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Les diagrammes suivants illustrent la mdthode. rrata to pelure, n d SO. n 32X 1 2 3 1 2 3 4 5 6 [ (S GO PROBATE, ADMINISTRATION, AND GUARDIANSHIP: Common Jform an5 Contentious business: WITH STATUTES AND RULES, INCLUDING CERTAIN HiGH COURT OF JUSTICE RULES GOVERNING THE SURROGATE COURTS OF ONTARIO, ALSO FORMS AN]) TABLES OF FEES. BY ALFRED HOWELL, OSCOODE HALL, I>AKRISTER-A". -LAW ; Author of '* Adniinilty Practice," ((r., (>(«/, r,70), by which the practice of the mastei-s office is made applicable to auditing accounts. A considerable part of the volume is occupied with Probate Law generally, as administered in England, and in this and other Provinces which follow the English sys- tem, with references also, to that of certain States of the United States. Taking the new rules and forms in contentious busi- ness as a basis, that branch of practice has in the work now offered to the legal profession been mo.e fully dealt with, particularly that part relating to probate actions, or causes testamentary. The leading cases in England, as. well as in Canada, in which the validity of willslias been contested on the ground of the testators incapacity by reason IV PREFACE. of unsoundness of niinrl, delu.sions, jjaitial insanit}', occon- tricitic's, een moditii'd by the J)evolution of Estates Act, and important judieial decisions thereon having already been reported, such decisions have also been noted in this work as well as the statutes themselves. Special attention has been given to the law and prac- tice in the Surrogate Courts of Ontario in all matters within fheii- jurisdiction. The Rules and Foi-ms of lHd2 for I'HEFACE. V N(jn-Contentious Business are for the most part the Rules of 1858. Coiuinon form practice in Enj^land has not been nrt'ected by the Judicature Acts or Rules: see case cited p. lio, pOHt. Upon reading; the Contentious Business Rules, it will b(! (tliaerved tliat an action in a Surroirate Court in Ontario is not instituted, as in the Probate Division, Kn^land, by writ of summons ; and that it is only in enterinif appearance, and after appearance entered (Rules 2 and 3, C. B.), that the practice and procedure is to cor- respond with that of the Hij^h Court. In the Rules of l8f)2, as framed by the Jud<^es, there are references to Coote's Probate Practice as well as to Rules of the Supreme Court of Judicature. These refer- ences have been retained in the copy of Rules and Foruis set forth in the Appendix to this work, and that, as well as other works of recoj;;nized authority, has been fre- (jutntly cited in this volume. Leading cases on Succession Duty and on Probate Duty have been inserted, thouj^fh necessarily in a condensed form. The {guardianship and custody of infants, and the powers and jurisdiction of the Surrogate Courts as to the same, have been dealt with at greater length in this vol- ume in consequence of recent most important decisions of superior and appellate Courts. The subject of Auditing and Passing Accounts of Kxecutors and Ailministrators and their Compensation or Allowance has, in the chapter on Inventories and Accounts — re-written since the Law Courts Act of 1895, s. 80, with reference to Rule I'J — been much more fully dealt with than in the tirst edition, as the growing importance of that branch of the practice seemed to demand every VI rUEFAOE. II reported case that couM assist the practitioner havinjj, it is iKiiievod, been noted, as well as some unreported cases in tlie tVurroirate (,'ourt of the County of York. In conse(]uence of sections of the Surrogate Courts Act, R. S. (). c. 50, and of the amending Act of 1.S90, being quoted and set forth in the text under the several head- ings to which the}- belong, those Acts liave not been reprinted in tlie Appendix, the author liaving endeavoured to condense as much as possible consistently with com- pleteness. 'I'he sections are fully indexed. The Surrogate Court Rules of 1892 have been inserted in extenso in tlie Appendix, and, to facilitate reference, side notes have been added to the original rules. The author tenders his best thanks for tlie favourable reception which the first edition of this work met with at the hands of the legal profession, and ventures to express the hope that this also may be found to be of .service. A. H. Toronto, Julv l.st, 1895. I \ TABLE OF CONTENTS PART THE FIRST. CHAPTER I. l»AOK. Constitution of the Surrogate Courts 1 CHAPTER n. Personal Representation of Estates 19 CHAPTER HI. Common Form Business 34 CHAPTER IV. Probate in Common Form 88 CHAPTER V. Administration 1 10 CHAPTER VI. Administration with Will Annexed 149 CHAPTER VH. Administration and Guardianship Bonds 1G2 CHAPTER Vni. Joint Grants 171 CHAPTER IX. Principles on which the Court Selects 174 viii TABLE OF CONTENTS. CHAPTER X. PAGE. Limited (irants I78. CHAPTER XI. Administration Pendente Lite 205 CHAPTER XII. Administration Ad Litem 200 CHAPTER XIII. Grants, '* Save and Kxrept " 212 CHAPTER XIV. (irants Cuteronnn 214 CHAPTER XV. Grants made under Sec. 56, Surrogate Courts Act (Special Circumstances) 216 CHAPTER XVI. G rants De Bonis Nun 226 CHAPTER XVII. Second or Supplemental Grants 234 CHAPTER XVIII. Alteration in Grants 286 CHAPTER XIX. Domicile as it affects Grants. — Wills proved and grants made according to United Kingdom, Colonial and ¥cv eign Law 28ft ■ TABLE OF CONTENTS. ^H CHAI'TEK XX. Hevocation of Grants 205 1 CHAPTEK XXI. Citations CIIAITKR XXir. 1 Caveats ^^^ 1 CHAPTER XXIII. ■ Rigl.ts of Priority among Parties entitled to Grants 2ia 1 CHAPTER XXIV. H Presumptive proof of Death 1 CHAPTER XXV. B (^ointniiricntes cial ^m CHAPTER XXVI. PAOK. iIo7 20(i CHAPTER XXVII. Inventory and Account Oath, Afiitlavits, etc. CHAPTER XXVIII. CHAPTER XXIX. Practice Motions ... Summonses. PART THE SECOND. MOTIONS AND SUMMONSES. CHAPTER I. CHAPTER II. 27 5 27l> 282 285 288 294 30!) 827 886 !l I f ji ^ TABLE OF CONTENTS. PART THE THIRD. CONTENTIOUS BUSINKSS. CHAFTER I. Jurisdiction of Surrogate Courts in Contentious Business.. .Til . CHAPTER II. Practice and Procedure ... r.^^ oho CHAPTER III. Pleadings ^^^ CHAPTER IV. ^'^''''' 392 CHAPTER V. ««P'y 447 CHAPTER Vr. Evidence A.HO CHAPTER VII. Interest Causes 477 CHAPTER Vila. Actions for Revocation uf Grants 431 CHAPTER VIII. Trial and other Proceedings 45^ TAHI.E OF CONTENTS. ^ CHAPTER IX. JURISDICTION Ol- SURr.O(;ATK COURTS AS T.. INFANTS AND MINORS. Section I.— Custody of Infants and Minors ^O^ " n.— Appointment of Guardians ^<)^. CHAPTER X. Removal of Contentious Matter or cause from a Surrogate to the High Court of Justice ^qo CHAPTER XI. Appeals OlO CHAPTER XII. Costs 518 APPENDIX I. STATUTES. 1. An Act respecting Securities in the Surrogate Courts ... 511 2. An Act to amend the Surrogate Courts Act. (1894) 541 3. An Act respecting Ancillary Probates and Letters of Administration .... ^.^ . 542 4. An Act to provide for the Recognition in the United Kingdom of Probates and Lotters of Administration granted in British Possessions. (Imp.j. Orders in Council, Rules and Forms ^^. 6. The Wills Act of Ontario ^^^ G. An Act respecting the Administration bv the Crown of Estates of Intestates .... ' rrr ^ 555 '• An Act to protect persons acting as Executors or Administrators t, . 550 «. An Act to provide for the payment of Succession Duties in certain cases ; with the Regulations and ±orms issued or approved by the Provincial Treasurer 558 Xll TABLE or CONTENTS. APPENDIX II. Surrogate Court Rules, 1 892, and Forms APPENDIX III. Example of Prococdiii^rs for Proof in Solemn Form, and other Forms I'Aor. . 5G7 681 APPENDIX IV. 1. Practical Directions 2. Additional Forms ... 686 689 8. An Act to make further provision for the payment of Succession Duties in certain cases 713 4. The Intestates' Estate Act, 1895 714 ,s ; Index of Forms General Index.. 715 721 TABLE OF CA^-^ES CITED. Abbott V A ir. Ahud V Uicli.M Aca-iter V Au'lcrsdn Ackcrlcy v r.irkinsipn Adams v Corcoran Adariison V llaiiiiiii.nil Addy V (irix Aiiisworth S,"), AitU'ii V Ford Alford V A I'A ILT), Allen, !{.• I'.i. All.'ii, I!c. K.r. V Allen Allen V llnniiilirevs -, i}. T., V .larvis V Madiiock Allan V ! )uiidas V Mel'lierson. V I'arke .41) t»7, Allison V 1 Hckenson . Alleinn Alnif's V A Alston Amiss Anstee V.l, Anderson '.Ci, lie', ■ V Bank H (' V Mel>..usjrall Andrew v Fulton Andrews V .Miir|ihv Vnon ir>, 7l', 111', Vj)plehy V A Vi)|>leman v A o'M, Vrhery v Ashe Vrehl), Cant, v Robinson Vrclier v IJurke ■Vrcher V Severn :50.'<, 'MY,\ii. Arkell V Uoaeh 14;^, 11."), Armoiu-, |{e, Mooie V A .Vvnold V A .\sli, AM .\sldey, Anne Asliley V lianton Asliniore Ashwell V Outrarn Askew V A As|)inall v The Qiieen'.s Proctor. . . A.stell A^ton 1.".I7 370 o") !)() ^.;^: no '.ti 14-_' •2(»o 4'.l'.t \-2'2 3 lOlJ •21 42!t '_'!10 •J.-) 11.3 114 'JSi; <.)0 401 171 4'y2 ; Atkinson v McLeud 503 V Thi- Ui'.een's I'r.ictor. . . ."2.') Atkin-oii V lia Austin, Adiiiiral TiO A.xford 70 Ayers v A M, 12o, lf;7 Ayrey v Hill 412. 4J1 I'.abeoek I'aedii, KM r.adenaeh.. 2^'.t. liailev V ]?ristowe ■_".»7. Bailey, M l.V,), Hakor v I'.r uiks Baker v Batt 314, Baker, lie I'aker v Denning '^3, I'lald V 'riioni|isoii ."io;!. Ballinfrall.. ICI. I'alsani v liohinson .5,S, I tanKi l'i( 331, ISanks V Co., liellow. . .(IS, 407. 411, Baptist V B (IS, 421, 422. Barber, 11 T liarber l*aibt>r V MeKny Barlipr v McKav I'.arden, .lane. .' 40, liarker Barker, ']' W Barnes v Ward Barnsby v (Ir.mthani Barnes v Durham 2t)3, V Warl Barry v Barr v Barry V Butlin 3'.I4, 303c 105 •J1I2 IS.-, 3;t7 170 130 ,504 no 3()3.' 2((2 110 4ii'.» 417 42S 2S4 ISl 23 23 41 203 117 25 l).5 r)35 25 303 4.30 XIV TABLE OF CASES CITED. -7 Bayley v 13 a'!!! Bayne, Racht-l Haynes v Harrison HO Beal V IJ 521; Beal V SiriipviM 1 !!• lioamisli V Kaulhaticli ■"•l.") liearil v Kccinini Ill Beaslcy '8 Trusts 283 Beatty v Jlaklan, 2(17, 208, 2!t!l, 343, 4S4, 48.-) Beckwith. Re 20 J, .Mo Beetsdn, Win Bppu'iiv 134, 2;")") B<'ll)in vSk.'.as 350 BelcliiT V Malx-rley 13!), 143 Hell 173 15.11, n>; Us V, 24 William 00 J;ui,. i;{2 1:1II', .411. 4 Hi, 417, .•:4it 443 48.-. 402 128 17.-. l(i!> 200 V Annstronj,'. V Fotli-rt^ill. V Lamlun . ., V llu^^hcs. . . V Lw. V 'I'iniiswood V Mills BdUnv V B Bennett 1411 Benbuw 340 Bergnian 2.f)S, 202 Berkflev Trusts 303r, ;«0:ii/ Berks v'^B 44.'. Bt'ssfV V Biistwick 181 Betts\- Doiitrhty 344, ".SO, 427 Hewsher v Willuiin.s r(28 W\m^ V Ivt-en IT) I iii^'Kiii" -'-'7 BillinKliurst v Vickcrs lOS, 430 Binckes, 1 li iirv 2(14 Binfii'ld '. .'i20 Bi.iu 232 Birkett 84 Birkett v Vandercom 0(> Bishop 2.S3 Black 2.-|i; Black V .fohliiifr 47, 437, 440 Blackboruugh v Davi.s ll."» Blackwood V The (.^'ueen 530 Bla^rave 1 32 Blake 222 Blake v B b7, .503 Blake v Knight 30S Blake v Midland Hailw.av Co'y.. , . 25 Bleckley 443 PAGB Blewett 88 Blo(.inH7, 210 TABLE OF CASES CI'I'ED. XV PAGB 88 157 i«», '.'55, 422 422 103 253 45,i 370 07 .. 254 .37,;«>, 257 40 525 134 13, 414, IS, 51!l. 530 . 444 .. 104 . . . 344 .... 53'.» 530 484 303/ .. If'D . . 50 ... 214 42(i ....201, 291 1....407, 426 . . . 130 .C.l, OG 227, 201 535 . . <)1 .. 523 .350, 4H0 .... 527 .... 43 ..43, 150 155 254 .... 528 412 08 13. 350, 4S5 IS, 203, 301 ...124, ISl ...301. 302 ...130, 437 370 ...42S, 4;« 41,271, 272 . . . ^3, 00 110 25(» ...110, 175 01, 202, 223 .281, 301 .107, 2L0 .-5t, PAGE : BnrKcxs 210 ! HuWiyne V Showier 71,74, 70 FJunlettb V ThoiTitison 411 ' i'mvovnt! V Miionlalf 480 ; Burfsv B 181, 520 i liurns, John 193 , Burnett, B 244 j Bnrrell. Mary 200, 220 | Burrougli.'^ V (Jritfith VM\ \ Unsh, Re 07 \ Bushell 100 I Butts IHl ; Bynl V Nunn 44< CadKe 157 ; Callaway 251 , (Jaineniii, He 177 Cam.'ion V I'liilliiK 200 V Bethune 30;i^ vC 437, 457 Cauil.liell, C J 254 V Freiieli 445 V Dunn 500 Caiiliy, I'l 343 Cantiiliurv. Tlie Arciibisliop cif, v Holiin'son 130, 100 Cantcrliurv v Hcnse ' 130 Ciirdale v Harvey IKi Carless v Tli. ini|)snn 522 Canions Ca.enter v Solr. Treas ItiS CaiT 170 Can-, J 2()3, 280, ;WK Ciirtwr-trlit 10, 33 Cart Wright's Case 174 V C ^00, 415 Carswell.Re 40S Carter v Crawley 120 Casement v Fulton 80 Cismore 82, hO, 307 tJassitly 201 Castle V Torre 73 ( 'ave V Roberts 135 Cathrcll V .liffree 303 Catrall SO Central Bank, Lye's Claim 303/' Chambers v Bicknell 203 Chaml)erlain 307 Chainney 40:^ Chanter 210 Chapell l'_'4 Chapleau v C 421 (Hiaiinian v Dalton 05 Charletun v Hindinarsh 207, 208 Cliard V Rae 28 I'AOK Chatham, F 250 Cheese v Lovejoy 45, 443 Chester, Lady 15, 43 Chillman, Tn re 194, 280, 40(J, .505 Chisholm V Barnard 299, 301 Chittenden v Knight 11.*^ Cholwill 199, 2'7 Christian K) Churchill 50 Claringbull 105 Clark 88 V Scripts 443 Clarke 81,83, 307 Amelin 284 V Macdi >nald 503 Clarkington, Chas 180 Clayton v Davies 521 Clayton, Joseph 222 Cloare v C 433, 520 Cleary v Purcell 44 Clegg V Rowland 303/' Clements v Riiodes 302 Cleverly V Gladdish 331 Cl<).s.son V Post 100 Ciook, In re 515 Coke 117 Cole vRea 113 Coleman 401 Colel)erK 442 , Collett vC 272 Collins & Tuffley v Klston 4.3.5, 430 I Colquhonn, Re Addaida ; Colton, Re, Fisher v Colton 24 ! Cotton V M(!riier.s(.n 453 Colvin V Eraser 142 Colvin V 11 M Proctor-General. 118, 142, 287 : Comber's Ca.se HI Commissioner of .Stamj)s v Hope, I 530, 510 Commissioners of In onie Tax V Th(! t^ieen 508 Convers v Kitson 124 ; Coniin vC 440, 520 I Coode 23, 43 ' C(mst!ince v Bradshaw 540 . Coates, l{e 170 Cooke, Harriet 177, 217, 224 V Lambert 30,S Coomb.s 89, 200 V The Queen's Proctor 123 Cooper 21S V Bockett 00, 400, 404 V (Jreen 271 V Moss 4S9 Cooper, EL 221 Cojje 90, 10.5, 208 Coppin V Dillon 115, 170 Corby 50, 53 Cordeux v Trasler 171. 177 J I XVI TABLE OF CASES CITED. Corinack C!orn*'ll v Smith Oorrijfal v llenry 07, ll'l', Corner Costiahaii Costa Kica, Republic of, v lOilanRee Coswt'll V Mofjijan Cotton Cottrell Cottrell V C Coultoii V Meriicrson (Joiinccll Cousins V Tuhli -"liT, Covell ^.. Coventry v Williams Cox V Allingliain (!oyte V ( ' • Cozens Oane v Rebello Cranse Crawford....^ 240, Crawford v Forsliaw Crawford v IJoyd ( 'rinj^'an Crispin v l)o)?lione. . .351, 3ii2, 4^8. Critciiell vC i'r( )olve V Watt Croker V Manpiis of Hcrtfurd Cross V C (,'rowtlier v Caw t lira lit. Cnicifcr v Ilt-ynolds Criipp, L (Jul! V ( Juillerniey Camming v Lauded Banking' & L. Co Cininiii},diam v Ross Curry. . : Curt'is V C. ..^ Curtis s- McXab Cutto V (}il!)ert 410, Cutlibert l)'.\lton V D'A Daintree v Fasulo (il, 1 )anipier v Coulson I)ancer v Crabb Daniel A'lil( Daniell, James lO."), ] )arbv, f]mma Darke, K t>4. Darling, Maj (4en Hy Davidson, Thos Davies V David V The Queen's Proctor V Rees A(iK Itiil 354 1!)H i;{7 222 H'u 213 '.tl ail.-* 522 45.3 122 52: > 227 73 21 ]0!) i.5i; 143 123 2">l> L'SM 7'.t t)." 5^ >3 532 14(1 3S 521 148 21)1 2(J1 1.54 Davis !)2, Davis V Chanter 17!>, Davis V Gregory 505 151 2C.4 102 343 443 214 4!W 3'.t'.t I7r. 415 lUl't llll> 103 1(10 244 2'.t8 124 2'.»0 lis 52S 402 210 527 Davis V McCaffrey V Van Norman . . Dawes J>ean v David.son Do Angulo V Urriiela De IJonneval v De I'. Debbs V Chi.sman 352, 3(10, Dehais 2.52, De Harte vDe H De La Fargue, Maria De La Ronde 0.5, 1 )e La Rue Delap v Charlebois Deljiit V Delevigny Delmotte V Tajdor Dempsev V King Dench V J) ^ Denny v Montreal Tel Co Deni.son v I) 3()3, 1 1 )epit v 1 )e!evinge De I'radel D^sliiiis 242, De Vigny 243, Dew v Clark 174, 410, 414, 41(», Dey y Dey 2.5, Diekins, Tiioinas 104, Dickinson v Mlissett Dickson v Mcjnteith 1(!, Dickson, Sir .1 Dickenson Diddear v Faucit Dimes v Cornwall Dixon Dobson V Creachero de Dodg.s.m 211, 212, Doed. Ash v Calvert Doe (1, Atkinson v McL"od Doe d. KUis V McCill Dot! V Harris V Palmer !I5 - — V I'erkes V Xapean Dolphin V Kobins Domville V D l)oniddson 42, Donaldson v 1) 420, Donegal Don ^liguel Donovan 1 )ormoy, Anne I )ost, .\ly Khan Douce Downey Downward v Dickenson 13!), 1 )oyle V ]31ake Drake v The Attorney-* Jeneral. . . . 1 )resser v Robin.son 1 )rtiw v Long Drinkwater Drummond v Parish 48, ,\r!E 41)8 23 20(i 283 57 241 470 254 23 331 200 251 4(1!) 140 2! 18 1.5!) !)5 20 ;W3« 140 18!) 252 244 417 40 108 (II) 515 74 ""3 122 130 1.57 170 237 40 503 2!»1 442 !l(! 442 283 241 301 .50 428 428 l!tO 187 2.54 251 83 20.S 140 288 540 140 140 222 .50 <8V- J TABLE OF CASES CITED. XVII I'AfJE I)uanp ^47 l>iil'.nis(iii V Maxwell 't',\') Iditf, .lames (Sipnlon lOt Duirffiin -104 Diiiidus 10!) Diiiin l-'"» V l> 40;_i |)iirliatii, r'diinte.ss of 10") DnrUfii V .luliiistone 40 Dvkc- 44 Dvke V Walfonl i;«, rA:> 1)'\ ke V Williaiii- 47S, 471t. ,V„'(i Earl ICi', '_>1<», 222, 2r)('., 3:U Kist\v("p(l V McKen/.it' IIH Kfc;l"s, Fniv 1H7, r)l() I'Mwanls 107 ^; KdwarcU 211 Kdgar V UcynoM.s 1;>") V I'aviii' o?>') Kf, V Civshy !(!!• Elliott vCurr 112 EUi.- V Smitli Ki EluK' V DeCusta 470 Eliiicsv K 442 Klwfs V E 11-") EintTsou 807 Emlii^rlev v Trcvatiio'i ,'!(i(i, .■>24 i",iiyii>«li 4."» Etiuinii V Wylie 210, 24.". I'liiticiinaii LSI iMilniaii V Town of Walkei'ton 2(» Ernest V Eustace 141, 17*) Eusteii, The Earl of, v Lord Henry Seymour 50, .^S Evans V Jliu'rell 20 V .lones 2<)S vTvler (13, 170 Evelyn v E 12,S, 120 Ewart 28i> Ewing 1!»;<, 10r>, 107 V OiT EwinjT 246 '!sMir.;i!.se 320 ** !- •U!'l:i!id. Perev 177 ..irw.'atlier. . ' 13(;, 224 :il|-.-loUL,'il V K 70 a!).- V (Jodlrey 4.'«) aniuliar TM^, 7.'>t arlar v Farlar 381 arrand 217, 21!), 480 arrar V St. Cath's Collej-e 430 arrell v Urownhill 223 aulds V .Iiickson 309, 400 'awcett 200 fi PA(IR Fawcus ;J0G Fawkener v .Jordan 103, 19i> Fawtrey v F 113 Fenton, M 2!I0 Feiiwick 42 Fernandez 104, lOH Fernie (iO Fer^ru.son Uavie v F .300, 41t» K'erraris, Countess of, v Hertford.. l Ferrie 200 Kerrey v Kin^' 52.5 Fielder v Mauirer 123 Finoli V ( !()onil)e ',17 Fint!liain v Eilward.s 70 Findlay 217, 220 Fisken V ( 'hanibcrlain 4(i.') Fisher V F 72, .V_'3 Fi.slier V Po|ihaui 3'.t0 Fitz-,'.-raM v F 72 Fit/.patriek. !{>• .3.".3 Flanders v 1)" Evelyn .'ii»4 Fleming V Uurrous ].")7 Fl ■miiip, U.- 303rf, 303.' Fleming' V I'elham 124 Flood v Itussell 370 Foale v Tretllewv r)2."> Forrest, .f . " li;t Forse & llaml)linj,'"s case 71 Foster 04 Foxwell V Poole 532 Fozard 2;!5. ;{:n Eraser. P. A '. 210 Eraser, Ennna 43, 00, 210 Freeman v F 420, 422, 42^. 4.15 Freke v Thomas 110 V Carberry 23!» Frenoli, .Tames 2!W, French v Coonibe '.17 Frewer, Ke 3ii:V Frith '.'() Fritchley v 1" ."c'S Fuller .'. S2, f-:(> Fulton V Andrew, Kil, 430, 432, 433 431, 4:i5, .t.;7 Fynn 4'.i< FysoH V Wc-itrop , 535 (ialliraith v DuusCtimb .501 (iannnill 35.J (rardiner, \l. f ISl , H. 15. S I'.KS, V Coiirthorpe 47, 440' (iarnett v Bradley IN (lausden 3!K; ( laze V (i M'.'h: (leale 70 (Jent 330 (Sentilli 2;<0, 2.55 George III 142 XVUl TABLE OF CASES CITED .11.'., Giles V Warren (;ill Gillrie, Re (iirliiig, Eli/.ahetli (Jlover vHinitli. Godilnrd v Cresswuier Goderich v .(ones GohUbonnigli, T Goodlmrn v IJiiiiihriilffe GiKxllme, Ue (loixlveiir Gould Gordon, Ke (.Jordoli v Roberts (toniiill V Miison Gislin^ (Jo.s.M V Hill (Jould V Uurritt Gould V Lake -404, Graham ItiO, V MsLean V Ruljson Grant Adtnx v G. W. Rv V (i ■AdK 415 01)2 4!irt Mr, .s:< 74 1-Jt '2(Ki L'Ol 27;i L'K) ir.5 17 440 i;^ij V McDonald V MoLaren Graves, Dame Susannah . Gn^enwood Greiur GriHiii v Ferrard 43, Griffith 42, V (; Grimwood v Cozens f iroom V Thomas (Jrove V Bastard Grinidy (Juardliouse v Blaekljurne 4;{1. Gullen Gunstan, Mary, Blake v Blake Gwin •J(i 42-' 2;i'.i 4H" 207 !»S 1.S2 71 XiH Wi 440 4:.. 347 173 432 443 .H7 r.3 Habergham v Vincent 71, Hackett Haddon v Fladpite Ha^'t?er i ".:: ■.'.". l'.»7, Hakewell, Knnna -. R» Haldan v Beatty 484, Hale ■ 223, Hall Hallidav Halliwell, .lane. I 1(55, Hah', Rev. W Hall V Kve V H 425, V Tokelove Ilainmond , William SO 55 55 21 it 105 4!».S 4S5 224 100 404 .S31 23S 44S 427 448 .SO 220 l'A Hankiiison v BarninK'han.37li. 303, 45H Hancock v Liirhtf.iot 131 Hanrahan v H 27, 503 Harding 123 Hardy 47ti Harrington v Bowver 52ti Harris ." 42, M"), '.!7 100 V lierrall 444 V Bradbury 3.33 V Knight 101, 47'> — V Milbnni 203, 2f.3 Re, Harris v Harris 537 Harrison v All I'ersons 114 Harrison v KK in 00 Harrison v H 00, 200 V Moorelionse 20S V i'atterxiu 303/- — V Southain|itiin 30 , Turner v llellurd 305 Harrod v H CO Harter v H '01 Hartsiiorn v Karlev 5ii4 Harver v H 110. KW Harwood v Baker 4or., 420. 422 Hastiloe v Stol)ie 71, 420 Hastings, (irace 20*> Hatt. R 20H Hatton h5 Hawke V Wedderbourne. .177. 217, 224 Hawkins 30;^, 522 JIawlej' V Stacev 421 Hay .' 5t;. 107 , .John 250 Have* .50 Haves. Roche 185 Havnes v Matthews 121. 137, 177 Heath v H 537 Ife.-ithcote 105 Hegerty v King 4;{0 Hellem v Severs 2S0 Help.s, Re 303r" Henderson, .Tames 104 Henfre.N- v H 430 Hensloe's case 10 Herbert v H 50. 5(i, 272 Heron v Moffatt ;?0:!r. .303/' Hesse, Elector of 211, 320 Hibben v (/alembourg 470 llickey v Stover .503 Hill 50, 10.5, 222, 242 , Mary «3 V Smith 243 Hillam v Walker 528, 533 Hilts, Re 170 Hindmarsh v Cliurlton. 00, OIJ. 400. 405 Hinckley 153, ItiO Hitcheii V Birk.s 20G ■3i TABLE OF CASES CITED. NIX i'a<;k Hoare, E 2i7. -.'Ol, 2(14 ll(il)l>H V Kni^lit •• IS Hobsdii V HlaokljiiriiH 72 H.K'kW, Wvatt r.20 H(Hh,'ins vMi^NVil 122 llotfiniiu V Nciiris a49 Hiiffahooiii V CiiN 4ti!* HoRK' V M>;iii'' 42S Hdtfuct V WiillacH atW Holdesworth, F 2'.W Jldldircli V Cartt'i- ^<'.^'> Hol,.-li.'d 41»;t Holloway, He Ynuiiyr y Halluway. 4."iS ^ Tlioinas 470 Holly V Cliambf rlain 4'.)W Ildiiian l''t>, 17'> Honifray, E. A 77. I'M Hiiiit'ywcKxl 102 Hnii/i)er!?er v Krat/. 2G'.», 300, 3(«.' H<)(K'y V (filbert 4 Hopkins 222 Hopkins V H 7!» Hornbnoklt'. Mary 'M'> Horrcll V Wills 207 Horsfonl !'7 Housi^ V I'etre 2'.t0 Houston 104 Howard, Ulioh 4'.) \hm 222 Howe, Elizabeth 283 Howell V Metcalfe ]!)1 , Thomas <)2 Hubbard v H 40, 5:? Huckvale ,y.), ;V.I7 Huddleston V H 130 Hudson V Parker .... 87 Hughes, IJeiijainin 8() HiiKM'ins V Law 503 Hugo 45 Huijhes ,S4, 222 Huddle.sti)n v H 13:» Hunt 72 Hunt V H S2 Htint & (lothed V Anderson 457 Hunter V Young 303/' Hull V Warren 415 Hurst V Marber 401 Hurrell V H 10,>, 1.54 Hutchinson v Lambert 153 Hutley, Re 270 V (Iriinstone 40), 421 Hyne V Brown 355 Hyslop, Mary 203 Ibbetson 97, '.i KintfMinill v Miller 'M>''i,'st(int', l>iicli '.ss of 8!l Kinn.-v, K.- 4J«» Kippint'v Ash SM, 3(J2 Kinipton ;W Kliiigniiin 254 Kooystra v Huynkfn 150, 153 Tifv^roix 254 Laidliiy v Lord Advocate 53!( LaiiiHoii V Niiylor 271 liiiit V I'.iiiley m'A liiunlH'll V I, 124 L;inilMTt V I'lcssett 534 Laneiiville v Aiidi'i'son 155, 254 L:iiij,'ilon V liookf ('(5 Liin;,'ley 2 L-uery V W-.lfe 452 Liivin V J^ 42.S Lawrence v .M.iiide 47'S Laws 2I»S Livw.son V Powers 44t! L:iy 50 JjHach, Sarah 227 Leake v Hurst 3S1 Lean v Viner 271 Lease 40 Leaske. Ro 22, 21 Ledyard v (iarland lS!t Lee and Waterliouse, Ite 537 Lee, Afhu'or, v Bank 13. N. A 32 Leese, Jessie 2(M.t Leeson. .Tosepli 202 Le>r;,'att v L 115 Leiyh v On-en 52Ci Lenia;?e v (loodban 42, 441 Lennaii, llu^'h 1S5 Lei^di, Ue 4!»!S Lennne 253 Lett V St Liiwrenoe & O R'y Co. . . 2(J Leven and .Mellvillc (12 Leverington, James S,S Levna;;e v (ioodban 42, 441 Lewis V L ilO Lewis, He, Jauk.son v Sciitt 4S!» Leys, .) ohn 303« Life Assc/cn of Scotland v Wiilker 303 ■, 303( Lindley 452 Linendraper's Institutiim 5.5S Linfoot V L 4!I8 Linthwaite v Galloway 151 Lipsett V Perdue " 504 Lisdale v Baloo 272 Lister v Su)ith 300, 445 PAOK lilaiiwarne 221 Lloy Lon>{chainp v Fisli 70 LondslmrouK'h v .Soinerville 53!t LonK V Syines 58, 2H!> LoiK'/, V I lartley 204 Lovekin V Kdwards .■'04 Loveless v ("larke 303(? Lowrey 01 Ijucas V fjo:f 4H Lucas V L 201 Ludlow 153 Lusliin^'ton v Onslow !.<(), OH Lnsii 01 Lyniati. W 24!( Lyell V Kennedy 4.53 Maca\iley v Piiillijis V Ann (Jee Macdoneil v I'urcell U, MacLaren, I{e Miiclean v l)awson Macniin v C'oles Madden, Ann .lune Madder v Peiu'ose Maddock Maddock v Allen Maidnian v All Persons, etc. ..140, Maley Mallandine Mann, Mary E Manuel Mann 82, !Martin, (leor^re Martin v Mc(Jee Martin v M 00, 421, 420, Marfrary v Kohinson 8(i, 307, Marquis v M Marsh v C!orry Marsh v M 47, Marshall 81, Marshnian v Jirooks 207, 208, V Hughes Marshall, re, Fowler v aI Maskeli)ie v Harrison Mason V Town of Peterborov.ph. . . V Vancanip Masterniann v Maberley 40, Maston V Swift Mayd Mavchell McCabe McCaffrey v McC 427, McConnellv McC 121 24 1 440 54» 210 liO 250 377 402 1(»5 142- 02 20 188 118 8!) m 20 •128 404 421 370 102 2()0. 3.32 170 24 200 20 380 71 30 45 125 00 428 240 TAHLK OF CASES CITED. XXI PAliK .... 22\ 404, 4(15 ... 144 12(1, 127 .... 471 .... 291 .... 23U .... 70 .... r)3'.> ,.68, 28i» .... 2(54 ... :'ti4 . . . .'M\d (il 4H 201 Vi'S ..!•(), !W til 240 4.-);i- l-.'l 241 ...14, 44it 543^ L'lU .... liO .... 2.^)0 377 402 1(1.5 ..140, 142 (;2 . 20 .... IHS US .S2, W> .... <'><> ... 20 21, 42ti, 428 }<«, 3il7, 404 .... 421 37<> ... .47, 102 ....81, 2(iO t7, 2'.>8, 332 170 24 20(1 v.Rh... 2ii .... 38G ....40, 71 3!) i'i 12.5 . . it!) ..427, 428 .... 240 I I'.\(;k I McConvill.' V Mcf'r.'wHh 402 , McDoiiiild V .Mfl) 27, 241 V lJivvi(i!i I Mcdill V (JourtiuH 303»' i , }[uii. IVttT 24!» j Mclirath, Ke 4'.iO I AMJla^hun, Al.-x 2!»8 ! M(( ircp'r V Mel h diuld 401 AlcKfii/ie, Sir Al.-.\ 2W Mitcl.;irtii, Uf •">43 ; McLi-oil V McNi.l)!) 44 , Ke ."ill, A'iiliuiila. I MeLcmmii v Hfward -'.Mi. 302 JMuMilhm V Mf.M -O, 303/j I Mc.Murdo ;">-' ' Mc\au>,'hU'ii • ■ 414 ^ Mcl'licrsdU V Irviii.' \ilit''ndti. \ IMc(2m'..ii V McMilhiii 4!»ll RIeii- V Wil.s.m It), 2o'.l, r,10 M.'Iior, Mary 141 Mcii/.ifs V l*ull)r()()k 2til, ii.VJ Mfiitrcv V IVttv 12il Mercer' " 100 Mercer, .Andrew 130 V Morlimd ll-), llii Mcrchaut.s" I'.aiik v Montieth..258. ;.0.') Merritt 440 ■ Merry weatlie'r v Turner 340 Mette V M 4;''.'5 Meyer 140 Micliio V Allan 3 Middleton 143. 22», 2711 I^Iiller, LucyC 47 Miller V M 271 Mili.s V .Millward 441 Milne V Moure 142 Milne.s V Foden IDti. 240 .Miii.sliall 224 Miller v Janie.s 242, 243 ' V Wa«liinf,'t!)n 142, 272 Milli)?an ."lO, .52 Mils(.n, .Foliii 15 34.5, 347. .UV, (;31 Minshall 224 Mituhell V Card 5) !». ;V_".) i V M 07, 30:w" I V Kichey '-04 ! V Tlionuw 435 ' M(ink, Sir .Janie.s 214 I M.Mire, W 2.5S | V I'.arham 1 15, 140 | V llol^'ate 344 V Ivinj? 405 I V Paine 70 I , Sarah Sophia 13. 102 ' Monlaunt v Clarke 207, 2S!» I Morgan 42 \ V Thomas Ill Murley v (}. W. Hy '.iO I'.MiB MornU V .M...50. .5.5. 101, 102, 13.5, AM\ Morton 4;<, <)<> Morant 21>1, 202 Morri?', Loui.sa. . ..52, Kiti, l!)4. 2.5!*, 280 Morrison, Sainuil 201 .Morritt v 1 )onK'la.s 80 Morse V Lanilt fiOH .Mortimer v I'anl 207 Mountain v liennett 42(i .Mud},'e V .Vdains 304 -Mnrfatt v Smith 411 Munro V M 241, 400 Murray 286 Canal, Hi, Lawson v Pow- ers 440 Napier, Chas. J 2.58 Nares 124 Xasli V Yellolv .532 Nathan v Morse 4(;, 108 Navlor, V 114, 130 Neill V Mel.aUKhlin _ lOO' Nelson, Ke. McLennan v Wishart. 4.'» Netter v IJrett 40 Neville :50, ;51 Nevin V N 143 Newhold 172, 173 Neucomh V Heloe 130 Newell V \Ve..ks 340 Newman. .1. H 230 Newstead, ^larv 1.5") Newton ' 200 V IJest 70 Nicholls V N 71, 44.5 V liinns 347, 5:il Nixon, Ke 11). 512 Nohle V rhelj).s 214 Noel, C 104, 203 Noddinjf.s, R 07, 288 Nornum v Stains 440 Norris 52. 2.s3 Northev, F. V 244 ■- V Cock 200, 480 Nuttall V N 271 O'Conner 42 OT.rien, Ke US, 2 43. 201. 510 O'lJyrne 187, 201 O'Dwyer v Ceare 41 Orleans, Dnches-, of 100 Ogden 125 O'I.earv V Douglas 43'.t Oliphant, T. H ."-7, 300 Oliver 402 O'Neill V Owen '.»1, 118, 404 ( >nslo\v V Cannon 532 Ornii'iKl -Ol (Jrton V Smith 527 X X 1 1 TAIILi: OF CASES CITED. 4 \ Ohimrnt' IHC OShw V Woufl 457 , Oswiild 101, 102 Oiu'lit.Tl- iiy 1(K( . (tmraiii \ Wyvkotf '25 ' <)w»ii V Ufliiiiiert' 177 ( )wnti III 70 I Vanf V Poriovim 8i( ^ r»gU'r V Tniit'iic .") ■ I'lilliHoii V Old 1N7, 'Mi I'aliiiir V Dfiit ti'i I'arkcr 1»'>7 , Anil. TnititH of Will of ... . :w i — V V<'\niiU' ■('-'<•, VJ'A, 1K»". ' I'tirkinson v Thoniton I'tilt, 'A'A'2 ParlDii V •Juliiisdii ;V.t4 Parr ".»7 V MontKuiiicry ;<(U l'ar«(inH 1<4 , Rt', .loiieH V Kclluiid. ... 27 I rascal! 107 '■ I'aski' V Ollatt AM) \ i'attt'Moii V Ilunti'i' li'l Pattcr.'^dTi V Knrr 107 Pattoii V 1 '(Hilton 44.S V Hiokson 2«!» l'a>toii KiO Peaeli M, «!t ; P.'.irn K2, -;nell '2'X>, 207 V Alcouk 2(>2 ^ Pliil)iis .">0 V Hall 402 : Piercy v Westropp 1,")S ' Pile V,H I Pine 21S Pitt V Woodniiin 2!»!l : Piatt V Kouth .'i40 i Podiiiore v Watson l.">7 Polloek, Kev. Alex 24S \ Pool 74, lull Poutney 123 Powell' yo i I'A(iB Powell vP 445 Pt>yer lf>'2 Porter v IJoulton 4 Pratt V Stock 37 Prentice v P 171 Presfiit V (ioodwin l.^S Pri«'stiiian v 'I'lioinas 30, 437, 44r» Pritcliard v Standard L. Ahhcc. ('o. 24, '2.' Price, TlioH 43!> r,G, 77, 420 , Amelia fiO, IHO V h.'wlnirst 230, 343 Prinse)) V I)yce Soinhre 4\H Prittie'n Trusts, Fte .H(Kf 1'rol.art 125 I'rotheri) . .' IS.3, 21'_», 3'2i> ProudftH)t V Tiffany :W0, 303 I'nidcnce 74 I'liddeplmtl 82, 8',» I'lincliard ; 'iO Piircell V J?ert.'in 44, 44i> Pytt V Feudal] 'JWO Queen, The, v Arnistrong 499 Queen Victoria & Niagara Fallti Park Co. v Howard 453 Quick V Q 104, 4S8 Rachel V Bayne Ji(> Radnall, Mary 144, !«(► Radeliffe v Barnes 349 Raine 72, 94 Rains v Commissary Canterlmry. . 37 Rawlinson v Buriif ll 045 Rayson v Partim 521, 535 Ratcliffe V Barnes .521 Reay 1.59 Reddan, In re, 10, 20, 41, 42, 111, 240, 34r> Redding 396 Reed, T '202 Reffel V R 93 Regan V Waters 88, 537 Reid 445 Reichel v Mc(irath .53(V Rennie v Massie .520 Reppington v Holland 151 R. V Greenhill 498 R. V Simp.>,on 290 Rhoatles 183, 215 Rhodes V K. 429 Rice, Catlierine 8(» Richards, Elizabetli A (it> 49, 173, 2:i5 V All Per.-cns, &c 2*28 Richards v Hunijihreys 5'J5 Richardson "l7.!, 2'22, 2*2.5, 291 TAIlI.i: OF CASES (ITKI). XXI I'AdK 445 lf.2 4(ii» 37 171 inn ail, 437, 440 HCl". ('ll. 24, 2.') 43U , .r,G, 77. 4-.> 125 |s:<, 212, 32!> 3 26!> 499 ra FttllK 453 ....104, 4S8 «i(> ..144, im 349 ...72, !t4 rlmry.. 37 .... 645 ...521, 535 .521 .... 15D 42, 111, 240, 34ft 3!)6 202 i»3 ..HK, 537 .... 445 .53ft .520 1.51 41IH 2!>0 .183, 215 429 8ft ()ft 49, 173, 2:«> 228 525 ■2, 225, 25tl I'.M.K Hi. li V C'lmiiiUilviu- l'.':!, 195 KiiliiiK' V H'lwkiiis 3H.), rJt'.K 4;J7 Riifif V lliitrln'M 437, 447 Hipl.-.v. ■'. I' *••<». l«a kiti'li'-v V lift's KiU.-hi.' •"». •»«•'' V Hiv* 298, 485 R.il..Tts 43, 40 li..Urt-< V I'liiUips 400, 402 vR 74 V ( 'dwiiiiadow 520 Kulx-rtMiii V Siiiitli 71 Rdliiii.^ V Dolphin 529 Rohiiisiiii 72 Ri.\is..u V 11 53', .5.34 Ropr. SvW 24S Riijrfrs V (icHHluioiiKh 44^ R(ig»T^iiii, I »avi(l '.'55 Riilf V Cniwford 140 RiKip 124 RoslK.tlium V K 381 Ri,.sH 237,330, 498 R4iwsStainaii 251 SaiKiry v Mitchell 170 Haiiiphoii V liniwiiin^' 49 Saixhrs, W. K 244 V .Sanders 444 Sands, Sir (^eor^'e 112, 121 Saunders .5(( Sainiders v .S 444 Savage 47, 439 V Blvthe 114 Sawtell ..,; '_'19, 222 SawliridKe v Hill 174 Scarljorouffli 1.55 Scarlett 1.5() Schrieher, Rev. Tlios 244 Sc'hnieder v Batt 9 Scliwerdtfejier I'.ll Scotter V Field 2'i3 Seaton V Stiuvli .525 Secord v (1. \V. R v 2(1 v Costelly '. .'(10 See, .lolin 220 Hefton v llopewood 420 I'.MiK Scott v .Vtty.-l len 4.38 vM 87, 89. 404 Shanniin 91, MM Shaver v t iray 24, 240 Shaw v Marshall 5;U .Shearman v I'ike .50, .'''3 Sheddon V S 2;« Sheldon v S 104, 1(18 SheHield V S .Vji .^hepherd 1.57 Shilling, .latneH 287 Shuter, .Sarah 24 ! Sibthorpe 109 Sievewright v LeyH 'Mir Sillick v Booth 285 Silvester, S 3(»3/t .Siinnions V I )eane 332 Simpson V Horn 299 Sims 107 Sine 221 Singleton V Toinlinson 107, 521 SketHiigton V White 114, 227, 2'.»2 Skipi-er V S .5;i3 Slv V S 104 Slater v Brady .^;n4 Slosson, Re KMi, .5i)0 Slunilnrs 220 Smart 2.52 V S 493, 498, .501 Smartt, Thoman 105 Smee vS 407, 414 Sniethurst v Tomlin <'>3 Smith 14, 222, 239 Smith, Patrick 298 , K. J 400 , J. F I(t5 • v Atkins tM) , W ftft, 28.3 V Fletcher 524 V Harris 397 v Huad 488 V Hopkinson 530 ■ V Houston 5(i8 V Hus<,n 122 V Milles 21 V Meriaui 4ft, 9.5, 9ft ■ V Rose 25 . V Roe 299 , Rigg V Hughes 437, 447 V Smith 39l>, .523, .533 vTebl.itt 40\ 114 Suiiths()t\ 177 Smyth, P 295 V Wdson 529 Snape v Wehb 1.514 Hoar V Dolman 98 Somerset, Lady Catherine 232 Somerville v S 241 Houthmeod 123, 143, 1<»8, 231 Spedding v Fitzpatrick 38ft WF ^1 XXIV TAUI.i: OF CASES CITED, I'ACK iSpi'ip-lit V fir\nnt ;^t>l Spcrhiii,' 40:! >S|ii;itt V W'ilsini 504 fipii^Ks V Blinks I'.MI, iTl' • V Spritfj,'!- 144 iSpi'oait V lti)liertsoii ',{{)',>'■ Sproiilc, Uc 2-1) St!ic|(i)()Ic XM) Stiiinton ]r)ii •Stiinley v licnifs 114, '.'o; tStainiiird, lii- 4!>7 Htapf V Mc(-";irriiw Vi'.t Wtfiidiiam 44 .Steacliiiaii 23-_', :^2'.> tStcarii V l'"isk 115 Steclr 44 Htft'le 448 Stephen.! v 'i'aprell 4 1;< Stephenson 11)7 , He, Jviuiiee v Mallov. ()."> Stewart I'.ll, 2i>i, 'SM) — , IwalwIIa 'i'l.") — V Whitney 27 V Lees •_';;, 74 St. ( ieorge, L. < ^ •j");} Stinson V S -Jss, ;-!();!(/ St(jckel V I'liiislion 101) Stoekwell v HnrinTdon 101 St( rldart v < iraiit 4;;'.( Stote V Tyndall VM Stnittou V Lintcii 115 Streaker loo Streatley ,SS, 400 Stretch V T'yiin li'l, 174 Stump V Bradley -Jl Stigdcn V liord St. Lediiards, l(i;i. LS], ls-_', 475, 515 Sullivan v S lO'J Suninierell v C'len:ent.s 5i.':{ Sunderland Surrogate Court Co. Wentvvortli V Kerr Surtet's, Anna i I Sutherland V Saddler Sutton V j>rax 527, Swaiiston V Lishnian Swart wout v S Sweetland v S 84, Swinfen v S 527 Switzer V McMillan 5o,S Swordsfep.r ;>H0 Sykes V Canada Pae. Ky 201 Syines V (J reel! KKi, 414 107 .540 271 2:17 4(»(i .5;-.o 454 40!) ;j',>7 Taniplin 10!> Tai)ley •■ Kent 71 Taylor 402, 4!»4 V Diplock 151 I'.\(iK Taylor v Newton 2!t:), 485 — V T.^ 20,^, 523 Tea:,'Uf' V Wharton 221, 225 Ti'iitis V Carpenter 'MM Tei-il, Thomas IS? T.-nnant 428 - V Cross 522 T.-iiducvi V T 272 Thar)) 1;;, ;J44 Thinn Ki;), .500 Thomas 21>0 V Baker 1)7 V Crowthnr 535 V I'riestnian .'!4!) V Maudr 47!) • , Jane 70 Threlfall V Wils.ai 12!. .534 Thompson l.s, HH , Kx !> "j3 V Fairhairn .'iOS, 303./ V Freeman. . . ,.'>i)0, 3o3, 303/; — V Torrance . ;!o;v''. 40!). .523 Tiu.-old V T 40 Thoriu' 54, 55 V Uooke 4-iO, 530 Thurtiton '.)'.), 443 Thorold vT 4(i Thoni!)eck 22(» Th(jrneroft v Lashtniir 73, 528 Thorpe, Re 2' I, 24, 23!) V lloldi'swiirth 447 Thorpe vShillin>,'ton :;03(/ Thrip|)lHton ISI Tiehhorne v T 207, .")32 Tinnuelu v Smart 333 Til)ett vT 521 'I'odd V Simp.son 37!) Tomlinson 10 Toi)ham vT 85 Toppiiif,', Sarah 341), .533 Torrauc(i v ( 'hrwett 303/' Towffood . 23(> Towulev V Watson !)7 Travis v (iustiii 2!)0 Treloar v Lean 413 Trevclyan v 'J' 445 Trimicstown v T 258 Trite V liohinson 28 Truss 154 Truro, The Baroness of 105 V Smith 343 Turner, Jane 121, 223 V Mauh- 135 U, 47 Tw.-edale KM) Tyl.r V M-r.hiint Tailor's Co 101 Tyrrell v I'ainton lOi!, 424, 431 Unii)n I5.tnk v .Starrs 452 Underwu'id V Winjf 285 t ■f TAHLE OF CASES CITED. XXV 1 m:E .2!t'.l, 4sr) .•Z{\f -)'J3 .--'J, L'iTj ;'>(M) 1S7 42S 522 272 ..i;i, ;i44 AM. .")(M) 2!M» f.7 5;<5 ;;4!) 47!t 7() .1-J!, r,',u ..1\ HS 53 :m. i(t;{./ , :m, ;j(»;}/; '. m>. :,'Si 40 ...54, 55 ..440, 5;«) ...U'.l, 443 41 > 22(i . . 7;!, 528 (>, 24. 2;!!> 447 •M'A 10 .•M'.K 533 303/y 2.i(i '.>7 2!)() 443 445 258 2H 1.54 105 343 .IJI 223 135 .H 47 KM) 101 4-J4 , 431 452 285 P.\I!K Unwin V Mow.at, .Vtty.-'n'.ii . .13i), 510 i'ninliart v Fric^kin' 520 ITUiaton V lli>l)iiis 107 V:vii;itt.) V Mitcli.'!! 28S Vaiiston V Tli(iiii|>si)ii 2l)0, 302 V'(;r()t V Diiprcz 2','5 Vicsi.'ii V J)'.-Vriuiil>uri:i 2.55 Vincfiit, W.. I'iiris 201 ViiK't'iizf, Krwlcrici 152 ViiinicDiiilif V lintlcr 74, 404 V'ivi.iii V Ki I. nelly 522 Viig!itiv. In ri' .503 WiUefor.l. Francis 105 W'ilsMii, Re. and IneaiideM'ent Co. 20 V W 343, 314, 40ii, 510 V I'roudfnot 303 V r.edard 83 Wingrove V W 427 Wini hester's i.'ase 08 Windeatt v Sharland 220 Wingrove v W 427 Winu'held V W 1.37 Wi si'inan v W. Witluim 280 Withey V MaiiHflex 113, 110 XXVI TAHLE OF CASES CITED. Wolff V Ogilvy 508 Woodley 81), m Wood V Goodlake lO") WooUey v Green 272, 32(» Woodhouse v Balfour 74, 403 Woodward v (Joilstone 104, 4713 Wotton 89 Woodfall V Arbuthnott 15G Wormington 225 Wright Hit Wright V Wakeford 83 V Sanderson . .74, 402, 401, 40r> Wychoff 330 Wyatt & Berry v Berry PAGE . 101 . 408 York V Manlove 21)2 Young 170, 217 , S 137 V Pierce 138 V Kr.)wn 206 V O.xley 170 Zacharias v Collis 344 I Zimmerman 298 OE 01 lOG 292 217 187 138 20(» 170 844 298 ABBREVIATIONS. S C. A Surrogate Courts Act. S. C. R Surrogate Court Rules of Ontario, 1802. N. C. B Non-contentious Business. C. F. B Common Form Business. C. B Contentious Business. R. G. I Rules as to Guardianship of Infants. Jud. Rules ....Rules of Practice of the Supreme Court of Judicature, Ontario. E. C. P English Court of Probate. D. iV B Dodd & Brooks' Law and Practice of the English Court of Probate. C. ct Tr Coote's Common Form Practice of the Probate Division, England, with Contentious Practice of the Court by Dr. Tristram. Wms. Exors. . . Williams on Executors and Administrators (9th Ed.) Lond. 1893, e.Kcept where 8th Ed. cited. P. D Probate, Divorce and .\dmiralty Division, High Court of Justice, England. !B91,'92,etc.,P.. Probate Division, High Court of Justice, England. S. C. R Reports Supreme Court of Canada. A. R " Court of Appeal, Ontario. <>. R " High Court of Justice, Ontario. 1'. n Piactice Reports, High Court of Justice, Ontario. R. S. C Revised Statutes of Canada, 188(1. R. S. O " " Ontario, 1887. f ADDENDA ET CORRIGENDA. Pa<;e 147 — add to foot note, " On the deatli of a person intestate, leaving no issue, the children of a ))re-deceused sister or brother are not entitled, under section of the Devohition of Estates Act, to share in competition with a surviving father, mother, brotlier or sister of the intestate : He Colqultonn, '2(j O. K. 104 (iKSIo)." Pa^jo 148 — add, " See further provision for widows of intestates in the Iiitcntnte i:.', post, p. 711, adopting parts of the Imperial Act ;)3 & o4 V. c. '2!)." Pago I'lH — note (rt) add, " See also chapter on Inventory and Account, ■poft," p. mad. Pages 205 and IS8 — add, " No jurisdiction exists in, or liag over been conferred upon, the High Court of Justice to revoke the grant by a Surrogate Court of Letters of Administration : Mcl'heraon V. 7n/«f, 15 C. L. T. O. C. 181, 1895." Page tSOl — note (h) — Just allowances, — Costs of unsuccessful litigation : add,— 7h re Williams, 15 C. L. T. O. N. 82, 18'.t5. Page 484 — add to foot note (/), " Tlie procedure now commonly adopted to compel lihng an inventory and rendering an account is by summons or Judge's order ; vide a;itc, 294. See also S. C. R. 19, and Law Courts Act, 1895, s. 30." Page 500 — note (o) add, " See also 5(5 Y. c. .'i'i, s. 7 ; and Re Daniel, 10 P. R. 804." Page 511— add to foot note (e), " Re McLeod, 10 P. R. 201.' Page 5l:J-add note to S. C. A. s. A'i, "By The Law Cnurts Act, JS'J5." not to go into effect quoad " until such day nor before the 1st September, 1895, as the Lieutenant-Governor in Council may by order appoint," an appeal will lie to a Divisional Court, instead of as heretofore provided by any statute or rule of Court, . . . . " from Surrogate Courts or a Surrogate Judge as provided in The Surrogate Courts -Jcf." ^i It 1,11 *i XXX ADDENDA ET COIUIIGEN'DA. i Page 543— Add to foot note, " lie MacLarcn, 22 A. R. 18." Page 50i— uote (a), add, " See also Act of LS'J.j as to Succession Duty, l)ost, 713." Page 570— note (, 70 ; " Tlie Surrogate Court of IMuskoka and Parry Sound," 51 V. c. 13, ss. 3, 17; and Manitoulin, 51 V. c. 11, s. 1(1. " Each of the Surrogate Courts shall be provided with Courts t) a suitable seal to be appi'oved of by the Lieutenant- .and exVin^- ' Governor; and the Judges of the said Courts may respec-\'|,'^g^,pj,'"'' tively cause the same from time to time, with the approval ""'}'''" ^^^ 01 the Lieutenant-Governor, to be oroken, altered or received in renewed ; and all probates, letters of administration, grants, ' n.s.c. — 1 IT "^ s Sittings where held Judges of County Courts to be f r officio Judges of Surrogate Courts. Oath of Judge. Powers of Junior Judge. CONSTITC'TIOX OF THE orders, letters of fjuardianship and other instruments and exemplifications, atid copies thereof respectively', purport- ing to be sealed with the seal of any Surrogate Court, shall, in all Coui'ts and in all parts of Ontario, be received in evidence without further proof thereof. — sec. 4. " The Surrogate Court of every county shall hold its sittings in the county town of the county. — sec. 5. " The Senior Judge of the County Court in every county shall be ex officio Judge of the Surrogate Court for the county ; and in case of the illness or absence or at the request of a Judge of a Surrogate Court, or in case the office of Senior Judge is vacant, the Junior or acting Judge or the Deputy Judge (if any) of the County Court, shall have all the powers and privileges and perform all the duties of the Judge of the Surrogate Court. — sec. 6. " Every Judge of a Surrogate Court appointed after this Act comes in force shall, before executing the duties of his office, take the following oath before some one author- ized by law to administer the same : 'I, , do solemnly and sincerely promise and swear that I will duly and faithfully, and according to the best of my skill and power, execute the office of Judge of the Surrogate Court of the County (or United Counties, as the case may be) of : So help me God. — sec. 7. It is provided by The Local Courts Act that " Where any power or authority is, by this Act or by any statute now in force or which may hereafter be passed, conferred upon or is otherwise exercisable by the Senior Judge of a County Court, whether with reference to the holding of any of the Courts of the County which the said Judge may hold, or to the business of any of the said Courts, or to any o^. uer matter or thing over which the said Judge has juris- diction, either by virtue of any statute or otherwise how- soever, the like power and authority shall be possessed by. s SURROGATE COURTS. 