of said heirs, devisees, etc., residing '' out 9f tiie legatees, or next-of-kin, shall reside out of the Province. ° ' ' • Province, then the said citation shall be made returnable at such length of time, and be served so many days before the return thereof, as to the Judge may seem right, he keeping in view the distance which said heirs, devisees, legatees, or next-of-kin, or any of them may reside, from this Province. And if it shall be made to appear to the Judge that personal service of the citation upon any PROBATE AND ADMINISTRATION. 4d li such heir, devisee, legatee, or next-of-kin, so being or residing out of the Province, cannot be made, then he shall make an order for the publi- cation of the citation in some paper to be named by the Judge, for a period of three months, and the same shall be published therein during that time, which publication last aforesaid shall have the like eflfect as to such heir, devisee, legatee, or next-of-kin, so residing or being out of the Pro- vince, as if said citation had been personally served upon him or them ; and upon due proof of such service or publication of said citation, the Judge shall hear the matter of said petition and decide the same according to the usual practice of the Probate Court, and the decision of the Judge may be appealed from in like manner as hereinbefore provided for appeals from the decision of a Judge of Probate, with like power in the Supreme Court to direct an issue as herein- before provided ; provided always, that it shall not be necessary in any case to prove a will iii any but the simple form, unless the executor or person interested shall deem it necessary so to do ; and any will proved in simple form, and th^ probate thereof, shall have the same eflfect as the same had before the passing of this chapter. The heir-at-law, though he may not be entitled to any of the personal estate of a deceased per- son, may, under this section, file a petition to have an alleged will of deceased proved in solemn form. In re Annie R. Fox, 20 N. B. R. 391. A petition to prove a will in solemn form, must state the names, ages, occupations, and places of Decision of Judge may be appealed from. Heir may peti- tion, though not entitled to any of the per- sonal estate. Petition must state names, ages, etc. 44 1 j!| ■ II Citation the Bame. ' ' ■ I Decision of Judge on suffi- ciency of petition may be appealed from. Procedure. LAW AND PRACTICE AS TO residence of the heirs, etc., whether such petition is bj a person interested in supporting a will or defeating it. The citation must contain similar statements. The words " and all jJartics interested," in the form of citation (C), are not a part of the form, but a direction to the Judge of Probates to name in the citation all the persons who are interested. The decision of a Judge of Probates on the sufficiency of a petition to prove a will in solemn form, maj' be appealed from, though it may not be the final decision of a contested case. In re Chas. McMullen, 23 N. B. R. 382. Mode of procedure is as follows : — Person interested presents his petition in the form and containing the statement of facts directed by the Act. This petition must be sworn to before the Judge of Probate, who generally makes an order as to how it shall be served, on the return of the citation, with due afiidavits of service or publication, as the case may be, the witnesses to the will are produced and examined, the contestants having the right to cross-examine on any point they may think fit. When the executor has proved the execution of the will, and the witnesses thereto have been cross-examined, a prima facie case for the will will have been made out. The executor will rest his case there, and if the contestant purposes to proceed further, he must file and serve allegations and interrogatories on a day appointed by the Judge, and time will PROBATE AND ADMINISTRATION. 46 then be granted the executor to file and serve counter allegations. In some cases the practice has been where proceedings are commenced by any person other than the executor to issue a citation calling upon the executor to shew cause why the will should not be proved in solemn form ; this citation to be served personally on the executor. Then upon his failure to shew cause, order him to file a petition and proceed as provided in sec. 64. In other cases the petition to prove the will in solemn form has been made by the person moving and upon this all persons interested, including the executor, are cited to appear to attend the proving of the will. In St. John, the practice, a wise one, I think, Practice where 1 ii ill 1 1 Ml i» ^/-w/^ estate does not IS where the estate does not exceed $5,000.00 exceed 85,000. not to require allegations or counter-allegations to be filed, but for the party moving to file a simple statement of the grounds on which he pur- poses to attack the will, and for the executor to file his answer or joinder in the same way. Forms No. 39 and 40 are copied from those used in a contested will case now being heard at St. John. The late W. B. Kinnear, Esq., Judge of Pro- '"fismentof ^ ' "^ ;ate W. B. bates for the City and County of Saint John, in Khmear, Esq. pronouncing a judgment. In re Nice's Will, cited in Earle's rules at page 264, lays down the rule to be followed in that Court, as to what allegations \i ^J.J'^ 46 LAW AND PRACIICE AS TO I and counter-alIegai;ions shall coutain. Forms Nos. 35, 36, 37, 38, are taken from a contested will case heard in the Westmoreland Probate Court. withdrawhig, ^^ *^® event of the party first moving to prove futenrenef "*^ a will in Solemn form, for any reason withdrawing or discontinuing proceedings, any other person interested in the will may intervene. Procedure, The modc of procedure in such case is as follows : — On its being made to appear to the Judge that the original petitioner has withdrawn from the record, he makes an order allowing all or any, of the other heirs or legatees, under the will to intervene, when such of them as desire to do bO without any petition, citation or other pre- liminary steps, file their allegations and interrog- atories, setting forth the facts of such withdrawal and order, and then proceed in the usual way. A form of allegations where parties intervene will be found in the appendix. No. 36. On proof of Qu proof of a wiU in solemn form, a commis- will lu solemn •^ ' 8?on m^aylssue ^^^^^ ^^y ^^ issued for the examination of wit- nesses in the same manner as on proof in simple form. A will having been duly probated and recorded in the ofl&ce of the Registrar of Deeds, a copy of such will, certified by the Registrar of Deeds, is admissible in evidence under sec. 15 of cap. 74, Con. Stat. Doe dem Simmonds v. Gilbert, 22 N. B. R. 676. In Sedgewick v. Sedgewick, lately decided, and not yet reported, it was held that before a will Will in evidence. PROBATE AND ADMINISTRATION. 47 can be put in evidence it must be probated, a copy certified by the Registrar of Probates be recorded in the office of the Registrar of Deeds, and the Registrar of Deeds make a certified copy of the registry in his office, and the last mentioned copy be used as evidence. Upon the death of a testator or intestate, if caveat, any person interested or under a former will which is revoked by a will likely to be offered for probate is desirous of contesting the estab- lishing of a will or the granting of letters of administration, he may file a caveat with the Registrar of the Court. A caveat is a notice to the Court, and is in a stay of proceedings. effect a stay of proceedings until the person filing it is afforded an opportunity to come into Court and be heard in opposition to the application for probate or administration. The caveat will set forth in short form the ?'**« grounds for opposing grounds on which it is purposed to oppose grant- Siuus^aUon^ ing probate or administration, and may be signed by the proctor or the person filing it. After caveat is signed, it should be taken toJufgeto ° ' indorse order the Judge, who will endorse thereon an order tot'^^^®- file, and then be filed. Upon application being made for probate or citation to administration after a caveat has been filed, a citation will be issued to be served or published in the usual way. Mi Form of caveat, No. 31. Form. Ml 48 LAW AND PRACTICE AS TO iii ! ¥ OoBts in con- tested will cases. As to the question of costs in contested will cases, the rule of law is this : If the natural heir of the testator discovers that by the will the estate is caused to pass into a different channel from that in which it would have flowed had there been no will, he may come into Court and be satisfied that the will was executed according to law, that the testator was compos mentis, that no undue influence had been used to induce him to execute the will, and that everything was rightly and properly done. Up to this point there is no question as to the right of the heir to get his costs out of the estate. If however, he carries on the contest beyond this, and is unable to prove any of his allegations, he is not only refused the costs of his allegations and the proceedings consequent upon them, but risks losing all his costs in the case, and may be ordered to pay costs out of his own estate. PROBATE AND ADMINISTRATION. 49 AN ACT TO AMEND THE LAW RELATING TO COURTS OF PROBATE. Passed, 18th April, 1878. Ist.— Be it enacted by the Lieutenant-Gov- ernor, Legislative Council and Assembly as follows : — In any case where an executor or administrator shall refuse or neglect to attend any Court of Probate after being cited so to do, or shall refuse, neglect to obey, carry out or perform any order of any Court of Probate, or shall waste the estate, it shall be lawful for a Judge of the Supreme Court, upon proof of the above facts, and after hearing the parties interested, to make an order removing such executor or administrator from his office, and directing the Judge of Probate to revoke the letters testamentary or of administra- tion, and to grant letters of administration to the next or other person entitled by law to the same ; And the administrator so appointed by the Judge of Probates, in pursuance of such order, shall be subject to all laws, and have all the rights, powers and authorities vested in or applicable to the former executor, or adminis- trator ; providing that in case an executor or administrator is found wasting the estate, the S.P.A. 4 Executor or administrator refusing (o attend court. Or to carry out order of court or waste the estate. Judge of the Supreme Court may remove executor. Rovolse letters testamentary and fjive to person entitlerl by law. Or of execiuoi found wasting the estate, r? ; il 60 LAW AND PRACTICE AS TO 8u?)remlcourtJ"'^g6 of *h® Supreme Court may either make ^Ser"k*''uncior *b6 orcler aforesaid, or may make the like order sec. 53, cap. 52. g^g ^^y jjg made by the Supreme Court in Equity under section 53, of chapter 52, Con. Stat. Executor when 2nd. — Nothing herein shall beheld to free the removed to be " liable for acts executor or administrator so removed, or his done up to time ... of removal, sureties, from liability upon any administration bond given by him or them upon the letters of administration or probate, but such liability shall continue valid and of full effect for any act or omission of such executor or administrator up to the time ol such removal, and for such portions of the estate as shall come to the hands of such executor or administrator so removed as afore- said. Judge notto be 3i'd. — Notwithstanding anything contained in disqualifled by r> j n reason of bis gee. 4 of chap. 52 of the Consolidated Statutes, being a credi- *^ ' noV°xctediu""^ "° ''^^^86 of Probatc shall be disqualified from «ioo. acting in any estate by reason of his being a creditor of such to an amount not exceeding one hundred dollars. Pees to Judge and Registrar. 4th. — The Judge of Probate and Eegistrar of Probate shall each be entitled to the following fees and no more, in the following cases, namely : For all services up to and including probate or administration and warrant to appraisers, where the estate does not exceed four hundred dollars, and no contest, four dollars. Over four hundred dollars and not exceeding eight hundred dollars, six dollars ; but none of these fees shall be PROBATE AND ADMINISTRATION. charged or taken in any case where the estate exceeds eight hundred dollars, or where there is a contestation, but the Judge and Registrar shall each charge according to the table of fees, for the services performed, as if these fees specially mentioned were not included in the table of fees ; and anything contained in the table of fees in the Con. Stat., inconsistent herewith is hereby repealed. 