8 its and urport- Coiirt, eceived lold its county for the ■ at the »:\se the cr Judge rt, shall all the ). ed after luties of author - lar that I ud power, [ounty (or God. fc. 7. '■ Where statute inferred |udge of Iding of (ge may to any ts juris- ie how- Lsed by, and may be executed by the Junior Judge, subject, how- ever, to the general regulation and supervision of the Senior Judge " {(i). " There shall be a clerk, to be called the Surrogate Surmgatc Clerk who shall perform the duties reijuired of the SuiTo-cit-rktoi... gate Clerk by this Act, as well as the duties that, l)y the !!1'/, ■;'"""' Rules and Orders heretofore in force relating to Surro- ''"*''^'*- ^ate Courts, or to be hereafter made under this Act, are i-equired of such Surrogate Clerk and also such other duties us may l>e required of him by the High Court ; and the Surrotrate Clerk shall be deemed an officer of the High Court, and the Lieutenant-Governor shall from time to time appoint and at his pleasure remove such Clerk. — sec. 8. " On the death, resignation or removal of the Who to he Registrar of a Surrogate Court, the Clerk of the County ^^ Court shall be ex oj^cio Registrar of the Surrogate Court ; liut this provision shall not apply to the Registrar of the Surrogate Court of the County of York, or to the Clerk of the County Court of the said county. — s. 9 (1). " The Lieutenant-Governor shall appoint a Registrar of the Surrogate Court of the County of York, to hold office during pleasure, and upon the death, I'esignation or removal of such Registrar, shall supply the vacancy. — s. 9 (2). " In case the Registrar of a Surroj^ate Court dies, When resigns or is I'emoved from office, if the salary, fees andcomity (a) R. S. O. 1887, c, 46, s. 12. The judge of a Surrogate Court was on prounds of public poHcy held to be exempt from imprisonment for debt. Per Robinson, C.J., in ilichie v. Allan, 7 Q. B. 482. (This decision was bL'fore the Statute abolishing imprisonment for debt.) A Surrogate Judge prepared gratuitously the petition, bond and aflTulavits upon an application by a widow in poor circumstances for ad- ministration. — Held that he was not liable to the penalty of C. S. U. c. 15, 8. 5, as amended by 29 Vic. o. 30 ; the mischief against which that enactment is directed being the doing of the acts prohibited for profit. {Allen, qui tarn, v. Jarvii, 32 Q. B. 5G.) up COX.STITUTION OF THE Court not t(j he ex ojjicio Rf)- ifistrar of the Siirro- Katt' Court, Oath of Registrar. allowances of the Clork of the County Court and Deputy Clerk of the Crown, or the Clerk of the County Court and Local Ret^istrar of the Hio-h Court, iov the year terminat- ing on the Jilat day of December next precedin<^ the death, removal or re.siffnation of such Registrar of the Surro<,aite Court amount to the sum of 81,600, the Clerk of the County Court shall not be ex u^cio Registrar of the Surrogate Court.— s. 10 (1). " The recital or statement in a commission of the Lieutenant-Governor appointing a person to fill the office of Registrar of the Surrogate Court of any county shall be conclusive evidence tiiat sucli registrarship comes within the provisions of this section. — s. 10 (2). Every Registrar of a Surrogate Court appointed after this Act takes effect, shall before he shall be entitled or qualified to act as Registrar under this Act, take the follow- ing oath before the Judge of the Court, or some other person authorized by law to administer the same : 'I, , do solemnly and sincerely promise and swear that I will dili^'ently and faithfully execute the office of Registrar of the Surro- gate Court of the County (or United Counties, (is the ca.te may he), of , and that I will not knowingly permit or suffer any alteration, obliteration or destruction to be made or done by myself or others, on any wills or testamentary papers, or other documents or papers committed to mv charf^o : So help me God.' —8. 11. Registrar's " The Registrar of every Surrogate Court shall hold his office in the Court House of the county, and a room therein shall be provided for that purpose, and in the event of there being no room in the Court House, every such Registrar shall, until such room is provided, hold his office at such place as the Judge of the Court directs." — s. 12 (1), part. The 22nd section of the Act as amended by 53 V. c. 17,. s. A, provides as follows : — em ^ (I Deputy Jourt and tcrminat- blie death, Surrogate le County Surrogate n of the 1 the office ;y shall be les within nted after entitled or ihe follow- ouie other swear that I of the Surro- L' may he), of or suffer any by myself or mts or papers —8. 11. shall hold lid a x'oom the event ise, every d, hold his directs." — 53 V. c. 17„ jiKlgmeiit. srRHOGATE COL'HTS. '^ In order that certain stated tinieH may be fixed T''"'"*,i""'" *^ _ rtcriixii. for luarint; ami detei'iniiiin<; matters and causes in conten- tious cases iind business of a contention^ nature in the Surr(j"'ate Courts, there shall l)e four Terms or times of sitting in each year for the purposes aforesaid, which (except in the County of York) shall severally connnence on the second Monday in the month of January, anf the Surrogate Courts have power to sit and act at any time for the transaction of any part C)f the Ijusiness of such Courts, or for the discharge of any dutj* which by any statute or otherwise was formerl}^ required to be dischari^ed out of or during term. See the General Order which precedes Rule 1, Surrogate Court Kules, 1S92 ; rcf. 1265, Con. Rules of Practice. Where the Surrogate Judge is the person or one of the persons entitled to apply for Probate of a Will or for Letters of Administration the application maybe made to the Surro- gate Court for the adjoining County, according to a recent enactment which provides that : — " When the person or one of the persons entitled to apply for probate of will or for letters of administration is Judge of the Surrogate Court having jurisdiction in the matter, and he does not renounce, application by him for such probate or letters, or any subse(iuent application in m % TariflF of Oists. CONSTITUTION OF THE the matter of the estate by him or any other person may be made to the Judge of the Surrogate Court for any adjoining county who shall have the same authority in and about any such application and generally in all matters connected with the estate, as if he were the Judge of the Surrogate Court having jurisdiction, and shall be entitled to the same fees, (to be paid by stamps in case he has com- muted), as he would have been entitled to if the application had been made or proceedings taken in the Surrogate Court of which he is Judge. All proceedings shall be carried on in thv3 Surrogate Court having jurisdiction " (h). Each Surrogate Court is a Court of Record, (s. 3) having a seal (s. 4) ; and bax'risters and solicitors practice therein as in other Courts of Record in Ontario, (c) The authority to make rules of Court and prescribe forms is provided for as follows : — " The Board of County Judges appointed under section 297 of The Division Courts' Act, or the majority of them, may frame a tariff of fees and costs to be allowed in respect of proceedings in the Surrogate Courts to witnes- ses and to solicitors and counsel practising therein, and may from time to time alter and amend the same, and may frame separate tariffs for contentious and non-contentious business. " The Board or any three of them shall certify to the T-idges authorized to make rules under section 105 or secti n 108 of The Jiulicatare Act, any tariff so framed, or any alteration thereof, and any Judges authorized to make rules under the said Act may approve, disallow or amend any such tariff or alterations. " Any tariff or alteration so approved of, or amended and approved, shall have the same force and effect as if it (h) 53 V. c, 17, s. 21 (Ont). (c) See R. S. 0. c. 147, s. 1 et seq. and S. C. R. 71. SURROGATE COURTS. rson may ■j for any ity in and 1 matters Ige of the e entitled prescrilje jd under ajoi'ity of e allowed to wiines- srein, and , and may ntentious ;ertify to on 105 or ramed, or to make )r auiend amended it as if it has com- pplication ''■ Surrogate ■ ■■' '^ ! shall be 1 :tion " (6). ■■,■1 3) having ■i ;e therein ■"'f .i i hafC'. IS.VJ. 10 CONSTITUTION OF THE .Furisdic- tii)n and [iKwers of StuTrtgate Courts. Testamen- tary juris- diction to ))(.■ exercis- ed by Sur- rogate Courts. Powers anil juri.<- diction of Surrogate Courts. 34 is unrepealed, that practice will no doubt still be re- ferred to. And it is to be observed that the practice of the Probate Division in England in Contentious Business is regulated by the Judicature Act, 1875, and by the Rules of procedure and practice established thereunder; and where no other provision is made by that Act or by the rules made under it, the practice there is regulated by what was the procedure and practice of the Court of Probate (/). And by sec. 18 of that Act the rules of the Court of Probate remain in force except where expressly varied by Rules of the Supreme Court. As to the non- contentious business of the Probate Division it has been held that the Judicature Acts have no effect whatever upon it (,7). Sections 16 to 18 of the Surrogate Court Act, as amended by 53 Vict. c. 17, provides for the jurisdiction and powers of Surrogate Courts, as follows : — " All jurisdiction and authority, voluntary and conten- tious, in relation to matters and causes testamentary, and in relation to the granting or revoking probate of wills and letters of administration of tlie effects of deceased persons having estate or effects in Ontario, and all matters arisinij out of or connected with the f^rant or revocation of probate or administration, shall continue to be exercised in the name of Her Majesty, in the several Surrogate Courts ; but this provision shall not be construed as de- priving the High Court of jurisdiction in such matters." — s. 16. " The Surrogate Courts shall have full power, jurisdic- diction and authority : " To issue process and hold cognizance of all matters relative to the granting of probates, and counnitting letters '% (/) Coote & Tr. 11th Ed. 3C5. in) Tomlhifmi, C, P. D. 20<» ; 50 L. J. P. D. & A. 74, and see C). Subject An important change was made affecting the subject niatur and ^ ..,. . „-^ <-<•/- • jiipwersof matter of the jurisdiction of Surrogate Courts in Ontario by 53 Vict. c. 17, entitled " An Act to amend Tlte Surrogate Courts Act'' assented to April 7th, 1890, whereby the word " j)roperty " was substituted for the word " goods," and also for the words " estate, goods rights, and credits," in section 17 S. C. Act, defining the power, jurisdiction, and authority of the Surrogate Courts ; and substituting the same word " property " throughout the Act for the words " personal estate," or other words designating personal estate only. The grants of a Surrogate Court in Ontario now commit the administration of " all and singular the property " of a deceased to an executor or administrator {q) \ and include jurisdic- tion i (n) Coote and Tr., 11th Ed., 357. (o) Jud. Act, Ont., sec. 33. See Perri7i v. Perrin, 19 Gr. 261. (;j) Coote and Tr., 11th Ed. 357-8. As to what, if any, further con- current jurisdiction is conferred on the Surrogate Courts of Ontario by virtue of the New Rules of 1892, and the assimilation of the practice in certain cases to that of the High Court, qiuere. (q) See Forms 21, 22 and 23 S. C. Rules, 1892. SURUOfiATE COURTS. 15 ■S i I the real as well as the personal estate. In this respect they aie to be distinguished from the grants of the Probate ])ivision, England, which deal with personal estate only (r) ; and also from the grants formerly made by the Surrogate Courts of Ontario (.s)- " Property "—by "The Succession Duty Act, 1892," (Jntario (t), includes real and personal property of every description, and every estate or interest therein capable of lieing devised or bequeathed by will or of passing on the death of the owner to his heirs or personal representatives;" and by s. 5 of the same Act an executor or administrator applying for letters probate or administration is to file an inventory of all such property. The value of such property, real and personal, is to be stated in the petition for a grant ; {u) and is taken into account in fixing the amount of the penalty of the bond retjuired by ss. 55, 64 and 65 8. C. Act, in cases of administration or administration with the will annexed ; and under The Devolution of Estates Act, R. S. 0. 1887, c. 108, it devolves upon the legal personal representative. Thj Court of King's Bench prohibited the Ecclesiastical Prohibi Court from proving a will, it being a will of which probate could not be required (v). tiun. mus. The Uourt of Queen's Bench had always been in theManda- constant habit in cases of complete intestacy of commanding ^ by mandamus the due granting of letters of admiuistra- (r) Coote, nth Ed., 1891, 19, 793. (») See Rules of 1858, Forms 19, 20, 21. (0 55 Vict. c. 6, s. 2. («) S. C. R. 5. (i') Lady Chester's Case, 1 Vent. 207 (1669); Anon., Freem, 372. also Shortt on Prohibition and Mandamus, 290, 404. See Ifi CONSTITUTION OF THE tion(it'); and in cases of testacy, of commanding the granting of letters probate (x). A mandamus was granted by the High Court to a Surrogate Court of Ontario, that a will should be admitted to probate, which had been pronounced valid by the High Court, but which upon an issue tried by a jury in the lower court had been found invalid (y). Prcjvision is made in the S. C. Act for reference or removal to the High Court of cases in which there is con- tention (z). But it is not intended that the business of the Surrogate Courts should in a large measure be transferred to the High Court (a). An appeal lies from the order, sentence, or judgment of a Surrogate Court to the Court of Appeal (h). KstateH i)f Where the whole estate and effects, real and personal, vhUu'. of ^''"y testator or intestate do not exceed in value the sum Proceed- ^f S-iOO [as amended by 58 V. c. 17, s. 17], his widow, or one iiiK's in or more of his children or next of kin, or his executors, or Surrupate . . C-mrtfor any trustee or duly authorized solicitor or agent of such fcrcation! widow, child, next of kin or executors may apply to the Judge of the Surrogate Court of the proper County, [the words " of the proper county " being substituted for the words " within the County in which the testator or intes- tate had his iixed place of abode at the time of his death," by 53 V. c. 17, s. 17] and the Registrar of the said Court shall fill up the usual papers required by the Surrogate 5 441. (w) Tapping on Mandamus, (Loud. 1848), 32; Wms. Exors, 8th ed. {x) Wms. Exors, 8th ed. 392, ((/) Dickson v. Monteith, 14 O. R. 719. [z) S. C. Act, 8S. 80-32. (a) Meir v. Wilson, 13 P. R. 33. (b) S. C. Act, e. 33, subject to the regulations provided by rules 57- 69 S. C. Rules 1892. >, 8th ed. SUIUIOCIATE COUItTS. 17 Court to lead to a grant t)f probate of the will of the testator, or Letters of Admiiiistratiou of the estate and effects of the said testator or intestate, and shall swear the applicant- and attest the execution of the administration bond, according to the practice of the said Court and shall tiien transmit a notice of the application by post to the Surrogate Clerk at Toronto, and the Registrar on obtaining the approval or order of the Judge of the Surrogate Court, shall in due course make out and seal the probate of the will of the testator, or letters of administration of the estate and effects of the testator or intestate to be delivered to the party so applying for the same without the payment of any fee for the same, save as is provided by section 0!) ,, , . of tlie Act (c). But the Jmlge of a Surrogate Court may l;iti«nsiiii). re((uire such proof as lit' may thini: sulhcient to establish .hui^r,, to the identity and relationship of the ap])licant ; and if the fi'^'.^'^'^jjl'^. '' .Iud"e lias reason to believe that the whole property [the \''''"'"f •^ _ _ _ 1 I ^ L fill, ,, stall' word "property " being substituted for the woi'ds " estate i-* ''"<■■< than and etl'ects" by 53 V. c. 17, s. IM] of which the testator or'' intestate died possessed exceeds in value the sum of 84.00 [as amended by o3 V. c. 17, s. IS], he shall refuse to jiroceetl with th(! application under the last preceding section until lie is satisfied as to the real value thereof (d). And such fees Scali' of as the Lieutenant-Govei-nor in council may think proper^''''''*' are to b(> payable to the Judges and Registrars of the Sur- rogate Courts, on proceedings under tiie sections referred to ((J7 and OS), but the total amount for all such proceed- ings and sei'vices to be charged t(j ai)plicants is not in any one case to exceed the sum of 82 (c). {<■) Pv. S. O. 1887, c. 50, s. 67, as amended bv s. 17 of "jB V. c. 17, and '>! V. c. 22. c. 22. Id] R. S. O. 1887, c. 50, s. (38, as amended by 53 V. c. 17, and 57 V. ie) R, S. 0. 1887, c. 50, s. (J!). ii.S.c— 2 ■If 18 Entiites of .small valiiu. Ki'ffi.strar's OHico to hi' a (lepcmi- tury for till' wills of living per- sons. COXSTITtTloN OK TIIK SUUHOdATE rorilTS. Where the whole estate of the testator or intestate exceeds in value the sum of 8400, but does not exceed in value the sum of SI, 000 the fees payable to the Registrar and to the Judge on proceedinj^s under 21ic Siirrofjate Courts Act in non-contentious cases shall hereaiter be one- lialf of tlie fees now payable in the case of any estate which does not exceed in value the sum of $1,000 (/). The office of every Registrar of a Surrogate Court is "a depository for all wills of living persons given to the Registrar for safe keeping, and all persons may deposit their wills in the registry upon paj'ment of such fees and under such regulations as mav from time to time be directed by Rules or Ordei-s in that behalf heretofore in force or hereafter made under this Act." — S. C. Act, s. 12 (1). t .'* I'- (/) 67 V. c. 22, B. 2 (1804). sill p.. It i I'KltsoN'AL KKI'IIKSEN'TATIOX (:). Apart from the administration of estates under the direction of the High Court [l), letters of administration constitute the sole authoritj' for the administration of pro- perty of a person who has died intestate {m). The right or interest of the executor is derived from the will, and not from the probate (n). But letters probate, or letters of administration with the will annexed, have been held to be the indispensable and onl}'' recognisable evidence of his title or right to deal with the personalty (o). A Court of Equity refused to restrain an execution on a judgment recovered against the executor before probate (jf)). Probate or letters of administration, by whatever Sur- rogate Coux't granted, it is enacted " shall, unless revoked, have etfect over tlie propei'tx' of the deceased in all parts 21 Trust pro- perty. Letters of Adm'n authority of adni'or. Letters I'robate. '., n (i) WiUidms V. jr., L. R. 20 Cli. D. 059, CiU, (18S2). (j)C. &Tr. nth Ed. 30,158. (A) R. S. 0. c. 110. 8. 6. [l) Jud. Rules 905, et seq. (m) Viile post •' Administrations." {n) Wnis. Exors. 9th Ed. '243. (()) Stuwp V. Uradley, 15 Gr. 30. (l>) Allan V. Dumhi^. 3 T. R. 12.5 (forneil will ca^f) ; Smith v Millei, 1 T. R. 475, 4.S0 ; Wms. E.xors. 9th Ed. '2\-l. fT wm 22 PERSONAL REPRESENTATION Executors, etc., may cunvey in Iiursiiiince tif ;i ciiii- tr.'ict for sale made by deceas- •ed. of Ontario" (q); except as provided in section 58 of the Act in the case of a grant limited to personal estate to the exclusion of real estate. With the exceptions hereafter referred to actions can neither be brought nor defended on behalf the estate until a legal representative, clothed with authority by a Pro- bate (r) or Surrogate Court, has been appointed. It has been decided under the English Judicature Rules that an originating summons taken out by a creditor against an executor before letters of administration have been taken out is entirely bad (s). A purchaser is not bound to pay purchase money till probate, because until the evidence of title exists the executor cannot give a complete indemnity {t). " Where any person has entered into a contract in writing for the .sale and convej^ance of real estate, or of any estate or interest therein, and such person has died intes- tate, or without providing by will for the conveyance of such real estate, or estate or interest therein, to the person entitled or to become entitled to such conveyance under such contract, then, wherever, upon the supposition of the deceased being alive, he would be liable to execute a con- veyance, the executor, administrator, or administrator with the will annexed (as the case may be), of such deceased person, shall make and give to the person entitled to the same a good and sufficient conveyance or conveyances of such estates, and of such nature as the said deceased, if living, would l)e liable to give, but without covenants, except as against the acts of the grantor ; and such con- veyances shall be as valid and eti'ectual as if the deceased ((/) S. C. Act s. 18, s-s. i (r) Wms. Exora. {»th Ed. 242, 342. (s) Re Leank, W.N., 18(»1, 159. (t) Wms. on ExoM. 3th Ed. 309 ; 9th Ed. 2.51-2. the Act ;e to the ons can ite until r a Pro- re Rules r a'V' Out % Que '^P (.r) Cox V. AlUnr/ham, Jae. ."JH, and see Kellij v. Anldl, 11 Gr. 579. ((/) Pritchardv. Stiuulard Life Assurance Co., 7 O. R. 188. (r) lie Thorpe, 15 Gr. 80. In Quebec the administrator of a person dyinsi abroad is recognized and lias the same powers there as in the country where he was appointed and resides. See Irwin v. Bank Montreal, 98 U. C. Q. B. 375. ( a) Shaver v. Gray, 18 Gr. 41i). (b) lie Marshall, Foider v. Marshall, 1 Chy. Chamb. 29 ; Re Israel, 2 Chy. Chamb. 392. Re Bell, Bell v. Bell, 3 Chy. Chamb. 397 ; The Edin- biiriih Life Assurance Co. v. Allan, 19 Gr. 593 ; Re Cotton, Fisher v. Colton, 8 P. II. 542 ; and see Re Armour, Moore v. Armour, 10 P. 1\. 448 ; Re Leask, ante ; and Dev. Est. Act, li. S. O. c. lOH. (c) Roicsell V. Morris, L. E. 1 P & D. 20 ; Wms. Exors. 9th Ed., 1912-1914. of this ill of his ji'oad at obate or the only )• grant of ixecutors iitry. A nortgage ,s left in s foreign les of the represon- efore the niinistra- exeeutor ecu tor de Gr. 579. of a person e as in the ik Montreal, lie Israel, i The Ellin- er V. Colton, ; Ue Leank, 8. 9th Ed., M OF E.ST.A.TE.S. Upon an application in Chancery for an achninistration order against a person named as executor who had not obtained letters probate the order was refused, there Ijeing no duly appointed personal representative before the Court (V/). Where a policy of life insurance was made payable in the Province of Queljec, an action could not be maintained Ity ;in administrator appointed bj'' a Surrogate Court of Ontario, who had not obtained letters of administration in Quebec (e). Next after the payment of funeral expenses, the expense of proving the will or taking out letters of administration are allowed out of the estate within proper limitations (/) Where in a creditor's suit to administer the estate of a deceased debtor, to whose estate administration ad Idem liad been taken, the bill alleged that there were no personal assets, and the parties interested in the real estate had Kurf'ered the bill to be taken against them pro coiifesso, and din underLiii'd Caiiiiitiell's Act. r : t ' 26 I'EKSONAL REPRESEXTAIION. A'ii'i pi'/'- .yiilliili.l, (i'C. Action, itig provided by 10-11 Vic. c. 6(i), "An Act respectin). An executor may perform most of the acts appertaining Powers to his office l)cfore probate : but with respect to an admin -,'l;f",„'i!J^)„.j ? istrator, the general rule is, that a party entitled to ['jl^y''"'"'^"'" administration can do nothing as administrator before letters of administration are granted to him ; inasmuch as he derives his authority, not like an executor from the will, but entirely from the appointment of the Court (g). Exceptions to this general rule so far as regards letters L'ttcrs of • 'I'll 1 Adliiinis- of administration occur, in whicli the grant when made has rratiou— been held to relate back to the time of the death; but only \^.l^,\l to^ when such relation back is for the benefit of the t;«tate(/'). Jj^^'j^"^ In Ontario, since the Judicature Act, the rule in ecjuity })i-evails as against the rule at law, that letters of adminis- tration when obtained, if the person obtaining the grant is tlie person entitled, relate back to the death. But as against the .Statute of Limitations, it would seem 'there is no action rightly l)egun so as to save the statutory bar unless administration has previously or cotemporaneously issued and that the time which has begun to run will con- {w) Jennings v. G. T. R. Co., 15 A. R. 477. (n) Re Parsons— Jones v. Kelhind, 14 Prac. 144 ; foUowiuj^ Ilanrahaii V. II., 11) O. R. 396. (r.) Ih. (/.) Stcu-nrt V. Whitney, 14 P. R. 147. (71 Wins. Exors. 9tli ed. 342 ; see also McDonahl v. McD., 17 A.R. 192. ((•) Wms. Exors, 9th ed. 344-5. % 28 FERSOXAL UEl'KESEXTATKJX Statute of Liniitn- tioiiM. Life As- surance. Post Ottiee Savings ]5ank. Funds fif (leccasi'd depositcir. tinue till tlit- tiiut' wiieii the plaintiff' has obtained sucli status ' is). For the purposes of an action under R. 8. O. (18S7) c. 194, s. 122, as to liability of innkeepers who give licpKn- to persons who become intoxicated, it is sufficient that the plaintiff should obtain letters before the case is heard, and when obtained, they relate back to the death (/). For the purposes of the Act entitled — "xVn Act respecting the Limitation of Actions relating to Real Property, and the time of Prescription in certain cases" — an administrator claiming the estate oi interest of the deceased person of whose chattels lie has been apjxiinted administrator, shall be deemed to claim as if there had been no interval of time l)etween the death of such deceased person and the grant of the letters of administration (it). And the " Act to secure to wives and children the benefit of Life Insurance," and amending Acts, provide for payment of the moneys by tlie company to executors or administrators, or to the guardian of infants duly appointed by one of the Surrogate Courts, or by the High Court ( '). Under the Act (now R. S. C. c. 35) for establishing Post Office Savings Banks, the following Regulations issued bv authority of the Postmaster-General apply to the payment of money of a deceased depositor to the persons entitled : 15. In case any depositor shall die, leaving a sum of money not exceeding ^300, exclusive of interest, deposited in the Post Office Savinu's Bank, and prohate of his will, or letters of administration, or acte de citratelle or de tutelle, be not produced to the Postmaster-General, or if notice in writing of the existence of a will, and intention to prove tlie same or to take out letters of administration, or to be appointed tutor or (s) Chard v. Rae, 18 O. R. 371, 377. (t) Trice v. Iinhin.'G). And section 77 provides tliat proof of any matter necessary to be inaile un.. (1887), c, 1G9, ss. 40, 47, and 54 V. c. aS. 0. 119. . P. 255. ii.s.c. 34 SURROGATE COURTS. ■,* CHAPTER III. COMMON FORM BUSINESS. Common form business. The procedure and practice of the Surrogate Courts of Ontario from 1859 to April, 1892, were the procedure and practice created by the Surrogate Courts Act of 1858, and the Act re.specting Guardians of Infants, and the Rule.s made thereunder ; wliich rules affected common form business only (a) ; leaving contentious business to the operation of a general provision in the Statute, (s. 34 of c. 50, R. S. 0., 1887), by which the practice in Her Majesty's Court of Probate in England as it stood on the 5th December, 1859, was made applicable. The rules of 1892 include rules for contentious business, a feature of which rules is that the practice and procedure of the High Court of Justice under the Judicature Act of Ontario after appearance entered is to be the practice and procedure, as nearly as may be, of the Surrogate Courts iu contentious proceedings. It may be said that in assimi- lating the procedure and practice to that of the High Court of Justice, the framers of the new rules have to the extent to which tlie procedure and practice of the High Court of Justice in Ontario are the same as that of the High Court of Justice in England, made the latter applicable in the Surrogate Courts of Ontario. (rt) Those rules are set forth in L. J. U. C. 1858, pp. 2i7, 249, aad in Hgwell's Surrogate Court Practice, 1880, p. 74. COMMON FORM BUSINESS. 35 The Judicature Act of Ontario, and the rules made Common thereunder, are the English Judicature Act and Rules business adapted to the Province of Ontario. These did not make e'.i ijy Jud. auv change in the procedure or practice in common ^[ji,,"|' form business in England. The Common Form procedure and practice of the Probate Division being now precisely the same as those which were in force in the Court of Probate before the transfer of its powers to the High Court (^). And it would seem that the common form business of the Surrogate Courts of Ontario, in like manner, renuiins unaffected by the Judicature Acts or Rules. "Common Form Business" — by the interpretation 9"""""" '■ form grant clause of the Act, sec. 2, sub-sec. -S means " the busniess of unlfss obtaining probate or administration, where there is notl.Vi'ave contention as to the right thereto, including the passing of ''^'''^'^' *^^°' I)njliate3 and administration through a Surrogate Court, when the contest is terminated, and all business of a non- contentious nature to be taken in a Surrogate Court in matters of testacy and intestacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or administration. Probate or letters of administration by whatever court granted have, unless revoked, effect over the property of the deceased in all j^arts of Ontario (c); subject to the limi- tation under section 5S, i.e., where the grant is limitt'd tn personal estate onl}' ((/). In an action by one Christopher Irwin, administrator I"""'," \- T • 1 r.:uik of ot William Irwin decea.sed, to recover the amount of a M"iitn:vl. {h) Coote, 11th Ed. 9 ; Powles & Oaklev on Probate, 3rd Ed. ,50, and Cartwnght, 1 P. D. -I'i'i. ((•) Surr. Ct. Act, s. 18, s-s. -1 ; Jeiinhnjs v. G. 2'. liy. Co., 1.5 A. K. 477. (-/) 53 V. c. 17, 8. 8. w 36 SURROGATE COURTS. Book V. Book deposit receipt issued to deceased by a bank in which the deceased had deposited money, it appears that the deceased, who died in 1870, in Ireland, had deposited money at the Branch of defendant's bank, in Cobourg, in 1869. Letters of administration were granted 25 April, 1872, by the Probate Court, Ireland, at the District Registry at Ballina, to J. G., at whose house W. J. died, applying as cousin- german and only next of kin of deceased. An exemplifi- cation thereof was recorded in the Superior Court of Montreal, and on this the bank, in Sept., 1872, paid over the amount to G.'s attorney in Montreal, who handed to them the receipt which he had obtained from G. It appeared, however, that G. had obtained the administration by fraud, not being Wm. Irwin's next of kin. In August, 1872, administration was granted by the Court of Probate in Ireland to the plaintiff, brother of deceased, and in May, 1872, the plaintiff notified the defendant's manager at Cobourg not to pay over any money except to himself. It was held that the grant of administration is a proceeding in rem constituting the person therein named adminis- ti-atoi', whose position as such cannot be questioned while it stands, if the court had jurisdiction, and if the person on whose supposed death the administration has been issued be really dead ; and further that the grant operating in 7'6?7i, and the act being valid as a judicial act until revoked, the general law is, that the grant, although obtained by fraud, retained its validity until it is revoked by some express judicial act declaring it void (e). This decision was followed in a case in which the plaintifis sued as executors, stating that the will of their testatrix had been duly proved by them in the Surrogate Court of the county of B., etc., and the defendants denied (e) Irivin adm'or v. Bank of Montreal, 38 U. C. Q. B. 375; see also Mary Hornbuckle, 15 P. D. WJ. COMMON FORM BUSINESS. 37 the validity of the probate, by reason that it had been grant- ed in common and not in solemn form, and also denied the validity of the will. A demurrer to the defence was allowed, the learned Judge, holding — that if the defendant had a right to attack the probate he must do so in an independent proceeding with the proper parties before the court (/). If administration be committed to the wrong party, a second grant would not of itself repeal the first (^). So, in the case of probate of a will, which has effect until revoked by judicial act or sentence (h). '"§ (./) Book, et al. v. Book, 15 O. R. 119. fobate -I (O) Pratt \. Stocke, Cro. Eliz. 315; Wms. Exors. 9th Ed. p. 490; m Irtdn V, Bank of Montreal, 38 U. C. Q. B. 375. I* (/() Rains V. Commissary of Canterbury,! Moo. 146; Wms. Exors. 9th Ed. 491 and Book v. Bonk, loQ. R. 119. i 'li 38 PROBATE CHAPTER IV PROBATE IN COMMON FORM. Will. Codicil. The word — " Will" "shall extend to a testament, and to a codicil, and to an appointment by will, or by writing in the nature of a will in exercise of a power, and also to a dispo- sition by will and testament, or devise of the custody and tuition of any child, by virtue of the Act passed in the twelfth year of the reign of King Charles the Second, entitled ' An Act for taking away the Court of Wards, and Liveries and Tenures in caj^ife, a,nd by Knight's service and purveyance, and for settling a revenue upon his Majesty in lieu thereof,' and to any other testamentary disposition." Such is the interpretation of the word " will " contained in 1 Vict. c. 26 (Pmp.), and in the Ontario Wills Act, 36 Vict. c. 20 (R. S. O. 1887, c. 109), where the legislature gives the power to devise, or bequeath, or dispose of property by will, prescribes the mode and formalities of execution and revocation, declares the etlect of, and makes other provisions regarding, wills made after January 1st, 1874. And since the Act, the word " codicil " can only mean a testamentary paper duly executed and attested (a). In the Surrogate Courts Act, " Will " shall comprehend "testament" and all other testamentary instruments of which probate may now be granted "i 6). {,>) Cwker v. Hertford, '4 P. C. C. 339, BO'i. In re Tnixts of Anne Parker's Will, 20 Gr. 38!). (I)) R. S. O. c. 50, s. 2. IX COMMON FORM. 39 II And every testamentary paper entitled to operate as a will is also entitled to probate (c). The probate of a will is the approbation of such will I*robate. under the seal of a Probate or Surrogate Court after it has been pi'oved by evidence to the satisfaction of such Court. The instrument issued to the executors containing or having annexed to it a copy of the will, is usually called the probate or letters testamentary (d). In the Surrogate Courts of Ontario, — " the due execu- tion of the will or codicil is to be proved by one of the witnesses, or the absence of the witnesses accounted for, in which last case such will or codicil must be established by other proof to the satisfaction of the Judge." Rule 10, 8. C. Rules, Ont. 1892. Probate has a two-fold office, which besides granting administration, authenticates the will, a verbatim copy of which is annexed, and is evidence of the character of the executor (e). In ordinary cases there were two modes of proving a will — viz., in common form, and in solemn form, and these are C(jntinued by the Surrogate Courts Act of Ontario (f) as they were by the Court of Probate Act, and now in the Probate Division, England (g). The probate of a will, whether granted in common or Wilis of solemn form, is a judicial act, and as a judgment in rem, jg^ i"'**""''^ ^y while unrepealed, conclusive against all the world ; pro- vided that the Court has jurisdiction over the subject matter, and that the probate is not obtained by fraud (A). (f) Poivles V. Oakley, 3rd Ed. 14. ((/) Wms. Exora. 9th ed., 242. (<■) Matson v. Swift, 8 Beav. 3(18. ■/) R. S. O. c. 50, 39. 34, 51. {(j) Wms. Exors. 9th ed., 271. (//) Diichens of Kiihiston's Case, 2 Smith's L. Cases, 9th Ed. 857; see also Priextman v. Thomas, 9 P. D. 70, 210; Harrison v. Mayor, etc., of South- uinpton, 4 DeG. McN. &G. 137 ; Book v. book, ante. M iir 40 PROBATE t't ; But the High Court of Justice, Ontario, has power to entertain suits as to the validity of wills, whether probate has been granted or not, and if granted, whether revoked or not. Vide The Judicature Act {Ont.), s. 33. Wills of rpi^g jurisdiction of the Ecclesiastical Coux'ts and of the realty. ** Court of Probate (Eng.) was, and that of the Probate Divi- sion (Eng.) now is, confined to the probate of instruments relating to personal property (i). Nor could the doctrine j:nuitable of equitable conversion be recognised as irivinor the Court Cduver- , ^ .... . » o sion. of Probate jurisdiction over a will limited to real property and directing its conversion into personalty {j ). If it did not evidently appear to be a paper applying only to freehold estate, the Court would establish it (/.;). If executor in appoint- ed, will proreable. If an executor was appointed the will was proveable though it disposed only of realty {I). In Elizabeth Jordan the testatrix died in 1867, leaving a will disposing of realty only, and containing an appoint- ment of an executor. On motion for administration with will annexed, to the next of kin, the executor having renounced probate. Sir J. P. Wilde said, " I think the next of kin is entitled to the grant. The general principle is (i) Netter v. Brett, Cro. Car. 395 ; In the goods of Drummond, 2 Sw. & Tr. 11 ; In the goods oj John Bootle, 3 P.& D. 177. Lord EUenborough in the case of Doe ex d. Ash v. Calvert, (1810) 2 Camp. K. B. 389, remarked as to a will of lands that the Ecclesiastical Courts had uo control over it, and refused to receive the letters probate under the seal of the Court as secondary evidence of the will ; while at the same time parol evidence of the contents of such a will £?iven by a witness who had heard it read over before the testator's family on the day of the funeral would have been admissible, on proof of the will itself being lost. (j) Jane Burden, 1 P. & D. 325. This observation would seem to apply to the High Court, Eng., with reference to the Probate Division. Wms. Exors. 9th Ed., 1893, 243-4. {k) Thorold v. Thorold, 1 Phillim. 1 ; Durken v. Johnston, lb. p. 8 n. (Z) Lease, 31 L. J., P. & M. 169 ; Elizabeth Jordan, L.E. 1 P. & D. 555 (1868) ; and Mary Hornbuckle, 15 P. D. 149. IN COMMON FORM. 41 laid down in Williams on Executors (m), — ' the bare tiorai- nation of an executor without giving any legacy, or appointing anything to be done by him is suj)icient to make it a will, and as a will it is to be proved ' ; if the nomination of the executor made it a will, the fact of his .subsequent renunciation cannot take away the effect of the nomination. The principle laid down by Mr. Justice Williams was affirmed by Sir C. Creswell in O'Dwyer v. Geare {\9>bd)" {n). The case of Jane Barden, is apparently contra on thi.s point, vide Coote(o); but Elizabeth Jordan is the later case and would seem to be decided upon consideration of authority not referred to in Jane Barden. In Ontario since the Devolution of Estates Act, by Real and which the real estate as well as the personal devolves upon estate"* the personal representative, the question last referred to would seem to have become immaterial {p). And if a person has by will exercised a power of ^^'^' I" , . exercise of appointing property, such will should be proved although a power, the deceased died possessed of no property of his own (5). Section 29 of The Wills Act of Ontario, following sec- tion 27 of the Imperial Wills Act, contains a provision that a general gift of realty or personalty shall include property over which the testator had a general power of appoint- ment ; also a provision, section 13, — that no appointment by will in exercise of any power shall be valid unless executed in manner required by the Wills Act. And all real or personal property comprised in any disposition made by will in exercise of a general testamentary power of (m) Part 1, Bk. 3, p. 218, 6th Ed. ; 8th Ed. 231. (/() 1 Sw. & Tr. 46-5. (o) 8th Ed., p. 41. {p) See R. S. O. c. 108, and amendments ; and Re Reddan, ante. (q) Coote, 8th ed., 37 ; and D. & B. 34.5. 42 PROBATE Of two fir more wills. Will in (luplicato. Probate iiiirt of will. appointment, is to be deemed to be within section 3 of The Devolution of Estates Act, Ontario, if otherwise applicable (r). In England where a will is made in execution of a power, if it relates to personalty, it must be proved in the Probate Court (.s). In Ontario the distinction between real and personal estate for the purposes of administration has been abolished (t). If there are two wills, not inconsistent with each other, both may be admitted to probate as together containing the will (u). There may be several testamentary papers all executed as required by the Wills Act, which being read together show a sufficient consensus to constitute one will, not a Avill and codicil (v). Wills may have been executed in duplicate ; in si;ch case the executors prove one part only, producing the other part in the registry. If such other part cannot be pro- duced, its absence is to be accounted for. A (juestion of law may arise ; for if one part is destroyed by the testator, or in his presence, and under his directions with the intention of revoking it, the will is thereby revoked, and not entitled to probate (iv). Under special circumstances the Court will grant pro- bate of certain papers forming part of the will of a deceased, (?) II. S. O. c. 108, s. 3. (s) Wms. Exors. 8th ed. 396, (t) Re liediUni, ante. ((() Griilith, 2 P. A D. 458 ; Lemnge v. Gondban, 1 P. & D. 57 ; 35 L. J. •28; Harris, 2 P. & D. 83; Feimick, 1 P. & D. 31'J ; and O'Conn.r, 13 L. K. Ir. Ch. D, 400. ((•) Morrian, 1 P. & D. 323; Harrh, ante; Petchrll, 3 P. AD. 153; Donahhon, 3 P. & D. 45, (probate of Scotch Disposition). (ir) Coote & Tr. 11th Ed. 52. ''Hi IX COMMON' FORM. 4S the other papers or authentic copies thereof not being in the country at the time reserving power to the executor to prove the other papers or authentic copies thereof when they arrive, and on an undertaking on his part that he will do so (x). A paper simply revocatory should be proved (i/), and if after probate the executor discover a subsefjuent testa- mentary paper, he ought to bring it into court, even though it be merely confirmatory of the will already proved (z). A testamentary paper which either disposes of property situate; in Ontario ((<), or contains an appointment of an executor, whether he has renounced or not, (6) is entitled to [)rol)ate in Ontario (c). I'apiTs having neither of these characteristics cannot lie admitted to probate, unless incorporated by express reference in a paper of a testamentary character (). Deeds indented, and poll, marriage articles, powers of attorney, bonds, bills, notes of hand, cheques on bankers, endorsements on bonds and bills, stock receipts, letters, memoranda, and even, under special circumstances ((]), drafts of bonds have been holden to be testamentary. In short, there is scarcely any paper which, regarded as to its form only, may not be admitted to probate, provided, of course, it be executed in the manner which the law pre- scribes for the execution of testamentary papers (r). In deciding a point of this nature the Court looks to the intention of the writer and not to the form of the instru- ment (s). The Court may admit part of an instrument to probate and reject the rest (t). There is an exception to the rule that upon proving a will to which there is a codicil or codicils, they must be proved with the will, namely — where a codicil is litigated, which in no way alters the appointment of executoi's, and where there is a necessity or a reason for administering the estate sub modo without delay (u) ; probate in such case being granted of the will only, reserving the question of the validity of the codicil (v). (p) Kiiin^s Proctor v. Daines, 3 Hag<^. 220; Iii re Nelson, McLennan v. Wigluut, 14 Gr. I'jy, 512. And parol evidence is admissible to show that a paper is of ii testamentary character. EngliHli deceased, 34 L. J. P. & M. 5, and Wms. Exors., Oth'Ed. 95. (q) Masterman v. Mahcrhj, 2 Hagg. 235. (r) D. & B. 159 ; The Wills Act, Ont. b. 12. (») Thorold v. T. n-old, 1 Phillim. 1 ; Wms. Exors. 9th Ed. 95. ( t) Allen V. McFher.ion, I H. L. C. 191, 209 ; Nathan v. Morse, 3 Pbill. 529 ; and see Smith v. Meriam, 25 Gr. 383 ; and see post. (h) C. & Tr. 52. (v) Bee Roberts, 3 P. & D. 110. r5' IN COMMON FORM. 47 If a will has been proveil abroad, proltate of the codi- cils, if any, must be granted by the Court which granted probate of the will (w). Where a will was not foitl coming after the testator's (loath, the Court granted probate of a codicil, it not having lieen revoked by any of the modes provided in the Wills Act for that purpose (.r). A document of a codicillary character, as of a " sub- stantive testamentary document " was admitted to probate, the only other papers found being the drafts of two wills iilxiut which no evidence was forthcoming, either as to their execution or revocation (y). And where there had been a revocation of the will by (k'structioii, but a codicil was left, probate was granted of the codicil alone ( z). A clause inserted in the will by mistake of the writer may be omitted from the probate (a). The Court has also power to exclude from probate and from registration any words of atrocious, oti'ensive or libel- lous character (6). Will pruv- t'll iilirciid • |iri)lwtt' of UCKlicilr>. Exclnsion of words from pru- b.Ue. Wills of Soldiers and Mariners. By section 14 of the Wills Act of Ontario (c) : "AnyWiisof soldier being in actual military service, or an}' mariner or aiul mari- seaman, being at sea, may dispose of his personal estate as "'""*' (»•) Lucy G. Miller, 8 P. D. 107. (x) Savage, 2 P. & D. 80 ; 30 L. J. 25. ((/) Gardiner v. Courthorpe, 12 P. D. 14. See also BlacJ; v. Johling, 1 P. & D. 085 ; 38 L. J. 74. (;) Turner, 2 P. & D. 404. (n) Duane, deceased, 30 L. J. P. & M. 173. (l>) '^Wartnaby, 1 Rob. 423 ; 4 No. Ca. 477 ; Marsh v. M., 1 Sw. d- Tr., 530 (consent order). (c) R. S. 0. 1887. c. 109. H f 48 PROBATE Exemi)t froiii com- pliance with for- malitii'rt of Wills Act. Wills of soldiers and niari- neru. Ill the ITniteil States. he might have done before the passing of this Act." Thi,s section follows, verbatim, section 11, Imperial Wills Act. The orinin of the exemption in favor of the class of pei'sons mentioned, and the construction of the section is considered in the judo-nient of Sir H. Jenner Fust, in Drummond v. Pariah (d), from which the following quo- tation is made : "It must be remembered that the exception was made at tlie time when the Statute of Frauds was passed (1(576), ^ind nuist be considered with reference to the circumstances of that time, for the 11th section of the present Act (the Imperial Wills Act) is only a continuation of the privilege granted to soldiers and mariners in the time of Charles II.; and that before the Statute of Frauds a will might not only be made by w^ord of mouth, but the most soleuui will might be revoked by word of mouth, and by any person above tlie age of fourteen years (e). A will executed in the presence of witnesses might be revoked liy parol." The Court ' had been referred to the Life of Sir Lionel Jenkin-s, who claimed some merit for having, in the preparation of the Statute of Frauds, obtained for the soldiers of the English army and mariners of our navy, the full benefit of the testamentary privileges of the Roman Law, and an exemption from the necessity of executing n will in writing. The exemption had avowedly lieen borrowed from the Roman Law," A like privilege is enjoyed by soldiers and mariners under the laws of certain States of tlie American Union. In ex parte Thompson (/), the learned judge (Bradford, Surrogate Co., New York), referring to American and English authorities, remarked that, " the provisions of the {d) 3 Curt. 522,2 Notes of Cases, 318. (e) Jarman, 3rd ed., 28; 5th ed. 33 n.; D. & B. 219. (/) 1 Bradford, N.Y. 151; see also Warren v. Hardimj, 2 R. I, Rep. 133 ; Lucas v. Go_ff, 33 Miss, 029, A Kent's Com. Am. Law, p. 517. II IN COMMON FORM. 49 Statute of Frauds were not applied to nuncupations made liy soldiers or seamen in actual service. A similar excep- tiiiu is made in our own Statutes respecting wills." And Mr. Smith (g), citing Hubbard v. Hubbanl (A) and re Arthur White {i), says: " Tlie rule governing the only unwritten wills now recognized is the Connnon Law as it stiiod before the passnag of the Statute of Frauds." In Kngland a distinction was recognized from a remote ])i,.,tinc- period, and anterior to the Statute of Frauds, between the ^"'"• unwritten wills of soldiers and all other verbal testaments ; the former being denominated nrUitari/ wills and the latter ■nuncupative wills (j). The eflect of the Wills Act is to take away the power i.;tf,.ft m" of making nuncupative wills, except in the cases to which ^^ '^^"^ ^^'''• the exempting section applies (/.•). There is no limit to the amount of personal jn'operty ii Pcrsonal- soldier or mariner may tlispose of under section 14; fiud „^^^W'^.' ii is important to consider under- what circumstances such y."'V'' "" ' _ liiiiited. 'lispositions can be adnntted to proliate. If not admitted, the estate will go as in the case of intestacies, and the intentions of the deceased may thereby ill some instances be defeated. nil- ft i: (;;) Smith's Probate Law (rJostoii, ?ilixss.), p. ")•'). (/() 4 Reld., N.Y. Appeals R. I'.IO. (/) ±i L. R. 110. (i) Swinb.,pt. 1, §§ 12,14. ik) As to wliat constituted a valid nnncnpative will, see Swinb., pt., 1, s. 12. and pt. 4, h. 2!) ; Huhhard v. IluUhard, nuprd ; Savipnon v. Brown- hi(i, 22 Geort^ia, 2'X\ ; and tin- Clerk's Instructor in I^cclesiastical Courts, by a gentleman of Doctors Commons, I'Meet street, London, A.D. 1740; Bacon's Ahv. Wills, I), and Walkem on Wills, p. 21H, and apjjendix. An instance of nuncupative will bein^,' admitted to prohatu was tliat of I'licli Hoirnrd, (li'cciiurd, Surr. Court, Home District, U.C., 80 March, 1S3'J. And in the same Court, Colliiin, Seiit., ls;^!*^'',,,|',\'',',. will in pencil on the field of battle, and the surgeon alone attest'^d it. The (juestion was whether this was a valid will, and Sir H. Jeiiner Fust held that as ho might, accord- ing to the Statute of Frauds, have made such a will and even a nuncupative will, whether major or minor, it was ip) i Sw. & Tr. 218. (^)4N.C. Col. ■^.■ 52 In bar- racks, not actv.iil service. Milligan's case. ^Mariner's will inado at sea. McMur- do'i* case. PROliATE under the 11th section of the (ImjD.) Wills Act a good and valid will. An ofHcer in the Queen's army, with his regiment, in barracks in a British colony is not " in actual military service " within the section referred to (r). In Willidni M{lli'i- M. ^\ 1 L. R. P. A- D. r.l. {1} 12 P. D. 137 ; oO L. J. P. D. A A. 72 ; r,7 L. T. 407; 35 W. R. 0%. I 1\ COMMON' FOUM. 67 Executors. If executors have l>een appointed by a testator they Executors, are entitled potior jui'f to a j^rant oh" letters probate. It is obli"-atorv on the Court to ijrant probate to the ''^•'"^°"tor executor [m), except under .special circumstances referred tojin-': ill S. C. Act, s. 56. The executor makes oath to the value of the property V.alue of of the deceased. By Rule 5 the petition in every case is to show " the value of the whole property of the deceased, and also the separate vahie of the personal and real estate, and full particulars and an apjiraisement of all said propei-ty shall lie exhibited with said application and shall be verified upon oath." And by "The Succes.siou Duty Act, 1892," Ont., s. 5, ail executor or administrator applying for letters probate, or letters of administration to the estate of a deceased person shall, before the i.ssue of letters probate or adminis- tration to him, make and tile with the Surroj^ate Registrar, a full, true and correct statement ander oath, showing a full itemized inventoiy of all the property of the deceased ]tei'son and the market value thereof. An affidavit was accepted from the agent of an executor putting a higher value upon an estate, and at the same time explaining a mistake made V»y his principal (»). And if an executor intei-meddle in the administration Executor of the effects of the first te.stator, he cannot refuse the able u. takd administration of the effects of the latter, nor can ho take ^"'"^**^*'" upon himself the latter and refuse the former (o). As to what amounts to intermeddling so as to rendei* an executor compellable to take probate, — it has been held {in) T. H. OUphant, 1 Sw. & Tr. 5.37 ; Wms. Exors. 2-38 (n) De Augulo v. Uirucla, 1 P. .t D. 598; 38 L. J. 21. (!J <9 ■rt o 7 Photographic Sciences Corporation iV ^ '■^ ^^ O o^ % V % n? 23 WEST MAIN STREET WEBSTER, NY 14S80 (716) 872-4503 x^ 60 Alien. I'HOHATE viduals who compose it and not of the firm collectively, and each member is entitled to be joined in the grant of probate (it). An alien stands in the .same position 8 -^^ natural bom British subject as to executorship (v). Executor An exccutor is eitl:er nominated or apppointed, in tluj apF"n • ^ju Qj. jjj j^ codicil thereto, or is executor according to tlie tenor of the will. Kxeoutor according to the tenor. An execntcr according to the tenor is a person re(iuired or directed : / ilio will to perform one or more of the duties of an exL'CP.toj-, e.g., to pay the debts or to administer gen- erallv th<' eitat,- o^ the testator (ty). The pnictijt- . the registry of the Probate Division Eng., as stated by Mr. Coote, 11th Ed. p. 42??, is — that " whenever a will contains a direction to pay debts, but no person is nominated to pay them, and after or before this direction all the personal estate is becpieathed to a person hy name, thai person is held to be the executor according to the tenor of the will. If personalty, however, is left to anj'' person after or subject to the payment of the testator's debts, this i.s held to be no appointment of an executor. In foreign wills where no executor is appointed, it is not the practice as formerl}-, to consider the heritier or heir named in the will as such. Where a testator has expressed a wish in his will that a person named by him shall administer his estate, that penscjn will be held to be an executor," fit. Brown, L. R. 2 P. & D. Ill (x). (u) Fernie, 6 No. Ca. 657 ; Wma. Exors. '(th Ed. 184. ((') ''Tim Ndtiiralizdtion Act,'' Canada, R. 8. C. o. 113, s. 3 ; Wnis. Exors. 9tli Ed. 184. (ir) Coote & Tr. 11th Ed. 42 ; Win. Bell, 4 P. D. 85; Punchard, 2 P. A D. 370 ; Fraser, 2 P. & D. 180. (x) See Punchard, 2 P. & D. 370 'i'l \i n IN COMMON FORM. 61 A testator appointed William McC, of Canonbury, an J'^'^"^'^Jf„"^ executor. The only persons at all answerinjj the descrip- tion were Thomas McC. and William Abraham McC. — Extrinsic Hflil, that parol evidence was admissable to prove which pei-son was intended by the testator. Probate granted to Thoiiijus McC. (y). A testator by his will said — " I appoint R. H. P. and J. Kxecutors E. \V.," but did not state in what capacity he appointed u, the them. He also beijueathed legacies " to each of my execu- **'""'^" tors, " and gave to his " said executors " the residue of his property with certain directions concerning it. The Court held, upon motion, that by the words of the will R. H. P. and J. K. W. were appointed executors, and granted probate to them accordingly (z). And where a testator nominated trustees — " to carry out this will " and " for the due execution of this my will " —it was held that they were executors according to the tenor and entitled to probate (rt)- Directions to get in the estate of the testator, and to distribute it in a certain manner after the payment of all funeral and other expenses were held sufficient to con- stitute a trustee an executor according to the tenor (h) ; but a person named as trustee without any duty being assigned to him or any be(|uest to him, has been held not to be executor according to the tenor (c). A testator by his will appointed two executors, with Will— Re- the usual directions as to payment of debts, etc. He also^JJ^^jn*"" appointed the same persons trustees with directions to tiav""'"^!'^ ' I _ 1 _ I •' executors. the income arising from his property to his wife and his (j/) nnike. « P. D. '217. Acted upon in Daintrce v. Fasuh, 13 P. D. tJ7. (z) IViUiom Bradley, 8 P. D. 215. (a) Ruitell (1892) P. 380. (6) Luth, 18 P. D. 20. (r) Lotvrey, 3 P. A D. 157. !''! '\m 62 PROBATE only son in equal shares during her life or widowhood, and after her death or re-marriage the whole estate was bequeathed to the son absolutely. There were also alter- native trusts in case of the son dying in the wife's lifetime, either unmarried, or married leaving children. After his death the will was found with the clause appointing executors cut out of it, and there was evidence of declara- tions by the testator that he had cut it out with a pair of scissors, with the intention of cutting out the name of one of the executors. The wife died in the lifetime of the testator, and in the events which had happened at his death, the son had become the only perso i entitled to the „ estate. It was held that the appointment of executors was TruHtees notexecu- revoked by the mutilation of the will; that the trustees cordinK to Were not executors according to the tenor ; and that the the.tenor. g^^ ^y^^^ entitled to a grant of administration with the will annexed (d). If a testator give to A. all his real and pei*sonal estate to apply the same, " after payment of debts," to the pay- ment of legacies, without expressly nominating him as executor, A. will be executor according to the tenor, and entitled to probate (e). A testator nominated certain persons as trustees, but did not therein appoint executors. The envelope was endorsed as follows: "Will of A. . . . Feb., 1870. W. S. Deacon, R. Williams, H. S. Northcote, W. Geddin, executors." Probate was granted to them as executors according to the *f»nor(/). An universal legatee is not an executor as such (r/). (^«"i^ udininistration (with the will annexed) will be granted tocutors. (h) Satmon, 3 P. & D. 48. (0 Sinethunt v. Toinlin, 2 Sw. & Tr., 143-1 47. (;■) Mary Hill, 6 Jurist, 360. (k) Evans v. Tyler, 2 Uob., 131 ; and vide " Grant's for use and benefit," poit. (/) Cringan, 1 Hag^. 548, and Jackion v. Paulet, 2 Rob. p. 315; see also /4. /f. iiyder, 2 Sw. dk Tr. p. 128. i! „■ .1 m r ]: i; I n Power re- servefl to other exe- cutors to prove. 64 PROBATE their syndic (7n) ; but the grant will not be made until the appointment of the syndic is before the Court (n). The Surrogate Courts of Ontario grant letters probate of wills to Trust Corporations authorized by law to accept and execute the office of executor under the provisions of the Ontario Joint Stock Companies' Letters Patent Act when any such corporation has been appointed such executor by the will of a deceased testator (o). If there be several executors, one may prove alone, without notice to the others, and in this case a power is reserved by the court to grant probate to the latter when- ever they or any of them shall dul}'^ api>ly for the same. But this reservation of power can only be made to an executor who is ecjual in degree. Therefore '• en an executor for life takes probate, power is not reserved to the executor substituted upon his decease. Where a will contained an appointment in the words— " I appoint my wife sole executrix, and in default of her I appoint J. K. and R. F. to be executors," the wife proved and died ; and probate was granted to the others as execu- tors substituted (p). Executors to whom this power is reserved may at any time, either during the lifetime or after the death of the other executor take probate. The grant is called a double or treble probate. I'rolvvte Note. — The Imp. Stat. 41, Geo. III. c, 80, provides that duties duties in shall not be payable in reapeot of fjrants of probate, and other grants, hngland. more than once on the same estate, a denoting stamp merely being affixed to the double grant. As to the practice in Ontario in such cases, (m) K. Darke, 1 Sw. & Tr., 517. (n) Wms. Exors. 184 n. (0) See R, S. O. (1887) cap. 157, ss. 4, 74, 75 ; and 54 V. c. 23, ss. 1, 2. (p) Fotter, 2 P. & D. 304. I)()\ible pnjbate. hi-^i -u IN COMMON FORM. 65 vidi' post, Tit. ' Stamp Duties.' By the Suceeition Duty Act, 1892, Ont., the as to nroDertv liable to such duty is that pasaint' on the death of the owner Ui). •'""'''•' ' ' • ■' •■ " ^" pcultiites. If tlie will have been previously proved and deposited I'rohnt.. ..f in the Court of another jurisdiction, it is competent to thetop.v i. ii executor to prove an authentic copy, i. e., an exeinplitica- ,'i,ficatio„. tion or office copy, loco oriyhmlis. It is most usual for the Court to ^rant probate of the]'n,i,jit«- of will latest in da e ; but if the parties interested under such '^'"j'l}"'' will have been cited to propound it, and do not do so, the Court (grants probate in common form of the one preceding it ill date (r). If a codicil have been discovered at a period subseiiuent (""'"lieil to probate or a will beni^ taken, a separate probate un- that suiw- codicil will be granted to the executor, provided it in no',V,.oh,ittM)f' wfiv iei)eals or alters the ap])()iMtnunt of executors already ^^'!' 'M" made in the will (.s). If different executors are aiiiminted''' <-n-»t . . II- »'\'<-''tors. by the codicil, the probate e Married Women >i Properti/ Act, ISSJf, Out.. removinj.^ di.sabilities, it was necessary in order to pei'feot the chain of executorship through a feme covert executrix that the probate should contain an express limitation rcferriniif to her executorship (s) ; but the former restric- tions and limitations in dealing with the wills of married women have been removed and a general grant is now- made as in the case of wills of other persons (a). The chain of executorship is extended upwards, through the medium of n feme corerte executrix who has made lior will by the connnon law, and has appointed an executor jure represt'iitatlone.^, and for the purpose of continuing the chain of representation {b). If the attorney of an executor, under letter of attorney, prove the will it is the same thing as if proved by the ((c) Wms. Exors. 204. {x) W. Smith, 2 Curt. 31. ((/) D. A B. 320 ; Isted v. Stanley, Dyer 372 ; and C. & Tr. 64. (:) Rachel v. Bayne, 1 Sw. & Tr. 132; Birkett v. Vandercome, 3 Hasg. 750; Elizabeth A. liichards, 1 P. & D. 156; George Martin. 3 Sw. & Tr. 1. (a) Price, 12 P. D. 137 ; and ante p. 56. . (b) C. & Tr. 62 ; Wms. Exors. 47. ( I J li F, mm. ri*'- .■■;/?S IN COMMON FORM. executor himself. And the chain of executorship is not liruken by reason that it is so proved (c). If the executor he appointed for his life, Ids office is not transmissible to his own executor ; and the same observa- tion applies to the fuse where an executor is appointed to act ()nly until a specified event or continnjency shall take jilace. It has been said that an executrix appointed during:; widowhood, and (lyin, 19 O. R. 1, and ilUvheU v. M., 16 S. C. K. 722. i w When ox- t'CiitdrHliip IK it traiis- initU-d. 1 iMiisniw- si'lll (rf (Xf'cmi ■!•■ sliip, 1imu- I vidciiLi'd. ■r.l l\ V-! (c) U'illiom Ihiiiard, 7 Notes of CaseH, 118. and 1 Rob. 770; Wms. Exors. tii(); C. & Tr. (I'i. ((/) llond V. Futkney, 2 Lee, p. 371 ; Sed. vide D. & B, 32, 1 m. (.') Coute, p. 01. (.M See sec. 50, R. C. Act, (vnd llohcrt \nddingii, 2 S. W. &. Tr. 1.5 ; 'J W. R. 40; and Coott\ Btli ed. Cd ; and Alb ii v. Parke, (iiiti: l;M TliDwas V, linker, 1 Lee, p. 'di'i; see also Uohert Soddiii;).', ytipra. .1 . r 68 PROBATE Trfiof in (U'tail of willn. Buforf or hinct) Willi Act. SdMicrn, Hiiilor, or civiliiui. Testa- nifiitiiry capacity. Proof in Detail of Wills. Tiie evidence wliieh may be called for by the court, before ^muting probate of a testamentary paper, in addition to the oath of office of the executor or administrator cum test, (innexu in which the will is identified, and whicli is spoken of as adminicular proof (h), — will, in a j^eneral sense, depend, — 1st. upon the fact whether the will or codicil in (juestion has been made before the Wills Act; 2iully, If made since the Act, — whether the testator was a soldier, a sailor or a civilian. The Court may, even in its Common Form Proceedure, re(|uire direct and specific evidence upon any point or par- ticular which, raising a presum))tion against the instrument itself or any part of it, or exciting a suspicion in the mind of the Court, calls for rebuttal or explanation (?'). Unless a paper jiropounded as a will has been made by a person of testamentary capacity it is not entitled to pro- bate, for it is no will ( j). Hy the Wills Act of Ontario, " every person " may dispose of his estate by ivill; persons under the age of 21 y(!ars onl}^ excepted. Idiots and persons of non-saue menjory excepted by the Statute of W^ills (/'), and othei-s devoid of testamentatary capacity are not, in express tei-nis. excepted by the Wills Act. Nevertheless by the general law, excej)tions in cases of such persons exist ex necessi- tate (l). " By the general rule of law, wills made by lunatics, and non compotes generally, persons under the dominion (/() C. & Tr. 83. (i) Coote, 8th ed., 79. ( j) The Marquis of Winchester's case, 6 Co. 23a ; and see Banks v. Gnod- jdUnc, L. K. 5 Q. B. 54'.) ; Baptist v. Baptist, Q. R. 1 Q. B. 447 ; 23 S. C. Rep. 37 ; Jarman on Wills, 5th ed. 35, et seq, (k) 34th Hen. 8. c. 5, s. 14. (I) D. & B. (57 n. ; and see Leith's Real Prop. Stat. 283. IN COMMON FORM. m \2 of fear, fraud or undue influence are absolutely null and v()i(l"(i)t). By section 3 of the Act entitled " An Act respecting; Aliens, Naturalization and Aliens," Canada (v), real and personal piu[ierty of any description may be taken, accjuired, held and disposed of by an alien in the same manner in all res])ects as by a natural born British subject. But although an alien is thus enabled to make a testamentary disposition of property, the enabling clause does not affect the form of the will, nor enable a foreifj^ner to make a will which is not in coiifonnity with the law of his own country ; and such a will executed abroad according to the formalities re(iuired by English Law is invalid, notwithstanding the provisions of the Naturalization Act (o). Persons born deaf, dumb and blind, wanting the D^af. .1. J. liT • 11 PI- il) and cnnnnon nuets or understanding are racapable ot navmg blind. the animum testandi, and their testaments are, therefore, void ( j>). As to persons deaf and dumb from birth, if it appears Proof of that they understand a will and wish to make one theydumii, may do so ; but as there is a presumption against the lli-terate capacity of such persons, which classes them with idiots> persons, it must clearly appear in what manner they have signified their instructions (q). It has been held essential in law that the instructions of such a person should be made known in some certain manner, though not orally. He Iw) Flood on Wills, p. 367; Wms. Exors. 9tli ed., pp. 9, 12, et «t>y si^'ns (?•). ProlHito will only be ^'ranted of the will of a denf .vnd dutnb testator wjio can neither read nor write, and who converHes l)y sijfiiH and not by means of the deaf niiil dumb al|)liabet, upon satisfactoiy explanation of tlie nature of the hI'Mis bv whicli he si''i''"'f '■ & fti ' testator. require, not only that the death should be proved, but that the instrument offered for probate should be such as Will depends upon the death of the person making it for its ,ii..itii. force and effect (a). " For a testament is of force after men are dead, otherwise it is of no strength at all while the testator liveth " (6). Hence another essential feature of a will is, that itRtyocaiili' must in its nature have been ambulatory or revocable'"" ^ during the life of the testator; for an inst. anient con- |l! (r) Rule 71 (1862) E. C. P. See Hastilotc v. Stobie, 1 P. & D. 67 ; C. & Tr. 87, 006. (i/) Burgoyne v. Shoivler, infra, and D. & B. 68. (i) Griffin v. Ferard, 1 Curt. 97. (-() Tapley v. Kent, 1 Rob. 400 ; Hahenjham v. Vincent, 2 Ves. Jr. 232 ; Mastennan v. Maberly, 2 Hagj^. 247 ; The King's Proctor v. Daine*, supra ; liubertson v. Smith, 39 L. J. P. 4 M. 41 ; NichoUs v. NichoUs, 1 Phill. 180. (b) Heb. ix. 17; Swinb, Pt. 1,3; Forse and Hambling's case, 4 Rep. 61 b ; Tapley v. Kent, supra. l"'i 1 1 1 72 Joint wills. Mutual wills. A ■" •!",!| PROBATE summated in the life of the testator, and which he could not revoke while he lived, is not a testament (c). Two or more persons may make a joint will, which, if properly executed by each, is, so far as his own property is concerned, as much his will, and as well entitled to probate upon the death of either as if he had made a separate will ; but a joint will made by two persons, to take effect after the death of both, will not be admitted to pro- bate during the life of either (d). Where two sisters wished to make mutual or reciprocal wills, each to oive all hei- property to the other, so that the survivor might bo entitled to all the property of botii. By mistake each signed tlie will intended for the other, and the mistake was not discovered until after the death of one. The survivor offered the will of her deceased sister for probate, but the Court refused the application saying, " It is not the will of tiie deceased. It purports to give all her property to herself," and decreed administration as in the case of an intestacy (c). In a later casje, where a similar mistake had been made, probate was refused, but on the ground that the testatrix did not know and approve the contents of the will. Sir J. Hannen, observing that he would have been glad to give effect to the intention of the testatrix by granting probate and it seems to be inferrible from the report of the case that, but for the mistake referred to, the learned Judge would have made the grant (/). (c) I'iiiiinr'g came. 8 Rep. 81 ; Swinh. 7, 1, 2 ; Robinson, 36 L. J. P. & M. 93 ; Hohson v. lilackhurn, 1 Ad. 271. As tc circunistancea under which a Court of Equity niav hold a will irrevocable see Fitsgerald v. Fitxgerald, '20 Gr. -ihJ ; Wma.E.xora. 107. (d) Jarman on Wills, 4th Ed. 17 : lie liaine, 1 Sw. & Tr. 146. (c) Anon, 14 Jur, 402. (/) Hunt, L. R. 3 P. & D. 250. •^m J--V IN COMMON FORM. 73 It has been stated that the law of England does not ^'"o^'f >" , " , , dotail of recoi,'nize such documents as wills, though it will give effect wills, to them in some cases as contracts between the parties. It is laid down in a modern work that " two persons may agree to make mutual wills, which remain revocable during their joint lives by either with notice to the other, but Ijecome irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other " (rj). If made before The Wills Act, a will without attesting witnesses, or with one attesting witness only, is admissible to probate (h). If a paper purpoi'ts of itself to be testamentary, the party who opposes its admission to probate must, in order to get rid of it, show to the Court that it was not made (in Imo textundi ; if the purport be equivocal, it must be shown by the party setting it up that it was made animo tesiandi {%) By Rule 18, Surr. C. Rules, 1892,— "Every will or copy of a will to which an executor or administrator with the will annexed is sworn, should be marked by such executor or administrator and by the person before whom he is sworn." This, in the Probate Division, England, with the oath of office, which also states the time and place of the testator's death, and the value of the personal estate, is sutHcient in most cases to enable the executor to obtain probate in connnon form of his testator's will ( j), without re(^uil•ing the affidavit of a subscribing or other witness as lo tlie due execution of the will by the, testator ; and is referred to as adminicular proof of the will (/.). (;/) Theobald on 'Wilis, 12; and see Wms. Exors. 8, 107. {h) C. & Tr. 83. II) Covoitry V. Williams, 3 Curt. 791 ; Thorncroft v. Lushmar, 2 Sw. A Tr. 47'l ; 31 L. J. P. A M. 1.50, and see Castle v. Tuirc, 2 Moo. P. C. C. 133. 0) C. & Tr. lltli Ed. 43, 47 ; Powles and Oakley, 273-277. (A) Wraa. Exors. 9th Ed. p. 271-2 ; C. & Tr. 83. ' ! !1^ 74 PROBATE tion. fi- ll Omnia l)rreHnmnn ter, &c. But in the Surrogate Courts of Ontario proof of the execution of the will is a part of the necessary proof to lead the grant. Duefxecu- " '^ -"^ "^^"^ execution of the will or codicil shall be proved by cue of the witueHRes, or the absence of the witnesses accounted for ; in which last case such will or codicil must be established, by other proof, to the eatiafaction of tlie Juil;4e." Rule 10, Surr. C. Rules 181(2. If the will is in due form, and duly executed, the Court will hold it te.stanientary without looking at its contents, even though they are manifestly nugatory (1). And when a will is ex facie duly executed, probate ought not to be refused merely because the witnesses cannot recollect (m). In (|ucstions as to due execution Courts of Probate act upon the maxim omnia piu'sumiinier rit(' esse acta (i?)- In Bitrgoyne v. Showier (o), Dr. Lushington observes — " I apprehend that where a will on the face of it appears duly executed, and there is a clause of attestation of this kind, being not in the strict form, the presu'nption must be omnia rite (tcta fuisse. However, if the pai'ty is put on proof of the will he is under the necessity of producing the subscribed witnesses, and any other evidence, if there be any other, to establish the fact." This presumption may be rebutted Ijy the parol evidence of the attesting witnesses themselves ( p). The evidence required in the Surrogate Courts as to the execution of Wills and Codicils as well those made before, as those made after, the "Wills Act, 1873," — is indicated in {1} Roberts v. Eoberts, 31 L. J. P. & M. 46. (m) Wright V. Sanderson, 9 P. D. 14'J C. A. (n) Sir J. Dickson, 6 No. of Ca. 278; Vinnicomhe v. Butler, 3 Sw. & Tr. 582 ; 34 L. J. P. tt M. 18. Stewart v. Lees, 24 Gr. 435 ; see Pool, 35 L. J. (N. S.) P. ct M. 97 ; and Wms. Exors. 91. (o) 3 No. of Ca. p 204, 1844, and see Prudence, ib. in note. See also Wriijht V. Sanderson, 9 P. D. 149 (C. A.) ; Woodhousev. Diilfour, 13 P. D. 'i. (p) Glorerv. Smith, 57 L. T. CO. mm IX COMMON FOHM. /O t.DfC.lS59. tlio Instructions {<]) on tiiat suliject issued to the Eoifistrars of the Court of Probate in England, under the E. C. P. Act, showiiif^, as those Instructions do, the practice of that Court on tliat subject, as it stood 5th Dec, 1859 (7'). As to those instructions rehitinq; to wills made since thei'i'-'icticein " lirovint,' Imperial Wills Act, ]\[r. Coote (s) remarks that — " theyt\73. Execution of a ]]'ill. " If there be no attestation clause to a will or codicil presented for '•prnbato, or if the attestation clauno thereto be insuflicient, an affidavit " will be required from at least one of the subscribing,' witnesses, if they Wills sinci- 1>73. Iiisuffi- cii'iit .'ittefi- tatiuu ur ;il)scnci of. (7) The instructions of 18()2, which were --il-stituted for, and vary somewhat from those first issued under the Imp. Wills Act-are those quoted in this treatise as to execution of Wills. For those first issued set' -I Jurist. N. S. Pt. 2, p. 9, IH.58. Those of 1802 are now followed in the Probate Division, Enj,'., exceptinj,' that as to Marrii'd If'omeii'g ]\'ill>i, wliicli has been repealed and a new rule substituted. C. & Tr. Ilth ed. •j'Jii, vide infra, ()•) Date fixed by S. C. Act, s. 31 as to practice, E. C. P. (») 8th ed. p. 80. f \ m i| 76 Prol latere- fui-e 1 if af' fidavit in, suthcitnit. Or if doubtful, Judfre to decide. Death of witnesses or lack of evidence, how sup- plied. PROBATE " or either of them be livinf^, to prove that the provisions of the Wills " Act • • « • jn reference to the execution, were in fact complied "with (0- " If, on perusing; the affidavits of both the subscribing witnesses, it • " appears that the requirements of the Statute were not complied with, " probate will be refused. " If, on perusing the aftidavit or affidavits setting forth the facts of " the case, it appear doubtful wliether the will or codicil has been duly "executed, the Registrar may require the parties to bring the matter " before the Judge on motion. " If both the subscribing witnesses are dead, or if from other " circumstances no affidavit can be obtained from either of them, resort " must be had to other persons (if any) who may have been present at " the execution of the will or codicil ; but if no affidavit of any such other " person can be obtained, evidence on affidavit must be procured of that " fact, and of the handwriting of the deceased, and the subscribing "^ witnesses, and also of any circumstances which may raise a presump- '' tion in favour of the due execution (?<). Interlinea- tions and alterations when valid. On what evidence. Interlineations and Alterations. " Interlineations and alterations are invalid unless they existed in " the will at the time of its execution, or if made afterwards, unless they "have been executed and attested in tlio mode required by the Statute, "or unless they have been rendered valid by the re-execution of the will, " or by the subsequent execution of a codicil thereto. " When interlineations or alterations appear in the will (unless duly "executed or recited in, or otherwise identified by the attestation clause), " an affidavit or affidavits in proof of their having existed in the will " before its execution, must bo tiled, except when the alterations are "merely verbal, or when they are of but small importance, and are "evidenced by the initials of the attesting witnesses (r) Erasiires and Obliterations. When "Erasures and obliterations are not to prevail, unless proved to opera i\e. .. j^^^g existed in the will at the tmie of its execution, or unless the " alterations thereby effected in the will are duly executed and attested, " or unless they have been rendered valid by the re-execution of the will, {t) See Latham, deceased, 10 Jur. N. S. 620 ; and Poides v, Oahley, 3rd ed. 677. (m) See Burgoyne v. Shoicler, 1 Kobert, 5 ; Jane llwrnas, 28 L. J. N. S. 33. (r) See sec. 23 Wills Act, Ont. N' IN COMMON FORM. I I " or by the subsequent execution of a codicil thereto. If no satisfactory •• evidence can be adduced as to the time when such erasures and obliter- "atious wore made, and the words erased or obliterated be not entirely " effaced, but can, upon inspection of the paper, be ascertained, they '■ must form part of the probate. " In every case of words havin;^ been erased or obliterated, which Affidavit " mi^jht have been of importance, an affidavit will be required. the'ton. Deeds, (tv., referred to in a Will or Codicil. " If a will contain a referance to any deed, paper, memorandum, or Ddou- " other document of such a nature as to list a question whether it 0Uf;ht '"*'"*■■* re- "(ir oujilit not to form a constituent par^ of the will, the production of ),y ^y\\] "siicli deed, paper, memorandum, or other document, mnst be re(iuired, must !).■ " with a view to ascertain whetlier it be entitled to probate, and if not l"'*^"""-''''- " produced, its non-production must be accounted for. " \o deed, paper, memorandum, or other document cin form part Wlu'u a ' (if a will unless it was in existence at the time when the will was ''"^ ''"!*'" "executed. form ] part of a « ill. Appearance of the Paper. " If there are any vestiaes of 8oalin *"., " If the same are in the baud-writing of any person other than the ..i-oved. "testator, it will suffice to prove by at'lidavit that such altciatitxis and "interlineations were known to, and approveil of, by the testator. Proof " by at'lidavit that they existed in the paper at the time it was found in " the repositories of the testator, recently after his death may, under " circnuistances, suffice." Alterations and interlineations made since the 31st of December, 1S7'^, rire subject to the provisions of the Wills Act of Ontario, ^6 Vic, -. -"? , li. S. O. 1887, c. lO'J, s. 23. Deeds, etc., referred to in a Will, or annexed to a Will. "With respect to deeds, papers, memoranda, or other documents Incorpora- ;nontioned in a testamentary paper, or appearing to have been annexed '■*-'^ P*'^!'^'''''- " or attached thereto, the foregoing . . . instructions as to wills " bearing date since the 31st December, 1837, will apply,'' in Ontario, lis73. (z) See sees. 17, 18, 19, Wills Act Ont. ; and Crawford v. Boyd, 22 Gr. 31)8 ; Hopkins v. Hopkins, 3 Ont. Eep. 223. 1 1 \l ■1 J ) It i^i «0 PKOBATE Rcpultlication of Codicil, ^VUjg " A will made before the 1st of January, 1874, is republished, by a madobn- " subsequent codicil thereto duly executed (a). fere Wills "■^'^- Mode of Execution. Mode of " In every case wliere an affidavit is made by a subscribing witr jas execution. ,. ^^ g^ ^^.jjj or codicil, such subscribing witness is required to depose as to " the mode in which the said will or codicil was executed and attested." extcmti'on '^^^^ defective execution of a testamentary paper may supplied, be supplied by a subsetjuent document duly exeduted, but the earlier instrument must be so described that there can be no doubt as to its identity (6). A>v(,//,„i The mannur in whicli a will is to be executed is since Wills pi'escribed by the Statute, (c) (sec. 12), as follows : — Act. Exfcution. " ^<> will shall be valiil unless it is in writing, and y"^!':,j^^\,^ executed in manner hereinafter mentioned; that is to say, it shall 1)0 siiinod at the foot or end thereof by the testator, "Foot or '^ . . "^ end." or b}'- some other person m his presence, and by his direc- tion ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses, shall attest and shall subscribe the will in the presence of the testator: but no form of attestation shall be necessary." By execution, is to be understood the whole operation wliich is necessary to make a document testamentary in the first instance {d). The Statute permits the will to be signed for the execution, ^estator " by some other person in his presence and by his direction, and such signature must be acknowledged by the testator."— (Sec. 12). Attesta tion. Mode of (a) See Wills Act, Ont., R. S. O. c. 109, sec. 24. (b) Habergham v. Vincent, 2 Ves. Jr. 231 ; Wms. Exors. 