5th. — No fee other than on behalf of the exe- Fees to Prootora, cutof or administrator shall be allowed out of the estate, unless : (1) To the sue essful party on contestation, or, (2) to a party opposing on rea- sonable grounds, the probate of a will, the granting of letters of administration, or the passing of accounts ; and in no case of contestation within the above exception, shall a fee be allowi J out of the estate to more than one proctor and counsel unless the interests of the parties represented shall be clearly conflicting one with the other ; (3) Witnesses, same fees as in Supreme Court. Thid section seems rather difficult to under- stand . The general practice however, where more than one proctor appears, is to allow costs accor- ding to the tariff of fees to each, but to allow a counsel fee to only one. nl Pees to witnesses. sH 5^^'OT ■r>-^>?^"';;*':-7::^''iS,x; 62 LAW AND PRACTICE AS TO AN ACT IN AMENDMENT OF CHAPTER 52, OF THE CONSOLIDATED STATUTES OF COURTS OF PROBATE. Where a Judge of probate becomes inter- ested in any estate after granting of probate, Gov- ernor-in-Coun- cil may appoint some person to act pro hac uice. Passed, 6th April, 1882. Be it enacted by the Lieutenant-Governor, Legislative Council and Assembly : Where a Judge of Probate after the granting of probate or letters of administration, becomes by any means whatsoever, interested in property, real or personal, the title or right to which is dependent upon the will of any testator, or upon any letters of administration, the Governor-in- Council, on the application of such Judge of Pro- bate or the party entitled to probate, or admin- istration, or to take or have taken anyproceedings in any estate, or of any other person interested in such estate, may specially appoint some other person in his stead, pro hac vice, to act as such Judge of Probate in such matter, who in respect thereto shall have all the powers incidental to the office of Judge of Probate for all purposes connected with such estate for which he shall be especially appointed ; provided that nothing in this Act shall interfere with the regularly aptpointed Judge of Probate in respect to any other estate. ! :.!',l PROBATE AND ADMINISTRATION. 58 AN ACT IN AMENDMENT OF CHAPTER 52, OF THE CONSOLIDATED STATUTES COURTS OF PROBATE. Passed, 5th April, 1887. Be it enacted by the Lieutenant-Governor, Legislative Council and Assembly, as follows : — 1. The Lieutenant-Governor-in-Council may oovernor-in- *' Council may for any cause which he may deem suflficient, »ppo">t 8o™« *' '' ' person to act especially appoint some person other than the*^^".''*??^'''' ^ '' '^■^ -^ ha,c vice m any Judge of Probate, to act in the stead of the «»'*'«• Judge of Probate pro hac vice, in any estate, and in respect to such estate, the person so appointed Judge of Probate, pro hac rice, shall have all the powers incidental to the office of Judge of Pro- bate for all purposes connected with such estate, for which he shall be specially appointed ; this be^iu\oroe°or° section to be in force for one year from the pass- ""^ y^^'- ing of this Act. 2. That notwithstanding anything in the Petition for letters testa*- ninth section of Chapter 52 of the Con. Stat., of luent^ry or *- adnuniBtration " Courts of Probate " contained, any petition, ™e%reVoom° affidavits, or other paper made or used on appli- Slking'afflda' cation for letters testamentary or administration ^^*"- or citation therefor, may be sworn before any commissioner, notary, or other officer now autho- rized to take affidavits, to be read in the Supreme Court of this Province. Iff It il 54 LAW AND PRACTICE AS TO Children receiving ad- vancement. Intestate Estates. peraoS d'ying ^^^' — When any person shall die intestate, his divided* among ^^^^ Gstate shall be divided equally to and amongst thlir^S*?ep^ ^^^ children or their legal representatives ; and resentatives. j^ ^^^^ there be no children of the intestate, then to the next of kindred and their representatives, including those of the half blood and their repre- sentatives ; but children advanced by settlement or portions not equal to the other shares, shall have so much of the surplusage as shall make the estate of all equal, reserving the widow's right of dower. Intestate leay- The half-sister of a person who dies intestate ing Slaters of . , . . , the whole and without issue, 16 entitled to an equal share blood and a ^ sister of the of the real estate of the intestate with the sisters half blood. of the whole blood. Doe deni Shannon v. Fortune, 3 Pug. 259. The law of In Wetmore v. Wetmore, 3 Pug. 413, it was descent is not 'i.iiiii *i ^ iii i> altered in this (d that the law of dcsceiit was not altered in MsTv?c?cap. 20 this Province by the Act 21st Vic. cap. 26, (which is substantially the same as sec. 1 of cap. 78, Con. Stat., except that the words "in equal degree " are omitted after " next of kindred " in the latter Act) except as to the double portion of the heir-at-law ; and that if a person dies intestate and without children, leaving a father and brothers, the brothers are entitled to his real estate to the exclusion of the father. But is by cap. 78 Con. Stat. But in Doe dem Wood v. Deforest, 23 N. B. R. 209, it was held that by cap. 78 of the Con. Stat, the law of descent is altered by the omission of PROBATE AND ADMINISTRATION. 55 ^M the words "in equal degree" after " next of kindred," and that if a person died intestate between the 6th of April, 1858, and the passing of the Con. Stat., leaving a mother and uncles and aunts, his mother as next of kindred is entitled under cap. 78 of these statutes to the real estate of which he died seized. So that the law appears to be settled that in case of any person dying intestate, his father as next of kindred if living, takes his real estate. And that if the father is not living, that the mother takes to the exclusion of the brothers and sisters. Where the intestate in his life-time gave his Advancement. daughter £1,000, the same was held to be an advancement which ought to have been taken into account in making a distribution of the estate. In re Ford, 1 P. & B. 551. 2nd. — In the case of estates of persons who died Estates of per- sons who died before the sixth dav of April, m the year of our before the eth " ^ ' *' April, A.D. 1858, Lord one thousand eight hundred and fifty-eight, «' being no» ° ^ ./ o » compos mentis. and of persons who were at the said date non compos mentis, and who continue or may have continued so until death, the descent of the real estate shall be according to the following provi- sions, that is to say : When any person shall die The beirja^-^^^ intestate the heir-at-law whether lineal collateral shall be entitled to and have a double portion or two shares of the real estate (subject to the widow's right of dower) and the remainder of such estate shall be divided equally to and Oi" a double por- tion. I V I ^ 56 LAW AND PRACTICE AS TO amongst the other children or their legal repre- sentatives, including in the distribution children of the half-blood, and in case there be no children of the intestate, then to the next of kindred in equal degree and their representatives ; but children advanced by settlement or portions not equal to the other shares, shall have so much of the surplusage as shall make the estate of all equal, except the heir-at-law, who shall have two shares or a double portion of the whole. After the length of time that has elapsed since 1858, there is little probability of questions arising under this section. It was held however, in Doe dem Thompson v. Allanshaw, 1 Kerr. 84, that the Act 26 Geo. 3, cap 11, which contains portions precisely similar to this section, does Double portion not coufiue the doublc portion to the eldest son or to the iiueai lineal heir, but that if C. died intestate, leaving heir by cap, 26 » o oeo. III. a brother and two sisters, the brother as heir-at- law, would be entitled to a double portion of the real estate under that chapter, and the sisters to one- fourth each. Persons who died intestate before April Cth, 1858. Heir-at-law must bring ad vancement into hotchpot. And in Doe dem Shore v. Saunders, 2 Kerr. 18, it was held that the heir-at-law must bring into hotchpot his advancement of the realty, as well as the younger children, if he seeks a portion of the real estate left by the father. He will be entitled to two shares, or a double portion of what has been advanced and left. Ihese cases, of course, have no importance in connection with estates of persons who die after PROBATE AND ADMINISTRATION. 67 April 6tb, 1858, as by the 3rd section of this chapter the descent of the real estate of persons dying since that date shall be as provided in the Ist section hereof ; and as is stated above, sec. 1 of cap. 26, 21 Vic, is identical in meaning with section 1 of this chapter, except the words " in equal degree " are omitted from the present Act. 3rd. — In the case of estates of persons who died Estates of ^ persons who intestate since the sixth day of April, in the year ^^®^g'°t^^j*a|J* of our Lord, one thousand eight hundred and^P"'-^-^-^*^- fifty eight, the descent of real estate shall be as provided in the first section hereof. 4th. — The surplusage of the personal estate of the intestate shall be distributed by the Judge of Probate in manner following, that is to say : — One third of it to the widow, and the residue in equal portions to and amongst his children, and such persons as legally represent them. Any child receiving any advancement of real estate in the lifetime of the intestate in excess of his share of the real estate, shall have the value of such excess taken into account in the distribution of the personalty. If there be no children nor any legal represen- tatives of them, one moiety of such surplusage shall be allowed to the widow, and the residue be distributed equally amongst the next of kindred of the intestate in equal degree and those who legally represent them, but there shall be no representation among collaterals after the bro- thers' and sisters' children ; and if there be no Surplusage of personal estate to be divided by Judge of Probate. One-third to the widow and the balance amongst the children. Advancement cf real estate. If there l)e no children. 68 LAW AND PRACTICE AS TO l«\ widow, all such surplusage shall be distributed equally amongst the children, and if no child, to the next of kindred, in equal degree, of the intes- chiid dyiiiK tate and their representatives ; and if after the death of father death of the father, any of his children shall die lifetime of intestate without wife or children in the lifetime mother. , , -, . of the mother, every brother and sister and their representatives shall have equal share with her. Distribution of A case arose in the Albert Probate Court, in the personal property. which S. died intestate leaving a wife and child- ren, and his estate was duly administered on. A month after the death of S., and before there was or could have been any distribution of his estate, his wife died, leaving a will disposing of all property which she might have at the time of her death. The final accounts of both estates were passed and orders of distribution made in both estates the same day. It was contended by counsel representing the S. estate, that the wife having died before the dis- tribution of her husband's estate, took no pro- perty in any part of that estate, and could not dispose thereof by will ; that the wife's title to one-third of her husband's estate only began from the time it was distributed and set off to her by the Judge of Probate. It was held, however, that one-third of the surplusage of the husband's estate belonged to the wife from the time of the husband's death, and should be disposed of according to the terms of the wife's will. PROBATE AND ADMINISTRATION. In re the goods of Price. This was an appeal from the decision of the Judge of Pro- bate for the City and County of Saint John. James Price died in 1884, intestate, leaving brothers and sisters, and likewise nephews and nieces, children of deceased brothers and sis- ters, and also grand-nephews and grand-nieces, whose parents were dead ; in the distribution of the personal estate of the deceased, the Judge of Probate decreed that the grand-nephews and grand-nieces were not entitled to share in the distribution of the estate under this section, but it was held that the provision that there shall be no representation among collaterals after the brothers' and sisters' children does not apply to the last clause of the section, where the intestate leaves no widow. 59 In re the goods of Price, vol. 27 N. B. R. 205. Provision that there shall be no representa- tion among collaterals after brother's and sister's children does not apply where no widow. In re the goods of Sarah Jane Cleveland, argued of'sarSfcfev? in Michaelmas Term, A. D. 1891, and affirmed'*''^- on appeal to the Supreme Court at Ottawa, but not yet reported, it was held, affirming the judg- ment of the Judge of Probate for the County of Westmoreland, that if a married woman die intestate and without children, in the lifetime of her husband, that he takes the whole of her per- sonal estate to the exclusion of the brothers and sisters. 5th. — In the case of the estates of persons who in case of any die before this chapter comes into operation or before this .\ct _ ^ comes into of persons who at such mentis, and conti tion of the personal estate shall be according to time are non compos ^o^ce or being ^ non coinpon mentis, and continue so until death, the distribu- "^""* \ I Personal pro- perty shall be distributed one- third to willow, balance equally among children. The heir-at- law shall receive an equal share, notwithstand- ing advance- ment. 60 LAW AMD PRACTICE AS TO PROBATE, ETC. the following provision, that is to say : The sur- plusage of the personal estate of the intestate shall be distributed by the Judge of Probates, in manner following, that is to say : — One third of it to the widow, and the residue in equal por- tions to and amongst his children and such persons as legally represent them. The heir-at-law, notwithstanding an advance- ment to him of real estate, in the lifetime of the intestate, shall receive an equal share of the surplusage with the other children, but any other child receiving any such advancement, shall be entitled only to such equal share, deducting the value of his advancement. / chii'frelMme° ^^ there be no children nor any legal repre- to wldow"*^^^'^ sentatives of them, one moiety of such surplus- age shall be allowed to the widow, and the residue be distributed equally amongst the next- of-kindred of the intestate in equal degree, and those who legally represent them ; but there shall be no representation among collaterals after the brothers' and sisters' children ; and if there be no widow all such surplusage shall be distrib- uted equally amongst the children, and if no child, to the next-of-kindred in equal degree, of Death of child the intestate and their representatives; and if iffetuiie'^o/ '" ^^^®^ *^® death of the father any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and sister and their representatives, shall have equal share with her. mother. \ FORMS. repre- rplus- d the next- and there after there trib- if no ee, of and if lildren en, in and equal 3r FORM No. 1. Petition for Letters of Administration. To A. B., Esquire, Judge of Probate for the County of C. in the Province of New Brunswick. The of petition of D. E., of the parish of F. in the said cour C, Esquire, Humbly sheweth, That G. H., late of the parish of F. aforesaid , departed this life on tlie day of in the year of our Lord , at the parish of F. aforesaid, without having to the best of the knowledge and belief of your petitioner made any will. That the said G. H. immediately before his death was an inhabitant of the said county of C, and that he died seized or otherwise entitled unto real estate of the value of $ , situate in the said county (or as the case may be) and personal estate of the value of $ that the said G. H. left a widow, L H., and sons, namely, your petitioner, the eldest, and [here insert the names and additions of the other children] him surviving, which said widow and children all reside at in the said county. Your petitioner prays that letters of administration of the estate and effects of the said G. H. may be granted to him in due form of law, and as in duty bound will ever pray. Dated the day of A.D. Signed, D.E. 62 roRMS. Oath to be Administered to Petitioner for Letters Testamentary or op Administration. You do swear that the contents of this petition by you sub- scribed are true, to the best of your knowledge and belief. So help you God. Memorandum of Jurat. Sworn before me by the above named D. E., the • day of A.D. Signed, Judge of Probate. ' ill I FORM No. 1 A. Petition for Letters Testamentary. . To A. B., Esquire, Judge of Probate for the county of C, and Province of New Brunswick. The petition of D. E., of H. in the said county, yeoman, humbly sheweth • That G. H., late of the parish of F., in the county aforesaid, yeoman, departed this life on or about the day of last past at the parish of F. aforesaid, having first duly made and executed his last will and testament in due form of law, bearing date the day of in the year of our Lord , and thereby appointed your peti- tioner the sole executor thereof. That immediately before the time of his death, the said G. H. was an inhabitant of the said county of C, and that he died seized or otherwise entitled unto real estate of the value of $ , situate within the said county (or as the case may be) and personal estate of the value of $ . PROBATE AND ADMINISTRATION. QQ Dated the day of A.D. Signed, D.E. SS. or any constable FORM No. 2 C. Citation. New Brunswick, ^ County of I ' To the sheriff of the county of within the said county, Greeting : (he« state in short fom the Ib^t). '"'" '"'"' ^"^ You are therefore required to cite the said r«.r.A ,„ said county, on the L of "" '"' ''' *^' state in short form the object). next, to (here Given u^der my hand.^d the seal of said Court, this A. F., Segistrar of Probates for said county. B.P., Judge of Probate. ul ■<>!mm^mmmmmmiaimmmm^^. I ii. 64 FORMS. ll FORM So. 8 A. Administration Bono. Know all men by these presents, that we are jointly and severally bound unto the Judge of Probate for the county of , in the sum of dollars to be paid to him. Sealed and dated this day of year of our Lord, one thousand eight hundred and in the The condition of this obligation is, that if the above bounden , administrators of all and singular the goods, chattels and credits of , deceased, do make or cause to be made, a true and perfect inventory of all and singular the real estate, goods, chattels and credits of the said deceased, which have or shall come to his hands, or kuowledge, or into those of any other person for him, exhibit the same unto the registrar of the Probate Court for the said county of , on or before the - day of next ; and the same with all other goods, chattels and credits of the deceased which shall come into the hands of the said , or any other person or persons for him, do well and truly administer accord- ing to law ; and further, do make a true and just account of the said administration at or before the day of ; and all the rest of the said goods, chattels and credits which shall be found remainmg upon the said administrators' account, the same being first examined and allowed off by the said Probato Court or other court of competent authority in that behalf. ■ ■ ' .!/'.:■: ^. FORM No. 10. ^■^-'^- "-^ ^- ' Commission to be Used Outside of the Pbovince. In the Probate Court in tad \ ., . . •=. li,?' for the City and County of Saint John in the Province of New Brunswick. ,.,,hmj ■■/;■ ■>.' •■. »<-. >-'<■ ■ Ur' . •■ < ;^u-', ~}iri, To a Notary Public (or as the case may be), duly appointed in and for the County of Suffolk in the State of Massachusetts in the United States of America, residing and practising at the City of Boston in the said County of Suffolk. i n FORMS. It jlil ill I Whereas, A. B., late of the City and County of Saint John in the Province of New Brunswick, Trader, departed this life at the said City of Saint John on or about the day of , in the year of our Lord one thousand eight hundred and ninety , intestate. And whereas it is necessary that letters of administration of the estate and effects of the said A. B. deceased, should be granted as by law required. And whereas John Smith has by his petition applied to me, CD., Esquire, Judge of Probate for the City and County of Saint John, for letters of administration of the estate and effects of the said A. B. deceased, and it appears unto me that he is entitled thereto. And whereas the said John Smith is a resident without the Province of New Brunswick and resides at the said City of Boston, and it has been made to appear to my satisfaction that he cannot attend before me to be sworn as administrator of said estate without great inconvenience and expense, and to enable him to qualify himself as such administrator it is necessary for him to be sworn to the faithful performance of the duties of administrator of said estate. Now therefore to enable the said John Smith to be so sworn, you the said Notary PuWic are hereby directed, authorized and empowered to administer to the said John Smith, at the said City of Boston the following oath upon the Holy Evangelists in the following words, that is to say : — " You, John Smith do swear that you believe that A. B., late of the City and County of Saint John, in the Province of New Brunswick, Trader, died intestate, and that you will well and truly administer all and singular the goods of the deceased, and pay his debts so far as his goods or other assets which may come to your hands for that purpo'^e shall extend ; and that you will make a true and perfect inventory of his estate, real and per- sonal, and render a just and true a<;count of your adminis- PROBATE AND ADMINISTRATION. n tration in the Probate Court for the City and County of Saint John as by law required. So help you God." And when you shall have so done, make return thereof here- unto annexed under your hand and notarial seal to this Court. And for your so doing this shall be your sufficient warrant and authority. In testimony whereof I have caused the seal of the said Pro- bate Court to be hereunto affixed, and have signed my name hereto this day of in the year of our Lord one thousand eight hundred and ninety , and in the year of the reign of our Sovereign Lady Queen Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith, etc. C. D., Judge of Probate. Return to Commission to he used outside of the Province. In the Probate Court, in and for the City and County of Saint John, in the Province of New Brunswick. The return of me the Notary Public (or other person as the case may be) named in the commission here- unto annexed marked "A." City of Boston (or other place) State of Massachusetts, United States of America. I , a Notary Public duly appointed and sworn in and for the County of SufifolK in the State of Massa- chusetts in the United States of America, residing and practicing at the City of Boston in said County, do hereby certify that on the day of in the year of Our Lord one thousand eight hundred and ninety before me as such m II i .■ i f 74 ./■ FORMS. .','.L Notary Public at the said City of Boston, personally came and appeared John Smith also named in the said annexed Petition and by virtue of the said Commission and in pursuance thereof, I, the said Notary Public to whom the said Commission is directed, did thereupon swear the said John Smith and did administer to him upon the Holy Evangelists the oath in the form and words set forth and contained in the said Commission and he did take the said oath. ,. . In Faith and Testimony whereof I, the said Notary Public, have hereunto set my hand and affixed my Notarial Seal the day and year in this return mentioned at the said City of Boston. , [L. S.l ■« ' .U' ( ' ■ ■ , ' Notary Public. ■ FORM NO. HE. • Execution. . -. '. ,•' 'li -^iih r.»i :iUtr To the Sheriff of the said County of / • i Greeting : You are hereby required (in case it be an alias execution, add as before,) to levy of the goods and chatties of within your bailiwick, the sum of for awarded in favour of on a certain proceeding lately had before me as J udge of Probate in and for the said County, and have that money before me at in within thirty days from the date hereof, to be rendered to the said ; and for want of goods and chattels, you will take the body of the said and deliver him to the keeper of the gaol of the PROBATE AND ADMINISTRATION. 75 in said County, and the said keeper will take the said custody, and him safely keep until the said sum, and your costs of levying this execution, be paid ; and make return hereof within thirty days. ■ ' *■ . • ' ' Given under ray hand this day of 18. A. F., RejfUtrar, Judye of Probate. .'