9th ed. 86. (c) The mils Act of Ontario, R. S. O. c. 109. (d) Catement v. Fulton, 5 Moo. P. C. C. 141. IN COMMON FORM. 81 Wliere anotlier person signs for the testator, the latter must by act, or by word, in some way indicate to tlie two witnesses present that the signature was put there at liii. reiiuest (e). The witnesses sliould understand at the time that the person putting it there was signing for the testator (e). And tlie statute does not say that the signature n»ust be in tlie testator's name ; and where the person signing for him, signed his own name instead of that of the testator, it was held sufficient, the other reijuirements being observed (/'). The first part of sec. 12 as already shown requires that a will shall be signed "at the foot or end tlicreof" by the tustiitor, the second part of the section (Locke King's Act) explains that so far only as regards the position of the .siyuature of the testator (7) it may be placed : — 1. " At" the end of the will,— or 2. " After " the end of the will, — or '.]. " Following " the end of the will, — or 4. " Under " the end of the will, — or 5. " Beside" the end of the will, — or ,— .\ will made in France and sij^neil at end of notarial ininnte. \u) Scott V. Scott, 13 O. H. 551. (r) .Vorrift v. Don(ilass, L. R. 3 P. A D. 1 (1872). (H-) Wma. Exors. 9th Ed. 79, cit. Moore v. King, 3 Curt. 243, and other ca.ses. (.r) Wnis. Exors 80. i f i ! I m PiU)15ATE Subscription of attesting witnesses may be by mark (y\ or by initials (z), but it must be intended to represent the name {<(.). When a witness's hand is guided to affix his signature ; the act is still valid as an attestation {b). The act is his own (c). If he takes some share in the act of writing, it appears to be sufficient id}. Where the witnesses could write, but made marks, and no satisfactory explanation of tiie inconsistency given, it was held bad (e). Where the writing is altogether in another hand(/), though it be that of a co-attesting witness, it is bad, though the testator desire it (r/), Where a testator, not having nominated executors, had signed his will as follows : " In testimony of, etc., I have this day signed my name, , " Geouoe Cotton. " being tlie twenty-first day of January, in the year of our Lord one " thousand eight liundred and forty-five, in the presence of my executory, or " trust for the just fulfilment of my hist wishes and desires herein " described. " (Witness) Willi.\m Austin. " Elizabeth ArsTi.v." r 1 (i/) Cases under the Statute of Frauds : Harrison v. //., 8 Ws. Jun. iSo (180;}) ; Ailil;/ v. Gri.r, ih. .504 (ISIW). Cases under the Wills Act ; linker V. henniuiu S A. iV E. iJ7 (ISiJB) ; Ashmore, 8 Curt. 750 (1848) ; AviiiS. •2 Robert, llf) ; 7 N. C. '274 (184'J) ; lirijce, 2 Curt. 8'2G (ls3U) ; White, 2 N. N. C. 461 (1843). Wms. Exors. 82. {z) llindmarsh v. Charlton, 8 H. A L. 167 (1861). (a) Christian, 2 Robert, 110; 7 N. C. 265 (1840). {h\ Harrison v. Kli-in, 3 Q. B. 119 ; 2 P. & D. 76'.» (1842) ; Frith, 1 Sw. & Tr. 8 (1858; Leicis v. L., 2 Sw. A Tr. 153 (1861). (c) Kitcher, 6 N. C. 15 (1848). {d) LeicU, V. L„ supra, {e) Kilcher, 6 N. C. 15 (1848). (/) White, supra. {g) Cope, 2 Robert. 336 (18;:0 . It 'I i IX COMMON FOUM. 91 —the Court decreed probate of the paper as it stood, not to them, but to a legatee, refusing to reject the words after the signature, as they formed part of the attestation clause, but treating them, though possibly a " constructive appniutnient of executors and trustees," as descriptive only and not dispositive (h). On the 17th April, 1877, H. O'N. signed a will in the the presence of one witness ; another witness was then called in, before whom the testator acknowledged his sig- nature, iuid then both witnesses signed in the presence of the testator and of each other. On the 23rd of the same month the testator caused two sheets of the will to be re-written, and having been pinned to[;^*^''ier with the reiuaining original sheets, the date on the last sheet, which was not one of those re-written, was changed from the 17th to 23rd ; and the testator acknowledjied his sii-'nature to the same witnesses, each of whom acknowledged his siniiature as witness. The two sheets taken out were des- tiuytfl by one H. by direction of the testator, but not in his pivsunce. After his death the will of the 23rd was offered for pi'obate in the SuiTogate Court. Upon the case coming Itefore the High Court of Justice it was held that the will (if the 23rd was not duly executed ; and that the will of the 17th was not revoked, but was entitled to be admitted to proljate (i). In the case of a witness, an acknowlec^'xment by him of liis previously' sub-scribed signature is not a sufficient com- pliance with the Wills Act ( j). And probate of will i\pparently duly signed and attested, hut having a clause nomuiating executors appearing below ji^ Acknow- leltrtll'Mlt Irv witness. (/() Cotton, G No Ca. 307, 1 Robert. 638; and see Aimworth, 2 P. d- I), isi. (/) O'Xeill V. Owen. 17 O. U. 52-3. (./) Wma. Exors. 83 ; OW'eill v. Owen, 17 O. R. 52'). iw 92 PROBATE Date (if will or (;(«licil supplied. Wills without (late or incorrectly dated. the siprnatnres, though actually written before them, was refused. Afterwards a grant of administration with will annexed, without that clause, was by consent made to the residuary legatee (k). If there be no date, or if there be an imperfect date only, to a will, one of the attesting witnesses must supply it by making an affidavit in proof of it. If neither of the attesting witnesses nor any other person can make this affidavit, evidence must be given showing that the will is the latest or the only will of the testator. If a codicil be undated, or impei'fect in date, the same affirmative evidence must be pi'ocured from one of the attesting witnesses : or if both of them are unable to recollect the date, and no one else can supply it, evidence must be given showing its deposit amongst the testator's papers of importance. The Practice of the High Court of Justice, Eng., Pro- bate Division, as to wills without date, or incorrectly dated, is shown by the ' direction of the Judge of June, 186'J'(/); viz: — ... .in all cases in which the affidavits of execution disclose the fact that the will was executed on some other day than the day it bears date, and in all cases where the will is without date, the true date of the execution shall appear on the face of the grant, and the affidavits shall not be I'egistered unless re(iuired for some other purpose ; so that in future if the will be without date, it is to be recited in the grant that probate is granted of the " Will hereunto annexed without date, but in fact executed on (or on or about the day of " ; and if the date in the original will be incorrect, that probate is granted of the — " Will herc- rato annexed, bearing date the day of , but in (k) Thomag Howell, 2 Curt. 342 (1839) ; see also Davin, 2 N. C. 3^.1, 343), and Daiia, 3 Curt. 749. (/) ('. (fcTr. lltb ed. 017. IN COMMON FOIIM. 9B fact executed on the day of ." The order extends al-o to tlie diites of codicils, and to letters of administra- tii.ii with the will annexed. Ill a case in which a will had been referred to in a codicil under a date which belonged to an earlier will, the Court corrected the reference and granted probate of the will intended to be referred to (7u). The true date will be inserted in the probate, but not in tlie annexed cop}^ of the will (;<). A testatrix made a will in l.S5). IF, out of three or more witnesses to a will or codicil, ^."''^'-T'l' tioll of (lue shall turn out not to have legall}' attested the instru- nonattest ment, the Court will, notwithstanding, not exclude the 1"k"xc1u-'' suhscription of such unnecessary and non -attesting witness jl^y^,!^^'^™ from tlie ])robate and the registration (q). But where a residuary legatee, who had been present at the execution of a will, wrote her name at the re(juestot' one of the attesting witnesses, underneath the attestation clause, after the execution of the will, the Court beiu"- (m) Anderson, 39 L. J. 55. (ii) Allchin, 1 P. & D. «65. (o) Reff-el V. lieffel, 1 P. D. 139. (p) Wnia. Exors. 9th ed. 287 ; 11th ed. C. & Tr. 87. {q) J. Forrest, 2 Sw. & Tr. 331 (1861). w 94 PRORATE Oblitera- tioii.s, etc. pFdhate in I'ac-shailc. satisfied tliat she had not signed the will as a witness, directed the signature to be omitted from the probate (n. In the goods of Johyi E. White, upon evidence that certain unattested erasures and obliterations appearing in the will did not exist at the time of execution, probate was upon i\\Q Hat of the Surrogate of the Home District (Hon. W. H. Blake, 26 March, 1848), granted of the will as it stood before any of the obliterations or erasures took place. Where a will on the face of it had been executed in 1858, and subscrilx'd by two persons as witnesses, wlio WP''T also named in it as legatees, and was re-executeil in 1800, and attested by different witnesses, and after the death of the testatrix was found with the first attestation clause and the names of the witnesses to it cancelled, but there was no evidence to show the date of cancellation : the Court refused to exclude from the probate the part can- celled, and directed probate to issue in fdc-simile (s). Evidence If proof Can be adduced that interlineations, intern jl.i- iittiniiinp , '■ , , . altcratKnia tions, erasures, words or figures wi'itten upon erasures, or anything of the nature of an alteration, or an unautheiiti- cated addition appearing in the will, were written anJ made at a period preceding the execution of the will, they are entitled to probate. AtHrmative evidence of this char- acter can occasionally l>e produced from an attesting witness who observed the alterations, or whose attention was drawn to them before or at the period of the execu- tion, or from the drawer of the will, who can depose that the parts apparently interpolated or altered, accord with his draft, or from the writer or engrosser of the will, who (r) Sharman, HSIj. J. (N. S.) P. & M. 47 ; 1 P. & D. 661 (18iil)i and E. J. Smith, 15 P. D. 2. («) Smith, 3 Sw. & Tr. .589 ; 34 L. J. P. A M 19 (1865). See also Rdiiie, 11 Jur. N. S. 587 ; 34 L. J. P. & M. 125 (18G5). ' "V IN COMMON FORM. 95 ^ ^ can prove them to have been made by himself either as the correction of his own error in copying, or as a change of intention on the part of the testator previously to the execution of the will (0- An affidavit from any one of the persons designated or from any other person who is in any other mode qualified to depose affirmatively is sufficient to entitle the alteration to probate (a). Any alteration or revocation made in or of the pi'ovi- bions of a will after the 1st January, 1874, to be effectual must be attested in the same manner as a will requires to 1)6 attested, and that notwithstanding the will was made anterior to that date (v). A sincfle interlineation or interpolation will prove itself Initialing ... . altera- if tliH signature, or the initials of the signatures of the'tions. testator, and the two attesting witnesses are written opposite to, or near it. * A recital of an alteration in the attestation clause is satisfactory evidence as to that alteration (w). Declarations made by a testator previously to theDeclava- exeeution of his will, which agree with alterations testator, appearing in it, demonstrate that the alterations are not after-thoughts, and are evidence that they were made before the execution of the will (x). As analogous evidence. Lord Campbell has ranked the I^^^'f ™' fiillowiug, viz.: the production of the draft of the will (f) See Wills Act, Ont., sec. 23; and ante, p. 7G. {„) lb. ()•) Seo. 23 Wills Act, Ont., and see Smith v. Meruim, 25 Gr. 383, 1878, and ante, p. 80. (if) Ante, p. 76, and C. & Tr. 89. {x) Doe and Shallcross v. Palmer and others, 20 L. J. R. (N. S.), p. 3G7 ; Dunch V. Bench, L. R. 2 P. D. pp. (M, 05 ; and see James v. Shrimpton, 1 P. D. 431. (lu Bench v. Bench, the testator had used a lithographed form of will). y\ 96 PRORATE Verifica- tion of al- teratioiiM as directed by Wills Act. Section 23, Wills Act. Prt'Siimii- tiou of law against al- terations. corresponding with the will in its altered foi-ni,and written and verbal in.striictions from the testator to his solicitor to draw the will in its altered form {y). If alterations made in a will, after its execution, can be shown to have been made before the execution of a codicil thereto, they are by such codicil made valid (z). The more circumstance, however, that an alteration has been dated by a testator as before the execution of his will, does not entitle such alterations to probate («). Alterations, however, which, though made after execu- tion, have been either executed in the manner retjuired by the Statute for the execution of the will itself, or are verified by the signatures or initials of the testator and the witnesses, are admissible to probate, for the 28rd section of the Wills Act of Ontario allows the validity of an altera- tion, if it has been executed in the manner recjuired by the same Act for tiie execution of the will itself ; or failiui; this, if the signature of the testator and the subscription of the witnesses have been made in the margin or on some other part of the will opposite to or near the alteration, or at the foot or end of or opposite to a memo- randum referring to such alteration, and written at the end or some other part of the will. If, however, no affirmative evidence can be obtained the presumption of law is (where the will has been made since the Wills Act) that an alteration has been made subsequently to the execution of the will, and it will accordingly be excluded from probate (h). fe- (y) Doe and Shallcwus v. Palmer and others, 20 L. J. R. (N. S.) 373; 16 Q. B. 7i7, and J. P. Ripley. 1 Sw. & Tr. fi9. (z) Lushinijton v. Omlow, 6 Notes of Cases, 188, and Bradley, 5 Notes of Cases, p. 188. (a) Adamson, 3 P. & D. 253. (b) Cooper v. Bockett, 4 Moo. P. C. 419, 4 No. Ca. 392, 685 ; see also Ihid. p. 659, and Smith v. Meriam, ante, aud Himimarsh v. Charlton, 8 H. L. 160. IN COMMON' F(JUM. {)'i TM ■'■1 taiued inaile made it will S.) 373; \ 5 Notes I see irlton, also If the olditemtions and erasures are so incomplete that j^^^'""'!* "«• tli«' oriLfinal words or figures can be read or deciphered r.stoml. either by the naked or assisted eye, the Court will restore thiin in all cases, and will grant probate of them, and will allow the use of magnifying glasses, but not chemical .ii^a-nts to remove the obscuring ink (c). And expert evi- dence will be received {(l). If however, the original words cannot be read, either by Wonis. the naked eye or through extrnisic aid, the Court exercises ap|.;ini'. two dirterent principles in its way of dealing with them. If a testator has obliterated or erased the whole of a liei[uest or provision in his will, or has completely covered it Ity paper pasted over it, and has so eti'ectually accom- plished his purpose, that the passage is not apparent, i.e., cannot be made out on the face of the will, the revocation is complete, under the 23rd section of the Wills Act, Ontario, and the Court grants probate of a blank (c). But where part of a legacy only, viz. : its amount or the Amount of U''''*icv names of the legatee, has been so covered, oi* oblitei-ated or restored, erased, leaving the name of the legatee or the amount of the legacy untouched, the Court infers that the testator's intention was only to revoke the original name or amount in the event of his having effectually substituted another, etc., wlun in which case the doctrine of dependent relative revocation tioiw.'* becomes applicable; and, by this doctrine, the obliteration or erasure, being done with reference to another act, meant to be an effectual disposition, will be a revocation or not, J.'yitivi.* "* according to the efficiency of the relative act. But if the ii-^^'-'tion. alteration in the name or amount, be not executed accord- ing to the Statute, there is no revocation at all, and the (c, Hnntfnrd, 23 W. R. 211 ; 3 P. & D. 214, 21G (1874) ; and Pair. 20 L. J. 70 ; Hnrn.t, 1 Hw. & Tr. .'.38. ((') Finich V. Cnmhe, [ISVA] P. 11)3. (<;) Ihhetsou, 2 Curt. 337; Townley v. n\it.ion, 3 Curt. 7*36; and Wms. Exors. 'Jtli fd. 123. H.s.c— 7 l-l 98 Court will !iM<'crtain iiriKiiiiil W(inln. •22n(l Sfc- ti..n Wills Ai't of Ontario, iis til how I inly will can be revoked. IMIOHATE Court will restore uiul grant probate of the original words, for which others were s(»ugl't to he snhstitiite. iianit' was. ti Hut tlu ' tilted the 1 [^ '~^. "f cours u ^'\'idi'uce o ■!_, evidence c ! neci'ssitv ol The clai [ the second ; -' |'"'iitly the iiid those ol t '> the alter 'le Court o- (') Ili-nrie'.t 1 ',/J I'hornto) 1 (^■) McCuht, i (^t E. S. J,u i i">) 'nn^ius' IX COMMON FOKM. 99 ill A will, which, after execution, hivl n'lnained in the ^^r^vtchint? ciiHtoily of deceased, was foiiml in her rei'-sitories after hertuiv. ili'.'ith with her own sii^nature and the Mi;^natures of the attestin<^ witnesses scratclied out as with a knife. It was lifid thiit there was a revocation witlnn the re(|uireinents „r s. 20 of the Wills Act (Ini]>.) (i); s. 22 of tlie Wills Act of Ontario, It. S. C). e. 100. A testatri.x, hein;^ under an erroneous impression that a*"'"!!':!! 1 11 11' !• li tniii lip liy fiMJicil hail not been duly executed, directed it to be torn mi^taki.. (i]i iiml sL'ut to her solicitor to be recopied, but died before she c Miilij i-e-execute it. It was held, there beintj no 'onv/u/.s' ;., ,,„,'„„',/, rrraanuJi, that the original codicil (the torn pieces havinn- })i.'i!ii pasted toi,^ether) nii,L,dit be admitted to prolmte (/). Wlicre the name of a le<;atee was so entirclv erased Ivi'stnrin^' tli.it it was no lonjj^er apparent, another beini;' substituted .lasd',. to.' tor it, on evidence beinj:^ Ljiven as to what the oi'ii,dnal iiaiin' \v;is, the Court restored it (/•). liUt the restoration of the orii^inal words which consti- tuted the name of the lerratee, or the amount of the le^-acy, is, (if course, conditioned upon the po.ssibility of obtaining rviilciice of what, in either case, these were. Where this eviilence cannot be obtained, the Coui't is under the nec'i'ssity of i,^; inting probate of a blank (/). The clause appointing; executors was written, partly on Alter.itii.n. the second and partly on the third side of a will. Subse- i|Ueutly the testator altered the clause, but his si^niature and those of the attestin<,f witnesses appeared opposite only to the alterations which were made on the .second side. The Court granted probate of all the alterations (in). (I) Ih'uriftt^t G. .Morton, 12 P. D. Ml. (./) Tl.ornton, 14 P. D. 82. [k) McCaht, L. K. 3 P. U D. p 96. {l\ K. S. Jiime>s, 1 .Sw. & Tr. 2:iy, anl .S'n- C. I> Curt. WM. ym) Witkiamiu (5 P. D. 100. ! I ■t ' v,vr' 100 PROBATE Mistake. A testiitoi' ill the ■). (-) C. & Tr. nth ed. 95. (.>'i Tifler, et ol. v Mt'rchant Taiflor'g Co., 15 P. D. 216; see also Wijiitt, 2 Sw. & Tr. 4;: . ; (i L. J. tji)4. " It I See S. C. Rules, Form 31, Ajlubivit of Plight, etc. {») Oswiild. 3 P. (c D. p. 1(')2 ; and see Hurler v. Harter, ih. p. 11 ; ilnrrellw M., 7 P. D. 75. ir) Fulton V. .Andrew, 7 L. R. E. & I. Appeals, 448. I I I IT 102 PROBATE Omitting clause frimi probate. The Court has also constantly excluded from probate words of atrocious, offensiv^e or libellous character (w) ; but it cannot exclude any words or sentences which do not come fully within such categoiy (x). A sole executor's name was ordered to be struck out of a will in which it had been inserted without the sanction of the testator (2/). When a will was referred to in a codicil under a date which belonged to an earlier will, the Court corrected tlie reference, and granted probate of the will intended to he referred to (z). A testatrix, by her will, constituted her illegitimate son her universal legatee and one of her executors. After the execution of the will, and shortly before her death, she expressed a wish to beijueath part of her furniture ami other personal effects to her sister, her sole next of kin and heiress-at-law, and proceeded to write out a beijuest givin;^ effect to such wish on a printed form of will, which was duly executed. The form connnenced bj' a clause of revo- cation ; but the testatrix did not till up the blanks in tliis part of the form ; and the clause was not read over to her at the time of execution, though the rest of the will was, and there was no evidence that she knew of such clause. It was held by the President of the Probate Division. that probate might he granted of the will, with the testa- mentary paper as a codicil thereto, omitting the revocation clause. A consent was tiled by said next of kin that the grant might go as stated (a). (if) Gcorqe Wartnaby, 4 Notes of Cases 477 ; Marsh v. Marsli, 1 S\v. A Tr. 530. {x) Curtis V. Curtis, 3 Add. 33. See Houeyicood, 2 T. & D, 251 l^; 'lot {y) C. & Tr. 9« u.; and Morrell v. M. ante, 101. (z) Anderson, 39 L. J. R. (N. S.) F. & M. 55. (a) In re !^arah Sophia Moore. (1892) P. 378. Following In re ().) lleiithcote. G P. D. 30. il') n. M. Bacon, 3 No. of Ca. 045; Tiie Baroness Truro, 35 L. J. P & M. 8'J (18C()) ; James Daniell, 8 P. D. 14. IT 'm 106 IMIOBATE Parol I'vi- deiicf^ i!i iilfiitificii- tion of the paper re- ferred to. Evidence to iden- tify. instruments and entitled to probate, as, together with the will of 1884, con-stituting the la.st will of the deceased (/;). But a paper which would not atiect the operation of the will in law or in equity need not be embodied in the probate (r). A copy of a will referred to in a dul^' executed codicil was included in the grant of probate, the original will being in a foreign countr}' (k). In Alie7b fklock{t), Lord Kingsdown, in delivering the judguif , )) .he Court, said, " The result of the authorities both before and since the late Act (the Wills Act) appea; . to be th.'t v/lien there is a reference in a duly executed testamci;lar\ i ..-itrunient to another testamentary inSki'ument by such term;- as to make it capable of identi- fication, it is necessarily a subject for parol evidence, and that when the parol evidence sufficientlj'' proves, that in the existing circumstances there is no doubt as to the instrument, it is no objection to it that by possibility circumstances might have existed in which the instruTiient referred to could not have been identified. As in this case, the only cjuestion is, whether there is sufficient evidence to identify the paper propounded as the will ; it is not necessarj' to consider, whether an}^ evidence was received in this case to which objection might be made. The facts on which we rely are beyond all (juestion admissible in evidence, viz., that the paper in question was written by the testatrix, was found locked up in her possession at her death, in a sealed envelope, on which there was an endorse- ment describing it as her will, and that after diligtnit search, no other paper has been found answering the ('/) Millies V. Fuden. 15 P. D. 105. (/•) Ouehterloiiey, 32 L. J. P. A M. 140. (s) M^' '■^■ must be explained, and can only be explained by parol evidence. At first sif,dit there is no difficulty, there is no ambii^uity whatever in the expressions by which the refer- ence is made. Parol evidence must necessarily be received p,^^ , to prove whether there is or is not in existence at the evidencf. testatrix's death any such instrument as is referred to by the codicil. For this purpose inquiry must be made, and evidence must be offered, to show lohat papers there luere lit the ihite of the codicil, ivhich covid answer the descrip- tion contiiined in the colic il ; and the Court having by these means placed itself in the situation of the testatrix, and ac(iuired as far as possible all the knowledge which the testatrix possessed, must sa}', upon a consideration of thesi- extrinsic circumstances, whether the paper is iden- tified or not." The following general principles appear to be deducible fnnii the cases referred to, viz.: 1. That the testamentary instrument shouM clearly (k'.Hcril)e the document projjosed to be incorporated ; but tin- document may be identified by parol (c). 2. The testamentary instrument must describe it as already existing; if defective in this, the fact cannot be supplied by parol (r). I/O Kdivanh, No of Ca. 3015; Ulterton v. Rohins, 1 A. & E. 403. in S,i,uh'rl,tnd, L. R. 1 P. & D. 198; 35 L. J. P. ct M. 82 ; 14 W. I{. '.'Tl ; Simn, U> W. 11. 407 ; Singli-toii v. Tomliiison, ;i .\i)p. Cas. 404 ; I>f \^'y''.','^" '' 2? iN: 23 Car. 2, c. 10, orders distribution among children ti»n8." epreaentatives of deceased children, oramon[. y m< m 114 ADMINISTRATION, 111 estate. ! ':| intestate are excluded (q). But such relative might become grantee of administration on evidence of hia having a 82^68 succes8io7ii8 (r). A dead man can have no next of kin ; the rule being that where a representation has been taken out, and another is applied for, the course is to make the grant to the interest, and not to the persons who have since become, but wlio were not, next of kin at the death ( «). De bonis grants, however, are made to those who are nearest of kin at the time of the application (t). Primary In exercising the discretion entrusted to it the court is benefit of ^^^ guided by the wishes of the parties (u), or by those of the deceased (v). The primary object is the interest of the estate. Its first duty is to place the administration in the hands of that person who is likely best to convert it to the advantage of those who have claims, either as creditors or as entitled in distribution (w). The Court discourages a joint administration (x) because a sole administration is infinitely better for the estate. Administrators, however numerous, must join and be joined in every act (y). They cannot, like executors, act inde- pendently of each other (z). (q) Crowtherv. Caiothra, 1 O. R. 128 (1882). (r) Vide infra, p. 131. («) Savage v. Blythe, 2 Hagg. App. 154; Almes v, A. lb, 155; and Wms. Exors. 8th ed. 443, 482. (t) Skeffington v. White, 1 Hagg. 702 ; 2 ih. 626. (n) Warwick v. Greville, 1 Phillim. 125. (t)) Williamt v. Wilkint, 2 Phillim. 100. (ir) Warwick v. Greville, $upra, (x) Naylor, 2 Robert 409, ned vide Hancock v. Lightfoot, 33 L. R. P. and M. 174 ; 3 Sw. & Tr. 557 ; Wms. Exors. 8th ed. 423. (y) Warwick v. Greville, ante, Harrison v. All persons, dtc, 2 Phillim. Sole adirinis- trations. 249. (z) Stanley v. Bernes, 1 Hagg. 221 ; Wma. Exors. 9th ed. 364. ? , 1 -II ADMINISTRATION. In general, the widow is preferred to the next of kin ; there are many instances, however, in which the Court has passed over the widow (a). • In modern practice the election of the Judge is in favour of the widow under ordinary circurnstances (h). Primogeniture gives no right, but if the scale be exactly poised, being the elder brother or sister will incline the bahince (c). The whole blood is preferred to the half-blood, even though tlie majority of the interests should concur in supporting the latter (d). A grandfather on the father's side and a grandmother on the mother's side are equal in degree (e). Except in the case of the widow, males were preferred to females (/)• ' Ccderis ^?ari6us, a man of business is entitled to the preference among males (g). In the Surrogate Courts of the States of the United States the suitableness of the applicant is an element of special importance (h). In certain States there is legislation on that point (i). The general principle, both by the Statute and by practice, is to give the management of the property to the person who has the greatest interest in it (j). 115 Widow. Primogen- iture. The ■whole blood. Dignity of blood . Males. Man of bujine.x.s. Persons hivvinp; greatest interest. ('1 ) Atkinson y.Lady Anne Barnard, 2 Phillim. 316 ; Webb v. Needham, 1 Add. 41)4. (b) Wms. Exors. 8th ed. 423. (f) Warwick v. Greville, ante, Coppin v. Dillon, 4 Hagg. 361. (d) Mercer v.Moreland,^LeeA99 ; Stratton\.Linton,3llj.3. P. AM. 48. (e) Moore v. Barham, cit. in Blackborough v. Davis, 1 P. Wms. .53. (0 Chittenden v. Knight, 2 Lee. 559; Iredale v. Ford, I Sw. &Tr. 306; Lcggatt v. Leggatt, 1 Lee. 349. {g) Williamt v. Wilkiiu, ante, p. 114. {h) Stearnt v. Fiik, 18 Pick. 24. («■) Schouler'a Exors. & Admors. § 104, n. 1. ( j) Klwet V. Elwet, 2 Lee. 575 ; Wetdrill v. Wright, 2 Phillim. 248 ir«t V. n'iUby, 3 Phillim. 381 ; Gill, 1 Hagg. 342. I w : :^r^! 116 ADMINISTRATION. Right to iwlm'on follows riifht to property. Excep- tion. Majority of inter- ests. " All the cases which have decided what persons are next of kin so as to be entitled to a share of the intestate's personal estate under the Statute of Distribution, are authorities upon the question as to what parties are next of kin so as to be entitled to administration under the Statutes of Administration " {k). This is a deduction made in a work of recognized authority from what is there stated to iiave been an established principle of the Ecclesi- astical Courts, viz., that the right to the administration of the effects of an intestate follows the right to property in them {I). But persons who are entitled in distribution in case of intestacy are not for that reason only to be deemed next of kin of a person deceased (m). The Court is not obliged to give it to the greatest interest {n), and the rule M'ill not hold where the contest is between one of tiie whole blood and one of the half blood (o) the whole blood being always preferred to the half, unless material ol)jection can be proved against him of the whole blood (^)). Where there is no material objection on the one hand, or reason for preference on the other, the Court in its dis- cretion puts the administration in the hands of the person with whom the majority of interests are desirous of entrusting the estate {q). This rule prevails over that which gives a preference to males over females when the two conflict (r). (k) Wms. Exora. 8th ed, 424 ; 9th ed. 35.5. {1} lb. 355, (m) Withy V. Mangles, 10 CI. & F. H. L. 215. (n) Cardale v. Harvey, 1 Lee. 179. (o) Mercer v. Morland, ante, p. 115. (/.) C. * Tr. 216. {q) Dudd V. Silver, 2 Phillim. 115. ()•) Iredale v. Ford, 7 W. R. 462. V ■ t mmmm m ADMINISTRATION. 117 Tlie wishes of creditors are not of weight in all cases, Wishes of ^ _ , " creditors. but they are entitled to consideration where the property is considerable, the demands heavy, and the solvency of the estate in the slightest degree questionable (s). A person resident in Ontario will be preferred to the Resident . ■ • prtift'Trcd, attorney of a party out of the jurisdiction (t). The relatives (not next of kin) entitled to distributive Relatives, shares, jit'/'tf representation is, and also all persons having a of kin. counii/able beneficial interest in the intestate's estate may, according to the practice of the Probate Division, Eng., become grantees on the renunciation of the pot lores (u). Wherever a party has a prior right to administration, P*'"'-^".'"''^" 1 i) C. & Tr. 11th ed. 99. (V) Barker, deceased, 1 Curt. 592 ; and see S. C. Riile3 11 and 14. («•) S. C. Act, 8. 38 as amended by 53 V. c. 17, s. 10. refused. i ^! I i 1 M ■i' •■■'' 1 ,. i; 118 ADMINISTRATION. When no next of kin. First, applicant. if creditor who liad obtained administration there was not such as to compel a Surrogate Court in Ontario to pass over the next of kin (x). If there be no next of kin, or if the next of kin be unknown, notice must be given to the Attorney-General (?/). If he neither assent to nor oppose the grant, he must be served with a citation (s). When administration is applied for by some or one only of the next of kin, there being other persons equally entitled thereto, the grant is ordinarily made to the first applicant, qui j^rior est tempore potior est jure ; but proof may be required that notice of such application has been given to the others (a). Prior in- "The oath of administrators, and of administrators with be'^cleared ^^^6 will annexed, is to be so worded as to clear off all ^^- pei'sons having a prior right to the grant. In these cases the grant should shew on the face of it how the prior interests have been cleared off." — S. C. Rule 11. Attainder. The " next and most lawful friends of the dead person intestate " — to whom the Statute Edw. III. directs the administration to be granted, are the next of blood who are not attainted of treason (/>), or felony, or have otlier lawful disability (c). (x) Re O'Brien, 3 O. R. 326. {y) Colvin v. H. M. Proe. Gen., 1 Hagg. 92. (r) Hamilton, deceased, 15 Jur. 566 ; Davits r. The Queen's Proctor, 2 Robert, 413. (a) D. & B. 401. {b) " Except in caaea of treaaon, or of abetting, procuring or coun- selling the same, no attainder ahall extend to disinheriting of any heir, or to the prejudice of the right or title of any persona other than the right or title of the offender during hia natural life only." (Dom. Sluts., 32 & 33 Vict., cap. 29, a. 55 ; R. S. C. c. 181, a. 36). The goods of a person attainted for high treason are not forfeited until the attainder ia complete (Eastwood et al. v. McKenzie, 5 U. C, O. S. 708). (c) Manuel deceased, 13 Jur. 664. X irffj ADMIN IfiTRATION. An alien may be an administrator (d). 119 An alien. Insolvency seems to be no disqualification, althouj^h alnsol- , . ,. , ^ vency. serious objection (6). Where there is a will, and the executors renounce, if Want of the next of kin have no interest, he is excluded by the spirit, although contrary to the letter of the Act, and the administration will be granted to the person who has an interest in the effects (/). A minor cannot be administrator (g) because he cannot Minor, execute the bond which is required by Act of the legis- lature (7i)- There was also the further reason that the authority of the administrator being derived from the Statute, Edward III., which must receive a legal construc- tion, the administrator must be of age according to the contemplation of the Common Law (i) which is at twenty- ^ , one ; " under age shall be intended under twenty-one " (j). — under2i. When the person entitled is a minor, administration Guardian. for his use and benefit will be granted to another person during his minority (k). Formerly a married woman was in effect disabled from taking administration without the concurrence of her husband {I). : 1 {d) Caroon'i Case, Cro. Car. 3 ; Wms. Exors, 9th Ed. 387 ; and The Naturalization Act, Canada, R. S. C. c. 113. ie) Havtr$ v. Havtrt, Barnardiaton, Ch, Ca. 23 ; and D. & B. 403. (/; D. & B. 403. (g) Ueniloe'i Gate, 9 Rep. 36. Hi) S. C. Act, lec. 64. (») Freke v. Thomas, 1 Ld. Kaym. 667. (j) Deal V. Simpson, 1 Ld. Raym. 408. ik) Abbott V. Abbott, 1 Phillim. 578 ; Wms. Exors, 387 ; and vide pott, " Administration Durante Minore ^tate ; " and Chadwick Adm'on. Bonds, p. 80-88. (;i liubbers v. Harby, 3 Curt. 60 ; Balsam v. Robinson, 19 U. C. C. P. 266 [1869]. ; ! 120 ADMINISTRATION. Ferae cn- vrr/e exe- cutrix or atlminis- tratrix. Married woman to be cap.ahlt! of holding pr()i)erty as a feme ■ink. Interpre- tation "Con- tract." "Pro- perty." Married woman as an execu- trix or trustee. Since July 1st, 1884, when The Married Woman' ^ Property Act, 1884, Ont. (m), corresponding with the Act of 45 and 46 V. Imp. c. 75, a married woman may be, and act as executrix or administratrix of a deceased person as if she were a fone sole, without the consent or control of her husband {n). This power is given to her by sections 2 and 3(1) which provide that : — " A married woman shall be capable of. acquiring, hold- ing, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme f^ole, without the intervention of any trustee."— R. S. 6. c. 132, s. 3(1). By sccliou 2 it is provided : — " In this Act the word ' contract ' shall include the acceptance of any trust, or of the office of executrix or administratrix, and the provisions of this Act as to liabili- ties of married women shall extend to all liabilities by reason of any breach of trust or devastavit committed 1)y a married woman being a trustee or executrix or adminis- tratrix either before or after her marriage, and her husbtuid shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration, and the word ' pi'operty ' shall include a thing in action." — R. S. 0. c. 132, s. 2. And by section 19 it is provided : — " A married woman, who is an executrix or administra- trix, alone or jointly with any other person or persons, of the estate of any deceased person, or a trustee alone or jointly as aforesaid, of property subject to any trust, may sue or be sued, and may transfer or join in transferring, in that character, any such particulars as mentioned in sec- (ni) 47 V. c. 19 ; R. S. O. 1887, c. 132. (n) Ayres. 8 V. D. 118. §■' i ADMINISTRATION. 121 tion 9, without her husband, as if she were a feme sole." — R. S. 0. c. 132, s. 19. These provisions supersede the old law by which a married woman could not take upon herself the office of executrix or administratrix without the consent of her liusband {(>). A iDarried woman suinof as plaintiff without her hus- band being joined since The Married Woman's Property Act, is not liable to give security for costs (^>). Where a married woman is the sole next of kin, and the only person entitled in distribution, the Court, on her renouncing or being cited and not appearing will grant iuiiiiinistrjition to her husband (ry). But if there are other next of kin, they also must renounce or consent (/•). The husband takes administration to his wife, jure lu'infi, by the common law (.s^). A grant under special circumstances {t) may be made to his trustee in bankruptcy (u). The husband's representative is passed over in cases K^tcep- where the 33rd section of the Imp. Wills Act {v) pro- viding that gifts to issue who leave issue on testator's death shall not lapse, applies. Thus where a legatee died in the lifetime of the testator, leaving issue and her husband surviving, the latter also dying in the testator's tions. f 'I (o) See Wms. Exors, 9tb ed. 833. (p) Threlfall v. Wilson, 8 P. D. 18. (q) Wenham v. Weiiluim, 6 N. C. 17 ; Ilaynes v. Mattliercs, 1 Sw. and Tr. 4ti0 ; Macaulay v. Phillips, 4 Ves. 19. (r) C. & Tr. 111. (s) C. & Tr. 108. [t) S. C. Act, sec. 56. (») •Jane Turner, 12 P. D. 151. As to husband's interest in real and per- sonal property of a married woman dying intestate, vide E. S. O. c. 108, s. 5. (r) Sec. 36, Wills Act of Ontario. i ■ i 'i 11 " ' 'j ■ i 1 i 122 ADMINISTRATION, niurriage. Presump tion in favour of, lifetime, administration (limited) was granted to a son of the legatee without requiring the renunciation or consent of the husband's representative (w). And the husband has been passed over and a grant made to the wife's next of kin where there had been a separation by voluntary deed ; the grant being limited to the property mentioned in the deed (x). Validity of The Validity of the marriage may be questioned upon an application for administration in the character either of husband or of widow (y). But where a marriage in fact is alleged, the burthen of proving its invalidity is imposed upon those who impugn it (z) ; the maxim being sevii)er 2)'i''(JB8ur)iitur pro matr'i- monio (a). A voidable marriage if not set aside in the lifetime of both parties is valid for all civil purposes ; where, therefore, the deceased was the sister of a former wife, the right of the husband to administration was maintained (6) the case having arisen before 5 & 6 Will. IV. c. 31 (Lord Lyiid- hurst's Act). The temporal courts in England regarded every marriage de facto, as good until declared void by the ecclesiastical courts, and in a case where administration had been taken by the widow, who was sister of the intestate's former wife, the marriage was held indis- soluble (c). 680. (w) Councell, 2 P. & D. 315. (x) Allen V. Humphrys, 8 P. D. 16. (y) D. & B. 406 ; and see Wma. Exors. 9th ed. 348. (x) Ward v. Day, 1 Rob. 759. (a) Smith v. Huson, I Phillim. 286, 294; Diddear v. Faucit, 3 Pbillim. (6) Elliott V. Gun, 2 Phillim. 16. (c) Per Esten, V.C, in Hodgins v. McNeil, 9 Gr. 305. ADMINISTRATION. 123 It was held that if the husband had been attainted of If husband ftlduv, the Crown was entitled to the administration of his wif(.''s effects {d). If tlie husband be a lunatic, the grant may be made to— oralun his committee (e); if there be no committee, there may V)e* '°' a ^fRUit to the husband's use during insanity (/) ; the grant is ill the discretion of the Court, no party being entitled to it of right ((j). As to power of Inspector of Prisons and Pnblic Charities over property of insane persons of whom he is ex-oficio committee, before grant of probate or n(hiiinintration. Vide R. S. O. 1887, c. 45, s. 57. If the Imsband die before obtaining letters of adminis-T^'*^'^'^*" " fore GO- tration, or before fully administering to his wife's effects, taining the grant is in the discretion of the Court, and where this is the case it is the almost invariable rule that the grant should follow the interests (h). It may, therefore, be made either to the representative Grant to of the husband, or to the next of kin of the wife, accoi'ding "f hu'sbatui to the circumstances of the case. The next of kin of the ^"^ ^^'^"^ ^^ deceaaea. husband, however, is not entitled to the administration of liis deceased wife, unless Buch kinsman have clothed him.self with the character of the personal representative <>L the husband (i). A general administration of the effects of a feme coverte has been granted to her next of kin notwithstanding the opposition of the husband's representatives f^). {d) Conmbi v. The Queen' t Proctor, 2 Rob. 547. This case was before til Act abolishing forfeiture, (33, 34 Vict. c. 23 Imp. and R. S. C. c. 181, i=. 