<•■ ;vi(„< FORM Vo. 12. License to Sell Real Estate. ■ ' L. S. New Brunswick, Probate Court, County of J' ^ , Whereas I. W., Executor of the last will and testament of G. H. late of F., in the County of C, , deceased, hath by his petition bearing date the day of last, represented that the personal estate of the deceased which has come to his hands, is deficient for the payment of the debts owing by the said estate, and hath prayed that license may be granted to him to sell such part of the real estate as may be deemed meet and necessary for that purpose. And whereas (due notice having been given to the parties interested) on examination into the matter of the said petition, it has been made to appear to the satisfaction of this Court that the personal estate of the deceased is not sufficient for the payment of the debts, but that a further sum of $ , over and above the amount of the personal estate, will be required for that purpose. And whereas it is deemed necessary that the whole of the real estate of the said deceased should be sold for that purpose, it is n n FORMS. v^ fl hereby ordered that the said petitioner have license, and he is hereby impowered and authorized to make sale of the real estate of the said deceased, bounded and described in his said petition as follows [description of land to be sold] for the purpose of paying his debts, and the said petitioner proceeding therein in all things according to law. Given under my hand and the seal of the said Court at H. in the said County the day of in the year of Our Lord one thousand eight hundred and I.R., Registrar of Probates County of A. Province of New Brunswick, ) County of 1 G. H., Judge of Probate County of A. S. 8. Be it remembered that on this day of in the year of Our Lord one thousand eight hundred and ^ Before me a Notary Public by royal authority duly appointed and sworn in and for the Province of New Bruns- wick, and residing, etc., (or as the case may be,) personally came and appeared at in the County of the within named Registrar of Probate in and for the said County of whose signature is duly subscribed to the aforegoing license to sell real estate, who acknowledged the signature subscribed to the said license to be his signature, and that the said license to sell was made and subscribed by him to and for the uses and purposes therein expressed. In testimony whereof, etc. Note. — When license was granted by the Court of Chancery, it waa not signed by the Judge but simply thus, " By the Court J. R. Registrar " as a decree in Equity ; but sec. 86 of cap. 52 provides that the Judge of Probate shall grant license, so it would seem that it should be signed by him and not by the Court as formerly, though in some of the counties the former practice is continued of signing " By the Court." PROBATE AND ADMINISTRATION. ft FORM No. 18 F. Bond on Sale oi' Real Estate. Know all men by these presents that we (as in Adminis- tration Bon^). Whereas license has been granted by the Probate Court for the County of to the above bounden executor of the will (or administrator of all and singular the goods, chattels, and credits, as the case may be) of . deceased, to sell (or lease as the case may be) real estate of the said deceased for payment of debts ; Now the condition of this obligation is that if the said executor (or administrator) as aforesaid, shall faithfully apply all moneys arising from the sale (or lease) of any of the real estate of the deceased or from the rents and profits thereof, in payment of his debts, agreeably to law, and shall truly account for the same in his administration account before the Probate Court for the County of ' , or other competent Court, and shall pay any surplus of such moneys which shall be found remaining m his hands upon such accounting unto such person or persons as the Probate Court, or other competent Court, shall by sentence or decree according to law, adjudge, then this obligation to be void, otherwise in force. Sealed and delivered ) in presence of [ TS FORMH. FORM NO. 14. Administratok's Dked. pi Know all men by these presents that I, A. B., of, etc., administrator ot all and singular the goods, chattels, and credits of C. D., late of , in the county of , in the Province of New Brunswick , deceased, who died intestate, having on the day of , in the year of our Lord one thousand eight hundred and , obtained license from E. F., Esquire, Judge of Probate, in and for the county of , to sell and convey the real estate of the said C. D., which said license is in the words and figures following (set out the license j, and having duly advertised the sale of the premises mentioned and described in the said license for sale on the day of , at the hour of in the noon, at or near the postoffice at M. ( ' » And I the said A. B. do covenant to and with the said E. F., his heirs and assigns,, that I have in all things observed the rules and directions of the law m advertising and selling said estate, and have good, right, and lawful autiiority to sell and convey the same in manner aforesaid. In witness whereof I have hereunto set my hand and seal this day of , A.D. 18 . Ajfiihivit to he Endorsed Thereon. I, A. B., of ' , in the county of , administrator of the goods and chattels which were of C. I)., late of deceased, who died intestate, make oath and say : 1. That the premises mentioned and described in the within deed were duly advertised and sold as required by law. Sworn to at Some Registrars in granting license simply state that the admin- istrator is authorized and empowered to make sale of the real estate of the deceased, but I think the premises should be described, and as the Act requires the substance of the license to be set forth in the deed, I would copy the license in full. This will show that the admin- istrator is conveying the premises he is licensed to sell. ll; 80 FORMS. I FORM NO. 15. Petition for Appointment of Guabdian. In the Probate Court. \ County of . ' In the matter of C. S. T., D. T., and E. M. T., infants under the age of twenty-one years. To A. E. 0., Esquire, Judge of Probate for the county of The humble petition of R. S. T., G. E. T., C. S. T., and E. M. T., all of the town of Monoton, in the county of West- moreland, humbly sheweth : Jst. That your petitioner R. S. T. is the father of your peti- tioners G. E. T., C. S. T., F.nd E. M. T. 2nd. That S. M. T., the wife of your petitioner R. S. T., and the mother of your petitioners G. E. T., C. S. T., and E. M. T., departed this life on or about the day of , in the year of our Lord one thousand eight hundred and , intestate. 3rd. That the said S. M. T., at the time of her death, was interested in fee simple of the following lot or piece of land and premises that is to say : situate in the town of Moncton aforesaid and bounded and described as follows : [description of land] which said lot or piece of land and premises is of the value of about dollars. 4th. That your petitioners C. S. T. and E. M. T. are infants under the age of twenty-one years, the said C. S. T. having been born on the day of , A. D. 18 , and the said E. M. T. having been born on the day of , A.D. 18 PROBATE AND ADMINISTRATION. 81 5th. [Set out reasons for requiring appointment of guardian.] 6th. That your petitioners G. E. T., C. S. T., and E. M. T. are the only children of the said S. M. T. Your petitioners therefore pray that your honor may make an order appointing your petitioner G. E. T. guardian of the persons and estates of the said C. S. T. and E. M. T, during their respective minorities. If application is made to the Equity Coort and it I, desired to sell real estate, a clause will be inserted shewing the value :>: the real estate and the necessity for selling it. These facts will be verified by affidavit, and petitioners will pray that real estate be sold by the person named in the petition. FORM NO. 16. Consent to act as Guardian. In the Probate Court. ) County of . | In the matter of C. S. T. and E. M. T., infants under the age of twenty-one years. I, G. E. T., of the town of Moncton, in the county of West- moreland, Clerk I. C. B.. ara willing a ad do hereby consent to act as the guardian of the persons and estates of the above named infants, if this honorable court shall see fit to appoint me. Dated this Witness : C. A. 8. S.P.A. day of , A.D. 18 i^ In I a ! m F0RM8. FORM No. 17. Affidavit of Fitness of Proposed Guardian. In the Probate Court ) of the County of , ) In the matter of C. S. T., and E. M. T., infants under the age of twenty -one years. I, C. A. S. of the Town of Moncton, in the County of West- moreland, Barrister-at-Law, make oath and say : 1st. That I am acquainted witii G. E. T., named in the annexed petition and have been for the past nine or ten years. 2nd, That the said G. E. T. is a person of good character, and of sober, steady and industrious habits, as I believe, and bearing the chai*acter of being, and is in fact, as I verily believe, an upright and honourable man. 8rd. That the said G. E. T. is shrewd and capable in the ti'ansaction of business, and I believe he is in every way a fit and proper person to have the care and management of the property of the above named infants as set forth in the annexed petition. Sworn to at the in the County of this day of of 18 Before me A CommisKioner, etc.. Supreme Court, PROBATE AND ADMINISTRATION. 8d FORM No. 17. Affidavit of Signing Consent by Guardian. In the Probate Ccart ) of the County of )" In the matter of C. S. T., and E. M. T., infants under the age of twenty-one years. 1, 0. A. S., of the Town of aronctou, in the County of West- niuieidnd, Barrister, make oath and say. 1st. That I was present and did see G. \ T., named in the within Petition, affix his name to the consent ^o act as Guardian thereunder written, and that I aftixed my nam^ as a witness. Sworn to at the Town of Moncton.l in the County of Westmorehmd, this day of A.D. 18 . Before me A Commhxioner, etc., Supn i« Court. ,1, 84 FORMS. FORM No. 17. Affidavit of Value of Premises to be Sold. In the Probate Court of the Countv of In the matter of C. S. T., and E. M. T., infants unier the age of twenty-one years. I, R. S. T., of the Town o2 Moncton, in the County of West- moreland and Province of New Brunswick, make oath and say. Ist. That I am well acquainted with the premises mentioned and described in the annexed Petition, and to the best of my judgment and belief the same are of the value of about dollars. Sworn to at the Town of Moncton,] in the County of Westmoreland, r jthis day of A.D. 18 .) Before me A Commmiofwr, etc., Supreme Court. 1 PROBATE AND ADMINISTRATION. 85 FORM No. 17. Affidavit of Relationship of Parties. In the Probate Court County of In the matter of C. S. T. and C. M. T., infants under the age of twenty-one years. I, R. S. T., of the Town of Moncton, in the County of West- moreland, make oath and say. Ist. That I am the father of the above named infants and of G. E. T., named in the annexed Petition, and the said S. M. T named in the said Petition, was my wife and the mother of the said infants and the said G. E. T. 2nd. That the said S. M. T., departed this life on the ?*y f i» tlie year of our Lord one thousand eight hundred and .intestate, 8rd. That the said S. M. T. left no other children than the said G. E. T. and the ::bove named infants. 4th. That at the tirie of her death the said S. M., T. owned in fee simple the lot of land or premises mentioned and described in the petition hereto annexed. 5tli. That the above named infants have no other property than the said lands and premises. Sworn to at the in the County of this day of Before me A.D. 18 :j A Commmioner, etc., Supreme Court. 86 FORMS. FORM NO. 18. Letters of Guardianship. Probate Court, I County of A. > Whereas, A. B., C. D., and E. F., three of the infant child- ren under the age of twenty-one years and heirs of G. H., late of the parish of E., m the said county of A., deceased, have by their petition bearing date the day of , in the year of our Lord one thousand eight hundred and , prayed that I. L of the parish of H. in said county, mer- chant, may be appointed the guardian of the persons and estates of them the said A. B., C. D., and E. F. And whereas, the said I. L has duly consented to be appointed such guardian, be it known that on the day of , A.D. 18 , the said I. L was appointed guardian of the ;)ersons and estates of the said infants A. B., C. D., and E. F., and these letters of guardianship are accordingly granted to him to do all such acts, matters or things as a guardian may or ought to do and perform according to law, he, the said guardian, having been already bound as the law requires to perform the said trust. Given under my hand and the seal of the Probate Court at H., in the county of A., the day of , A.D. 18 R. S.. Regintrar of Probate, County of A. J. P., Judge of Probate, County of A. y PROBATE AND ADMINISTRATION. w FORM NO. 19 I. Bond by Guardian. , Know all men by these presents, that we (the guardian) and (the sureties) are jointly and severally bound unto the Judge of Probate for the county of , in the sum of (double the amount or thereabouts of the alleged value of the estate), to be paid to him. Sealed and dated this day of , in the year of our Lord one thousand eight hundred and • The condition of this obligation is such that if the above bounden do and shall faithfully discharge the duties of guardian of the estate, or of the person and estate (as the case may be) of , an infant under the age of twenty-one years [and when maintenance may be ordered by the Judge of Probate, pay and lay out from the income, or if insufficient from the available proceeds of the estate of such infants, the sum of annually for his maintenance and education, until he shall become of lawful age] and shall at all times duly account for such estate when called upon by the said Judge of I'robate in the Probate C\->urt before him, then the above obliga- tion to lj>e void, otherwsjjr to be and renxaiu in full force and virtue^ Sealed and delivered in presence of f it FORMS. FORM NO. 20. Notice of Appeal. Probate Court, County of Westmoreland .1 In the matter of the estate of the late S. J. C, deceased, who died intestate. On the application of B. C, the administrator of the estate and effects of said S. J. C, for distribution of the surplusage of the personal estate of the said deceased to himself as the hus- band and administrator of the said S. J. C. Take notice that J. C. L., a brother and next of kin of the said S. J. C, deceased, a person aggrieved by the sentence and decree of the Judge of the above Court, dated on the day of last past, granting the said application and ordering that the said surplusage of the personal estate of said intestate in the hands of the said administrator on the said last mentionef^ day, be distributed to the said B. C, administrator of said estate, appeals from the said decision and decree of the said Judge of Probate to the Supreme Court on the following grounds : 1st. That the said Probate Court had no power or jurisdiction to make such an order or decree. ' 2nd. That the surplusage of the personal estate of the said S. J. C, being the separate property of the said S. J. C, who died intestate, leaving no father or mother and no children her surviving, but leaving her surviving a husband, the said admin- |l istrator, and a brother, the said J. C. L., and his sisters • PROBATE AND ADMINISTRATION. A. D. and E. B., should be distributed to and among the said J. C. L., and the said two sisters as next of kin of said deceased. 8rd. That the surplusage of the separate personal property of a married woman dying intestate goes to and should be distri- buted amongst her next of kin, and not to her husband, who is not of kin to the wife. Dated this day of , A.D. 18 w. w. \v., Proctor and Solicitor for taid J. C. L. FORM No. 21 G. Bond on Appeal. The Bond is to be taken for four hundred dollars, payable to the Judge of Probate in the same form as the Administration Bond and conditioned as follows : — Whereas the above bounden hath appealed from the decision of the said Judge of Probate, made in a certain matter pending before him. Now the condition of this obligation is, that if the said shall pay such costs arising from such appeal and to such persons as the Supreme Court may order, then tliis obliga- tion to be void, or else to be in force. Sealed and delivered ) » in presence of I I 90 FORMS. FORM No. 22. Letters of Administration. iu 1 ! Probate Court Province of New Brunswick, County of C. To T. S. of the Parish of , Greeting : Whereas, G. H, of F., in the County of C, lately died intestate, as it is said, having, whilst he lived and at the time of his death, goods, chattels, rights and credits within this Province, by means whereof the granting administration of all and singular the said goods, chattels, rights and credits and also the auditing, allowing and finally discharging the account thereof, unto me only doth belong ; in order, therefore, that the said goods, chattels, rights and credits of the said deceased may be well and faithfully administered, applied and disposed of according to law, I do by these presents grant unto you, the said T. S., (in whose fidelity I do confide) full power and authority to administer and faith- fully dispose of all and singular the said goods, chattels, rights and credits of the said deceased and to ask, demand, recover and receive whatever goods, chattels, debts, rights or redits to the said deceased while living, and at the time of his deata did in any way belong, and to pay whatever debts the said deceased at the time of his death did owe or was chargeable with, so far as such goods, chattels, rights and credits will thereunto extend, and the law charge you, you having been already sworn well and faithfully to execute the duties of the trust in you hereby reposed, as by law required. PROBATE AND ADMINISTRATION. 91 And I do by these presents, make, ordain, and depute you administrator of all and singular the goods and chattels, rights and credits of the deceased. In testimony whereof I have caused the seal of the said Probate Court to be hereunto affixed, the day of in the year of our Lord one thousand eight hundred C. E. Regiatrar of Probate*, county of J. P. Judge of Probate, county of FORM NO. 28. Oath to be Administered to Administrator. You do swear that you believe that G. H., late of F., in the county of C, died intestate, and that you will well and truly administer all and singular the goods of the deceased, and pay his debts so far as his goods or other assets which may coine to your hands for that purpose shall extend, and that you will make a true and perfect inventory of his estate, real and personal, and render a just account of your administration unto the Judge of Probate for the county of C, as by law required. So help you God. ■.. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 «- IIIIIM |50 T m t m 1.4 2.5 IIIM 1.6 Photographic Sciences Corporation ?v ^v ^^ <> ^y <^ '^ O 23 WEST MAIN '>TREET WEBSTER, NY. H380 (716) 872-450^ \,--^<^ # \\ O^ 0^ A 92 FORMS. •n FORM NO. 24. Letters Testamentary. Probate Court, county of , Province of New Brunswick. Ill To all to whom these presents shall come or may concern, Greeting : Know ye that at F., in the county of D., on the day of , in the year of our Lord , before A. B., Esquire, being thereunto delegated and appointed, the last will and testament of G. H., late of , in the county afore- said, deceased (a copy whereof is hereunto annexed) was proved and is now approved and allowed of by me, the said deceased having while he iiwed, and at the time of his death, goods, chattels, and credits within this province, by means whereof the proving of *he said will, and the granting of admin- istration of all and singular the said goods, chattels, and credits and also the auditing, allowing, and finally discharging of the account thereof, unto me only doth belong. And that the administration of all and singular the goods, chattels, and credits of the said deceased, and anyway concerning his said will, is granted unto , in the said will named, he having been already duly sworn to the faithful discharge of the duties of the trust hereby in him reposed. In testimony whereof I have caused the seal of the said Pro- bate Court to be hereunto alRxed the day of , in the year of our Lord one thousand eight hundred and PROBATE AND ADMINISTRATION. 98 FOEM NO. 25. Oath to be Administered to Executors. You do swear that you believe this paper to be the last will and testament of G. H., late of F., in the county of D., deceased, and that you will pay all the debts and legacies of the said deceased as far as the assets shall extend, and the law shall bind you, that you will in other respects to tlje best of your ability faithfully discharge the duties of an executor of the said last will and testament. So help you God. FORM NO. 26. Indorsement on Will of Executor having been duly Sworn. Province of New Brunswick. ] County of C. / Be it remembered, that on the day of A.D. , before me A. B., Judge of Probate for the county of C, personally appeared, L. M., sole executor named in the within written will of G. H., late of the parish of F., in the county of C, deceased, hereunto annexed, and was duly sworn to the authenticity of the said will and to the faithful discharge of the duties of the trust thereby in him reposed by taking the oath of an executor as by law required. £ 94 FORMS. FORM NO. 27. Indorsement on Will of Oath having been Administered to Witness to a Will. Province of New Brunswick. |^ County of C. J Be it remembered, that on the day of , before me, A. B., Esquire, Judge of Probate for the county of C, personally appeared C. D. and E. F., whose names are subscribed as attesting witnesses to the instrument hereunto annexed, pur- porting to be the will of G. H., late of the parish of F., in the county of C, deceased, and being duly sworn did depose and say, that they did see the said G. H. sign the said instrument, and at the time of such signing they the said C. D. and E. F. were both present and that the said G. H. appeared to them the said C. D. and E. F. respectively to be of sound and disposing mind and understanding, and that the names " C. D," and " E. F." were subscribed to the said will by them the said C. T>. and E. F. respectively, in the presence of each other and of the said G. H. (Signed) A. B., Judge of Probate, county of C. Though two witnesses are required to a will, one of them is sufficient on proving the will in common form. PROBATE AND ADMINISTRATION. 95 FORM No. 28. . Petition to sell Real Estate for Payment of Debts. To R. C. S., Judge of Probate in and for the county of St. J. in the Province of New Brunswick. The Petition of I. W.. executor of the last will and testament oi (t. H., late of F., in the County of C, deceased [or administrator of all and singular the said goods, chattels and credits of G. H., late of F., in the County of C. deceased, who died intestate] humbly sheweth :— That the personal estate of the said deceased which has come to the hands of your petitioner, amounted to the sum of $ , that the debts of the estate so far as they can be ascertained amount to the sum of $ , a„d that your petitioner hath fully administered all the said personal estate as appears by the account thereof, herewith annexed, which said account contains a true statement of all the receipts and pay- ments of your petitioner on account of the said estate, that the real estate of the deceased consists of the following lots, pieces or parcels of land, that is to say, (here describe the several lots' pieces, or parcels of land or premises Avith the value of each separately, stating whether the same are occupied or not respec- tively, and if occupied, the names of the occupants so far as they have come to the petitioner's knowledge) that the heirs of the said deceased are A. B., of , in the County of C. C. D. of, etc., and the devisees of the said deceased are I. K. of , m the county of C. , L. M., (of, etc.) Your petitioner, therefore, humbly prays that license may be granted to him to sell such parts of the real estate of the said deceased as to your Honor may seem meet and necessary for the payment of his debts, and as in duty bound will ever pray. Dated the day of A. D. Signed I. W. m 96 FORMS. The within named I. W. was duly sworn to the truth of the contents of the within petition, the day of A. D. Before me R. C. S. Judge of Probate for the county of St. J. FORM No. 29. Form of Renuncution by person entitled to Administration. To A. B., Esquire, Judge of Probate for the county of C. Whereas, G. H., late of F., in the county aforesaid, departed this life intestate (or having made his last will and testament bearing date the day of A. D. ) I, I. H., the widow and relict of the said G. H., (or as the case may be) do hereby renounce all right and title to administration on the said estate. As witness, my hand hereto subscribed this day of A. D. Signed J. H. Affidavit in Proof Thereof. A. B., of the parish of F., in the county of C, makes oath and saith that he in well acquainted with I. H., of the same place, widow and relict of the late G. H-, and he is also well acquainted with her handwriting from having seen her write; and this deponent further saith that he believes the signature of I. H., sub- scribed to the annexed certificate of renunciation, to be of the proper handwriting of the said I. H. Sworn the day of A. D. Before me . S. T. Judge of Probate. PROBATE AND ADMINISTRATION. 