3fi). (() See Alford \. A., Deane & Sw. 322. (/) D. & B. 449. (g\ Southmead, 3 Curt. 28 ; and vide poit— " Grants for Use and Benefit." ( h) Fielder v. Hanger, 3 Hagg. 796 ; Pountney, 4 Hagg. 289. (t) Crautc. 1 Sw. & Tr. 146 ; Harding, 2 P. & D. 394. (i) C. A Tr. 109. 12-t Widow. Passed over.when ADMINISTRATION. By the statute of Hep. VIII., administration may be granteil either to the widow, the next of kin, or to both at the discretion of the Coui't The right of the next of kin. therefore, is ei[ual to that of the widow (k) ; but under ordinary circumstances the latter has always the prefer- ence (l). For good I'easons, however, the Com*t will pass over the widow. Thus if she have eloped (m), or lived apart from her husband {n), or contracted a second marriage in his lifetime (o), or been divorced a viensd et thoro for adultery ('p), administration has been granted to the next of kin. Administration of a deceased intestate whose marria^'e n had been dissolved by the High Court of Judicature in Bombay, was granted to his next of kin without citing the divorced wife (>/). Wliero the deceased had withdrawn himself from his wife, whose fidelity he suspected, but had left his chililren under her protection, it was considered that her title to the administration was not affected as aijainst their <'ranii- father and guardian (r). The fact of a widow having married after the death of her husband is no valid objection to her title (s), still it' a cliild of the deceased, supported by the other children, (k) Goddardv. Cressionier,S Phillim. 637; Sh Gi-orge SamVscase,anU. (I) Webhv^Needham, 1 Add. 449; Wms. Exors. 9th Ed.; and Roof, R. E. D. (N. Sco. Rep.) 102 (m) Fleming v. Pelham, 3 Hagg. 217n ; Lewis v. L. , 1 Lee 3.5. ()i) Chappell V. C, 3 Curt. 429; Lambell v. L., 3 Ilagg. 568. (o) Conifers v. Kitson, 3 Hagg. 556. (p) Davies, 2 Curt. 628. ((/) Nares, 13 P. D. 35. (r) Brown v. B., 1 Spinks, E. & A. 423. (») Stretch v. Pynn, 1 Lee 30 ; Webb v. Needham, supra. ADMINISTRATION. 125 The triis tfcs nndi'i miu'iiiifff Hfttlt'- imiit. a])])ly, the fact of the widow havin III. 2! ^ Great m , Grandchild. 1 IV r Great Great i. Grandchild. IV. Great Great Grandchild. TABLE 09 CON S ANGUINITY. VI. Cousin German twice removed. Cousin German once removed. VII. Second Cousin once removed. \ IV. Cousin German or First Cousin. VI. Second Cou.sin, V. Cousin CJerm.in once removed. COLLATBRALS. I. : 1 n \\\\\ HP 128 ADMINISTltATIOX. Collateral Riil.H of civil law rcsortt'd to. Comjm- tatiou. of extraordinaiy longevity like that of the old Countess of Desmond, who could any, " Arise daughter, and go to thy daughter, for thy daughter's (laughter hath a daughter." Collateral relatives descend from one common ancestor, but not the one from the other, as if John Styles leavers two sons, each of whom has i.ssue ; both these issues are descended from John Stylei^i as the common stock or ancestor, and are collateral kinsmen to each other ; because, though not descended the one from the other they are all descended from this connnon ancestor, and all have his blood in their veins; M'hich denominates them consan- giiiiieoH. I'he very being of consanguinity consists in this descent from one and the same ancestor (e). For the pui-pose of ascertaining who among collaterals is entitled to administration, resort is ha ^ ■ . 11 1 , 1 • • • iiiiniistra- administrators is allowed to take administration on the tors. non-acting administrator or administrators renouncing or consenting (o). On the (ground of interest, administration will be 7" '"^''"**""*' , . • T 1 1 • • • liaviiiK a tfranted to a person having an indirect and derivative in- dt rivative terest in an intestate's estate, as being one of the next of kin, or the residuary legatee of a next of kin of the intestate. But tlie applicant must be unable to become the personal representative of his own deceased, through the latter being already legally represented, and such legal representative refusing to take the reijuisite grant. Administration has been granted of a wife's estate to the residuary legatee of the huslmnd, on the executor, who lias proved the will of the latter, renouncing adminis- tration i'p). On the renunciation and consent of the father of air''';"!'^*^ iiitestatt' who has died a bachelor, administration will be wlio have j^ranted to his brother, though he has no interest in the ,o'„';,J. estate. It is so granted on the principle that the intestate's hrotlier may be considered to have indirectiv, as his father's „, •^ •■ lo a next of kin, a .sy>e,s',s((t'a'.s.sio/n'.s to the property in (piestion. >>n>t'"''"r He mav also, and not unfairly, be reu'arded in the liiidit of his father's attorney or agent (q). On the same grounds, also, administration will be'l'"'ii"'- 1 i 11 • 1 I' , 1 1 ■ 1 ]'lu\v liav- ''ranted to the sister ot the deeea.sed. On the same principle the court has granted adminis- «/ tration to a nephew, who was not entitled in distribution (/■). (») Ih. {o) C. & Tr. 215 ; and Hancock v. Li(/ittj'oot, '.i S\v. A Tr. r>:,7. (/') ('. it Tr. lltli ul 11.'), Ct'er. Tae Marri .d Wo;uau's Property .\ct, issi, and The Devolution of Estates Act. ('/) C. iV: Tr. llo, lie. I') Wnis. Exors. 9tb ed. 382, and cases there cited. 11 iv •■•7" "■' Sltii ffisid- 132 Spi'n mil', ri'siiiitih-t Hdw sliow Wliat is not a .sy)^. nis. ADMIXISTRATIOX. The Ecclesiastical Court granted administration to a a nephew, being the son of the deceased's brother, who was the sole next of kin, and only person entitled to the per- sonal estate of the deceased, on the renunciation and consent of that brother (. ' AnMINISTKATION. 141 cuiiiiiiittod to the ofTicial managor of tlie company jus a creditor to tho extent of the required contribution upon a citation being issued (i). An executrix who, without havinj; taken prol)ate, liad J'-'^tati- of iiiteriiieddled in tlie estate of her testatoi', died })OHsossed oi <(f -f")! t'l-t, property belonging to liini : — It was held after citation <>fp,,i» lur next of kin, and tlieir non-appearance, that the repre- siiitutive of the testator was entitled as a creditor to a cciiiTid , 87 ; D. A B. 410 ; and R. S. O. c. 50. {(/) Ildiniltiin, dercoKi'd, I") Jur. niW) ; Colrin v. H. M. Froctor Oeu. 1 Hagf?. 02 ; In uootln of U. M. Geonjo III. 1 Add. 2"^"). ()•) Atkin V. Ford, :5 Hiii,';,'. VX.\ ; Miller v. Washington, Ibid. 277; see Colvin V. Frciser, 1 Ilay^. IU7. ((t) Maidwan v, Alt prr.H>iis in general, 1 riiiilim. T)!. W ADMINISTRATION. 143 If ^K Act (c), relating to distribution of estates of intestates dying after 1st July, 188G, appl}' : — ((/) Itadnall deceased, 2 Add. 232 (1824). (z) D. & B. 425. (!o issue) One-half. Tlidst' who would have been entitled if husband 1 rpi ■ i 11] 1 , ■ ( i- i lie resiuue, had predeceased wife J Vide quotations from Statutes of 47 and 49 Vict. ante. 2. Wife One-third. Fast degree. Children, 2^er capita "j and i-The residue. Issue of deceased children, ver stirjies J 3. Wife One-third. Second degree. Grand-children, jxr capita '^ and j-The residue. Issue of deceased grand-children, per stirpes. .) 4. Wife One-half. First degree Father and mother, icitli irlium hrotlters and '\ sisters, th()i"//i in, the seeund de'/ree fake | „,, • , eqi'all,/ under li. .v. O. e. luS, s.'o, quoted j ^"^' residue. ante ii. I4O. j 5. Wife One-half. .Second degree. (Mother), brothers and sisters, per capita "1 Children of deceased brothers and sisters, j" ■ e. l)er stirpes J G. Wife One-half. Sfcond degree. Grandfathers and Grandmothers The residue. 7. Wife One-half. Tliiril degree. Great-grandfathv'rs and great-grandmothers. . ~| Uncles and aunts [-The residue. Xephews and nieces, yitr cajiita J 8. Wife One-half. Fimrth degree. Great -great -grandfathers and great-great- grandmothers Great-micles and great-aunts ^,p, : , (ireat-nephews ami great-nieces j ^"'^ rebiciue. and I Cousins-german, /irr ea/ilta J !). Wife Oii,.-]i;df. Fiiui J.'^'i'ee. Gri'at-grcit-i'.neles, ami in'f:il-jreat-ainit> \ Cliildreu of great-uncles and great-aunts rn ■ , and f^^"^ "'-^'^l'^^' Children of cousins-german, j^er caidta (J)....j 1. Ilushaiid .One-tliird. Children, j'er cifrita. "| and -The residue. Issue of deceased children, ler stirpes j [j] Distribution per capita is where the claimants take in their own risjlit, and not as repi-eseuting another ; as, if the next of kin be three brothers of the intestate, when the effects are divided into three parts, one to each. Distribution per stirpes is wi.ere persons take as represen- tatives, as, if the deceased had three brothers. A. H. and C, and A. be ikad, leuviiij,' children; in this case, also, the effects shall be divided into three ei|ual parts, of which B. and C. take one each per capita : and the thiril part sliall be divided between the children of A., wlio take hia shars jiire reiircscntationis, or per stirpes, as his representative, and standing in Ills place. (2 Bl. Com. '201, et seq.) 14( 148 DISTRIBUTION. Subjec in Ontario to the provision that : — " A widow is entitled to elect whether she will take dower, or a distributive share of her husband's real estate," (R. S. O. c. 108, s. 4, s-s 2), and that— " A husband entitled to curtesy may, by deed executed within six calendar months of his wife's death, elect to take curtesy in lieu of a distributive share." R. S. 0. c. 108, s. 4, s-s. 3. If there be a wife and no next of kin, or the intestate be a bastard, one-half goes to the wife, and the other half to the Crown (k). The Statute (I) provides for the distri- bution of assets of estates of which he has become admin- istrator on behalf of the Crown by the Attorney-General after notice. The provision in the Statute of Distribution that " there be no representation admitted amongst collaterals after brothers and sister's children," — excludes the children of a deceased nephew of the intestate {m). The Surrogate Courts of Ontario have no jurisdiction to entertain actions for distribution of residues (n). (k) Vide, ante p. 135. (I) R. S. O. c. 59, 8. 14. (m) Cnni'thcr v. Cawthra, 1 O. R. 128 (1S!S3). («) S. C. Act, s. 17, s-s. 3. AUMINISTRATIOX WITH WILL ANNEXED. 149 CHAPTER VI ADMINISTRATION WITH WILL ANNEXED (a). :J The jurisdiction clauses (sections 16 and 17) of S. C. Act oxpresslyautliorize the granting of letters of administration; and by the interpretation clause (s. 2, s-s. 2) the word " ad- ministration " is to be read as comprehending adrtiinistra- tion unth the will annexed, whether granted for general, special or limited purposes. Administration with the will annexed differs from administration simple in that the person receiving the (.aant must administer according to the will ; it differs from probate in that the grantee must enter into a bond to tlie Surrogate for the faithful performance of his duty, which is not required of an executor taking probate. If a man die leaving a will affecting property real or When ad- personal, but without appointing an executor, or if thetioncww executor renounce, or be abroad, or incapable to act hy '"^^^.gU'"^* reason of insanity, or infancy, or otherwise, or die without proving the will, or if there be special circumstances within the moaning of section 56 of the Surrogate Courts Act, administration with the will annexed is granted by a vSurrogate Court. If a person named as executor in a will is also residu- ary legatee in trust, it would appear that having renounced the executorship he may take administration (will) in the other capacity (6). {a) Vide S. C. Act, sees. 16, 17, and " Interpretation," sec. 2, s-s. 2, and sf;C8. 54, 55 and 56. [h] Bennett, 6 Jur. N. S. 326 n. Iltfs. 150 To attor- uoy. Grant to attorney of abs(;nt ADMINISTRATION When tlicre is an executor able and willing to act, who is out of the jurisdiction, he is entitled in the first place, and administration may be granted to his attorney limited durante absentia (c). An Englishman domiciled and dying abroad, left a will dealing with property in England, and the Probate Division representa- gj,j^jj^g J administration with the will annexed to tl tive le Attorney of the person who had been appointed his per- sonal representative by the Court of his domicil (d). Kefuse'l to If the persons entitled to administration be within the a toriiey. jm-ig^iici^ioi^^ administration will noii be granted to their attorney even at the request of all persons interested unless the estate consist entirely of property held in trust (e). If lion rompos mentis, administration may be citni- mitted to his counnittee, during his insanity ; if an infant, to his guardian, during his minority (/"). As a general rule in all grants the court follows the beneficial interest. It is one of the leading principles of the Probate Court, Eng., to couple the grant with the interest, for the most part, and this was regarded as one of the safest principles on which it could act (cj). The only exception to this rule being when there is a statutable right (h). If the surviving executor, being cited, decline to take the administration, there is an end of his claim to the executor- Residuary ship ; and the grant will be made to the residuary legatee as legatee, ^j^g next person to the executor in the testator's election (i). (c) S. C. Act, s. 56, and post tit. " Limited Grants." (d) Rule, 4 P. D. 76 ; 26 W. R. 357 ; 47 L. J. P. D. & A. 32. (e) Bullar, 22 L. T. 140 ; 39 L. J. P. & M. 26. (/) D. & B. 430 ; and S. C. Act, s. 56. {g) Brenchley v. Lynn, 16 Jur. 226 ; 2 Rob. 470 ; Wms. Erors. 373-4 (/() C. & Tr. 73. ()') Kooystra v. Buyskes, 3 Phillim. 531 ; Atkinson v. Bariiard, 2 Phillim. 317. Who entitled WITH WILL ANNEXED. 151 The statute ( i) in providinjjf that the ordinary should Adminis- ('rant tlie administration oi the goods or a testator to hiH a/ m tfsta- widow, or next of kin, or both, in his discretion, conteni- 'anlJxo. platfd only the ease of the refusal of executors named to prove the testament. And in the other cases, before referred to, " the Court is left to exprcise its own discretion ill tlie choice of an administrator according to its own practice (/,•) ; " which is in all cases whether within the statute or not, (except under special circumstances), to consider which of the claimants to administration ciivi • ti'st(tiai'nt<> anne.xo has the greatest interest in the pi'operty ,*^f'^'-^|["j7 of the deceased, and to commit the administration to such '^^t'^- person rather than the widow or next of kin. The practice in England of the Ecclesiastical Courts of granting administration (will) to a residuary legatee, or party having the interest, instead of granting it to a next of kin, or party having no interest, as 21 Hen, VIII. com- manded, was for the tirst time legalized by s. 73, E. C. P- Act (/), with which s. 5G, S. C. Act, Ont., corresponds. A resixt of kin {x), for then they are the persons nite rested m tlie residue. Failing the residuary legatee and kinsmen, the grant will l>e made to a specific or pecuniary legatee (y), or to a creditor (e). TIh! Eno-lish Court of Prolmte in making grants of R"'«''l'''^''y iuliiiinistration with the will annexed to residuary legatees, acted. !Uid the present Court there now acts, upon the lirinciples or rules following: — (a) If thero he several residuary leiratees, any one may ^f *;';\'>:»1 take, without the consent or, or notice to, the others. legatt-.s. If the residue he given to two persons, and the share of one of them has lapsed to the testator's next of kin, a grant is made inditi'erentl}'' to the residuary legatee, or to the next of kin, whichever first applies. If there l)e a residuary legatee taking one portion of the re.'U(Uie aUsolutely, while a life interest is given to another in the remaining portion of the residue, the grant will be made to the one or the other indifierently, according as cither applies first, in cases where there is no contest hefore the Court. If two or more persons have been appointed residuary If <""'"'" '■ , ^ ' _ "^ inon- be lt';,'atees, the personal representative of anyone of them dead. \vho may be dead will not be allowed to take unless the other residuary legatee or legatees are also dead, or renounce, or have been cited. If all the residuary legatees be dead, the representative ^hoir of one has no preference over the representative oftatives. anotlier. (x) Kooystra v. Buiiskes, ante p. 150 ; Ludlow, 1 Sw. & Tr. 29. Watnon, Ih.UC. (y) Hinckley, 1 Hagg. 477. (:) Smipe v. Webb, 2 Lee, 411 (17571 ; Kooyatra v. liuyskes, ante p. 150. ((i) Coote, 8Ui ed. 66 ; 11th ed. 69 ; Wms. Exors. 9th ed. 400, et seq. f- } © u tl o"^ n'V^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IIIM 1111 lilM 1 2.2 ^ 2.0 1.8 1.25 1.4 1.6 ^ 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y 14S80 (716) 872-4503 ^ 154 ADMIXISTUATIOX The representative of a residuary legatee for life has no interest (6). If residue If the residue be left to such only of the testators on attain- children as shall attain the age of t\venty-one j'ears, so as iiigiiirL'- not to vest until then, but the interest and profits be directed in the meantime to be applied to their mainte- nance, the Court will make a y^rant to their <:,mardian ; and (irant to ^viU do SO in preference to makinfj a grant to a residuary guardian, je^f^tyg substituted on the contingency of all the other residuary legatees 'lying before their legacy shall havi- vested. jf „„ If no residujiij' le^fitee has been appointed in explicit H'suiuary terms, adniT^iiifcr.itiv (• ill) is occasionally granted to the legatee. ^ ; '' "^ " principitl legntte ((•,. Creditor An Unreported case is mentioned (sidtje If the residue be not disposed of, or the bequest of tlie "'|^j.j^'yfj,j residue has lapsed, administration (will) is granted to the lapsed. the testator's widow. If „o If there be no widow, or if there be one, and she has \vidow,&c. renounced, or died since the testator's decease, the like grant is made to the testator's next of kin. Ifresidu- If the residuary legatees cannot be found or heard of, "camua'bir the Court will grant to the testator's widow, or to his next found. of kin (e). ' {b) Wetdrill v. Wright, ante pp. 115, 152. (c) Hurrell v. Iliirrell, 1 Lej, 168 (1752). (d) W. Trust, C. & Tr. 11th ed. 73. (e) Cull y. Guillermey, 12 Jur. 966 (1847). WITH WILL ANNEXED. 155 If 11 residuary legatee has assitmed all his right and If'''' ,,., , . interest interest in and to the residuary estate, the assignee on the assigned, renunciation or refusal of the executor and the residuary le^'atee may take administration (will) (/). If the will contain a bequest of the residue of the Reriit '» . left, &c. all other tilings," cover the general residue {w). The heir at law was held to be constituted residuary ^"■1 •' heirs. legatee of both real and personal property by the words " to my legal heirs and theii"'s forever " (.c). A testator's wife was held to be constituted his residuary Residuary legatee by the use of the words " other effects," following a lif([uest to her of all his furniture, jewellery, pictures and wearing apparel (ij). The testator directed that after payment of his debts TJenefic- and legacies his remaining property should be placed in I^ry lega- [iro}X'r securities and appropi'iated to the education of his ''*'*'• lister's children as should seem to his executors most meet and beneficial. At his death the education of the children had already been completed and on the death of the execu- (n Poilmore v. IVotton, 3 S. & T. 419; 10 Jur. N. S. 756. ('() Leyhind Wlitte, 7 P. D. 65. (r) in„omHeld, 31 L.J. P. M. 119. (h) Cadge, 1 P. & D. 513 ; 16 W. R. 40G. (x) DiTon, 4 P. & D. 81 ; 26 W. R. 883. (;/) Jiipp, (1801) P. 300; See also Shepherd, 48 L. J. P. D. & A. 62 ; FlmiiKj V. Burrows, 1 Ruas. 276. M ■ il V !>}■•} '. 1 > ( : I ' i 1 n m'i loS Undispos- ed residue Grant to nextofkin Assifpipe of insol- vent rcsid nary lega- tee. Riglit for- feited. (jr.int to pcciuiiiiry legatee. And if residue lapsed. Residue- no clear gift of. ADMINISTRATION tors adinini.stration (will) was granted to such children as beneficiary residuary legatees (s). Where the will makes no disposition of the residue, the executors are, in ecjuity, trustees for the next of kin (a). One of the next of kin entitled to a share in a testators undisposed residue i-eceived a grant of administration with will annexed (/>). The assignee of the residuary legatee who is bankrupt .or insolvent, is entitled to administration (will) of the testator, on the executor and residuary legatee renouucinf; or being cited and not appearing (c). If the name of a residuary legatee, or of a legatee, or ol' his or her wife or husband, appears as attesting witness to the will, the legacy is void {d), and the right to administra- tion (will) in such character is forfeited (e). The grant is also made to a pecuniary or a sp itic legatee on the renunciation or refusal of the residuary legatee, or by his consent only. Also, if the residue has lapsed, or is undisposed of in the will, a grant will be made to a legatee on the renunciation or refusal of the next of kin, and the persons entitled under the Statutes of Distri- l)ution (/), or persons entitled (as it would seem liv analogy) under the Statute respecting Intestate Succes- sion {(j). A gift of " such money, stocks, funds, or other securities, not hereafter specially devised, as I may die possessed of," (z) Prcsant v. Goodirin, 1 Sw. & Tr. 544 ; 6 Jur. 404. (a) Jarman. § 1208. {b) Pile, 2 Sw. & Tr. 628 ; 7 L. T. 194. (c) C. & Tr. 11th ed. 73. (d) R. S. 0. c. 109, s. 17. (e) C. & Tr. G8. (/■) Jenny WaUon. 1 Sw. & Tr. HI. (g) R. S 0. 1887. 0. 108. WITH WILL ANNEXED. 150 does not constitute a gift of residue; and in such a case. the executors having renounced, the next of kin was allowed to take administration (^will) accompanied by a iiK.inoi'andum to the effect that the will contained no clear disposition of the residue (A). U a testator has died bankrupt or insolvent, the Court will <,M-ant administration (will) to his assignee on the ivuunciation of the executor am] residuary legatee (i). To couple the grant with interest is, for the most Dart, one of the leading rrinciples of the Court ; and one of the safest principles on which it can go (j). Ailiniiiistration (will) of a fevie coverte was by tlie HccltJiiastical Courts granted to the husband, or his per- suual representative, on the legatee under the will ivnouiK'ing or being cited (/>•). And when a married woman made a will without appointing an executor the Ci)urt of Probate, Eng., in accordance with the principle referred to, connnitted administration (will) to the person having the greatest interest in preference to her hus- band {I). The practice in the Probate Division, Eng., as regards the wills of mari'ied women has been entirely changed since the Married Women's Propei'ty Act, 1882, Imp., — re-enacted in Ontario in 18N4 (m). Since this Act came into force the jus mariti is regarded only in cases of the partial intestacy of married Cmirt ciiuph'.i tilt- Kraut witli the inter- est. To li,i>- liami (III IcKiUi'Cs Ix'iii'.' fitt'i!. ^Larried wnnien's wills. (/() Aston, G P. D. 203 ; 30 W. R. 92. (i) G.& Tr. Uthed. 73. (j) Wms. Exors. 373-1; and see as to the change effected in Mie interests of the father and other relatives of an intestate by the Devolu- tion of Estates Act. (A) Dempsey v. King, 2 Kob. 397. a) M. Daily, 2 Sw. & Tr. 136 (1861) ; 9 W. R. 540 ; and Reai/, 1 Sw. A- Tr. 215. (m) R. S. 0. c. 132 ; vide, ante pp. 55, 59. )l mm 160 iliff Patron. Ci irj i< )ra- tioii iiffgni gate. Adminis- tration with the will annexed, practice as to, etc. ADMINISTRATION women, in the same way as are the rights of next of kin in the cases of other deceased persons. If the husband or another person be appointed executor he takes a general probate (n), and administration with the will annexed is granted on the same conditions, and under like circum- stances as in the case of other testators. On failure of the executor the residuary legatee under a married wonmns will, takes a general grant. On failure of both the hus- band takes a like general grant (o). If the will of a married woman is shown to be inoper- ative, the Gout t grants administration as in the case of an intestacy (p). Where an annuity was be(iueathed to the preacher of KingHlan, 22-H Ciir, siuvtv, bond or other security to be taken from a ])erson to I'lTc. lO: whom administration may bo committed, shall not extend c'l;^' ' I I oi- !)(> in force in Ontai'io." — sec. (J^i {/•). The condition of the bond prescribed by the present Kult's iForm bS) as to the residue is that the administrator do deliver and pay it unto such person or persons as shall 1)0 entitled thereto under the provisions of any Act of the Lr:;islature now in force or that may hereafter be in force , ill < )ntario. {b) \'idc bonds of that period on file in re{,'istry. i'c"i Tills provision corresponds with section 80, E. C. P. Act, which with other provisions of that Act, is said to have pnt the law and prac- tice lis to iidniinistration bonds upon a new footing. C. it Tr. 101. Thfst.' otli^r provisions are also introduced into the Hurro>^ate Courts .-Vet of diitiirio, and are above quoted. ! r ■I ii m i; i lUit 1 ' "1 1: Form of bund. Suretii'H. 104 ADMINISTRATION i^ni. " tJnless the Jiulfje shall otherwise order, the rorristiar shall with the application tor j^rant of adiiiiiiistnition suh- niit the ])on(l proposed to be given, with the necessary ufhdavits of justification and of execution, and in every case such bond shall be without material erasure or inter- lineation."— S. C. Rule 7. " The bond to l)e given upon any grant of adnnnistra- tion shall be according to the forms subjoined, or in a l'i)riii as near thereto as the circumstances of the case admit. — S. C. Rule 32. " The sureties in such Ixmd are re(|uired in all cases to justify. And such justification shall be to an atnouiit or amounts which in the aggregate shall ecjual the amount of the penalty of the bond. No .Surrogate Clerk or Regis- trar shall become surety to any administration bond."— S. C. Rule 38. " In ordinary cases where property is hoiut. Jion•). In the Probate Division, Eng., these societies are allowed a.s sureties, the society's seal being affixed to the bond, aiitl an affidavit as to the sufficiency of the society, with balance sheet is tiled (y). As already seen, b}^ S. C. Rules 82-35 (z) sureties are re(|uired to justify ; but instead of a declaration of the per- sonal estate and effects, as in the Probate Division, Eng , an affidavit (Form 11) of both personal and real estate is to be tiled. An administration bond was allowed to be executed by foreigners resident abroad, upon proof that the administra- tor was unable to obtain sureties resident in England, and that the deceased had no debts unpaid, and that the person on whose behalf the letters of administration was ap[)Hed fur was solely entitled to the estate in that country {a ). (i() Coote, 8th ed. 370; 11th ed. 002. (f) ]'idf, ante p. 59. (ir) C. A Tr. 105. (x) Subject to order in council ; 50 Y. c. 14, Out. (y) C. & Tr. 102 ; see also Carpi'itter v. Solicitor to the Treasury, 7 P. D. 235 ; Hurver, II. v. H., U P. D. SI ;— the iireuiiuui paid out of tiie estate. (z) Ante p. 104. (rt) Fernandez, L. R. 4 P, D. 229. AXI) GUAUDIAXSHIP BONDS. 169 The form of the condition of the bond reijuired by 22 vV 2'-] Car. II. c. 10, is set forth in that statute. For the form required in the Surrogate Courts : Vide Appendix (6). By section 66, S. C. Act, it is provided that: — "Tlie Judge of every Surrogate Court, on application made on motion or petition in a summary way, and on being satistied that the condition of the bond has been broken, may order the Registrar of tlie Court to assign the same to some person to be named in the order, and such person, his executors or administrators, sliall thereupon be entitled to sue on the said bond in his own name, as if the same had been originally given to him, instead of to the Judge of the Court, and shall be entitled to recover thereon as trustee for all persons interested, the full amount recoverable in respect of any breach of the condition of the bond ; and all bonds heretofore given or taken in any Surrogate Court, ami now in force, may in like mainier be assigned under the authority of the Judge of a Surrogate Court, and the assii;iiee shall be entitled to sue and recover thereon in his (iwu name and tiie same may be enforced in the same way ami to the same extent as bonds given under this Act " (c). Power of Siiridpiti- Coiirtsiis to assij,'!!- IIR'Ilt of 1)011<1.S. (M Sec iilso Wins. Exors. Dtli ed. 4o'2. |(') It was Iteld in an action on an administration bond that tlie want of a decree was a good plea to a l)reiich for not distributin;; ; but it is no jjrouin! for staying ijrocoedint^s, nor is the want of a citation for an iicciuir.t ; and that on such a brf-'ich full damages may be received : Neill V. Mcl.tiu'ihliu, 4 P. R. 212, 18()8; see also The Karl of Khjin v. Crosby, 10 V. C. K. 'ioG, (1853) ; Stupfv. McCarrow, 3o U. C. R. 22, (1874) ; and C'W.,» V. ]>o.ft. G U. C. L. J. (18()0), 141. 'I'he non-payment of a judgment against an intestate cannot be assifjiied as a breach of the bond : ]icll v. Mills, 2'> U. C. R. ')08. ISdti. Ill regard to non-payment of debts beinj» assignable as a breach n this bond, see Kdward liowden. 3 Sw. it Tr. 28 ; The Archbishop of Canter- bunj V. liubertson, 3 Tyrwhitt, 290 ; and 1 Crompton A IMeeson, ()!»0. In an action of debt on an administration bond, by wliich the admin- istrator was to render his account by a certain day ; — plea, that adminis- trator could not have rendered account at the time mentioned, there having been no sitting then, held bad on demurrer, the breach being confessed but not avoided : Earl of Elgin v. Crosby, 10 U. C. R. 97. An application for assignment of an administration bond should not he ex-parte ; the sureties should be cited or served with notice. And it ^ ■; 1 .1 ;? ■ pii 1 i t 170 (IrouiulR for (jp[»OH- Bond cancelled. ADMINISTRATION. The applicant for the ordei' sliould by affidavit make out a prhna facie case that there has been a breach of the condition of the bond {d). An unpaid creditor of the deceased is entitled to an assignment of the administration bond (e). The surety or his personal representative may resist the motion by shovvintj on affidavit that there has in fact be<;n no breach of the condition of the bond. And in an unre- ported case {Re Codti's) mentioned by Mr. Coote (/), the application was dismissed on one of the sureties showiiii,' by affidavit that assets up to the amount of the sum, under which the estate had been sworn, and in respect of which amount the bond had been given, had been duly adminis- tered, and that the devastavit charged, related to assets in excess of the amount for which the bond had been given ( / ). If the application is frivolous or vexatious it will be refused (g). Where under a misapprehension as to the value of the personal estate of an intestate, the penalty of an adminis- tration bond was too large, the Court upon the execution of a new bond in a penalty proportioned to the actual value of the estate, ordered the first bond to be delivered out of the registry to be cancelled (h). seems that the assignment is tjenerally not ordered until after judgment obtained af^ainst the administrator or his representative, in order to ascertain what amount the claimant is entitled to, and steps taken to compel payment by the principal before having recourse to tlie sureties, lie IJiltn, 1 Chy. Ch. 38G ; and Harding, 15 L. R., Jr. Ch. D. 180. See also Chadwick on Adm'on. Bonds, l(i4. (d) YoiiHfi V. 0.cley, 1 Sw. & Tr. 25 ; 27 L. J. 30; Sandreif v. Mitchell 3 Sw. & Tr. 25 ; ir. Jones, 3 Sw. & Tr. 28 ; liaker v. Brooks' S Bw. & Tr. 52 ; Re Young, 1 P. & D. 186. (e) Harding, 15 L. R., Ir. Ch. D. 187. (/) C. & Tr. 350. {(/) Baker v. Brooks, Marshman v. Hughes, 3 Sw. & Tr. 32 ; 11 W. V\. 110. {h) Goold, 4 Sw & Tr. 20. JOINT r.RANTS. 171 V i • i. i' CHAPTER VIII. JOINT GRANTS. The Statute of Hen. VIII. c. 5, authorized the joining of Joint the next of kin witii the widow in the grant of adniinis- *^"*" *' tration, " at the discretion of the ordinary ; " joint grants are also made to several executors, to residuary legatees in trust, and to testamentary guardians (a). EKecntors are joined in the probate by reason of their heini;- the testator's choice, but if an executor is shown to he hinatic, idiot or imbecile, he will not be included in the p'aut [h\. The Coiu't never forces a joint administration (c) for the disagreement of persons whom the law contemplates as acting together would render their joint action incon- venient, and might possibly defeat the just administration of the estate (d). And, acting upon the principle that a sole administra- Prion tion is to be preferred to a ji)int administration, the Court ^^'^''^" '" irrants administration priori petenti, i.e. to that next of joint kin, or to that residuary legatee (where there are several) ^*'''"*''- who first applies (e). And inasmuch as the Court grants to such applicant the omrerKMii jus succession is, i^ cannot reserve power to (ii) C. ATr. 209. ((/) Kvans v. Tyler, 2 Robert 131. ((•) PMitice V. P., 3 Phillim. 312. ('/) Warwiek v. GrevilU; 1 Phillim. 12G ; Wms. Exors. 353, 304. (d Cordeux v. Trailer, 4 Sw. & Tr. 51. !.:; 1. ( 1, f. ? T 172 JOINT GRANTS. others equally interested in the estate, nor can it Uiake a further grant until the death of the administrator leaves the estate again vacant. The consent or renunciation of the other next of kin is not required, the superior diligence of the first applicant entitling him to preference (/). If, however, the others equally entitled are desirous of being Joined, the Court will join them in the same aflinin- istration, limiting the number to three, beyond which it will not in ordinarily go (); to a widow and a person entitled in distribution (7), and to a nephew entitled in distribution, and another nephew not so entitled (/'). When co-executors, or co-adniinistrators, swear the estate under different amounts, probate or administration is granted to both or all under the higlier sum (s). On the death of a joint administrator, the administra- tion accrues to the survivor, and until his death no further grant can be made {t). (m) C. & Tr. 211. (H) S. C. Act, sec. 50 ; and see Gnini[/, 1 P. A D. 159. (0) Newhold, 1 P. & D. 28o. (/)) Richirds, 2 P. & D. -JK!. ((/) Broicning, 2 S\v. & Tr. 034. (r) Richardson, 2 P. * D. 245, 246. (s) /;,'//, 2 p. & D. 248. it) Wms. E-xors. 9th ed. 411 ; and C. & Tr. 212. ! 174 ADMIXiSTRATIOX. Principles on which Ciiiirt selects. CHAPTEIR IX. PRINCIPLES ON WHICH COURT SELECTS. There were certain principles and rules of practice which guided the Ecclesiastical Courts in the exercise of the dis- cretion reposed in them in selecting one or more out of many entitled to the grants (d). It has always been considertil both in the Common Law and Spiritual Courts, that the object of the Statutes of Administration, (31 Edw. III. c. 11 : and 21 Hen. VIII. c. 5), is to give the management of the property to the person who has the beneficial interest in it (h) ; to place the administration in the hands of that poi- son who is likely best to convert it to the advantage of thost^ who liave claims, either in pa3dng the creditors, or in iiiukiu;' distribution, the primary object being the interests of the estate. But where tliere is no material objection on the one hand or i^eason for preference on the other, the Court in its discretion, puts the administration into the hands of that person, amongst those of the same degree of kiiidroil. to whom the majority of pa"ties interested are desirous of entrusting the estate ; as in Cart iv right's Case {<'), where the deceased left four grandchildren, whereof one was of age and the other three minors, the grant was comniitU''! tj the mother as uuardian to the three durante nuam'' aiate, in preference to the grandchild who was of age; because under the Statute of ]^istributions the interest of the three preponderated {d). If the next of kin contest administration with thi' widow, it is incumbent on them to show unfitness on her part before a grant will be made to them {e). Otherwise, (a) Wms. Exor. 3t>2. (/() lb. 373 ; and Wctdvill v. Wrinht, ante p. 115. (c) 1 Freem.25^. {(l) Wms. Exors. 'MVl ; and see Sawbriihje v. Hill, 2 P. & D. '219. (d) StreU'h V. Pymu 1 Lee, 30 ; Walker v. Cirless, 2 Lee, o(iO ; Dun- Clark,! Hafjt,'. 311; Anderson, 3 Ssv. A' Tr. 490; Atkin.^atee, where the insolvency or deceased is^taiutM. cli'ar, but not otherwise {v). s'c.Act. Adiiiiiiistration will be granted to a creditor in eijuity upon justifying security being given (iv). The Court has preferred the nominee of the bUik Nominr.- of deceased 8 creditors, or ot the principal creditors, to n tors, sinnle creditor {x). U tlie selection of the Court is not governed by any oJi Priori the rules referred to, and where there is difficulty in weigh- hv the merits of ditierent applicants, it will sometimes Itri't'or the first applicant simply as such, he being a respon- .sililo person, able and willing to give security (/y). The right of the Court to exercise the discretionary Special puver given by section 50, S. C Act, is conditioned, in all stances, cases of testacy or intestacy, upon the applicant's proving that it is necessary or convenient, by reason of the insol- vency of the deceased's estate, or by reason of other special circumstances (3). The section cannot be made to apply where there are Does not other persons entitled to administration in priority and |^Ji'|y^.' applying for it ; and it does not empower the Court to make a merely arbitrary selection from amongst such per- sons and others contending for the grant {a). (v) See Hawke v. Wedderbourne, 1 P. & D. 51)4 ; 10 W. R. 712. (w) Fairhnd v. Percy, 3 P. & D. 219, 222. See Owen v. Delamere, L. R. li Eq. 134. (x) Smithson, 15 L. T. 296 ; 36 L. J. P. & M. 77, & lie Cameron, Surr. Ct. Co, York, 1877. {y) Cordeux v. Trasler, ante. (;l Harriet Cooke, 1 Sw. & Tr. 268 ; (1859) F. K,;'ne, 28 L. J. R. (N.S. 35. This section of the Act is not to be resorted tt on all occasions ; it is for the Court to judge of the necessity (D. & li. 1?''} See, further, " Grants made under Sec. 56," &c. (a) Haynet v. Matthews, 1 Sw. & Tr. 462-3. H.8.C. — 12 n !! iv 178 ADMIXISTRATIOX. ^Mi . 1, CHAPTER X. LIMITED GRANTS. arva'liniii- " If the next of kin, usually residinrj in Ontario an-1 in c'-rtftin I'^gulai'ly entitled to administer, happens to be absent from casL's. Outario, the Surrogate Court having*' jurisdiction in tlio matter may, in its discretion, grant a temporary adininis- tration, and appoint the applicant, or such other person us the Court thinks tit, to be administrator of the property of the deceased person for a limited time, or to be i-evokiil upon tiie return of such next of kin as aforesaid. — S. C. Act, s. Sd. " And where a person has died wholly intestate as to his (J< iKTal t<\»r(>i>('rti/, or leavnig a wul ariectnig jirofmrhj, but without iii'inist'rttt'r '''^^'i»f? fl'PPoiiited au executor thereof willing end C()iii|>t'- tiiulcr circum- stances. tent to take probate, or where the executor was at the time of the death of such pei'son resident out of Ontario, and it appears to the Court to be necessaiy ov convenient in such case, by reason of the insolvency of the estate of the deceased, or other special circumstances, to ai>poiiit some person to be the administrator of the pvopcrtj of tlie deceased or of any part of such lyropcriy other than tliu person who if this Act had not been passed would by law have been entitled to a grant of administration to such liroperttj, it shall not be obligatory upon the Court to grant administi-ation of the 2^ro^9e?V»/ of such deceased person tn the person who if this Act had not passed would by law- have been entitled to a grant tliereof, but the Court in its discretion may appoint such person as the Court thinks tit upon his giving such security (if any) as the Court directs, '¥ i- LIMITED GRANTS. 179 and every such administration may be as limited as the Court thinks tit— S. C. Act, s. oC, as amended by 53 W c. 17, s. 15. " And a person entitled to take out letters of administra- Limitwi tion to tlu! estate of a deceased j)t'rson is entitled to take out i.^tliuT "" sucli letters limited to the personal estate of the deceased, exclusive of the real estate." — S. C. Act, s. 58. By S. C. Rule 14 it is provided that:— " Where limited administrations are applied for, it must I-imiterl be made to appear that every person entitled in distril)U-'u:itii'ii! tiou to the property has consented, or renounced, or has l.een citey virtue of sections of the Surrogate Courts Act, just i|Uoted,aiul in accordance with Surr<»gate Court llnles, as Well as umler their general jurisdiction, tlu; Suri'ogate Cuuits will make limited grants. lu'l'erringto the auth()rit3'of the ordinary to make limited grants, the language of the Lord Chancellor in JJtfis v. i.'li) it ('(> 2 riiilliiu. .-JO (184S). [h) 1') Gr. Si>. Mi t : \ t if If i! i- !f I 'if tM 180 Grants limited ill duration. — during life or wid( iw- Iioud. ADMINISTRATION. is said that "the Court of Probate in this country always exercised the same jurisdiction in granting limited adniin- i.strations as was possessed by the Ecclesiastical Courts in England ; and .... the Surrogate Courts have now a like authority." Grants may be limited (1) in duration ; (2) to a par- ticular property ; or (3) a particular object or purpose. The nature of the limitation is to be collected from the letters granted. If a testator make an executor from five years after liis death, or after the death or marriage of his son, the Court may commit administration to the next of kin in tlie meantime ; and at the expiration of the period for which the administration is limited, probate will be granted to the executor. So, if the executor do not come in, the Court may grant administration limited till he prove the wil! {el If the executor be appointed during his life, or the executrix be appointed during her widowhood, althoui;h absolute powers are given, the limitation of the appoint- ment is shown in the grant (d). Limited When an original will or codicil, or both, have been lost iv"c'opy'<>f a "1" luislaid since the testator's death, but a true copy lias lost wdl. ] iggj^ preserved, the executor may take probate of 8uch copy liujltcd until the original or an authentic copy of it bo brought into the registry. But he must produce proof by affidavit, that the original was duly executed ; that it was in exis'ence after the testator's death, and has since been lost, and that the copy is a true one (e). He must under some circumstances also advertise for the recovery of the lost will or codicil. (c) D. & B. 434. ((}) See Forms in Appendix. (e) C. & Tr. 128. LIMITED GRANTS. 181 The directions of the judye are taken as to the news- -l"**' will, papers in which the advertisements shall be inserted, and also as to the intervals and number of the insertions. If the original will or codicil be not recovered by these means an affidavit to that eifect is tiled. The consent of, or notice to the next of kin of the testator is usually required (/). Where no copy of the will has been made, but the draft — of draft, of it can be produced, the case though otherwise the saine as that referred to, is differently considered in one respect. In order to entitle the Court to deal with such cases on motion, the consent of pa\ the next of kin must be ob- tained {g). If this consent be not given, the draft must be pro- poundi^d in a suit for that purpose (h). When an original will h.is been lost or destroj^ed aftei'_(;on- a testator's death, or has been destroyed in his lifetime by **'V'^!" "^ ' -^ •' substance. another person without his consent, or by himself without intention, and no draft has been preserved and no copy has been made, with the consent of the next of kin probate may be obtained of its contents, or of its sub'-'^ance and effect, if tliey can be established by credible evidence, parol evi- dence Ijeing admissible (/,). In all these cases the validity of the execution must be —lost co shown, as well as the substance or contents of the will (_/') If a codicil has been similarly lost or destroyed, its concents may be proved in the same manner. I licil. (/) C. & Tr. 123. (;)) narher, L. R. 1 P. & D. 2f.8 ; 30 L. J. (N. S.) P. & M. 19 ; Butts 2 Spiiiks, r)() ; Kutichnap 3.j ; L. T. 427; Trippleton, 3i3 L. T. 909. (/(I liiirh V. Burls, 1 P. & D. 472. (i) Sii;iden '•. Lord St. Leonards, ante p. 103, and see Uessey v. Bostwick, 3 Gr, 279, and Brown v. Brown, 8 E. * B. 876. (J) H. C. Gardiner, 1 Sw. & Tr. 110. 1- Affidavit of scrii)ts jirovud. 182 ADMINISTRATION. The consent of the residuary legatee under the will, will be required. Should there be no residuary legatee, or should the bequest of the residue have lapsed, the next of kin of the testator must consent. If the executor be the residuary legatee, his application for pr(jbate will be an implied consent. Sometimes the Court has granted probate of an affivlavit of scripts (filed in the suit), and at other times of a deposi- tion, or of an extract from a deposition of a witness, aa of Ji wit- containing the contents or substance or effect of the lost tract fmiu' ^^'^'^ ^r codicil (k), ov the declaration in a suit propoumling it prove;!. .^ }o^t will (I). Pniimt." of If a codicil has been lost since the testator's death, ki^d until "^^'it'^out a copy having been made, or the draft kept, aiul ft ii.st codi- its contents or substance cannot be shown, the Court will cil be found .,,,.. , •ii •• ^• ■] grant probate of the will limited, until the original codicil, or an authentic copy thereof, shall be brought in (m). So, if the will has been lost since the death of the ofacodi- testator, and it is impracticable to prove its contents or uut'ih'iiost siihstance, the Court will grant probate of a codicil to that fl/iiid" will, containing dispositions independent of, and referring to it (n). Where the original will or codicil, or both, were in the possession of a person residing abroad, who refused or neglected to deliver them up, but a copy had been trans- mitted to the executor in England, probate of such copy was granted to him, on his showing, by affidavit, the manner in which it was transmitted, that a better or more authentic copy did not exist in England, and that it was essential or necessary for the interest of the estate that (k) Coote, 124. (I) Suyden v. Lord St. Leonards, ante p. 103. (m) Coote, 124. (n) Greig, 14 W. R. 349 ; 1 P. & D. 72. ' J LIMITED GRANTS. 183 proI)ate slionld be forthwith ajranted, without waitincr the arrival of the original, or a better or more authentic copy. I f the copy has been transmitted to a person other than the executor, he will be required to join the executor in the atfiiiiivit. The affidavit does not go into the execution of the will or codicil, as in the case of lost or destroyed instru- ments of that nature (o). i5ut where a person transmitted to England from abroad CDpies of his own will and codicil, and afterwards died abroad, and tlie will and codicil were not forthcoming, the Onirt held, that as the statement of the deceased, made after the execution of the will and codicil, was not evi- dence of their execution, the copies were not entitled to l)robate (p). Under the same conditions as those before stated, a copy of a copy of a will or codicil may be proved. When the grants before described are made to a resi- Adminis- duary legatee, or any other than the executor, they take (will) the form of letters of administration with will annexed ""' *" " limited in the same manner ((/). Where a bastard, leaving no widow or children, makes Trust pro- a w ill disposing of part only of his property, the legatees under such will are entitled to administration with the will annexed, limited to the property so disposed of ; the crown being left to take administration caieroriivi (r). Where a testator has bequeathed propert}' vested in liim as trustee, the Court will grant administration (will) t(i the legatee in trust, on the renunciation of the executor ami residuary legatee (><). ('>) See Coote, 8th ed. 12.5. (/>) J. P. PJpli'ij, 1 Sw. & Tr. ()8. (n,it<''J to I ^ I I ./ o ./ ^ nci'ipt of iu tlie fund the grant will be hmited to the receipt or the dividends, (lividemls, or other produce of the fund during the annui- tant's life. Those persons who ai'e entitled to the general representation, though they liave no interest in the pro- Persons . , • i 1 1 -i 1 ^ cntitli'd to jxTty in question, must consent or renounce, or be cited ((O.pf.n,., id Whether the deceased has died testate or intestate, |;,^,"",^,|^|.'. ailtiiinistration is granted without the will being annexed, r^j^^, ^^.ju as the object of the representation in no way interferes ""^ tin- with the administration of the deceased's own estate (^). The Court which, however, now grants letters of ad- Letters ad ministration for the collecting and preser\ ...g precarious ihmi. and perishable property (c), is not bound to wait for the application of persons entitled to the estate ex testamento, o\'i(h liib'stdto, but when it might be endangered by delay in administering, a grant willl be made {d). The Court may ex opc'io grant to a stranger letters ad coUU/endain hona defanrtl, to gather up the goods of the deceased (e). In a case were an intestate, having died without any known relatives, and it being impossible to ascertain whether she had ever been married ; or, if married, whether her husband survived her, the Court accepted the affidavit of the ai)plicant s solicitor that " he was informed and verily believed that she died a widow, without any known relatives, and intestate, and made a grant wl coUlgendiivi to an unsecured creditor, with libei'ty tc pay the debts due to the landlord, a bill of sale holder, and the parish, and to («) Vi.le S. (J. Fvule 12; BarhT, 1 Curt. 592 ; F. Keene, 28 L.J. (N.S.) 35; I ,S\v. & Tr. 207, Peijy v. Chamberlain, ante p. IHi. (h) Coote, 8th ed. 151. (f) See S. C. Act, ss. 39, 56 and Form of Oath in Appendix. ((/) Walkfr V. Wollaston, 2 P. Wms. 584. In the goods of Roche Hayes, ''fc. Surr. Ct. H. D. Nov. 1849, and In the qoods of David Jardine, Ct. i'rob. U.C, 1849, and Hugh Lennan, Ibid, 1858. (f) Wms. Exors, 9th ed. 382. 186 ADMINISTItATION. l!".]!^"^ u Form. pay and diHcharfjo tlic servants (/). Tlie grant will be made to anyone whom the Court considers for the occasion eligible {(/). Adniinis- On the refusal of the next of kin to take a grant the coUiiicnda Lcclosiasticul Court granted admmistration " limited to the collection of all the personal property of the deceased, and tiiving discharges for all the debts which iniijht be due to her estate on payment of the same; and doing what further might be necessary for the preservation of the property aforesaid ; and to the safe keeping of the same, to ahide the directions of the Court " {h). Upon the same principle, administration has l)oen granted limited to the sale of a ship, and to the protection of the cargo, and other matters relating thereto (i). The Court granted administration in the case of Charles Clark ill (/ton (j), " limited to the collection of the personal estate of the deceased, with a power to the administrator to give discharges for his debts on payment of the same, and to renew the lease." But the Court refused to give power to dispose of the premises, and of the good will of the business. In another case given by Mr. C')ote, the administration was limited " to collect and AKJdeij. 15 P. D. 420. '. >• C. it Tr. 105. :„) Mary PiadiKdl, 2 Add. 232. '• Coote, 157; C. it Tr. 1G6. ( ,/} 2 Sw. & Tr. 382. (A-) Coote, 157 ; C. & Tr. 16(5. •Sale r.f .sliiii. Form of limitation Limita- tion. Limitation invest- ment. Limited during f I LIMITEI) GHAN'TS. 187 widowhood, the tjrant made to her as I'esiduary leiratee is ,^^'''v^^" ' ' O ^ ./ n 1)1 M 1(1. liiiiitcil to so long only as she shall continue a widow (/). Tlie person who applies for letters of administration is To next reiiviired to swear that the deceased died without liaving,i,itil miule a will. It sometimes happens though no will in wj'nf'.n,,,!. t'orthcoming on the death of the deceased that the party cannot in conscience take the oath, for he may know or have reason to believe from the deceased's "observations, or the information of others that there was a will in existence subst'(iuently to the deceased's death. If no copy of the will can be prodaced, and its contents or tenor cannot be sulistantiated, he may take administration limited until the uri,L'inal or a copy be brought in {m}. Where the person entitled is absent from this Province, Durante alininistration may be granted for the use and benefit of, * '"''" and limited to the return of, such person (n). The husband of a deceased intestate was a lunatic Durinsr jjaupor confined in a county as^dum at the charge of the'"'"''""^^" ''uardians of his union. Notice having been given to his next of kin and no appearance entered, the Court made a ;^iant to the guardian for the use and benefit of the lunatic and limited to such time as he should remain insane (o). The deceased left a will expressly limited to her pro- of pio perty abroad, viz., in the United States, which was provecl Jl'^^^j-^' "'|j|, ly the executors there; but she died intestate as to her 'jy will. property in England. By analogy to the practice of the Prerogative Courts wdiereby, if a man d^dng possessed of ;'oods in two provinces made his will of the goods only in (/) Thomas Teed, 7 No. Ca. 386. (m, Coote, 8th ed. 126. hi) See Pnltison v. Ord, Bunb. Exch. 116 (1724) ; O'Byrue, 1 Hagg. 316 I182H) ; Rmldy, 2 P. & D. 331 (1872) ; lie Donovan, Ct. Prob. U. C. 18.53, aud ndeante p. 178. 38 Geo. III. c, 87, s. 11. (o) Ecdes, 15 P. & D. 1. i -■'a i' ; !' 188 To iclii in. iwtcr a parti'-.iftr estiit'j. Liiiiit(>d pnibati' ot a codicil. (ieneral aiul limit- ed i)robivte, ADMIXISTRATION'. one of them, and died intestate as to the goods in the other province, administration might have been gi'anted as to the goods whereof he died intestate, the Probate Divisifm granted administration to the daughter and sole next of kin of the deceased, of so much of the deceased's estate as was situate in Enghmd and not dealt M'ith by the will(y/). If a testator appoint an executor for the purpose of administering the estate of another testator, whose sole or surviving executor he himself was, probate is granted to him limited to such purpose. This probate continues the chain of executorship in that particular estate ( q). If a testator has appointed a separate executor for the purpose of carrying mto effect the trusts and disposition of a codicil, probate Df the codicil, limited to such trusts ami dispositions is granted to him. If a testator apponit an executor of his will generally, and another executor for particular purposes, and the gen- eral and limited executors both apply for probate at the same time, the grant is made in the same instrument, anil the powers of each are iiu-.rof to tiie next of kin in case of a partial intestacy (v). attorney. Where the power given by an executor to his attornev Limited to provc a wiU for him is special and limited to snecitic ])ro[)erty, the grant of adnnnistration witii the will annexed made to the attorney is limited accordingly {iv). Limitation And where a foreigner died in London, away from his to rt'ini- . 1 (. 1 • 1 Ml c burse, &c. relatives, possessed or certani bills or exchange upon Kii;,'- lish merchants, the Court granted administration to an English friend or aciiuaintance of the deceased (\vh>> IkvI procured the bills to be accepted, and had paid ccrt.iiii necessary expenses of the deceased), "limited to the .sums due and -to become due on the l)ills of exchange ; ami, after, the administrator should have reimbursed himself the money which he had expended on behalf of the deceased, and also of the expense of the application to the Couit, to invest the balance in his own name in government securi- ties, and to keep it so invested until a general representa- tion should be effected to the deceased " {x}. Limitation Administration was granted to a nominee of the guar- ing'^&c'^' *^^^''^'^ of the deceased's (mly child, " limited for the pui'iiuse only of collecting and getting in all outstanding moneys, debts, or accounts, receiving all dividends due, or to accrue due, upon any sum in the public funds of Great Britain, and all interest or dividends that might be declarcl ilue upon any other security or securities in Great Britain : aiiJ also to present Mdien due, any bill or bills of exchange, ainl to receive the amount thereof ; and the money when so collected and got in as aforesaid, to invest in the public ■i . < t, J. ii -i^ (v)E. A. Homfnuj, dec, mentioned in 12 P. D. 138; and vide ante p. 5(). (w) C. & Tr. 157. (x) Dull Miiiuel, 3 Sw. & Tr. 22. M: LIMITED a HA NTS. nil fumls of Great Britain or other i;o(k1 and .sutFicient security or socuritios in England, bearing interest, until the original will or !Ui authentic copy should be brought into and left ill tU' registry of the Court, in case it should appear that tlu' (h'CLiised niaile any will, or until it should be ascer- tuiiitMl that the deceased died intestate (//). The Court adds any other power or powers which it r.iniiMition deems necessary under the circumstances to that of collect- r.e in;,' and preserving property. When a grant is made under section oG, it may be " as limited as the Court thinks fit" (z) Where the estate was timber and certain debts, the Cuurt directed that after payment of the charges upon the tiialier and servants' wages, the balance shouM be paid into the registry, to remain until a general grant should isaue (ai. And in another case the Coiu't granted administration, limited to dispose of the good will of a school, for the pui-- chase of which an offer had been made, the admi!iistrat(»r to pay into the registry the purchase money, less the e.v- pensos of sale and costs of the letters of administration (Ik A creditor insured the life of his debtor, but the policy — life as- having by mistake been made payable to the representa- ''"''"■"^■"■ tives of the deceased, the Court granted administration to the cretlitor, limited to the policy (c). lly a late Act of the Legislature of Ontario a person _ to in-r- entitled to take out letters of administration to the (;state "*"!"'' of a (|i'C(>ased person is entitled to take out such letters liiuiti'ij to the personal estate of the deceased, exclusive of the real estate ((/). l;/l [Ion;-ll v. Mctcalf, 2 Add. ."..jO. (*; S. C. Act, a. 50. ('(1 Steirart m L. ,7. (N. R.) P. A M. 30 ; 1 P. & D. 727. (/)) SrliH-rrdtfener, 45 L. J. (P. I). & A.) 4(5. (c) Pattern v. Hunter, 30 L. J, P. & M. 'iT2. ('0 50 V. c. 7, s. 34 ; S. C. Act, s. 58. ■t f i i 5ff 192 limitation. Grants to guard inns of infants. ADMIN'ISTHATIOX. GrimU for the Cup (ind Ih'vctif " Jus HabevtiiLm." Where one or more persons ,\'ho liave n right to luhnin- istration, or a beneficial intoj'ost in the estate of the tentiitor or intestate, ai*e prechided from personally acting by resi- dence out of the jurisdicticm oi' the Court or by their own minority, or by their lunacy, imbecility, or unsoundtifss df mind [a), or bodily incapacity, (Uirnnfc corporis (inf (ivlini vUio(f), the Court \vill make a grant to anotlicr person for the use and benefit of the person so prechnloil, but will limit it in duration to such a period tis the circum- stances of the case demand (fj). The grunt made in pursuance of a wan-ant of the Lieu- tenant Governor directing the Attorney General to apply for letters of administration under the Act respectin;,' Administration by the Crow a of Estates of Intestates is— "for tlic use ((Aid henefit of Her Mnjcstji or of sucli pi^rsn'i.t (18 mcy idtlmately appear to he entitled thereto" (h). ByS.C.Rule 17, "grants of administration may be nuule to the guardians of infants and minors, for the use and henefit of such infants and minors during their minor\t]i; and elections by minors, of their next of kin, or next friend, as the case may be, to such guardianship shall be reiiuireJ when the infant is fourteen years of age and over"(t). (.;) D. & B. 300, 131-449; Wma. Exors. 387, 419. (/) Corrigal v. Henry, 2 Gr. 310 (1851), (u) Vide S. C. Act, S3. 39, 50 ; 2 P. Wma. 589 ; D. & B. 300. 484-419; and Wms. Exors. 387, 419. (h) R. S. O. c. 59, s. 2. (i) See R. 8. O. c. 137, ss. 4, 10, 18. Tliia is substantially the same asE.C.P. Rule, prior to 5 Dec, 1859; The practice of the Probate Divi- sion, Eng., in the case of infants is that of the rule of 18G2, which pro- vides that " Where the infant is under seven years (being incompetent to elect a guardian) and not having a testamentary guardian or a guar- dian appointed by the High Court of Chancery, the Court will assign one for the purpose of taking administration for the use and benefit of such infant"; C. & Tr. 138. (lUANTS FOR USE AND BENEFIT " .H'H HAHEN'TIL'M.' 193 S C. Kuk' 17, above refoiToc] to, does not expressly |irn\i'lt' fur ;;uar(liiuis lH'in<; assiyned or iiominated by the C'dUit to take adiiiinistratioii for infants under seven years, a>.|.. ihr Iv (J. I'. Kuh's ..f ISO'J (j). Hut the Connnon Form practice of the Snrro<^ateConrtsTiif:mt in such cases (inchidin;^^ the case of an infant sole execntorV"'^'"'"^" ^wuiH to di'pend upt)n the ancient juvietice of the l'rero;ja- tivi' CoiH't as well as that of the former Court of Probate, r. ('. i/.i. If a testat(jr make ont- an executor who is in his minor- ity, ailiiiinistration is granted to some other to the use of saiil executor durante mivore dditi' (/). In /'Avin(f(in) the Court nominated a guardian to take ailiiiinistration for the use and benefit of the infant. And Sir Ciei)ri'"e Lee <;ranted administration t'cj/t tt'sfont'uto to tliL' next of kin dui-ing tiie minority of a sole executor (/?). A guardian app(jiuted by the Prerogative Coui't wasf^^'iuit to pivienvd to be contii'uied in adnunistratK>n to the guardian a[i[ioiiiteil b}' tlie Court of Chancery (o). The former Court of Probate (U. C.) made such i,fmnts \j)). After the Act of 8 Geo. IV. respecting the appointment (if n'nardians of irfants, the judges of that Court appear to liavi' held that a guardian appointed under that Act was >iuitK.'J,fy(','c guardian, to a grant of administration (lura ate I J) Sec Coote & Tr. 11th ed. (iOl. I A' I The Common Form practice of the Probate Division has not been Altered by the Judicature Acts or Rules ; vide tutte p. 35. (H Swinb. Pt. 5, s. 5. {m) 1 Hagg. 381, see a,\so Rich v. Chamherlaijne, 1 Lee, 134. I«) Appleby V. Appleby, 1 Lee, 135. And see Fawkner v. Jordan, 2 [0} Ihotherton v. Hellier, 2 Lee, 131. \p) lie Edward Walker, dec, Ct. Prob. U. C.July, 1824; Re John '■'vn.i. ibid. 1824. n.s.c— 13 I.i^' 194 ADMINISTRATION iil)l)i>intf(l by the fatliiT. -;^u;inlian ii|)|H)iiitL'd 1)V the ('..urt of < 'liiiiiuiTy. mhiorifate. In t/ie (joods of Leon Jones, dec, upon petition of the paternal uncle of the infant orphan children, setting forth that he had obtained such letters of fj^uardianship (viz., under S Geo. IV.), letters of administration nt" the estate of their mother were connnitted to him " during the minority of the infant children " {q). It has been held that a g-uardian appointed by the father under 12 Ca.. II., c. 24, takes the place of all dtlur guardians ; " the statute put him in loco pare^iiiH " (/■), By the practice of the Proljatt Div sion, Eng., the pei- .son entitled in preference to all others is the gunnHan appointed by will or deed of the father, under 12 Car. 11. c. 24 (n). And the powers and duties of the Court just liKMitiunr!: having been transferred to the Suri'ogate Courts (/i it would appear that a guardian appointed under S (io(\ IV, incorporated in R. S. (). c. 1-37, by a Surrogate Court, may be appointed administrator for the use and benefit ot' th' infant. Next in order to the guardian apjiointed undoi' tli'; Statute of Charles lb, was the giiardian of the estatt, nut the person, of a minor appointed by the Court of Chancery {u). In the Hrst case a ••eference to the fathers will. n> proved, ia retjuired. In the other case, an office copy uf the ''der or decree appointing the guardian is rih.'d in r\i';- ence of his title. i ■! (q) !!■• Leon Join's, doc, Ct. Prob. U. C. trmp. Clrant Powoil, Ur'lic il PiiiiL'ipiil, 1S82 ; Sue also Janms UeiKlcrKoii, ilec, Ct. Prob. U. C. li ■;'. Hepburn, OHicial Principal. (r) 2 P. Wms. 12.5. («) C. it Tr. lltli Ed. i:)7 ;?/« /v Clullhiuin, It C. L. T. O. >' . 40'2 ; ;u:d Kfo Louisn MorriK, 5 L. J. K. (N. S.) 708, aud 2 S\v. A' Tr. '6&2. (t) S. C. Act, s. 17. (h) if. Joim, '28 L. J. R. (N. S.) fO. ■I ! f \ (UiAXTS FOR USK AND HKXEFIT "JUS IIAHEXTIUM." 19€ \fither of these ffuardians, by the E. C. P. practice, is -invvn- reiiuirc'd by the Court to tile an inventory of the deceased 8 required eti'ects for the protection of their ward, the trustworthiness guardians' of the one being vouched by the father, and the other being accountable to the Court whicli has appointed him. The Court will not grant to one out of many testamen- — nr. gTnui tfuy guardians, without the consent of the others, on tanuntaiy iiecouut of their joint tenancy (v). witiu!ut" The court will grant to a guardian appointed by aofoth"^" toreigii court, competent • for that purpose : but such — guar- (.mardian must prove his appointment by a copy of the pJI-Jlt.'^'i'i.y ik'cree or order by which he has been appointed, authenti- '-] f"'*'e'> cjited uy the seal of that court (iv). ( )r the Court will itself appoint a curator or y,'uardian T" ^'"J"'" ■ ' f^ uian or out ol' tiie next of kin of the minor for the purpose ofmiiior. taking the grant (.r). ir the executor or residuary legatee be above the age if seven years, but under the age of twenty-one, he has the piivilege of electing any one of his next of kin to be his curator or guardian. This is done l)y the minor in an instruiaent signed by him in the presence of an attesting witness (//). Whei'e there are several minors all must join in the All tho '-•lection. If there Ite a dissentient, he must renounce must <-l.H;t administration by his guardian elected by him pro m ''i<'<'^ll-^t^^m\si^' "\' lie umst be cited. But this rule is oi^'casionn I ly '''■""'"""• relaxed {z). When one out of a numerous family is prexented ii^- residence or absence abroad, from joining, the court I'U (!•) C. & Tr. 137. («■) II'. Joneif, '28 L. J. 80. Ill /i'/(;/( V. Cluiiiihcriiijiu', .mtc, :iik1 Kiciiui, iiijr.i. i;/) iiHte p. Hi). (;) ('.\ Tr. 140. IW 19G ADMINLSTHATIOX affidavit, will pass hiin or her over, and will give adminis- tration to the ifuardian elected by the other minors, for tlie use and benefit of all of them. If the minor is cited to accept or refuse the proposed o-rant or show cause whv it sliould not be made to the <4'uardian of the other minors, and does not appear to the citation, the practice is to i^rant to the guardian of the others, for the use and benetit of all 00. Mi""!'-' Whei'e thei'e ai'e lioth minors and infants, the practice ami infants . . . . nextofkin. MX tlio Probate Division, is tliat the guardian elected hy the minors may act for the infants without being specially assigned bj' them (h). The next of kin for the purposes of the gi';uit ar^ calculated in the same manner as for the purposes of distribution ir). The minors and infants' next of kin may renounce tlie rifdit of assuming their guardianship in the case either of in- fants or minors. The court granted administration to tin.' step-mother of the executor, a minor, on his two .sisters (his next of kin) renouncing, and it being .shown that his elder brother, his other next of kin, had not been heard "f for many years (d). -.stranger If the next of kin renounce the guardianship, aiitl tli. or distant . • i i i t ^ ._ i • ivlativf minors elect a stranger in blood or a distant reiativr <• I'cte . ^j^^ party elected will be entitled to administration. -court The court is not concluded by the choice of the minors: ''■"S"^""."; it has a discretionary power to refuse to grant administra- tiifniinoi'stion to the person elected by them {c). choici'. {a) See Springs v. Banks, 4 No., Ca. 10;i. ., (h) C.andTr. 139. ((•) Wms. Exors. 9th od. 355, et scq. (d) Widgey, 3 Curt, 5(5. (e) Fawkener v. Jordan, 2 Lee, b'30 ; West v. Willby, 3 Philliin. 'A?). \ i 1 ^ i GRANTS FOR USE AND BENEFIT "JUS HABENTIUM." 1J)7 If a valid objection exist arjainst the minor's next of — "fiisii kin, the minor is not hound to elect him ; and the court next of kin will pass him over and appoint a stranger in blood, or a shown!'" more remote kinsman (/). A foreiifn domicile, or protracted absence from this country, would justify the minor in refusing to elect, and the Court in passing over the next of kin without citing him (//). If the minor or infant be an illegitimate child or ha\ e illtKiti- luj known relations, notice must be given to the Attorney- witlumtic- (leneral.and if he takes no objection the court will confirm '''""'*' the uiiiior's choice of any person whom he thinks fit to (hooaa tor his guardian, and will grant administration iiccitnlingly. The number of guardians nuist not exceed three. ^tran(?er 11. CI j'linedwtth lliey need not always be ni an ecpial deL'ree, tor the nextof kin. Court will occasionally join a stranger in blood witli a next of kin, in which case, besides the election bv tlie minor, there must be an affidavit of the guardians showing till' reason for the irrant. A iiioro distant relative and a stranger will be joined .^JJ''*'^"^'^ jH the consent and renunciation of the next of kin (h). stranger ji'incd. The guardian of an infant residuary legatee ma}' be i„fantresi- appointed administrator (i). dnary legatee . The next of kin of a minor of 18 years, tlie universal Adminis- leiratee, where an uncle who was abroad, an aunt who was (wiii)— to in poor circumstances, and another aunt who had ve- ^''^' f^''^'^'' ' ' lan tor use nuuneed. The Court trranted letters oi administration, with »•>'! iitnefit ° of miner. !,'') Hail, 1 P. & D. 52 ; Strphemoii, 1 P. & D. '287 ; UV/r, 2 Sw. A- Tr. 151 • luvlwi, 1 llafifr 3H1. (!)) Haniier, 3 Sw. A- Tr. Go ; liurcliinore. 3 P. & D. 139. iM yide, C.& Tr, 142. (ij Leyhind n'hite, 7 P. D, 05. 198 ADMINISTRATION Grant ti) a Htraiigcr in ))1i»kI on olfctiun of minors. Limita- tion. For tin- use and bcni'Ht of a lunatic jiix hnhrns. To com- mittee of e.\ticutor. will finnexed, for the use and benetit of tlie minor, to m guardian elected by her(j). Where upon an application for administration with the will aiuie.xed, it appeared that the testator's children weiv minors, and the testator having directed that no relative of his should be appointed a trustee of his will, the Court granted administi'ation to a stranger in blood elected by the childi'en as their curator and guardian, without notice to the next of kin, on proof that one had renounced and that the remainder were at a distance, or that their place of residence was unknown (k). The grant ceases upon the minor attaining his majority And a gi'ant for the use and benetit of two or more minors and infants is made until one of them shall attain twenty- one years ; and should one of them die before that aee, it ceases when the eldest survivor attains majoi-ity {I). Where the jus hahens is incapacitated from the trans- action of business by reason of his lunacy, imbecility or unsoundness of mind {m), administration during lunacy Avill be oranted for his use and benetit to the comniittfL^ of his estate (n). If there be two committees, both must take or one must renounce. If a sole executor be a lunatic, administration cim testamento annexo, will be granted to the committee of (j) Henry Burton Squire Gardiner, 9 P. D. C6. (A) O. H. ireii., 13P.D. 72. (I) Sliep. Touchstone, 490 ; and forms in appendix. (m) Such a grant, it would appear, mi^ht also be made durinj^ bodily incapacity — durante corporis aut animi vitio, — vide Corrigal v. Henrij. 2 Gr. 310 (1851). (n) Southmead, ante, and Wms. Exors. 441; C. & Tr. 143. 144; see also the Act respecting Lunatic Asylums and the Custody of InHiinePer sons, R. S. O. c. 245, s. 53, as to Inspector being committee of cortaia lunatics ; also The Prisons and Asylums Inspection Act, II. S. O. c. 250. ^4 <; HANTS FOR USE AND HENEFIT "JUS HABEXTIUM." 199 his estate, for his use and benefit, until he sliall become of soini'l mind (o). It' the residuary lec^atoe be a lunatic (there being no— commit- executor) adninnstration with the will annexed will bem-xtof kin ^Tiinte'iand of the intestate as the ease may be, under pre- civ ;y the .same reo-ulations and conditions as apply to the otliiT cases. The ])roduction of the commission proved the com- iiiittee's title, and also the lunacy of his ward (p). ap]>oiuted by a foreign court. The n'rant will be made to a curator, or to a committee, .curuior or forciffii comniittci-. If the executoi' ha\e no committee, a ^-rant will be— ne.xtof iiiiule to his next of kin for his use and benefit. cxt'cutor. When no commission has been taken out, the Surroo-ate affidavit Ciiurt will .satisfy itself as to the lunacy, I)}' calling for a j'^jj]:"^^.''*" joint alHdavit of the surgeon or physician keeping or regu- Lirly visiting the asylum where the patient is confined, and • 'il' the keeper or nurse. The next of kin tiles an inventory and alHdavit of value, iiii'l gives justifying security. \W virtue of the discretionary powers of the Court Q,..^„t uii'ler section 56, Surrogate Courts Act, a grant may be\'"''j''';T^'' uiaae to an uninterested person for the use and benefit of -i''. till' next of kin until the latter shall appl}- [q). , M C. it Tr. 143. I/; I Ibid. i;'l See Chulwill, 1 P. A- D. 1SI2. I ii TT ■> ; f 200 To tho coniuiittoc or next of kin of widow. To next of kill. To a credi- tor for the use of widow. If J H.I liiilicns out of jurisdic- tion. ADMINISTRATKIN Under the corresponding section E. C. P. a grant has been made for the use of a hinatic, to a person of no kindred to tlie latter (/■). Where a grant is made by the Probate x)ivision, Eik'., in conformit}^ with Tlie Lunacy Act, 1890, neither a decla- ration nor justifying security is required of the granti^e (s). The Probate Division, Eng., in a case in which the only next of kin of the intestate was 94 years of ago and enfeebled, held that the order of the master in lunacy made under the Act of ltS90 (///cy).) placed the applicant in position of <;\7as" .i litteo and made a general grant to such applicant tt- ' ; i.^e and benefit of the next of kin \l). In like manner where the intestate's widow is a lunatic. administration ^.•iil ^ ' gr." Id to the conmiittee of her estate, if there be one, if not to ii- r next of kin for her use and benefit (u). Where, however, neither her connnittee nor her next of kin applied for such a grant, the court has passetl over the widow and granted to the intestate's next of kin al so- lutely (?;). If the next of kin in such a case renounce and cons'Ut, the Court will grant to a creditor for the use and benetit of the widow, &c. {w). If the executor named in the will, or the next of kin were out of the kingdom, the Ecclesiastical Courts al\va\> had the power, before probate obtained or letters of ad- ministration issued, of granting to another a limited administration durante absentia (.r). (r) Mary Burrell, Sw. & Tr. 65, and Grace Hastings, 4 P. D. 7:'.. (s) C. & Tr. 144. » {/) Je.v.s'/e Lecse, 6.3 L. J. N. 5, P. 124. (m) Alford V. A.,\ Deane, 324. (r) J. Williams, a Ha<,'«. 217. (iv) T. N. Pi'iiuij, 1 Rob. 426. (x) Wma. Exors. 9th ed. 433. I CHANTS FOIJ rSE AXD HENEFIT "JU.S HABENTIIM.' 201 If the next of kin, usually residing in Ontario and ^""^;'t|'|^ regularly entitled to administer happens to be absent from tcuturs OutiU'io, a Surrogate Court may grant temporary atlminis- tration to the applicant or such person as it thinks tit limited as to time, or to the return of such next of kin (y), tiie frant may be made to his attorney, acting under a power of attorney. In the case of executors or next of kin being resident out of (Ontario, a grant will be made to their attorney acting uniler power of attorney, duly attested and tiled. A (general power of attorney may, under some circumstances be auliicient though made without reference to the grant uf administration (5). The power should be under seal ; but less formal documents are accepted (a). If the executor or executors reside out of the jurisdiction 1)1' the Court, he or they may appoint an attorney to prove their testator's will, in their name and on their behalf yh). This was also the practice of the former Court of i'robate U. C. [c). (y) S. C. Act, s. 3',) ; and see Wins. Exors. ilth ed. 370. (:) See Lucas v. L., 2 Lee, ooS. (a) Elderton, 4 Haj^j;. 210; Onnond, 1 Hagg. 140 ; aud Jloijle, 3 Sw. & Tr. 427. Wliere a person is authorized by a simple power of attorney to take out iuimiiiistration, the Court will decree to him such administration as It would have granted to the person who conferred the power, if he had iipplied for it himself. If administration be ordered in pursuance of a power, the grant must follow the terms of the power ; and when the power is for a general grant, the Court cannot make a spec'al grant \G,ihhl,oron!)lt, & 1 Sw. Tr. 2'J5) nor «) coiivei-Ko, D. & B., 441. The modern form of grant to an attorney is "to — for the use (uid lieuf/n of resident at and until he shall duly "I'l'^'J J'>r and obtain probate or administration" {Cassidi/. 4 Hagg. 300, 10 Siniii. ()2i) ; and Wms. Exors. 'Jth ed. 370, 400 ; Ilorsev's Prob. Prac. l^-'H, pp. 47, 244; and irihjrne, 1 Hagg. 310; and see i^H/Znr, 39 L. J. R. (N.S./ 1'. .V M. 20 ; In the goods of Rule 4 P. D. 76 ; 20 W. 11. 357 ; and >i/to V, Canada Pacific Rij. Co., 3 C. L. T. 605.) {h) Wms. Exors. 9th ed. 405-6. (c) In the goods of W. Paris Vincent, dec, Ct. Prob. U. C. Feb., 1849. 1 i i i m 1 k i mi til' [I If Li 202 To attor- iifV of one fur Use I if all. ( ii'neral )).(\Vef of attoiiU'v. ADMINISTUATIOX Where tlic estate was trust property only, the Court allowed the attorney of a person residing- in England to take administration (d). And it would seem that the attorney need not reside in Ontario, l)ut may obtain a grant provided his sureties reside here (V^). If the principal and attorney reside in the same place ont of the jui'isdiction, the Prohate Division will not make a grant to the att the iittdi- ncy i)f mil re^idnarv if f Mifs II ■ 204 ADMINISTRATION i.'tfiitef' or residuary letjjateeH. Anil tlie attorney of one of many next Mcxtofkin c ^ • ^ i i • • i. i* • 'i-i ■ i ■ {)iiiriiiuii. oi km may take adnunistration m like nianncr, withuut notice to the other next of kin. Aihninistration (will) is not i^a'anted to the atttiiny nf an executor to whom power has been reserved, whilst an executor who has taken probate is alive (l). As to the form of limitation in these ^a-ants, i-ide Appendix of Forms. (/) SeeC. it Tr., lltli (■i furnish ade<|uate and reasonable security (r). This practice was followed for some time in the ('(nut of Probate in Kngland, but in the case of Jiilhn- v. Bi'llew{f) the practice in this ])articular was assimilattd to the practice of the (./oui't of Chancery in appointing' a receiver, and the (general i-ule was laid down, tliat wIkt- evcr there is a suit pendinj^, in all oases wlierc the Court of Chanceiy would apjjoint a receiver (r/) an adminis- trator pfodi'tifc life will, on application, be Mj)pointed iiif- spective of the condition of the estate, or the person who has actual possession of it. In a I'eccut case where a husband dieil leaving a will ol which his wife was sole executrix at the time of his death, the executrix took out ])robate and died leaving a will, the validity of which was disputed in a suit which was pend- ing in the Court. A representative of the husband boin;: re(|uirod to receive the money ilue to his estate, the Couit appointed an administrator pendente lite to the estate of tlui husband (It). But where the deceased's property was invested in .1 business, which he had carried on in partnei'ship with his (f) See also lUtchen v. Ilirkx, L. il. 10 Et], Cii. 171. (d) Magkeliiie V. i/«r;/)>oM, "2 Lee, '258 ; Wins. l';>;(i)s.,4'27. ((•) Youiit) V. firown, 1 Hagg. 54; (iixh'yich v. J,))i,-x, 2 Cnrt l-i-; Nurthey v. Cock, 1 Add. 329. (/) 4 Sw. & Tr. 58 (1865). (.7) Wins. Exors. -W.O. (h)Iii the '«'^<*'' the (■ on tile application of a creditor who was not ti partv to the suit, appointed a person who ha intcri'st as trustee. AtriHiuihli' ti> suit. The Court may require securities from administritors pendente lite [p). Security to the amount of one year's income of the property was re(iuired in the case last referred to. In a late case the Probate Division allowed the admin- istrator pendente lite, on terms, to pay a sum out of the estate to a Guarantee Society for enterini^ into a bond on his behalf (q). Administration pendente lite ceases on the detennina- tion of the suit, unless there is an appeal from thejud;;- inont (r) : and the executor will take probate of the will, or the next of kin will take administration, as the case may l)e. In the form of oath taken by the administrator, the latter (in accordance with the 53rd section of the Act| swears that he will administer the deceased's estate, "savf as to the residue thereof, under the direction and control of the Court." And the sanction of the court is necessary before paying debts, selling or converting the estate (.«). This kind of administration may be granted of tlu effects of a deceased, limited to his interest in property a> a trustee {t). The duties of an administrator, and of a receiver iwi^- dentr'lite commence from the order of appointment, unci, if the decree in the action is appealed from, do not cease until the appeal has been disposed of (u). An administrator pendente lite is amenable in a suit in equity, and liable to account to his successors in the repiv- sentation {Per Moss, C. J., in Beattij v. Hidden (r). !^: h (p) S. C. R., 35. (q) Harrer v. 11., 14 P. D. 81. (r) Taylor v. T., G P. D. 29. (■s) Charletonv. Hindmarsh, ante; Wms. Exors. 428. (t) Wms. Exors. 428. (u) Wms. Exors. 432. (v) 4 A pp. Rep. 239. A AD l.ITEM. 209 CHAPTER XII. ADMINISTRATION AD LITEM. When it is necessavv that tlie reiiresentative of a I''"'.'^''.