97 FORM NO. 30 K. Attachment for Non-payment op a Legacy or Non-delivery of A Specific Chattel when ordered so to do. Probate Court. County of .} To the Sheriff of tlie said county of Greeting : You are hereby required (in case it be an alias attachment, add "as before") to attach if he shall be found within your bailiwick, and deliver him to the keeper of the gaol of the said county, and the said keeper will take the said in custody and him safely keep until he shall pay to [or deliver to] a sum of money (or certain specific chattel or thing claimed under a will, as the case may be) together with the sum of for costs (if with costs) incurred in the proceedings had in this court, concerning which this attachment has been is; ued pursuant to a decree for that purpose made on the day of , A.D. 18 , and .iiake return hereof within thirty days from the date of this attach- ment. Given under my hand this A. F., Registrar. Jay of , A.D. 18 . B. P., Judge of Probate. B.P.A I ■ T m 98 FORMS. FORM NO. 81. Caveat. A. B., of F., in the county of C, a creditor (or legatee, or otherwise, as the case may be) of G. H., late of the same place, , deceased, hereby enters his caveat against the granting of letters testamentary on the will of the said G. H. to C. D. therein named as executor thereof, on the ground that (here the ground of objection is to be stated.) Dated the day of , A.D. (Signed) A. B. FORM NO. 82. Decree for Distribution of Estate. Probate Court. Cjunty of Westmoreland. In the matter of the estate of S. J. C, late of M., in the county of W., Province of New Brunswick, who died intestate. On the application of B. C, the husband of said deceased and the administrator of all and singular the goods, chattels, and credits of said estate, and by the consent of all parties interested, and at the request of the proctors engaged in the matter, that a decree of distribution should be made in this estate. At a Court of Probate held before me on the day of , A.D. 18 , in the above matter, it was proved on oath that the citation issued in this matter on the day of last past, returnable on the day of last past, at o'clock in the noon, was PROBATE AND ADMINISTRATION. 99 duly served pursuant to order, and after the examination of the administrator on oath, and on the application of said adminis- trator, this court was adjourned until the day of A.D. 18 , at o'clock in the noon, and after the exam- ination of witnesses the court was further adjourned until the day of , A.D. 18 , at o'clock in the noon, when on application of the administrator the court was further adjourned until the day of A.D. 18 , at o'clock in the noon, when the evidence of witnesses was continued, anu when after hearing W. P. for the administrator, and W. W. as proctor for J. C. L., a brother of deceased, and E. B., wife of J. B., and A. D., wife of C. W. D., sisters of deceased, this court was further adjourned until this day at o'clock in the noon, for the consideration of judgment and decree, when it appearing to the court that on passing the account of B. C, the administrator of the goods, chattels, and credits of the estate so filed with the Registrar, and passed and allowed on this day of , A. D. 18 , that there was a balance of ($ ) dollars and cents, in the hands of said B. C. as such administrator, as by said account passed and allowed and now on file appears. And whereas, on the application of the said B. C, as the administrator of said deceased and her husband, and by the the evidence taken in the court before me it appears that the said S. J. C. died without leaving any children her surviving, and that her father and mother predeceased her, that the said S. J. C, deceased, left one brother J. C. L., who resides at , in the county of , in the Province of New Bruns- wick, and two sisters, namely, E. B., who resides at , in the county of , and A. D., wife of C. W. D., who resides *f , in the county of , Province of New Brunswick ; that the said B. C. is the administrator of the estate of the said S. J. C, deceased, and was the husband of the w II I 100 FORMS. said S. J. C. at the time of her death, aud being satisfied witli the proofs referred to, I do order, sentence, and decree that the surplus separate personal property of the estate of the said H. J. C. so found in the hands of the said B. C, administrator as aforesaid, be distributed as follows : To B. C, the husband of said deceased and the administrator of said estate, the whole of the personal property as found ni his hands as such administrator as by said account filed, namely, the sum of ($ ) dollars and cents ; and I do further order and allow that the costs of this application be paid by said administrator out of the funds of the estate. A. E. 0., Judge oj Prolate, County oj W. ill m FORM No. 33. Petition to Prove Will in Solemn Form. To A. E. 0., Esquii'e, Judge of Probate for the county of W. , in the Province of New Brunswick. The petition of C. F., of W., in the said county and province, married woman, the wife of of S., in the said county and province, clerk Humbly sheweth : That D. P., late of S., aforesaid, gentleman departed this life on or about the day of in the year of our Lord one thousand eight hundred and , at S. aforesaid, having PROBATE AND ADMINISTRATION. 101 first duly made and executed his last will and testament, or paper purporting to be his last will and testament, in due form of law, or purporting to be in due form of law, and duly made and executed, bearing date the day of in the year of our Lord one thousand eight hundred and , and thereby appointed A. K. and D. W. K., both of S., aforesaid, gentlemen, executors and E. M. K., of the same plare, wife of D. W. K., of S,, aforesaid, (now widow of the said D. VV. K., deceased) executrix thereof. That immediately before the time of his death the said D. P. was an inhabitant of the said parish of S., and that he died seized, possessed of, or otherwise entitled to and in the use and occupation of real estate of the value of about dollars, situate within the said county of W., and personal estate to the Viilue of about , That the heirs of the said D. P., their names, ages, occupation and places of residence, ai'e respectively as follows : — C. W. A., of S., in the State of M., and the United States of America, by trade, aged between , at present engaged in the occupation of ; D. N. P., of C, in the county of A. in the Province of New Brunswick, aforesaid, manufacturer, and at present engaged in the occupation thereof, aged about years, etc., both of whom are nephews (or as the case may be) of the said D. P., deceased, and your petitioner aged years, who is of the said D. P., deceased. That the said C. W. A., D. P., and your petitioner are the sole next of kin of the said D. P., deceased, him surviving, and are also legatees of him the said D. P.,, deceased, under the said last will or paper purporting to be a last will, etc., as aforesaid. That A. P., wife of the said D. P., of C, aforesaid is a devisee and legatee under the said will or paper purporting to be such 1 ■■E T 11. 102 FORMS. will, etc., being resident at C, aforesaid, with her said husband and aged about years. That the sole other devisee and legatee under the will is the said E. M. K., who is the residuary devisee and legatee there- under, aged about years, and resident at S., aforesaid. That as I am advised and believe, and appears by reference to the records of the Court of Probate for the County of W., aforesaid, and the petition for letters testamentary and other papers in the matter, probate of the said last will or paper purporting to be the last will, etc., was granted in due form of law to the said execu- tors and executrix thereof in common form but not in solemn form. Your petitioner, therefore, humbly prays that the said last will and testament or paper purporting to be a last will and testament as aforesaid shall be proved in solemn form by the said execu- tors and executrix, and that if the same is not sufficiently proved by them in solemn form according to law the said probate there- of in common form as now granted shall be revoked. And as in duty bound will ever pray. Dated the day of , in the year of our Lord I one thousand eight hundred and N,B. — Set forth names, ages and occupations of all heirs, devisees, etc., both in petition and citation to prove \\ill in solemn form. In re Chark* M' Mullen, 23 N. B. U. 382. ill PROBATE AND ADMINISTRATION. 103 FORM No. 84. Citation to Prove Will in Solemn Form. Fl.s.] New Brunswick, County of To the sheriflf of the county of within the said county. S. S. Greeting : — or to any constable Whereas, C. D., of the Parish of D., in the County of T has by her petition prayed that the will of her brother I. D., hi > of W., in the State of M., in the United States of America, deceased, iriLy be proved in solemn form in this court. You ar,, ther^ft-,.;, required to cite D. D., of in the county of , in the province of the executor in the said will named, C. F., oi in said county of , wife of E. F., farmer, the petitioner, heirs and next of kin of the said deceased, and all others inter- ested in the said will or in the estate of the said deceased, and they and every one of them are hereby cited to be and appear before me at a Court of Probate to be held in and for the said County of A., at the office of the Registrar of Probate at H., in the said county, on the day of next, at o'clock, to attend the proving of the said will of the said deceased in solemn form. Given under my hand and the seal of the said Probate Court at H., in the County of A., the day of A.D. 18 S. G. M., RegiBtrar of Probates, County of A. W. A. T., Jndge of Probates, County of A. \:i 104 FORMS. k. FORM No. 35. Allegations on Proof of Will in Solkmn Form. In the Probate Court. County of W., and Province of New Brunswick. in the year of our Lord one On the day of thousand eight hundred and , In the matter of the contesting of the will of A. P., late of the city of S., in the county of W., yeoman, deceased. On which day C. A. S., in the name and as the Proctor of E. I., of the parish of S., aforesaid, and as and for the said E. I., and by and under that denomination, and by all other, and better, and more effectual ways, means and methods, that may be law- ful for her, the said E. I. did say, allege and in law article propound and dops now say, allege and in law article propound as follows : 1st. That the said A. P., died at S., aforesaid, in the said county and province on the day of in the year of our Lord one thousand eight hundred and , aged about years, a widower and without issue, and this is true, public and notorious and the party proponent doth allege and propound every thing in this and the subsequent articles of these allegations contained. (Proceed in separate paragraphs to allege facts relied on for defeating the will.) PROBATE AND ADMINISTRATION. 