*' ^" • ^ ^ _ a Pint in (IcOiJiscil pei'Kon be iiuKic a ]'>arty to a pcnainu' action in the High Hiu'li *-'<>urt, hut tlie executors or next of kin of such ""* ' iit.Tsou will not (|ualify tlieniselves as his representatives, aihiiinistration may he oranted to the nominee of a party ill s'lch suit, limite>r in an\' other court between the parties, or any otliur jiarties, touchiii_i;' or concerning- the matters at issue in till' said cause or action, and until a final judgment shall be ha! and made therein, and the said judgment cari'ied into rxieution,and the execution thereof fully completed "{n). Tlu' High Court will refuse to appoint an administrator itil lih'iii under Rule 311, where general administration J|/),^J,'' "' should ]ie taken out in the Suri'ogate Court {I)). Rule 811 of the Supreme Court, Ont.. though in exist- iiKv as sec. 11 of 4S Vict. c. 18 ((.).), before the passing of till' Devolution of Estates Act, may be applied as to realty lulling under the operation of that Act. If it ap|)ears that I'll Tliia is the form given in Wiiia. Exora !>th od. I IS; for more exteiuied form ace ('tiiiicroii v. I'liillii»i, IH 1'. R. 141 ; aee alsi) Ap))eiuli.\ of F.iriiu. ;„w(. ; Deij v. Deij, 2 Gr. 14'.l; Coote ct Tristnim, KU ; ami Jiid. Knit' iill Ittfra. iM Mfir V. Wilson, 13 P. R. 83. ii.s.c— 11 lit 210 To com- mence pro' ceedings. ADMINISTRATION there is no personalty, or personalty of such trifling amount as will not suffice to answer the claims made in respect of the deceased's real estate against which litigation is brought, or is impending, administration (id litem niav be gi'anted, under that rule, limited to the real estate in ([ues- tion; and the application for tlie appointment of an ad- ministrator ad litem is properly made hefore the action (Vi, The grant of letters of administration ad litem inukes the grantee complete representative of the estate to the extent of the authority which the letters puvjiort to confer (d). The grant was made to the nominee of a plaintiff, who was about to commence proceedings, whether by bill or petition. Also for putting in an answer (e). Under no circumstances can the grant be general (/), ((•) He WilUumx and McKinmm, 14 P. E. 338. Jud. Rule .Sll pro- vides that : — " Whei'e no probate of the will of a deceased pernor, ir letters of administration to his estate, have been granted by a Surro;:ati- Court, and representation of such estate is required in any action or proceeding; in the Hi^h Court, the Court may appoint some person ad- ministrator (((n/^eH< (according as the case may require) to the estate: and the person so appointed shall give the security so required from, and luive the rights, authority, and responsibility of, administrator or administrator pc/ir/t-H?*' lite (as the case may be), appointed by tlie Surro- gate Court, but the Court may dispense with such security. " (a) Where a general administrator is appointed under this Rule, the same tees shall be payable in stamps as would be payable to the Crown, or to the Judge of the Surrogate Court, under any Act then in force, upon the grant of administration of an estate of the same vahie made by the Surrogate Court. " (b) Where administration is granted by the High Court under this Rule the Registrar shall forthwitli transmit by mail to the Surrojiate Clerk, a certified copy of the grant ; and in case the grant is with will anuexed, he sliall, at the same time, also transmit to the said clerk n certified copy of the will ; and the Surrogate Clerk shall make similar entries in respect of the documents so transmitted as lie makes in re- spect of particulars furnished to him under section 14 of The lievised Statute llespecting Sun-opKte Courts." (d) Davis v. Chanter, 2 Phillips, 'An. (<■) 2 Add. Hohi. and C. A Tr. 101. ( f) Chanter, 1 Rob. 274 ; Davis v. Chanter, 2 Pliillim. 550 ; Madfin v. Dawson, 1 Sw. & Tr. 42'). I AD LITEM. Under this form of administration the grantee has only authority to carry on the action in the High Court, and has no right to receive the fruits of it ((/). But if it be required the Court will allow a further limitation, viz., to receive any sum which shall be pro- nounced by the final order or judgment to be due and pay- able, with interest (h). Administration was granted to the agent of a foreign prince, a.'s proved by affidavit, to sue in Chancery for a (Jebt due in England to the principal ; but not to receive the debt unless a power of attorney to that effect should he produced. Rothschild, the agent in England of the Elector of Hesse in 1827, obtained on an affidavit of in- structions, a grant of aduiinistration limited to substantiate proceedings in Chancery for the recovery of a debt due from the estate of the then late Duke of York. To receive the debt a fuller authority was re( quired, seemingl^'^ a powi-r of attorney ( i). Ujiou its production the grant was revoke" 1, and a new ailministratiou limited to further proceedings in Chancery, and to the recovery of the debt was granted (j). in) Doilfison, 1 Sw. cv. Tr. '200, and 28 L. J. (N.S.) P. & M. IK). (/() Dixliisoii, Kupfd. (/) The Elector of H,-^sr, I nanu,- '.)3 (1827). 211 — til re- ceive sum. Toiigentol fi)i'eigiier. I? J ■' V 212 ADMINISTRATION CHAPTER XIII. GRANTS "HAVE AND EXCEPT.' t, Partial in tcstaov. Probate of a will, or lettei's of administration, di- ui]. ministration with a will annexed, may be granted, .sv/^v and except some particular fund, or some distinct portion of the estate, the o-eueral administration being connnitted to a different person (^0- If a testator appoint an executor for a special jnu-pose' or a specific fund only, and appoint an executor for all othei' purposes, the latter may take probate .sarurpose or fund {h). Or if there be no such other executor, the resiiluaiv legatee may take administration (with the will ai,iic\i,(l! of all and singular the eflects of the deceased, ninlcr tln' same excej^tion. I f a testator has made his will fcjr a particular or limited pui'pose oidy, as to a fund vested in hini.self as trusti-c. ,is to an estate vested in him as executor, or as to his own property in some ]iartic\dar district or country, — and has died intestate as regards all other jiroperty of his own or vested in him, -his next of kin. without waiting foi- the executor to take th<^ limiteil prolmte which he is entitled to under such circumstances, mav take administration of all and singular the deceased's eflects, sace and exirp^ what the testator has himself excepted (c). (<() Wins. Exors. 114; C. A- Tr. Kllt. (/)) See DotljiKOii, 1 Sw. it Ti-. '2.')',). (c) See Prothfio, H P. A D. 'JO!) ; and C. A Tr. 170. GRANTS, "SAVE AN'D EXCKPT. It is stated in a worlc of hi^-h authority that " Two ^ 218 xecutor uiiirerfii iuhiiinistrations may well subsist toi;'ethor when there 'isjiirix/w,,- 110 executor : Init it should he observed that, re<;ularly, no administration of any sort can be y^ranted when there is an executor appointed; for he in uiiu'crsl juris hn' res to his testatoi- : thercd'ore whei-e A. made his will, and ap- pointed li. his executor, and by deed L-ave part of his estate to C, and C. obtained in the I'rei'o^ative Court a limited adniinistration to the deed only, the Jud<;es J)elegate set aside tlir ^rant t)f the admiiustrution on appeal {d). Tlie ;4rants of probate and athninistration, save and v.i-vfpf, are usually made in the tii-st instance, without the pai'tifs waiting; for the Hunted oTauts bein^' taken. When till' latter have been mado, it is more usual that the probate or adniinisti'ation be cn'terorain ; but there is no reason, tliou^'h a linuted s;rant has Vteeu made, that the following H'nuit should not bo " safe and <'.fc<'i)t " (c). (Jrauts sare and rxrcpf are not made unless strong ivasuns be given (/). |./i Wins. Kxors. 4-44 cit., Cn^iccll v. Mor/ian, 2 Cas. temp. Loc, T)?!. See iilso Wdttx, 1 Sw. A Tr., and Somerset, 1 !'. A 1). H.')0. {<■) 1). iV n, 47r>; Harris v. MUhurn, 2 II;i>,'l;. G2 : Wins. Exors. 449, ami C. iV: Tr. iOll. (/) Wutts, 1 Sw. & Tr. 538; Somer.^cf, ] 1'. A D. ;{.")0. > i 1 214 ADMINISTllATION' CHAPTER XIV. GRANTS C.in'?:ROUUM." (J rants rifteronon I'l-obatf ecvkrorum Adiiiiiiis- tnitioii (will)c(rtc. rorum. To next of kill after limited probate. The probate or administration fol lowing- upon a limited grant is cn'teroriivi ; i.e. — to administer that part of an estate to which no j^rant lias liitherto applied {). If the deceased has made a will and appointed an executor for a special purpose, or for a specific fund or property only, and has died intestate in all other respects (a) Doxley v. Stubington, 2 Lee, 542, (1758). {b) Noble V. Phelpg, ante. " GRANTS C/ETEUORUM.' 215 his next of kin, after the executor has taken a limited probate of the will, are entitled to administration of the ivst i)f the deceased's effects. If ;i limited administration has been granted of the After elt'ects of any intestate, his next or kin are entitled to take adminis administration of the rest of the deceased's estate (c). And ''*'^'°"- wliere a bastard having no relations makes a will disposing ot a part only of his or her property, the Crown has a rii:fht to a grant save and except, or to a avteroravi grant, but not to a general grant of administration, and the legatees have a right to a grant of administration with the will annexed limited to the property disposed of by the will I"'). \n C. A- Tr. 172 ; and see Rhoade-f, 1 P. & D. 111*. :■(") Pihoo'.ies, ante. m '1 1 *.■ 216 ADMINISTRATION jiili ii I 4 i h „ 6 J ■ Spcfiiil Xniiits UlldtT Sic, r»(iS. (J. A. Rfcitals in oath, t'te. CHAPTER XV. GRANTS MADE UNDKK SEC. r^u SUKHOGATE COURT ACT (SPECIAL circu:mstances). Ecl'ereiice has been incidentally made to the special power and discretion conferred upon Snrron^atc Conits liv section 5G of the Surro^'ate Courts Act, and the secrinn is set forth hi extensn under tlie title " Limited Grants i" . The Surrogate Court Rules make special reference in [he exercise of the power conferred by the section referred to as follows : — " Under the Statute the several Surrogate Courts have power to appoint an administrator other than the pi'i'.-nn who, prior to the Act, wouUl have been entitled to rln- grant. (Sec. 50.) Whenever the Judge sees tit to exercisf such a power, the fact should be made plainly to a))prar in the oath of the administrator, in the letters of adiniui>y any technical rules to impede that distribution." Where u\nm the state of facts mentioned in the first linnciiil». N t'CfSMtV or fciiivcii- i.iU'i 'if the section, it appears to the Court to be necessar\' i'lHf. ill' c(»iiveiiient(r) by reason of the insolvency of the estate, (irotiier special circumstances, it may appoint some person f I lie administrator of the estate, (;r of any jiart of it, — u[\u'v than tln' jiei'son who, but for this enactment, would li,i\r lieen entitled to the ^'rant. A vrant of administration for the use and benelit of the l'''"!i"^'ty iifxt (if kin was madc^ under the siiecial nower referred to —'"'^t cf isrc, 7-"!. hn^'. rroli. Act, correspondini^- with sec. 5(j S. (_. Act) where the estate of the intestate was pi'rishable and the next of kin were abroad (d). The ( 'oui't exercisL'S the power conferred l)y this section in (.'iisr of the insolvency of the estate of the deceased yO. Where the person entitled, the son and oidy next of kin of the intestate, was in New Zealand, tlie Court upon lieiiii; satisfied that an innnediate repi-esentation was neees- ^iiiy for the preservation of the estate made the ^rant to the sister of the deceased, under this seetion, foi- tln' use •d\u\ hi'Ueiit of the next of kin Hunted unto such time as he 'T liU lawfid attorney slioidd obtain adminisfj-ation (/). (il :i Sw. A Tr. 2(;.1 (isr,;!). (,■) Unrlcl Cooke, ante. id) Yoiiiiti, m; L. .]. P. i»i :»r. so (^'ooil will of business); uiid nee I'h.lwill, iio L. J., I'. A 1). 7"), ivml 1 I'. D. r.)2 a'arm stock, (.•i'oi)s, etc.), H:id •'■'))„■.>■, 1 Sw. & Tr. 11. (''I KII' The Court Probate, En^., made the {jjrant to a person as bein;,' entitled by the proper court of the deceased's iloiiiicile to administer liis estate, a Colonial Court havinjif already granted probate to such person, a legatee, as i\t'('ut(ir accordint,'' to the tenor, but the former not feeling i\],]f V) make the grant in that capacity made it unt'ctii)n referred to (sec. 78 E. C. P. Act, corresponding to sfc. .')») S. C. A.(7i). A testator having appointed an e.\ecutor ("hat no one hail ever heard of, and who could not be discovered, the Court granted by consent administration with will annexed to iiiiiM)!' the residuary legatees ((>). A. died intestate leaving foni- children, of whom one Aiis.ncc was ut' iige, but was abroad, and the othei's were minors, ity. ah! an immediate grunt being necessary it was made, uno'i- the statute mentioned, to the duly elected guardian n\ tho inin(3rs, for theii" use and benefit, limited until some nn>; of them should apply for it( />). Wht-re I person being the sole party interested in, and Rommcia- the sole part}' entitled to i-epresent, the estate of a deceased, consent in 'lie'l witliiiut having taken out a grant, and his personal Jr^j-'t;^,!.' representatives had filed a renunciation and a consent to the grant being made to a creditor of the party so originally interested and entitled, the Coui't made the grant under tiiis section to such creditor {q). Whi-re the deceased, a paper manufacturer was alleged Estate in- to be insolvent at the time of his death, and his next of m.xtof'kin kill was a woman of dissipated habits and unfitted to carry ""'''■ "U, ur wind up the business, the Court, under this section, ;'ranted administration to a principal creditor, wlu) applied t'lr the same with the sanction of other creditors (r). iu] Earl, .36 L. J., P. & M. 127. '!>) Ilnrgui, 32 L. J., P. & i\I. 158. I /) Emma L'rater, 1 P. & D. 327. (o) Sawtell, 2 S. & T. 448, (r) Farrand, 1 P. & D. 439. ■ » 220 Klt-'ctioii by iiiiiKirM. Kstatff .small, and linxt of kill altHfiit. SiiIh »'xo- ciitur (It'ud, anil next of kill uln'oiid. I't'i'son en- titled, a iniiatio. Where per.sDii en- titled was a lunatic in Asyluin, and niain- tenaiice due. ADMINlSTUA'IKiN' Tlu' iicfireHt rrl.'itivcs of the iniiior cliiiihvn of u lU'Coivl liaviiiu' Ik'I!!! filii'oiul foi' iiuiii\' veai's witiiout lmvin<:' ('(Hii- munic'iitcil with their fricmls in Eiiu'liind, the Cnuit "f Probate there pennitteil the children to elect aimtli'i' pei'Hon to take adiniiiistration on their liehalf of the i^nitf of their fatlier without citing' sucli nearest rehitives in tli>' tii'.st iuHtance (/). The Court ;^'rant(>il a(hnini.stratitt.'i dui'ine; her lunacy, to the stepmother, who was co-oxocutur and co-truntee with deceased of the fatlier's will, ami Ihui- ticially interested under it. Surviving- cousins not 1 i-iii: cited (yr). Where a pauper lunatic, an inmate of a )Mi1)lic a^yr.iin oil wliose account arrears of uiaiutenance were due, heCiMiv entitled to money on the decease of her mother, a <,'raiit was made luider thi.s section to the public otiicer. for lier use and benefit, limited to the period of her lunacy a citation iuivin<^ issued (x). (t) nurahmore, 3 P. & I). lU'). (ii) Hunger, H Sw. & Tr. ''.^:. ((•) ,hilni Sec, 1 P. & D. K(j ; 27 W. R. GO.J. (»•) Mary liitrreU, 1 Sw. & Tr. 01. (.(•) Fiiidliii/, 3 Sw. ctTr. 20;-,; soe aho S!iiiiihers, 34 L. J. P.ctM '.'^i: and iViiideiUl,'v. Sharland, 2 P. & D. 217, 20(1. SI-i;|)erty. the rt'siiluMiy iei;iitue who was a marrit'd woman, witiioiit ii'iticf to her husl)an(l, th'' I'l-siihit! bt;in;; .sottlt'd to her seiiamte u.se, ami at her al)solutu disposal (//). A. died a .spinster ami inti-statc, Icavin;^ her mother Ilushami'M , III • 1 1 i • t'IPllSCIlt and one sister; the mothei- had married a second time (lispinsid and her husband was abi-oad ; the Court without recpiirinM- 1),!,-,,'^, "* till' renunciation ot" tlu' IiushamI, upon the mother's consent "•'"'""■''• -laiiti'd administration to the .sister (;). The deceased e.\ecuted a will in which she appointed ''»"'*';"''*" ' Lj- iiiid ivl>- u'l rxi'cutor, who sul)se(iuentiy became bankrupt and lelttK'iice.if the cKuntry. 'i'lie ]iroperty beim;' small, on the consent'"'*' of tlie next ol" kin tli(.' Court, by \-irtuti of this section, ::iiuiti,'d administratiun (will) to one oi the parties inter- '■stfii under it ('0- .1. \V., entitleil to ]>roperty of his wife E. W., who pre- (Jef-Msed him, became indebteil to the estate of .1. P. Tlie ■ ). A testat'if jiMiniuated as executor " William George, of ^^''''f" ex- ' I'ii )ury >iiiuare. Watchmaker,' who on the death ofnanud •.•!»tator cofild neither be found or heard of, and the i,""f,',jj'jj_ (;/) Si-,: 1 P. & D. 338. (;) / 'amcarne, 30 L. J., P. A M. 3.j. ('() hlviru Louisa Cooper, 2 P V D. -'l. i6i Ehuiheth Wendey, 7 P. 1'. 13. :-i>. 222 ADMINISTRATION. Doubtful legiti- macy. Lctterti of int.oruc- ti(»ns. Assets transmit- ted from abi-diid. Presump- tion of death. Foreign tyrant fol- l()\ve were transmitted from abroad for distribution to thos'.' entitled, and a grant issued to one of them, limited to tlie property so transmitted ( / ). A craiit was made under this section where adniiiii.'- tration was applied fur on presumption of death, by th' next of kin of the presumed deceased and there was a doulii as to whether the intestates father predeceased him (g). The section has also been held to enable the Court so t • make its grant as to follow a foreign grant in re.spect "i the person to whom it should bo committed [h). The Court will, but under special circumstances uiily make a grant of administration to a nominee of the parties interested in the estate (t). But not merely because th: next of kin have agreed to renounce in favour of sucii nominee (,;*). (r) S,iwtell, 2 Sw. .t Tr. 448. {d) Hopkim, 3 P. iV U. &' (e) Driiikwatei; 2 Sw. c& Tr. 611. (/) Hughes, 3 P. A U. 140. (r/) A.-itell, 31 L. J. (N.S.) P. M. & A. 38; see Peck, '2 Sw. A- Tr. .50' Smith, lb. 508 ; and How, 1 Sw. A Tr. 53. (/() Karl, 36 L. J., P. M. 127; and see Connahaii, 1 P. & D. lt^:(.,ar.i Hill, 2 P. A D. 8'J. (i) Joseph Clayton, 11 P. D. 76. ;■) Pl.ike, 35 L. B., P. cS: M. 91 ; and see Richardson, ante. H SPECIAL CIRCUMSTANCES. 228 The proper course to be pursued under such circum- stanCL'S is indicated In the goods ofBallar(k) and followed bv Sir James Hannen In the goods of Hale (1), namely, — that the next of :in or persons entitled should " take the (Trant and then appoint a nominee to be their attorney." \ pen an application under this section for letters of administration limited to the applicant's interest in the reinaindev of a term, the deeds showin*^ the deduction of title were recjuired to be brought into the registry (m). The ritrht of the husband to administer to his wife's Tr Iuk estate is not a right which passes to the husband's trustee i'l bankruptcy, (referring to the English Bankruptcy Act of 1SS3). But though not entitled on that ground, a grant has been made to such a trustee under the 73rd sec. Eng. C. P. Act corresponding to sec. 50, S. C Act (n). A ioiiit ii'rant of administration was made to the widow -'oint . . "rant. anil two eldest sons of the intestate, one of such sons being"" a minor, but within si.K months of his majority. There wt've speciid circumstances which were taken into consider- ation by the Court, viz., that, in a testamentary paper left by til'" intestate, signed by him, but not duly executed, he expressed a wish that his wife and children should take the whcjle of his property' e(iually and that his business shouhl he carried on by his wife and his two eldest sons, who slujuld act as hie executors. All the other children of the intestate consented (o). l)oul)ts having arisen as to the legitimacy of the pcr.son Apriv.-urn claiming to l)e next of kin, it was agreed between the per-,,artif )ct\vee!i s ill- )us interested in the estate of the intestate that such [."'J|^'r' '" claimant should apply for a grant of administration under the provision of the Probate Act as ti) "special circum- (k) 22 L. T. (N.S.) 140. (/) 3 P. & 1). '207. («) /•'. h\'ciu', 28 L. J. (N.S.) \\ & M. 3.5. (») Jaiw Tuinei\ 12 I'. D. 18. (.') Dirkciison, (1891), P. 292. '^f 224 ■21 Hf-n. yTIl.,c. L'itatinu. SpctMal ciix-uni- stanci's. (J rant re- fused. .Sjiecial oircuiu- stancL's. Grant re- fusfil. ADMINISTRATION stances," and tliat the estate should afterwards bo (Hvided between tlieni and tlie chiiinant. It was lield tliat were special ch'cunistances to warrant the Court in iiiiikiii(» a grant to the person ap[)lying in pursuance of the agree- ment (o). I On an application for a grant of administration to tin- father of the intestate, ])asHing over the widow aijiiiiist whom misconduct was alleged, and who was out of the jurisdiction, the Coui't refused to make the grant without citing the widow; observing that to do so would be to open a very wide doin- to niisrepresentati(jn (p). Applications for administration with will annexed ander this section of the Act have been refused : — 1. Where the only ground was that the person entitled to the grant wished some other person to take it(q), 2. A creditor was refused the grant without citing residuary legatees resident abroad {r). ii. Also refused where the reason set forth was the bad character of executor (s). 4. The Court would not make the grant on ground of in- solvency of deceased, where the insolvency was dis[)ute(l(f), 5. The insolvency of deceased is not a sufficient ground for making the grant to a creditor as against parties li;iv- ing a better title {ii). G. The grant was refused to a person having no interest in the estate, although agreed upon and nominated by the next of kin (r). (o) MiiisluiU, 14 P. U. 1,-)1. (;)) Middletou, 14 P. D. "iii. ((/) llah; 3 P. & D. 207 ; 31 L. T. 7!)'J. (;•) llawke v. IVeillcrhmtrne, 1 P. & D. 594, (,vi S,uiisi,ii, 3 P. A- D. 48; '21 W. U. :>M. (t) Fairireutlwr, 2 S. of it. In the Probate Division, Eng., an administrator, limited to attend and substantiate proceedings in the High Court of Justice, who for this purpose will have sworn the deceased's estate under £50, may be afterwards re-sworn and give security in any increased amount (/). In cases where the alteration is not in the amount of the deceased's estate, the administration bond is sometimes re-executed, and sometimes a new bond is given. If a codicil be found after probate of a will has been granted, a separate probate is granted of that codicil, and the first probate undergoes no alteration or amendment whatever. If, however, the appointment of the executors under the will is annulled or varied by the codicil, the probate must be brought in and revoked, and probate will pi Aciminis- tratDr liiiiitcd to lirocceti- iin;s in Cliancery uiay in- crease. l?ond re- exicnted, or new bond. Probate nr)t alter'd where codicil found. (c) Weir, 1 Sw. & Tr. 506. do See Coote & Tr. 11th ed. 188, and Wms. Exors. llth cd. y27, cit., The Stamp Duty Act, 55 Geo. III. c. 184. See also The Sttrcession Duti/ ■M, 1S'J2. Ont. («) Sutherland, 1 Sw. & Tr. 18'J ; 31 L. J. P. A- M. 126 ; Boss, 2 P. D. .1- ■■ ' (/) Coote, 178. But see Jones v. Howells, 12 L. J., N. S., Ch. 309. and C. Dodjuoii, ante. 238 ADMIXISTRATION. Further ♦•ngross- iiieiit in Probate. Xotioc to Siirroerate Clerk. be ^fninteil anew of tlie will and codicil. But should an unattested or unexecuted paper, incorporated by the tes- tator in his will, have been omitted from probate, thai probate may be amended by engrossing the former into it(^). All the facts stated in explanation of an omission or mistake are to be proved by affidavit. In a case liefore The ^larried Woman's Property Act, in which an executrix being a married woman took ]irobate as a spinster, the court would not allow her name and description to be altered without her husband's consent (/n " Whenever any renunciation is filed subsequent t" notice of application to the Surrogate Clerk, or any altera- tion is subseijuontly made in the grant, notice of sr.cli renunciation or alteration is to be immediately forwanlt.ii by the R(>gistrar of the Court to the Surrogate Clerk. "— S. C. Rule m. (r/) SliL'ildon V. .S'., ,; No. Ca. :i.")0; and 1 Rob. 81. See further (is t Alterations in Grants, Powles i Oakley, ovd ed. 3'2L (h) Rev. W. Hale, 5 No. Ca. 511, 515. DOMICILE. — BIUTISII AND FOREIGN 'HANTS ADOl'TEI). 239 CHAPTER XIX. DOMICILE AS IT AFFECTS GRANTS.— WILLS PROVED AND GRANTS MADE ACCORDING TO UNITED KINGDOM, COLONIAL AND FOREIGN LAW. Whvi'e the testator or intestate had no fixed place of alindo in or resided out of Ontario at the time of his death, pruof of the iv'dl, or in case of intestacy, i')iX)of that the {h'.cmseil Jici^ " ' ■'>tate is inter alia hy .sec. 3() S. C. Act, uecessaiy to enable a Surrogate Court to make a tyrant. A foreign grant (a) of administration (/>) or letters pro- l)att'((0 dri:^ .i.if apply to assets in this country. The prnic.pio of international comity expressed in the Maxim maxim inobilla f^eqiiantwr lyn^onam, which is saitl to he'^'/niui'tAr the only principle of the whole of our law as to domicile^"''"*'""'''"' whuii a[)plicaljle to the succession of pers(mal estate ( = S AD(3PrEI). 241 Tliat is properly the domicile of a person whex-e he has V';."'!'^'.''''' , • I'.i i,.i definitions hiH true, nxecl, permanent home and pnncipal establish- of. uient, and to which, whenever he is absent, he has the intention of returning (0- Two things must concur to constitute domicile, (1) residence; and (2), the intention of nmkino- it the home of the party (in). Domicile means the place or country which is considered by law to be a person's permanent home {Dicey, p. 1). It is also defined {PhlUiinore, § 49) to be a residence, at a particular place, accompanied with an intention to remain there for an unlimited time. Change of domicile is proved by facts and actions, not liy a simple declaration {n). The domicile of the husbaml is during coverture the iloinlcile of the wife (o). A minor cannot ac(iuire a domicile other than of uri>rin (p). The domicile of origin, which arises from birth and con- nection, remains until clearly abandoned and another is taken ; and of two acknowledged domiciles, in the absence if tviik'nce, that of origin prevails ((/). The domicile of residence is prijna/rtcie evidence of the iomicile of origin (/•)• Generally speaking the Court of Probate will adopt the lecisions of a Court of Probate in a foreign country in (I'i Story's Conflict of Law, Gtb ed., p. 37, citing Vattel. (m) Dover's Civil Law, lOti. ('I) Phillim. Juris., p. IH'2; D. & B. :!•>. And see further as to evidence of domicile : Jessup v. Sinipsou, 14 U. C R. '213. {o) }Ic Donald V. McD. , 5 L. J . U. C. titj ; Kdwards v. /•;., 20 Gr. 802. (;i) Somerville x.S., 5 Ves. Jr. 787. For exception to this rnlo sec ^•■'hihn V. Robins, 7 W. R. 074. Ul) SomervUlc v. S., aupra. I'I I h' Bonne fid v. DeB., 1 Curt. 86:1; see also Miinro v. .1/., 7 (1. v Tin. sdl. II.s.C— 10 I ^ r 242 Probate of Will. Foreign g^rant re- cogTiized. DOMICILE. which the testator died domiciled (.s). And the practio^ now i3 to follow the grant of the testator's domicile, not merelj' as to the document which that Court ha.s admitteil to probate, but also as to the person to whom the f»rant is made (t). " Before grantinn- probate of a foreign M'ill (which may betaken to applj^ to all testators domiciled abroad), the Court will require to be satisfied of one of two things;— either that the will is valid by the law of the countrv where the testator is domiciled, which can be proveil hv the affidavit of an expert in that law, — or that a court of ; foreign C(juntry has acted upon it and given it eiiicieiicy. " The practice of the Prerogative Court was somewhat la.x with I'egard to admitting foreign wills to probate, and lately more than one foreign will has been admitted lu probate in this country, which, as it afterwards turned out was not valid in the country where it was made." " The Court will be satisfied with 'prima facie evidence that a will has been recognized and acted on by a foreign court ; but it will not give ef!ect to a document in respect of Avhicli tiiere is no evidence whatever before it that it is a gmi'l will."(H> Applications for grants in such cases are made : — 1. After a grant has alreadx' been made in the cuirati'\ of domicile ; 2. When a grant is tii-^t applied for in a Surrogate Court in this Province. " The court has no power to grant probate of any foivign will unless it is prima fade satistied l>y some document "i another that such will has been recognized as valid hv tht foreign court : or unless it is proved a valid will acC'.irdin^ {s) Wms. Exors, 'Jth ed. '2'JS. (t) See Hill. \> P. i^- D. !>0 ; Milh'r v. Javien. 3 P, & D. 4. ((() l>,;r Sir J. l\ Wil.l.', iu I>,:xrcutors had been (as it was) duly authenticated by those 'Xtcutors in the proper court in Russia, it was the duty of till' Probate Court in this country, at once to revoke the litters of administration which had been granted, and to eiuthe the Russian executo)'s with ancillary letters probate t" enable them to get possession of that personal estate ■ I Per Sir J. P. WMe, in DeVigny, 84 L.J. N. S. (P. M. & A.) 58. ' f) In re O'lirien. 2 0. R. 32it; Re IVilliums, 5 Demarest (N. Y. Surr.) !•' See Jfi7/, 2 P. .t D. DO; Smith, It) W. R. 1130: aud Miller v. '"'^''. H P, cV D. -t; -21 W. R. •J72. .1 10 II. L. l',». R! '^W m 244 DOMICILE. Mifl'lj Notarial ct-rtifioatc iiiHuttici- cut. ]-",ngli.sh >,'riintH. Knglish and Irish grants. P^xempli- ticationp. which in fact thou^di not in law, was locally situut" in England." (c). But as before stated a cony of a foreign will autlunti- cated by a notai'ial certificate merely is not sutiicieut. Some document equivalent to probate is required. " If,' said Sir J. P. Wilde (a), " you can show me any document that [nir- ports on the face of it to be e(juivaleut to probate, any act of the foreign court the language of which carries to my miinl in any shape or form that the foreign Court has ailopted the document as a will, that will be sufficient for me. " As to cases where a grant had been made in EnglaiiiJ the law was stated by Lord Mansfield, C.J., in Jhirn v Cole {h) ; viz., that where the deceased resided in En.'- land, and had assets there as well as in a British-Aincrican Plantation, the Judge of Probate in the Plantation was bound by the administration granted by the Prerogative Court in England to grant to the same person (c). Upon tiling an exemplification of letters probute ir letters of administration granted by the Probate Divi.-iai High Court of Justice, in England, or of the grants of tlK' former courts, having probate jurisdiction in Euglaml. i>r of grants made in Ireland, a Surrogate Court in this Pro- vince adopted such a grant as the foundation for a n-.w grant as to the property here (d). A similar practice prevailed in the former C^urt of Probate for Upper Canada (e). {z) See also Carhe, ir, W. R. 881 ; 36. L. J. (N. S.),p. 7'.' ; and Vil: ubi. inf. "Ancillary Grants." (a) DeVtgiiy, supra. [h) Amb. 416. (c) And see Wms, Exors. 9th ed. 301. (d) Ctithbert, dec, Surr. Ct. Co. York, 1879. Ann Oe,- MdcaulayJI: 1802; n. Ihtrnett, lb., 1874; Rev. Titos. Schriebif, lb.; F. V. Sortheij.i 1879. (e) Sir James Monk, 1831; Maj.-Oen. Hy. Darling, 1837; >■' Shntcr, 1856; W. 11. Sanders, 1854 (Ireland, Exemp. P. C ) HIUTISH AN'I) FOREIGN' ORANTS ADOPTEO, 245 llLsealing has now been substituted for tlie new grant fiji-merly issued, by Act o£ tlie Legislature of Ontario, as folit.iws : — "Where any probate or letters of administration, or ^^"»ti''f otht-r le^al document purportuii^ to be of the same nature, feet to (iranteil by a Court of competent jurisdiction in the United p[.;',i',.ite' Kinu'dom, or in any Province or territory of the Dominion, ||j^-^;jV'^^|j ^^^. or in any other British Province, is produced to, and a copy ^-^''^'I'liiil thort'i^t' deposited with, the registrar of any Surrogate Court (if this Province, and the prescribed fees are paid as on a i^nuit of proljate or administration, the probate, or letters (if administration or other document aforesaid, shall, under tile direction of the Judge, be sealed with the seal of theR<'«'aliiiK. Surrogate Court, and sh-ill thereupon be of the like force and effect in Ontario, as respects personal estate only, as if the same had been originally granted by the said Surro- gate Court of this Province, an?rai)ts. iHit'^ DOMICILE. Exeniplitications, aaunderstoDd in the Surro^'ate (.'(>uits. are according to the forms, numbered 25 and 2(3, S. C. liul-.s \K)2, post : whicii foll(j\v tlie forms of the En^flish Court .f Probate. In Scotland if the deceased has left a will or a dt-tM; ot Trust Disposition and Settlement, or other writing, naminj; an executor, such executor may obtain from the .Sheriti of the County, in his capacity of Commissary of the Couiitv, " Coniirmation of the Testament," which is evidenced 1 y a certiticato under the seal of otHce of the Commi-ssariot and signature of the proper officer, called a " Testament, Testa- mentar or confirmation of an executor nominate" 17). If the deceased was donnciled abroad or his douiicik W unknown, the Sheriti" of Edinburgh acting as CommisNiiv grants confirmation. This corresponds to what is known in England a^ [re- bate of a will {h). If the deceased has left no will, or a will not naiiiii.i.' an executor, the Commissary may constitute an execiunr dative qiui next of kin (or other character). The ^tiicial certificate in this case is a " Testament Dative," and corre- sponds to letters of administration or administration with the will annexed in England or this Province. Attention may be called to the fact that real or heritable c?tatt cannot be disposed of by will in Scotland. Any instrument affectmt.' realty must be a deed inter vivos. The appropriate conveyance is a Trust Disposition and settlement. This in9t>*ument, although a deed by the law of Scotland, is not a deed according to the law of Ontario ; as it is r n under seal. Consequently it does not affect real estate here as a deed, u:;il a difficulty arises in obtaining registration of such an instrument in the Registry office. It is suggested that in cases of this nature a copy of the Trusts Disposition and Settlement be obtained from the Sheriff court books or the books of Council or Session authenticated by the seal of the (g) Vich: Imp. Stat. 21 and 22 Vict. c. 50 ; Wms. Exors. 9th ed. 2>. and Eicing v. On Eicitig, 9 A. C. 34 ; 10 H. L. 453 (1885). (h) Patterson's Camp. E, d- S. Laic ; and see "Wms. Exors. (Uh ed. HRITISH AND PtJUEKJN (JllANTS ADOPTED. 247 ,ourt. rtiitl appendt'il to tlie txemplification ctf tljc Cnnlirination, and lecistiTinl as a will. The Disiiosition, although a deed utter vivas, is executed mortis causd. As it may l)e of importance to parties resident in this "^f'tLli ,.ountrv to know tlie order of choice observed by tlie Coni- iiiisMirv in the appointment of executors dative, it has liwii tiiought advisaltle to mention it. The order is :— 1. The universal (i.e., residuary) le;,Mtee, including triistL'es. 2. The next of kin. :■,. ('hildren or de.scemhints of any predeceasing' next nf kill. 4. The widow. I). A creditor. G. A legatee. And when it was necessary that a personal representa- tive should be appointed of the estate of the same deceased in this Pi'ovince, a Surrogate Court would, upon tiling an e.xeinplification or an authenticated copy of the will and testament-testamentar or of the testament dative, in the Rej^'istry, grant probate or administration M'ith the will aiiiK'xed to the pi'oper parties ( i). The deceased havinir been domiciled in Scotland at the Instancfr*. time of his death, and pos.sessed of property in this Pro- vince. .Surrogate Court grants have been made as to such I'roperty as follows : Administration with the will annexed was granted to the attorneys under power of attorney from executors, confirmed in Scotland, of a mutual Disposition and Deed of Settlement, upon filing an authenticated copy certified to have been " Recorded in the Commissary Court Books, (I'l See as to practice recently introduced of Re-sealing p. '24.5 ; and Wms. Exors., 9th ed., 2[\S. Grants, ante .;¥..' IMAGE EVALUATION TEST TARGET 'MT-3) 1.0 I.I 1.25 f liy 1125 - illllM m 12.2 12.0 1.8 U III 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 ^ cF ,\ ;\ ^q\" \ ^^ f<* <^ # 6^ .<^' 1 V ■r^ f> k'^S- %• % \IV. 248 DOMICILE. I ; '( Lanarkshire, to which was appended a copy of the testa- ment-testainentar or confirmation of the executors nomi- nate in the form prescribed by 21 and 22 Vict. c. 5(3, Imp. Stat, under tlie seal and signature of the Commissary " ( j). And in another case on filing an authenticated copy of a will "extracted from the Register of Deeds, &c., in the books of the Council and Session " and the signature of the proper ofiScer (/.;). And in a case of intestacy, administration was granted to the agent of the estate in this country who had re i\ :d a power of attorney from the duly appointed administratrix in Scotland (I). T!v. /■'^sealing of Scotch grants now takes the place of tlie : ■ ^- Lant formerly made : See the Act of 51 V., before (juote',;. The expressions " probate " and " letters of admin- istration " include confirmation in Scotland (m). The Act extends not only to grants of Courts having jurisdiction in matters of probate in the United Kingdom and British Possessions, but also to those made by a British Court in a foreign country ; (sec. 3). A testator executed two testamentary papers, one dis- posing exclusively of property in Scotland, the other deal- ing solely with property in England. By the Scotch testa- mentary paper all the testator's debts were charged on the Scotland. Scotcli estate. Two of the executors of the English will were trustees of the Scotch estate. The Court being satis- fied that no creditor would be prejudiced, made a grant of probate of the English will alone, without requiring the Scotch deed to be incorporated, upon condition that a (j) In the goods of John McDowell, dec, Surr. Ct. York & Peel, lsO'2. (k) In the goods of the Rev. Alex. Pollock, Surr. Ct. Co. York, 1878, and Re Neil Roger, dec, lb., 1877. (0 In the goods of Sir Alexander Mackenzie, Ct. Prob. U.C, 1822. (m) The Colonial Probates Act, lS9!i, s. G ; now in force in Ontario see p. 245, ante n. Probate of Foreign Will,. HKITISH AXD FOREIGN GRANTS ADOPTED. 249 certitit'rl copy of such deed was filed, and a note to that etfect made on the probate (n). Exemplifications of (grants from the Province of Que- Quebec liic (0) : and other British colonies (p). were acted upon by colonies. Siirrojjate Courts in Ontario. The .same practice as modified by the Act of 51 V. c 9, would appear to be applicable to a will that has been in} P. A. Eraser, P. (1891) 285. (o) Hon. Peter McGitl, Surr. Ct. York & Peel, 1861 ; W. Lyman, Ct. Prob. U. C, 1857. It is provided in the Civil Code of Quebec, Art. 842, that wills may be made : — 1. In notarial or authentic form ; 2. In the form required for holograph wills ; 3. In writing and in the presence of witnesses in the form derived from the laws of England. Authentic wills must be made as originals remaining with the notary, Art. 844. Holograph wills must be wholly written and signed by the testator, and require neither notaries nor witnesses. They are subject to no particular form. Art. y.JO. The originals and legally certified copies of wills made in authentic form make proof in the same manner as other authentic writing's. .\rt. 856. Holograpii wills and those made m the form derived from the laws of England must be presented for probate to the Court exercising superior original jurisdiction in the district in which the deceased had his domicile, or, if he had none, in the district iu which he diud, or to one of tha Judges of such Court or to the prothonotary of the district The Court, or Judge, or the prothonotary, receives the deposi- tions in writing and under oath of witnesses competent to give evidence, an 1 these depositions remain affixed to the original will, together with the judf^nient if it have been rendered out of Court, or a certified copy of it if have been rendered in Court. Parties interested may then obtain certified copies of the will, the proof, and the judgmcnt,which copies ai'o authentic and give effect to the will until it is set aside upon contestation, Art. s.'7. As to Testamentary Executors, vide. Arts. 905-924. .\11 tutorships are dative ; they are conferred on the advice of a family couucil. by a competent Court or by any judge of such court having civil iuris.iictioii in the district where the minor has his domicile or by tlie prothonotary of such Court, Art. 246. et seq. As to curatorships, vide, .Ut. S'il, el si-q. As to administration by tutors, vide. Art. 290, et seq. Succession is the transmission by law or by the will of man, to one or more persons, of the property and the transmissible rights and obliga- tions of a deceased person. Art. 690. An intestate succession is that which is established by law alone, and testamentary snccc- sion that wiiicli is derived from the will of man. The former takes place only in default of the latter, Art. 6',t7. As t(j the acceptance or renunciation of ^ucessions, vide. Arts. 641-688, and R. S. P. Q. 1888, Art. 5801. See also R S. 0. c. 02, as. 32, 3.S ; and Sharpe's Civ. Code, Que. (p) See Statutes in Appendix. An Act respecting Ancillary Prohnten liK'l Lfttert of Administration, 51 V. c. 9, Ont. ; and ^m Act to provide for t''/ Recognition in the United Kingdom, of Probates and Letters of Adminis- trillion granted iu British Possessions, 55 V. c. 6, Imp., The Colonial Probates id. im'. 