105 FORM No. 36. Form of Allegations on Proof of Will in Solemn Form where Party allowed to Intervene. , in the year of our Lord In the Court of Probate. \ for the county of W., Province [ of New Brunswick. ) On this the day of one thousand eight hundred and In the matter of the will of D. P., late of S., in the county of W., gentleman, deceased. Whereas, C. F., of S., in the said county and province, wife of H. R. F., of S. aforesaid, in said county and province, clerk, did by her petition under oath bearing date the day of in the year of our Lord one thousand eight hundred and represent to the Judge of Probate in and for the county of W., that she was interested in the estate of the said D. P., deceased, and pray that the last will and testament of the said D. P., deceased, might be proved in solemn form according to law by L. B. K., the executrix, and A. W. D. K. and D. P. K., execu- tors of the said last will and testament and that if the said last will and testament be not sufficiently proved by the said execu- trix and executors in solemn form, according to law, the probate thereof in common form as then granted might be revoked. And whereas citation bearing date the day of in the year aforesaid, was issued under the hand and seal of the said Judge of Probate m and for the said county of W., citing 106 FORMS. the said E. B. K., executrix as aforesaid, tlie said A. W. D. K. and D. P. K., executors as aforesaid, the said C. F., and H. R. F., her husband, C. H. A., of S., in the State of M., in the United States of America, D. A. P., of C, in the county of A., in the province of New Brunswick, and A. P., of C, aforesaid, in said county and province, his wiio, G. W. P., of F., in the said State of M., in the United States of America, heirs, devisees and legatees and next of kin of said D. P.. deceased, and all others interested to appear before the said Judge of Probate at his office at D., on the day of in the year of our Lord one thousand eight hundred and , And whereas the said C. F. afterwards made a compromise with the said E. B. K., executrix, as aforesaid, and the said A. W. D. K. and D. P. K., executors, as aforesaid, and the name of the said C. F. was withdrawn from the record in the matter of the contesting of the last will and testament of the said D. P., deceased. And whereas by a judgment of the said Judge of Probate in and for the said county of W., delivered on the day of in the year of our Lord one thousand eight hundred and , the said G. H. A., the said D. A. P., and the said D. P. were allowed to intervene in the matter, of the contesting of the said last will and testament of the said D. P., deceased. Now on this day of in the year of our Lord one thousand eight hundred and C. A, S., in the name and as the proctor of the said D. A. P., of C, aforesaid in the county of A., aforesaid, and as and for the said D. A. P., and by and under his direction and by all other and better and more effectual ways, means and methods which may be lawful for him the said D. A. P. doth say, allege and in law propound, and does now say, allege and propound as follows : (Proceed as in ordinary cases.) PROBATE AND ADMINISTRATION. 107 FORM NO. 87. Interrogatories on Proof of Will in Solemn Form. In the Probate Court. County of W., and Province of New Brunswick. On the day of , in the year of our Lord one thousand eight hundred and In the matter of the contesting of the will of A. P., late of the parish of S., in the county of W., deceased. =■' Interrogatories filed by C. A. S., proctor for E. J., for the examination of A. J. and J. H., executors of the last will and testament of the said A. P., deceased, J. C. J., a legatee and devisee under said last will, W. P., one of the next of kin of the said A. P and J. P., a legatee and devisee under said will. 1st. Did not the said A. P. die at the parish of S., in the county of W., on the day of , A.D. 18 , a widower without issue ? (Then proceed as in interrogatories filed in an Equity suit.) FORM NO. 38. Answer on Proof of Will in Solemn Form. (Proceed as in Form No. 37 to the asterisk, then continue as follows :) On the day of , in the year of our Lord one thousand eight hundred and , comes here into court M. G. T., and in the name and as the proctor of J. C. J., a devisee and legatee under said will, and reserving all further f'l I 1 I'll I 1 ill 111 108 FORMS. rights and privileges and ways and methods to answer the allegations propounded against said will and proof and sufficiency thereof. And protesting that the said J. C. J. is not ty the practice of this court limited in his contest by allegations filed or to be filed doth in answer to said allegations propound and say as follows : (Answer as in Equity.) FORM NO. 39. Memorandum of Answer to Objections on Proof of Will in Solemn Form. Probate Court. City and county of St. John. In the mater of the will of J. W. K., deceased. Objections of the contestants C. M. and J. M, her husband, to the admission of the alleged will as proved. 1st. We claim the said alleged will was not made, executed, and published in due form of law. 2nd. That the execution of said will was obtained by undue and improper influence. 3rd. That the said J. W. K. was not at the time of the alleged execution of said will of sound and disposing mind and memory. 4th. That the said will was not properly and duly witnessed as by law required. Dated A.D. 18 M. G. B. H. Proctor for J. and C. M. M PROBATE AND ADMINISTRATION. 109 FORM NO. 40. Memorandum of Objections on Proof of Will in Solemn Form. Probate Court. City and county of St. John. In the matter of the will of J. W. K., deceased. The answer of M. A. K., legatee and administratrix with the will annexed under the last will and testament of J. W. K., deceased, to the objections of the contestants C. M. and J. M.[ her husband, to the admission of the alleged will as proved. 1st. As to the contestants first objection, the said M. A. K. joins issue thereon. 2nd. As to the contestants second objection tho said M. A. K. joins issue thereon. 3rd. As to the contestants third objection the said M. A. K. joins issue thereon. 4th. As to the contestants fourth objection the said M. A. K. joins issue thereon. The said M. A. K. joins issue thereon. Dated the day of , A.D. 18 Yours, etc., To M. G. B. H., Erq., Proctor for J. and C. M. (Signed) R. F. Q., Proctor for M. A.K. I TABLE OF FEES. JUDGE. Examining petition for letters of administration or probate of will, letters of guardianship or other special matter, and order *^«'*eo« »1 34 Every fiat for appraisers or bondsmen 5Q Any other order ' "en oU Certificate endorsed on will, of the proof thereof i 34 Certificate endorsed on will, of oath to executors 67 Whole fees where estate does not exceed $400 and no contest 4 00 Ditto, where estate does not exceed »800, and no contest 6 00 License to sell real estate if not over «800, and no contest for all proceedings thereon 4 qq For probate or administration where estate does not exceed »1200. 3 34 Above 91200 and not exceeding 84,000 4 67 Above HfiOO 9 34 Signing warrant of appraisement 40 Citation and order for same en Subpoena, attachment, execution or other process, including order forsame ^f. Letters ad colligendum, or of guardianship 2 00 Sentence in ordinary cases of license to sell real estate, passing accounts or of distribution, etc 4 57 Sentence for probate of a will, letters of administration, or on granting license to sell real estate, passing accounts or distri- bution, etc., where there is a contest 9 34 Each day engaged beyond the first [[[[[ 4 57 Transmitting appeal with reasons 4 g7 E very folio above 40, 10 cents per folio 112 TABLE OF FEES. Taking testimony in writing, each witness, if not exceeding three folios % (57 Every folio above 20 Examining and taxing costs CO Every oath 20 IlEQISTRAR. Filing petition for probate or administration, letters of guardian- ship, or other special matter, and order of Judge thereon .... 20 Entry of order for probate or letters of administration, and every other special order 60 The v/hole fees where estate does not exceed $400 and no contest. . 4 00 Ditto, where it does not exceed $B00 and no contest 6 00 License or order to sell real estate, if not over 1^800, and no contest for all proceedings therein 4 00 Probate or administration, estate under $1200 . 3 00 Over $1,200 and not exceeding $4,000 4 00 Above $4,000 5 34 Copy of will annexed to probate, per folio 20 Registry of will in book, per folio 15 Bond of administration, on sale of real estate, or for payment of costs on appeal 1 34 Any contested case, attending with papers, etc., each day if allowed by the Judge, not exceeding 2 00 Preparing every citation, attachment, subpoena, warrant of appraisement, or other process, including seal, (the names of • all witnesses may be included in one subpoena) 60 Preparing any necessary affidavit 20 Filing every paper, except vouchers filed vvith accounts 10 Filing every account with voucliers 67 All copies of papers, for first folio 20 Every additional folio 10 Certificate under seal, including seal 1 00 Entering every order or decree in the registry book, per folio. ... 15 For inspection of original will, and attending the party inspecting 40 Every search 20 Entry of caveat or appeal . . 67 Certificate of license for sale of real estate 1 00 t 1 •1 TABLE OF FEES. 118 Proctor and Advocate. Taking inatructions to commence or defend any proceeding, or obtain any order ^g qq Drawing every petition, allegation, bill of costa, or pap«r, per folio. 80 Every copy, per folio 10 Every necessary attendance on the Surrogate 1 84 Every hearing or argument before the Surrogate, not less than 92.50, nor more than 915, at the discretion of the Judge. Serving any notice or other paper on each person 20 Every necessary attendance on the Regibtrar 67 Every subpoena ticket 20 In contested cases a reasonable fee for every day's attendance in the discretion of the Judge. S.P.A. 8 ■ . 1, r INDEX TO SECTIONS. Chapter 52, Cons. Statutes. Judges of Probate, powers of Registrar of Probate, daties of Judges and Registrars to be sworn . , Judge when an interested party to take no proceedings Appointment of person to act as Judge pro hoc vice . . Judge or professional partner may not act as proctor, etc Judge of the county where deceased person leaves as- sets to have exclusive jurisdiction Application for letters testamentary, etc., and pro- ceedings thereon In case of objection Judge may require bond to be given Executor neglecting to prove will, penalty for Suppression of will, penalty for Executor of, surviving executor may have adminis- tration Appraisers, how appointed Inventory to be made and filed ; penalty for neglecting Inventory, how made Executor not discharged from debt due the estate... . Property discovered after inventory made, appraise- ment of Payment of claims against the estate ; priority of, no priority after July, 1878 Application of assets before notice of debt Suits against executors, pleadings in Time to plead, when granted Legacies may be recovered at common law, remedy of executors against each other 28 SSCTIOM. Page. 1 9 9 9 8 9 4 10 5 & 6 10 T 11 ^ 11 9 19 liy 18 11 18 12 W 18 17 U 18 15 16 18 19 17 n 18 ^ 19 19 20 20 21 21 22 22 22 116 INDEX TO SECTIONS. Section. Pacib. Cvery executor to render an account within eighteen months, penalty for neglect 24 Citation may issue on filing accounts 25 Executors to produce vouchers 26 Judge may allow to executor for property lost or destroyed without default 27 No executor to make any profit out of estate, com- mission of executors 28 Probate Court may issue subpoenas 29 Citations, how published 30 Process of the Court, by whom served 31 All testimony taken by Judge to be reduced to writing. 32 How will may be proved when attesting witnesses cannot be produced, Court may direct the issue of a commission 33 <& 34 Judge shall tax costs ; execution therefor 33 Judge may grant license to executor to sell real estate; petition for sale, what to contain 36, 37 <& 88 Judge may order executor to shew cause why land should not be sold 39 Judge may order real estate to be leased 40 License to be registered 41 No license to issue before filing of bond by executor, form of bond 42 Sale or letting, how made 43 Executor to execute necessary conveyances, form of conveyance 44 In case of infants, when Judge may appoint guardians 45 Of actions by and against executors for wrongs of tes- tator 46 Appeal from Probate Court, how made 47 Forms in Probate Court 48 Penalty for Judge refusing to send proceedings on appeal perfected 49 Supreme Court may on appeal direct a feigned issue. 50 No bond given under this chapter to be sued without an order of the Supreme Court in Equity ; excep- tions 61 Petition for distribution of personal estate 52 24 2;} 25 24 24 24 24 25 25 25 28 29 30 81 31 82 32 83 38 86 87 83 38 88 89 40 INDEX TO SECTIONS. Supreme Court may, if neceaaary, compel executor to give security for the performance of his duty .... Proof of will in solemn form Acta of 1S78, Cap. 30. When letters testamentary, etc., may be revoked by Judge of Probate Liability of executor or administrator for acts done as such to continue When Judge, being a creditor, may act as such ; i estate Feci to Judge and Registrar of Probate When other fee may be allowed AcU of 1882, Cap. 10. Judge becoming intcested after granting of probate, etc.. Governor may appoint person to act pro hac vice Acta of 1887, Cap. When Judge pro hac vice may be appointed Before whom petitioners, etc., may be sworn Intestate Estates. Cona. Statutea, Cap. 78. Division of real estate of intestate In oases where intestate died previous to April 6th, 1858. In cases where intestate died since April 6th, 1858.. Distribution of surplusage of personal estate In cases where intestate died, etc., previous to coming into operation of this chapter 117 Skction. Paob. M t 9 IS 8 m 4 8» 5 01 ftft 0» 1 04 9 m 8 m 4 0t m INDEX TO FORMS. >^;^, No. Paoe. Administration bond 3a 64 letters of 22 90 Administrator, oath to 23 91 Affidavits of fitness, etc., of guardian 17 85 Allegations on proof of will in solemn form 35 104 on proof of will in solemn form where person allowed to intervene 36 105 Answer on proof of will in solemn form 38 107 Appeal, notice of 20 88 bond on 21a 89 Attachment 8h 69 for non-payment of a legacy or for not deliver- ing a specific chattel 30 97 Bond, administration 3a 64 by guardian 19i 87 on sale of real estate 13f 77 on appeal 21o 89 Caveat 31 98 Citation 2c 63 to prove will in solemn form 34 103 Commission and return when witnesses reside in Province 9 69 when witnesses reside out of Province 10 71 Consent to become guardian 16 81 Decree for distribution 32 98 Deed, with affidavit to be endorsed thereon 14 78 Execution He 74 Executor, oath to 25 93 endorsement on will of, having been sworn .... 26 93 Guardian, affidavit of fitness, etc., of 17 85 bond by 19 87 consent to become 16 81 petition for appointment of 15 80 Guardianship, letters of 18 86 Interrogatories on proof of will in solemn form 37 107 Inventory 6 67 /■ INDEX TO FOBMS. 119 'AGE. 64 90 91 85 104 No. Paob. Letters of administration 22 90 gaardianship 18 86 testamentary 24 92 petition for 1a 62 License to sell real estate and acknowledgment thereon . . 12 75 Memo, of answer to objections on proof of will in solemn form 89 108 Memo, of objections on proof of will in solemn form .... 40 109 Notice of appeal 20 88 Oath to administrator 23 91 execntor 25 93 witness on proof of will in common form 7 68 Petition for appointment of guardian 15 80 letters of administration 1 61 testamentary 1a 62 for license to sell real estate 28 95 to prove will in solemn form 33 100 Renunciation and affidavit in proof thereof 29 96 Subpcena 4d 65 Warrant of appraisement and oath to be administered thereon 5b 66 Will, indorsement on, of executor having been sworn. . . . 26 98 of witness having been sworn .... 27 94 allegations on proof of, in solemn form 35 104 where persons allowed to intervene .... 36 105 answer on proof of, in solemn form . ., 38 107 interrogatories on proof of, in solemn form 37 107 memo, of answer on proof of, in solemn form 39 108 of objections on proof of, in solemn form 40 109 Witness, commission for examination of, when in Province 9 69 when out of Province 10 71 endorsement on will of oath having been admin- istered to 27 94 "5 !_;- ' I INDEX TO SUBJECTS. f t 1 m 11 || % ■, >s M2A H ACCOUNTS— citation to issae on filing, 23. Jadge nothing to do with advances on passing, 23. executor to produce vouchers for, 23. ACTION— against executor not suspended for 18 months, 20. against executor after 18 months, 20. of trespass by executor for injury to real estate, 86. against executor for not producing will, 15. by executor for injury causing death, 16. ADMINISTRATION— application for letters testamentary or of, 12. on petition of a creditor, 14. irregularly granted, 14. objection to being granted, 16. order of precedence in granting of, 14. Judge may grant, 11. Judge to whom application is made for, to have exclusive jurisdic- tion over all property in the Province, 11. ADMINISTRATOR— to give bond, 12. ADTANCEMENT— children receiving, not equal to the other shares to have so much of the surplus as shall make the estate of all equal, 54. of the real estate in the life time of the intestate to be taken into account in the distribution of the personality, 67. INDEX TO SUBJECTS. 121 AFFIDAVITS— before whom Bworn, 63. i. : ,, ? to be endorsed on deed, 33. APPEAL— " person aggrieved may, 37. to give notice of, 37. and bond, 37. Judge may allo^r further time to, 37. Supreme Court on, will decide questions of fact, 37. APPLICATION— for letters testamentary or of administration, 12. for the distribution of the personal estate or for the payment of any legacy, 40. APPOINTMENT OF JUDGES— pro hac vice, 10. if Judge of Probate becomes interested after granting of probate, 52. of person to act m case Judge sick or out of the Province, 11. APPRAISERS— to be appointed,18. ATTACHMENT— Supreme Court may order, against Judge neglecting to send pro- ceedings, 37. may issue against executor on failure to comply with order of Judge of Probate, 40. BOND- administrator to give a, 12. on sale of real estate, 32. by guardian, 35. on appeal, 87. not to be put in suit without an order of the Supreme Court in Equity, 39. Supreme Court in Equity may order, to be delivered to be read in evidence, 39. persons to whom portion allotted to give a, 40. 122 INDEX TO SUBJECTS. I- If u CAVEAT— a stay of proceedings, 47. to state grounds for opposing probate or administration, 47. Judge to endorse order to file, 47. citation to issue on filing, 47. CHILD— dying intestate after death of father but daring life of mother, 58. CITATION— to issue »n filing accounts, 23. on filing caveat, 47. on proof of will in solemn form must contain nimes, ages, of heirs, devisees, etc., 44. on application for distribntion of the personal estate, 40. how published, 24. CLAIM— to be certified by aflSdavit, 20. not discharged by debtor being appointed executor, 19. COLLATERALS— representation among, 59. M2 COMMISSION— may issue when witnesses to a will reside out of county, etc.; 21. on proof of will in solemn form, 27. to swear in executors or administrators, 27. procedure on, 26. CONVEYANCE— to be executed by executor, 33. COSTS— ' to be taxed by Judge, 28. executor failing to comply with order of Judge liable to pay, or may be fined or imprisoned, 30. execution for non-payment of, 28. in contested will oases, 48. m INDEX TO SUBJECTS. 128 DEBTS— to be paid in classes according to legal priority, 19. \ no preference for specialty, 19. DECISION— of Jndge of Probate may be appealed from, 43. on sufficiency of petition to prove will in solemn form may be ap- pealed from, 44. DEED— by executor 33, DESCENT— , law of, not altered by 21 Vic. cap. 26 : 54. altered by cap. 78, Consol. Statutes, 54. DISTRIBUTION— of the real estate of persons dying intestate, 57. of personal estate, 59. ESTATE— -■:■, .,,.;,• .,,^,,,,,_,:,/^,: ,,^ . ^ .:/,■,. ,,, of person dying intestate to be divided among his children, 54. surplusage of personal, to be divided by Judge of Probate, 57. advancement of real, 54. of persons who died intestate before the 6th of April, 1858 : 55. since the 6th of April, 1858 : 57. EQUITY COURT— i .. , may order executor to give security, 41. . ! "' if he neglect to do so may cancel his appointment, 41. . no bond to be put in suit without the order of, 39. may order bond to be delivered to be read in evidence, 39. EXECUTOR— must produce will or renounce the executorship, 15. penalty for neglecting to do so, 15. . * by renouncing, forfeits bequest in will, 15. cannot renounce after intermeddling, 16. action against, for not producing will, 16. to make and file inventory, 18. ' ' may be cited to do so after three months, 18. * 124 INDEX TO SUBJECTS. I ill. m III EXECUTOR— Continued. • . > ' failing to file, liable to pay coats, 19. of a sole or surviving executor not to be executor to the first testa- tor's will, 17. of deceased administrator, 17. to pay debts according to their legal priority, 19. action against, not suspended for eighteen months, 20. action against, after eighteen months, 20. to render an account within eighteen >- .onths, 22. neglecting to do so, liable to a penalty, 23. may be suspended, 23. to produce vouchers, 23. Judge may allow for property lost, etc., without his fault, 24. not to make any profit out of the estate, 24. commission to, 24. commission may issue to swear in, 27. Judge may order, to shew cause why real estate should not be sold, 80. may order to sell, 30. liable to pay costs if he does not comply, 30. execution against, for non-payment of costs, 28. to give bond on sale of real estate, 32. to execute conveyance, 33. action of trespass by, to the real estate, 36. may have an action when death caused by wrongful act, 36. attachment may issue against, on failure to comply with order of Judge, 30. Equity Court may order to give security, 41. if he neglect to do so, may cancel his appointment, 41. when removed to be liable for acts done up to time of removal, 50. FEES— to Judges and registrars, 50. to proctors, 51. to witnesses, 51. table of. 111. FEIGNED ISSUE— Supreme Court may direct, 38. :|'f>l Kwi\jMv:*a INDEX TO SUBJECTS. 126 FORMS— now in use to be used, 38. GUARDIAN— for infants, appointment of, 33. is not Bworn, 35. i. appointment of, may be cancelled, 34. . may be called to account, 35. HEIR— may petition to prove will in solemn form though not entitled to any of the personal estate, 43. lineal, double portion not confined to, by cap. 20, Geo. 3 : 56. at law entitled to double portion, when, 55. shall receive an equal share notwithstanding advancement, when, 60. must bring advancement into hotchpot, 42. HEIRS— devisees, etc., residing out of Province, service of citation on, 42. INFANTS— Judge may appoint a guardian for, 33. may order an allowance for, out of estate, 33. several, with aggregate estate in excess of $2,000, Judge may appoint guardian, 35. INTESTATE— , estates, 54. INVENTORY— to be made, 19. to be filed within three months, 18. to be on oath, 19. property discovered after making, 19. , ,, JUDGES OF PROBATE— appointment of, 9. to be sworn, 9. 126 INDEX TO SUBJECTS. m 4:' JUDGE— not to aot in any case in which he is interested, 10. when interested other person to be appointed pro hac vice, 10. not disqualified by reason of being a creditor for a sum not exceed- ing 9100 : 50. other person may be appointed pro hac vice, if Judge becomes interested after granting probate of administration, 52. in case Judge is sick or absent from the Province, 11. not to act as proctor, 11. may grant administration, 11. to have exclusive jurisdiction, 11. nothing to do with advances on passing accounts, 23. may allow for property lost or destroyed, 24. to tax costs, 28. may grant license to sell real estate, 29. may determine the legality of any claim against the estate, 29. order executor to shew cause why real estate should not be sold, 30. order executor to sell real estate, 30. order land to be leased, 31. appoint a guardian for infants, 33. order an allowance out of infants' estate, 33. cancel appointment of guardian, 34. grant further time to appeal, 37. decision of, may be appealed from, 37. to endorse order to file on caveat, 47. to divide surplusage of personal estate, 57. attachment against for neglecting to send proceedings, 37. becoming interested in estate after granting of probate, Gk)vernor in Council may appoint some person to act jiro hac vice, 53. of Supreme Court, if executor refuse to obey order of Court, or waste the estate, may revoke letters testamentary or make an order as under sec. 53, cap. 52 : 50. ■*tt-r ■ JUDGMENT— of the late W. B. Kinnear, Esq., 45. • .; , LEGACY— ^- ■ . . ••<^.'' when certain or reduced to certainty may be sued for at common law, 22. C3 10. t exceed- becomes 52. be, 29. t be sold, 30. , Governor a vice, 53. Court, or ■y or make it common INDEX TO SUBJECTS. LETTERS— testamentary or of administration, application for. 12. LICENSE— to sell real estate, 29. to be registered, 31. required for another county, to be acknowledged, 31. OATH— to be taken out of county, 12. ORDER— of precedence in granting administration, 14. PERSON— to whom portion is allowed to give bond, 40. dying before this act comes in force, 59. PERSONAL PROPERTY— how divided, 57. PETITION— for letters testamentary or of administration, 12 on proof of will in solemn form, what to contain, 42. PROCESS OF COURT— by whom executed, 25. PROPERTY- discovered after inventory, 19. lost or destroyed. Judge may allow executor for, 24. SALE OR LETTING— of real estate, how made, 32. SECTION— > 53 amended, 41. SHERIFF— or other ministerial officer to execute process, 25. 127 '«: 128 INDEX OF SUBJECTS. SUBPCENA— Probate Court may issue, 24. SUPPRESSING WILL— penalty for, 17. SUPREME COURT— on appeal will decide questions of fact, 37. may alter rules, 38. order attachment against Judge neglecting to send proceedings, 37. direct feigned issues, 37. in Equity, may order bonds to be put in suit, 39. order bond to be delivered to be read in evidence, 39. order executor to give security, 41. on his failure to do so may cancel his appointment, 41. TESTIMONY— to be reduced to writing, 25. 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