1 1 i ■Ji; i ,y 1 m ': l^ 250 DOMICILE. <1-: \i Ifv. United StateM. Il Belgium. Persia. proved in the Consistorial Court of the Bishop of Sojoi and Man, or in the Decanal Court of Jersey or in am- foreign court, it being pi'esumed that the court in whicli the original will is deposited is competent to deal witli ihe matter, and has been satisfied of the validity of tht- will, no affidavit of law or domicile being retiuired (7). Exemplifications from Surrogate or Probate Courts in the United States, which are Courts of Record, havini; seals, generally contain a transcript of the record, Hhowini; all the proceedings had before the court, upon which tht- court based its order or decree for the grant to issue. They cover the same particulan ps the forma referred to at page 244 ante ; and are issued under the hand and etal of the court. Upon such an exemplification being fikil, a Surrogate Court in this Province will follow it in making a grant as to estate in this Province (r). A testator having an English domicile of origin died in Belgium possessed of property in England and in Belgium. He left two wills, one in the English fona dis- posing of his property in England, the other in tlie Bel- gium form disposing of his estate situate in BelLduni. The Court on the renunciation of the Belgian executor and on an affidavit that, according to the law of Belgium. the Belgian will only applie*! to the property in that country, granted probate of ,both wills, as together con- stituting the last will of the deceased, to the English executor (s). D. M. K., a Persian subject, was by decree of a Persian Court declared entitled to certain property in England, The decree, though founded partly upon a will, made no (q) Coote, 8th ed. 212. (r) R. S. Buchanan (N.Y.) Srrr. Ct. York & P., 1862 ; Ann J. Va^lifn (La.), lb., 1879 ; F. Chatham (N.Y.), lb., 1879. The same practice pr>. vailed in the former Court of Probate U. C, John Hay (N.Y.). li^SO. («) IK. IF. Bolton. 12 P. D. 202. »i URIT'SH AND FOREIGN (JRAXTS ADOPTED. 251 iiitntion of it ; and the Court wliich had custody of the will refused to give a copy of it. The Court of Probate •^mnted letters of administration limited to the property mentioned in a duly authenticated copy of the decree. The Court allowed the law applicable to the case to be proved by the Persian ambassador {t). The testator executed tw^o wills — one according to the Kn<;lish form, appointing executors, and disposing solely of his property in England, the other according to the Swiss form, by which no executors were appointed, which purported to be entirely independent of the English will, and which affected only property in Switzerland and Italy. It was held, on an affidavit being filed that if the Kn'te U> Dn^t Ahj A'/i(iH, fi P. D. 6. («) De La Rue, 15 P. D. 186. (' ) Ca'.Uway, ir, P. D. 147 ; following In the gooth of A^tor, 1 P. D. 150. 252 DOMICILE. Prupcrty in Knjf- liiiiri and Cimada. One of abmaii. country to which it referred. It was held, followinjj In the (fuodx of Astor, 1 P. D. 150, and In the goods of Culla- way, 15 P. D. 147, — that probate might be granted of the English will on an affidavit being filed exhibiting a copy of the Canadian will, a statement of the filing of such affidavit to be indorsed on the probate, an affidavit beinij also required showing that the moveables mentioned in the Canadian will were in Canada at the time of the testator's death, and that the moveables mentioned in the English will were in England (/r). TwowillH. A testator made a will in England which disposed onl}^ of English property. Subsequently he made abroad another will which disposed of property abroad, and can- celled all previous diHposition.s. The Court with the consent of all the parties interested orde d probate of the English will only, and allowed the ^c reign will to bo ilelivered out of the registry for prolmte abroad [x). If the will of a domiciled foreigner be in English, a copy of the English original, not of the registered tiaiis- lation into the foreign language, will be I'equired for pro- bate in this country {y). In a late case a person domiciled in JMexicn made a will according to the law of ]\Iexico, but written in Eng- lish. The proper court there decreed probate of a Spanish translation and not of the original. Application was made for administration (will) limited to property in Enfjland. Per Cur.: "The certified translation of thu original will is the proper document upon which I must act. The courts here give credit to a foreign tribunal foi- having duly inves'^.igated the facts upon which it pro- ceeded : and in this wise I find that the foreign court has recognized the existence of a will in a particular foi in as (ir) St ho was domiciled in the country in which he died, antlin (jntinio. evidence must be given showing that his will was exe- cuted in conformity with the law oi such country before (;) John liule, 4 P. D. 70. (i) C. & Tr. 11th ed. 228. (M [ymme, [1892] P. .«•>. ' if i ^ n 44 ^54 DOMICILE. it will be admitted to probate. The law is proved hy the evidence (usually by affidavit) of a practising advocate in the courts where it is administered (c). The certificate of the British Ambassador, under tiu seal of the legation, has been received ((if)- thoulJhnot ^^ *^® testator, though residing or dying in a f^jreijrii dc.iiiitiltMl. country, was not domiciled there, but in Ontario, the requisite negative proof will have to be given. In this ease the will is tested by the law of Ontario. In making its grants the Court will, in some instances, adopt the rules of foreign law, though they clash with its own fixed principles. Accordingly the Court will apply to the word execute the same sense of limited durati(jn which the French law attributes to it, and will pass over such executor if his time has expired (e). Where the will is in a foreign language, a translation of the foreign will, whether it be tlie original or a notarial copy, must be annexed to the foreign document. The translator, if he is not an English notary, makes an affidavit as to liis qualification, and verifies the translation. When application is made for probate, the executor is sworn tu the foreign original or copy, but the translation alone is engrossed and registered (/). A will made in France in the English form by a French- man who had been naturalized in England, but retained his French domicile, was admttted to probate in England, under the French law (r/). {c) Bonelli, 45 L. J. (N.S.) P. M. & A. 43: Bristowe v. Squevilh;'^ Exch. 275, and D. & B. 372 ; and Re C. J. Campbell, Surr. Ct. Co. York. is7y. {d) Klingmann, 3 Sw. A- Tr. I'J ; see also Ann Dormoy, 3 HftgtJ. 767. (e) Lann^nville v. Anderson, 3(J L. J. K. (N.S.) 25. {f)C. &Tr. 230; and Dehai8,ubi.»ni). (g) Lacroix, 2 P. & D. 97. TrunsUi tijn. ■ i ■ ■i '■'4- : HUITISH AND FOUEIOX OUANTS ADOITED. 255 The Court will also defer to the rules of forei}]jn law in ■/nuiting aJministration of the intestate estate of a domiciled funit;iier(/t). As in a case in which it was granted of the effects of a domiciled Scotchman to the brother, the next of kin ;;f the deceased without citing the widow, a similar _'r;\nt having already been made in Scotland (i). There are special statutory provisions in England as to alinitting to probate the will of a British subject made out .f the United Kingdom, whatever may be the domicile of >ueh person (j). A will of a foreigner executed abroad according to the tMriiialities re(juired by the English la\/ is invalid, not- withstanding the provisions of 24 & 25 Vict. c. 114 {Imp.), and the Naturalization Act, 1870 (Ic). A will made according to the forms of English law by ail alien, who, tliough her domicile of origin was English, wa^ (hjuiiciled abroad at the time of making her will and at her death, is not entitled to probate in England. In 'literminiiig what is a valid will of an alien, the general piiuciples of law prior to the passing of the Naturalization .\ct are still applicable (l). A testator domiciled in British Guiana by his will ajipohiteil two executors — one resident in the colony, the other resident in England — with power of substitution in the event of either or both being unable or unwilling to :ict. The executor resident in the colony administered the '■state on his own Ijehalf, and on behalf of the other execu- (/() Inabella Steicart, 1 Curt. 904; Viesca D'Aramhuria, 2 Curt. 377; /•w.7i'(, 1 Add. 340; Weaver, 3(i L. J. P. A M. 11 (iHli,-)) ; Geiitilli, sup. ; Wharton's Court. Laws, S (508; Kent's Com. 429 n (G) ; and Wm.s. Exors. t'th ed. 366 ; C. & Tr. 227. (i) David Rogcrson, 2 Curt. 650. (./I Imp. Stat. 24 and 25 V. c. 114, 18fil. It is said that before this mutiv nice (juestions arose as to how far wills were valid where a chanf,'e of (iDmicile. subsequent to the making,' of the will, had occurred, which mw, so far as British subjects are concerned are put an end to by this s-.atute. Powles & Oakley, 3rd ed.- 190. («) Ilaroite.1.1 Von Bu$eck, C, P. D. 211. (I) Dhxam V. Favre, 8 P. D. 101 ; and see Keller, 61 L. J., P. D. & A. Adminia- tration. nriti.sh CrUlltniV. Will. Alien . Substitu- tional ((Xt- cutors— Roman - Dutch law. iill I! m 256 JuHtifyint^r Hecurity (liMi)«nH(til with. New Zea- land |)ru> bate. Domicilo (if ori(irin, Scotland. DOMICILE. tor, until ho returned to re.siile there permanently. By tll^ law of the colony an executor under such circuinstaua^ had the right to substitute as executor the Administrator- General of the colony, who thereupon became possesse] of all the powers necessary f(ir the administration of tho estate. This substitution had been effected by the executor before leaving the colony, and there being estate in Euj^dainI which recjuired a personal representative there, the court made a grant of atlministration with the will annexed to persons nominated as his attorneys by the Administrator- General until such time as he or the executor resident in England who had not renounced should apply, and without rociuiring justifying security (>h). A testator, whose domicile of origin was .Scotch, executed a testamentary appointment while on a visit to England, in the exercise of a power contained in his mar- riage settlement. He afterwards accjuired a domicile in New Zealand, and there duly executed a will in which ho referred to the testamentary appointment and contirmeil it. The executors named in the will obtained probate of it in New Zealand ; but no mention of the testamentary appointment was made in the probate. The Registrar of the English Court refused to pass an exemplification of the probate on the ground that the testamentary appoint- ment was not referred to in it. The appointee then moved for a grant of limited administration with the testamentary appointment annexed. It was held that the application must be refused, the proper course being for the executor to apply to the New Zealand Court for the grant of a frish probate including the testamentary appointment (»)• The Probate Division in making such ancillary grants sometimes acts upon sec. 73 E. C. P. Act, corresponling with sec. 56 S. C. Act (o). (m) Black, 13 P. D. 5. (n) Crmoford, 15 P. D. 212. (o) See Earl, 1 P. & D. 451 ; and ante p. 178. For the statutory provision in cases where the testator and in'es-tatf has no fixed place of abode in or resided out of Ontario at the tine of liis death, vide ante pp. 12, 18. ,3 UEVOCATIOX OF OR A NTS. 257 CHAPTER XX. REVOCATION OF GRANTS. "Aftt'i" Ji urant of lulininistmtion no person .sluill Aff< >• have power to sue or prosecute any action or otliervvisc actiuimini^- lis executor of the deceased as to the property comprised in p'i",!,'*,'"tn' (11- atloett'd by such (jjrant of a- <'• i^. s. 57 ('(), as amended by 53 V. c. 17, s. IG, Grants of probate, and ijrants of letters of administrn- ^''^^'t "^ tion (h) and letters of guardianship (c) may l)e revoked atComtM t<. any time upon cause shown, there being no limitation either by statute or by conrnon law {d). In the Ecclesiastical Courts the period of thirty years constituted pi'escription {e). A Surrogate Court possesses (/), and, when it becomes necessary, exercises the power of revoking or annulling fiir a just cause any grant which it has made. In so ili)in<;- the court resumes into its own hands the powers which it parted with on false or inaccurate suggestions ((/). 'I'lio revocation may be either in non-contentious or in contentious proceetlings (/t). {a) See7>()(>A- V. />'., ante p. 'Mi; and Invin v. 7}(ni/i: of MontrecJ, lli. (b) D. & B. 539 ; Wms. Exors, Dth eil. 487 ; C. & Tr. 1, 11th eel. Vj'.K (c) Re Phillips, post. (<0 D. & B. 531). {e) Ih. if) See sections 1, «, 5t\ 59, fiO, S. C. Act. (;;) See lie Ivory, Ilankin v. Turner, L. 1\. 10 C. D. 374. ('() D. it B. 542; and In the Goods of liowlaid ll'ehj ) ; iii' 258 REVOCATION OF GHAN'Ts". Tlie court will revoke grants. (1 ) On the iiiipiicatioii of tilt! ((runteo liiinHflF, luul with his consv ntand co-o|icniti(m. (2) On II suit by citation. (H) On an apjK-al to u liigher tribunal to reverse the Ju\, where the Court of Chancery, after ^jrant iiiiule, (litiercil from i:he Prero^^ative Court in its construc- ti'iu of the will, the Court of Probate revoked the ^-mnt j'.ii'l <,'ave a fresh one to the person who was entitled to the ifsiijuary estate by tiie decision of the Court of Chancery. 5. Where administration was o;ranted to the elected ;'ii!ir(lian of the intestates children, there being a testa- iiiL'iitary i,aiardian who had not renounced {(j). Also letters of administration, with a will annexed, which have been issued upon the renunciation of an execu- tor, who had previously intermeddled in the estate of the testator, and wlio has been afterwi. *ds compelled by the O'lurt to take probate. A Mjrant which has been lawfully made, })ut lias sub.se- —defect 'lUi'iitly become inoperative and useless through circum- tj,,','/^™ stances, or which, if allowed to subsist, would prevent the ^''''*"^'*' ii'luiinistration of the esttite will be revoked. (/') 28 L. J. (N.S.) 124 ; 1 Sw. & Tr. 290. ('/) Louisa Morris, 5 L. T. (N.S.) 768. ^r■ .... ft ^: : : ' 1 'ff 8i - ^ ' '' ' ■ ' si ffi^i 1 -fl 9' • ' If ■'■' ' llF ' 'S' ■ X* ' ^ a &'< 260 Powers reserved. REVOCATION OF GRANTS. Where a grant has passed the seal after the party applying has died. Where one of two executors proves a will, and be- comes a lunatic, the other executor, after the lunacy of his co-executor, takes probate himself (r). But by the practice of the Probate Division, Eng., as stated in a work of authority (s), the letters probate first granted wili on motion be impounded and a double probate granted to t!ie co-executor. Where administration, with will annexed, has been granted to two or more residuary legatees, of whom oiu' subsequently becomes a lunatic {t). Power is reserved of making a grant of probato to the lunatic executor whenever he shall become of soiui' mind (u). Where one of two or more administrators becoui-/- incapable and of unsound mind a fresh grant being mail. to the capable administrator (i?)- Where a tenant for life of a certain hind, aft.i taking administration thereto, assigns his interest therein to the remainderman, the court has made a grant to th' remainderman (^y). W^here a creditor, after a grant of administration witli or without will, has paid himself his debt, aud kii tlie country (,»•)• (»•) Manhall, 1 Curt. 2'.I7. (x) C. ifeTr. nth ed. 202. (t) FJiillips, J.dA. ;j:5C ; 3 Curt. 420. ((() Cootc, 181). (v) See Neivton, 'A Curt. ■i'2S; Phillips, 2 Add. 'do5, (w) Ferritr, 1 Hag^'. 2'13 ; Coote, 18'J. (x) Jenkins, 3 Philliin. 33. The 74th section of " The Court of Pro- bate Act, 1857, rendered revocation unnecessary in this state of tliTigi by allowing a grant to be made durunte absentia." C. & Tr. 'i02«. Possibly section 5G, S. C. Act, would have a similar effect in Ontario. im I il REVOCATION OF GRANTS. 261 A crant of administration of the estate of an intestate Kevoca , tion of was made to a creditor who, after his debt had been fully grant. satisfied, absconded and could not be found. A personal representative of the estate being reijuired in an action in tliL' Chancery Division, the court revoked the grant to the creiiitor without citing him, and made a new grant to the s.ilo next of kin of the deceased (y). 7. A creditor, having been paid her debt, was desirous —creditor hniui. fide of retiring from the administration of the estate (:). In the last mentioned case the court, upon proof of these facts, and that " there were no actions or suits at law or in euuity touching or concerning the estate and frt'ects of the deceased, and the grantee's administration thereof, depending between her and any other person," revoked the grant and decreed administration to one of the intestate's children. It is said that the coui*t can deal, at discretion, with ;'rants made to creditors, for they are appointees of the court [a). There are some other cases which do not come under the tliree general heads before mentioned. Where a grant lias been made on apparently irresist- ahle evidence of intestacy to the Attorney-General, and sulise([uently a person having right or interest applies (b). If administration, with the wiU only, annexed, has been Other jrianted and a codicil be afterwards found, a separate ^'lant cannot be made of the latter, as in the case of a pro- Kite, but the administration with the will annexed must cases. in) Bradihaw. 13 P. D. 18. (:) Eduard Hoare, 5 L. T. (N.S.) 708 n. and 2 Sw. & Tr. 361 in note. I'll Memies v. Pullhrook, 2 Curt. 850 ; O'Brien, ante p. 118. (') See Dixon on Probate, 256. m 'is ■ Htm Tl ly* 262 REVOCATION OF GRANTS, be revoked, and a new administration taken, with both the will and the codicil annexed. An administration may be revoked quia imjrrovide, where on a false suggestion in respect to time of the intestate's death, it has been issued before the expiration of the time, fourteen days, prescribed by Surrogate Court Rule 4, from that event, although it should be ajfain granted to the same person (c). The same rule would seem to apply when it has been issued through the incuria of the registry, and without any false suggestion on the part of the applicants, viz, where the day of the deceased's death has been truly stated. On whose The court never revokes a grant made to a wronf^ per- tif.n revo- SOU exccpt where the person having an immediate right niHde! ^o ^^^^ grant which is to take its place and be substituted for it, asks for it and is prepared to take it at the time uf his application to have the other grant revoked ((/). The revocation of the first grant and the substitution of the new one are made at the same time. Accordinoly, the court cannot revoke at the application of a creditor, whatever may be the merits of the case, because such creditor cannot demand a grant to be made to himself ut immediate right (e). The court re(juires the revoked grant to be produce'! and delivered to the registrar at the time of its revocation so that it may be cancelled in the registry. The registrar cuts off the seal of the Court, and makes a note upon tin grant to the etiect that it was " Revoked by order of the Court on such a date " (_/"). (c) See Toller's Exors. bk. 1 c. 3. (d) See Phillips v, Alcock, 2 Lee, 1 1 ffiiii ipir Subaidary grants. jl Grant im- ixjunded. ■'1 Guardian- ship. REVOCATIOX OF QUANTS. But in Curry (in) under nearly similar circunistaucos the court refused to gi'ant a probate cctterorum. The court will not revoke a grant made on the refusal of a party cited, and not appearing, but long afterwanl.'i coming in, unless there was misrepresentation in tlie first instance in obtaining it (n). There are other cases, also, where the court docs not revoke ; but though it does not revoke the old grant, it makes a new grant of a subsidary nature (o) dependent upon the circumstances which have called for it. Where a person had received letters of administration as a creditor, and was desirous of retiring after having been paid his debt the grant was revoked. The debt was in respect of money lent the intestate on mortgage of served by inserting the same as advertisements i : 1- one of the Toronto morning papers, or such oth.i , , local British, or foreign, as the Judge of the Court i),i y special order, direct." — S. C. Rule 31. {a) The practice in the Probate Division, Eng., as to citations is that which prevailed before the Judicature Acts, not having been affected by them in any way.— C. & Tr. Uth ed. '250. CITATIONS. 267 A citation answers two purposes : those who are primarily entitled to a grant are compelled to take it, or where they do not take, the process provides a substitute for a voluntary renunciation on their part((f). A person named as executor may be cited at any tinie (the seven days allowed by Rule 3 of tlie Surrogate Court Rules having elapsed), even within a month of the testa- tor's death, to take or refuse probate. And an executor who has intermeddletl can be cited to take probate ; and in case of refusal may be compelled by process of attach- ment (c). In the case of a will the residuary legatee cites the Persons to executor " to accept or refuse the probate and execution of thu'^eaw of the testator's will, or to show cause why letters of i^cbnin-?"^^'{j^^|'"'* istration with the will annexed of all and singular the personal estate and effects, rights and credits of the testator siiould not be granted to him (the residuary legatee)." Before any citation can issue in respect of a will the will must have been filed, and the party citing must either have obtained possession of the will, or have had it brought into the registry ((/). The Surrogate Courts Act(e) provides means of com- pelling the production of testamentary papers, as follows : — "Whether any suit or other proceeding be or be not Orders ami pending in the Court with respect to any probate or fi^g^n re- administration, every Surrogate Court may, on motion oi'tErliro' petition or otherwise in a summarj' way, order any person (luction of to produce and bring before the Registrar of the Court or ments pur- otherwise, as the Court may direct, any paper or writing {x."t,'"fa-" being or purporting to be testamentary, which may be "'*""'*' ^'" [b) C. & Tr. 243. (c) Mordaunt v. Clarke, 1 P. & D. 592 ; and Wms. Exors. 9tli ed. 227. (dj See Coote & Tr., lltli ed. 244. (t) Sec. 24. 268 Kxainiiiiv- tion of jKT- Honstoiich- ingsucliin- Htruiiu'nts. Enforcing Bubpo'nas, orders, etc, CITATIONS. shewn to be in the possession or under the control of such person." — S. C. Act, s. 24, a-s. 1. " If it be not shewn that any such paper or writing,' is in the possession or under the control of such person, Ijut if it appears that there are reasonable grounds for believ- ing that he has knowledge of any sucli paper or writing, the Court may direct such person to attend for the purpose of being examined before the Registrar or ii. open Court or upon interrogatories respecting the same, and lie shall be bound to answer such questions or interrogatories, ami, if so ordered, to produce and l)ring in such paper or writ- ing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or wi-iting, as he would have been subject to in case he had been a party to a suit in the Court and had made sucli default ; and tho costs of such motion, petition oi- other proceedings, shall be in the discretion of the Court."— S. C. Act, s. 24. s-s. 2. Counsel are permitted to put questions to the persons so attending (/'\ The examination if not by interrogatories must be in open court (r/). It is not applicable to attesting wit- nesses (h). If the subpoena be disobeyed it is enforceable by process of contempt (i). (/) Cope, 36 L. J. 83. {g) Latcs, 2 P. & D. 459. (h) Evans v. Jones, 36 L. J. 70. (i) " Every Surrogate Court shall have the like powers, jurisdiction and authority for enforcing the attendance of persons required by it ag aforesaid, and for punishing persons failing neglecting, or refusing to produce deeds, evidence or writings, or refusing to appear or to be sworn or to make affirmation or to give evidence, or guilty of contempt, and generally for enforcing all orders, and judgments made or given by the Court under this Act, or under any other Acts giving jurisdiction to Surrogate Courts, and otherwise in relation to the matters to be enquired into and done by or under the Orders made under this Act, as are vested in the County Courts." — S. C. Act, s. 19. CITATIONS. Before attncluiiont is issued aj^ainst the person disobey- inc sulip'i'ua, a preliminary order is made that such person attend and be examined in reference to Ins possession of the paper in ([Uestion ( j). If the Executor have intermeddled, the citation may call n])iin liim to show cause why he should not be com- |)elleii to take probate, on account of his having acted as executor of the will of the deceased (k). And if there be also a residuary legatee in trust, the party ciiant cites the former also " to accept or refuse letters of administration with the will annexed of all and siniiuhir the personal estate and effects, riirhts and credits of the testator " qua residuary lei^atee in trust. A creditor was allowed to take out a citation althoujjh his ri(j;ht of action be barred by the Statute of Limita- tions (/). A legatee, or a cretlitor, similai'ly cites both the execu- tor and the residuary legatees, or the testator's next of kin if the residue has not been disposed of. In the case of intestacy, a person entitled in distribu- tion cites the next of kin of the intestate and his widow, if there be one. And a creditor cites the widow, if there he one, and also all the next of kin and other persons entitled to share m distrilmtion with them. In the case of a person dying without known relations, a creilitor must cite "all persons in general " (/u). This citation is to be served on the Attorney-General (n)- In all these cases the preliminary step to be taken by the applicant for the citation is to make an affidavit of the (,/) I'lirkiiiHOii V. Thornton, :!7 L. J. 3. [h\ I'ytt V. Fendall, 1 Lee, 557; and see Title " Renunciation." {I) Coombs, 1 P. cfe D. 193, 288 ; 3(i L. J. P. & M. 78. (m) See S. C. Rule 30, and C. & Tr. 124, 246 ; and see Form in Appen- 2G9 PerNons to bf cited, and l)y whdin, in case of in- testacy. AHidavit to lead ci- tation. dix. \ h ^FJ (n) Vide K. S. O. c. 59 ; ante p. 133. 270 Caveat to be enteral 1 Caveat eii tered. Service of citation. CITATION'S. facts of the case and of his interest, as no citation issues until an affidavit, in verification of the avennents it con- tains, has Ijeen fiieil in the re;^dstry (o). An attorney, by power, of the party, citant has Ijeen iillowed to make the affidavit ip). It is tlie practice in the Probate Division, En;,'., under n rule to that effect, that before any citation is si^niod Kya registrar, a caveat is entered against any grant being made in respect of the estate and effects of the deceased to which such citation relates. This was under a Rule of lHG2{ij). The practice prior to that date, and as it stood 5th Dec, 1' , 111. (inU'red. tlie ^rant to pass the seal to the party acceptmg it, and tile orticer of the registry will make it out in the usual wav. lA (j) C. & Tr. 248. {h) Goodhurn v. Buinbridge, 2 Sw, & Tr. p. 4. (') S. C. R. C. B. 1. ('«) S. C. R. C. B. 3. H.8.C.— 18 Affidavits of service. Creilitors, Costs CITATIONS, The non-appeai'ance to a citation of a party havincr a superior interest, it' he has been served, has been considered as equivalent to a renunciation and equally binding and effective (n). . If no appearance be entered to the citation, the party citant will, after the time fixed by the citation has elapsed, tile affidavits as to the service of the citation, and the non- appearance of the defendant. When tue service has been on the guardian of the citee the affidavit of service states that he was such (o). The citation itself is annexed as an exliibit to the affidavit of service when the service had been personal. If the service has been made by means of the public journals only, the latter, or copies of the citation, or abstract of citation, clipped from them and identified in an affidavit of publication, are filed. The court is then moved, and the grant is ordeved to the party citant in default of the party cited. Where a citation was taken out and executed bv one V creditor of a deceased, administration was committed to another creditor of that deceased without further citation : the former being allowed such costs as were reasonably incurred hy him before the other took up the applica- tion (j)). The first mentioned creditor will enter an appearance to the citation, and either dispute the grant with the other creditor or induce him to consent. Tiie court, if the gviw.i be made to the creditor who has not cited, will allow thi.' other his costs out of the estate (q). (h) Horsey, 102; and C. & Tr. 239. (o) Johnson v. Weldy, 30 L. J. 170. ip) Andrews v. Murphy, i Sw. & Tr. 199. (q) C. & Tr, 250. r ■ ! I CAVEATS. 275 1^' CHAPTER XXII. CAVEATS. It is provided by the Surrogate Courts Act thai : — " Caveats again.st tlie grant of pi'obate or administra- tion may bo lodged with the Surrogate Clerk or with the Roc-istraroE any Surrogate Court, and subject to any Rules or Orders under this Act, the practice and procedure under such caveats shall as nearly as may be correspond with tlie practice and procedure under caveats in use on the otli day ot" December, 18.59, in Her Majesty's Court of Pro- l);ite ill England."— S. C. A. s. 49. A caveat is a warning in writing lodged in the registry, ijivin;i; notice to the registrar not to issue any grant or take any step in reference to the estate of the deceased nainci] in it, without notice being first given to the party or the solicitor of the party who has lodged it, and stating the interest of such party, and the grounds upon which it is entered. See Form 32, S. C. Rules. " Immediately on a caveat being lodged in a Surrogate Court, the Registrar of the Court shall send a copy (a), thereof to the Surrogate Cleriv to be entered among the caveats lodged with him, and upon notice of application by the Re<'istrar of a Surrogate Court under section 41 beino' received, the Surrojiate Clerk shall forward to the Reijis- trar, s(j soon as may be, notice of any caveat that has been so lodged as aforesidd touching such application, and the notice shall accompany or be embodie. if) Wins. Exors. 22S. (ij) Monlaunt v. Clarke, 1 P. * D. 502. {h) IlcUcm V, Severs, 2i Gr. 320. (0 Witlum, 1 P. & D. 303, 305. {J)Ih. (k) Coote & Tr., 11 ed., G3. See as to effect of renunciation of pro- uate by a -ustee for «ale of lands, He Gunlun, Gordon v. Roberts, L. ]<. Ch. Div. ,)81. n.s.c— 19 ■^pp ll< \i 51 290 Affidavit. Time i.f renuncia- tion. REXrXClATIOX. executor who had proved, to retract his renunciation and take probate, is now by the new law entirely chan<^feii " d). Such renunciation is peremptory and cannot be recailed on the death of the acting executor (m). If the executor renounce in person, the renunciation should be accompanied by an atfidavit that he has not intermeddled (/?). Although an executor who has intermeddled can be compelled to take probate, an administrator who has inter- meddled cannot be compelled to take a grant (o). Infants and minors renounce by their guardian, and bv the sauiC means retract their renunciation (j)), a minor, however is incapable of giving a consent (q). A mother has been appointed guardian by the cotu't to renounce on behalf of the child or children with wliich she- is enceinte at the moment (r). The executor may renounce probate so soon as his testatoi* is dead, and the renunciation may be tiled, pro- vided it be accompanied by the original will {s). The renunciation of executorship binds the represent- atives of the executor (if). No second renunciation is required {u). T% {1} Allen V. Parke, 17 C. P. 108, referring to Rex v. Simpson, ;i Bur, 1463; House v. Petre, 1 Salk. 311. (Hi) Allen V. Parke, supra ; see also In Re De La Ronde, 19 Gr. Uti, aii.l Travis v. Gustin, 20 Gr. 100. in) Horsey, 102. (o) Davis dec. supra. (p) West V. Willby, 3 Phillim. 374. (q) TJiomas, 1 Hagg. 695. (r) C. & Tr. 230. {s) M. Fenton, 3 Add. 35. (t) J. Perry, 2 Curt. 055. (») J/flm«onv. H., 1 Robert. 400; 4 No. Ca. 434. i -j. RENUXCIATION. 2111 Ordinarily an executor who renounces probate renounces likewise administration with the will annexed. If a party be entitled to the grant in a superior character, the court ciuuiot make it to him in an inferior character. In tlie Probate Division, Eng., under an express rule to tliat etl'ect, no person who renounces probate of a will or lett'.TS of administration of the personal estate and ert'ect.s of a deceased person in one chai-acter is allowed to take a representation to the same deceased in another character " (r). An executor who was also residuary legatee in trust, applied in the latter character for administration (will), de huiiii* 11(11), the case of In tlie (/oods of RcJxicca Bidlock lieiny referred to as authority, but the court refused the .application without citing the next of kin, who resided in New Zealand (tf). Tlie rule is capable of modification by the Court (x). A written renunciation, though not sealed, made by one or more executors before the Surrogate, and produced from his office, is sufficient to entitle the remaining executor or executors, to act under 21 Hen. VIII. c. 4(y). There should be a subscriVnng witness to a renuncia- tion, ami an afHdavit proving its execution (.^). Although an executor cannot, unless by special leave of ^''t'- the court retract his renunciation; it is otherwise in the case of a person entitled to administration {a). (v) 31 L. J., Pt. 3. Ct. Prob. p. 40; C. & Tr. 11th ed. G03. (a) Samui'l Morrigon, 2 Sw. A- Tr. 130, (18G1). See also nichardson, 1 Sw. .i- Tr. -A-,. U) Luftus. 3 Sw. & Tr. 307; liusgell, 1 P. A- D. 034; Morant, 3 P. ct I). 151. (!/) Doc d. Ellis, V. McGill, 8 U. C. Rep. 221 ; and Boyle, 3 Sw. & Tr. I'Jii, (-•) See directiop. appended to Form, No. 27, S. C. K. (d) Cnicifer v. Reyiwlds, cit. 3 Ilagg. 215. icta- if i' ^^ y m 202 Court not concluded liy renun- ciation- Retracta- tidu by next of kin. , RENUNCIATION. The renunciation may be retracted at any time before the grant of administration has actually passed the seal (/)). There is nothing in the Act to prevent the court from allowing an executor to retract his renunciation in a proper case, (c) he being prepared to show that his retraction is for the benefit of the estate, or of those who are interesteil under the deceased's will {d). x\n executor cannot, without permission of the court, retract his renunciation (jiia residuary legatee, if he has renounced in that character also (e). H. P. W., sole executrix and universal legatee, renounced her right as such to the grant of letters of administration which was then made to G. VV., one of the next of kin. Upon the death of G. W., intestate and insolvent, H. P, W. was allowed to retract her renunciation as universal le<,'atee. and to take a grant of letters of administration, de honiii non(f). In case of a simple administration granted to a person entitled in distribution, or to a creditor, on the renunciation of the next of kin the latter may, on the administrators death, retract and take administration de bonw lum (fi). A person who has renounced by his guardian retracts in the same manner as if the renunciation had luru liis own direct act. Where the next of kin having renounceil and consented, administration was granted to a creilitoi (h) Wina. Exors., 9th ed., 390; Yorke v. Manlove, 3 Ha^^f,'. '21 '» /)( nvl< McDonnell v. Prendergast, 3 Haf,'g. 212. (c) liadenach, 3 Sw. & Tr. 400 ; see also Movant, 3 P. & D. Ui. {d) Gill, 3 P. & D. 113 ; Wms. Exors., 9th ed., 'J34. (c) niieelwrifiht, 3 P. cfe D. 71 ; see liichcmhon, 1 Sw. A Tr. T)]'), (Is" ' and Morrison, 2 8w. & Tr. 130 ; Rebecca Bullock, 4 No. of Ca. 017, n ' followed. (/) Wheehcright, 3 P. D. 71. (g) Skeffington v. White, 1 Ha-rg. 702. RENUNCIATION. •293 for the use of the widow during her lunacy, the court would not. on the death of her administrator, allow one of the next of kin who retracted to take an absolute grant of aiiministration Rule Ut. Kxt'oiitors, etc., to fxliiliit in- ventor V unci runtlcr account. — 18 nios. E.xcepti. '» Auditiiif,' accounts, — practice CHAPTER XXVII. INVENTORY AND ACCOUNT. It is provided by the Surrogate Court Rules, 1&92, that :— " Executors and administrators shall within a period of eif^litecn- racnths after fjrant made, and sooner if the Jud^je shall so [direct. exhibit under oath a true and perfect inventory of the property of tlii- testator or intestate (as tlie case may be), and render a just iind full account of their executorship or administration, The Judfje shall upon application made to him for that purpose have jiower to extend the sail! {'prior' of eighteen months If the executor, or administrator with will ai .Is the sole legatee or devisee of the property devolvinj^, the J- ijr. lirect that he shalt be relieved from the operation of this ruit. prcj\i..ied there are no creditors of the estate. " (a) The general rules which govern in the Master's ofl'ice of the Suprer • ' Con*-' >f Judicature under a judgment, or order of re- ference, itnd ih<; ru!f'y of practice and procedure thereof for tlie time being, so far as the same can be made to apply, shall be adopted in the case of the auditing an executor's and administrator's account by the Judge, substituting the word "Judge"' for tlie word " I\Iaster " fviil also for the word "Examiner" wherever it occurs in any such rult. (See Con. Rules of Practice, 57 et seq. to Rule No. 5'J inclusive.)"— S. C. R. ly («). Those particularly referred to by the framers of the rules are as follows : — "57. Under a judgment or order of reference, the Master shall have power : (1) To take the accounts with rests or otherwise ; (2) To take account of rents and profits received or which, but for wilful neglect or default, might have been received ; (3) To set occupation rent ; (1) To take into account necessary repairs and lasting improve- ments, and costs and other expenses properly incurred otherwise, er claimed to be so ; (5) To make all just allowances ; (a) Vide 57 V. c. 22 in Appendix, modifying this rule, and The laif Courts Act, 18D5, s. 30, pout. For general rules governing the practice in the Master's office see Rule 43 et feq. of the Consolidated Rules, Supreme Court of Judicature, Ontario. INVENTORY AND ACCOUNT. 295 (Ci) To report speciul circumstances ; (7) And {generally in taking,' the accounts, to enquire, adjnrlge, and itliort ftH to all rnatters rehitiiii^ thereto, a6 fully as if the same had been s[it"ji;illy refi-rred. ,'),s. Under a jud,i^mfiut or order of reference, witnesses may be ex- uinined before any Examiner of the Court. 51). The m later in:iy cause parties to be examined, and to produce books, papers and writings, as he thinks tit. and may determine %vhat books, papers and writings are to be produced, and when and how long tliey are to be loft in his office ; or in case he dees not deem it necessary that such books and papers or writings should be left or deposited in his oftice, he may give directions for the inspection thereof, by the parties requiring the same, at such time and in such manner as he deems fcxpeilient." Stibji ct to the Rules and statutes referred to, any person interested ill ;iii e.-itate whether as a next of kin, as being entitled in distribution, or as a legatee {b), or creditor, or person having a probable or contingent interest (c), may call upon the aiiiidnistrator or executor who has become tlie legal personal representative of the deceased to exhibit an inventory of the estate, and to render an account of his administration thereof, The inventory should contain a statement of all the goods, Invtntdry, ch.iittel.s, wares and merchandise, as well moveable as not moveable, wliich were of the person deceased at the time i ■' his death within the jurisdiction of the court. An inventory should oiiumerate the items of wiiicli the estate consisted, and specify the value of each particular (). An administrator dc honi* non has the right to call the estate "f his predecessor to account (c). Wbile the Court will not exact more from trustees than such con- HmcIi ((in- duct UB a prudent man would pursue in the management of his own d"ct as proper.y ((/), yet in administration actions or at the instance of parties !"''"'•'" intere!*ed, it re(iuires from them full explanations of all their dealings, and of the causes why outstanding assets were not collected, or property of the (State has disappeared, and a trustee who cannot satisfactorily, To keep accouiil for the one or the other will ba chargeable with tliem. It is the .ii^^^'ounts. duty of every one assuming the position of trustee to keep accurate iiceounfe, and to be ready at all time to explain his dealing with the estate (:). Id he judgment in Kenmj v. Jiick-ton (/), upon return of the citation Duty to against an administrator, it was said; — "at least he should have pre- '^'''"'' '"^" served ai account of liis administration with sutiicicnt vouchers, or have releaseafrom the parties entitled.'' Vouchers, Neglecting to keep or prepare accounts or to give information to residuary legatees, being the cause af a suit, may render executors liable to costa(.7). Incdont to tha practice of the Master's oflice being made applicable, Accounts taken witii as provtled in Rule 1'.), is the right of persons interested to have the (a) I'itt V. Wuodmiin, 1 Hagg. Ec. 217, 1828, and see Bell v. Lamlon, 18 U. C L. J. 178. ((■) Vaylor v. Newton. 1 Lee, 1.5 ; see also Jh-ntty v. Haldan, ante. (c) 5ee McLenniin v. Heward; 9 Gr. 173, 'J7!) ; see also Vdii.iton v. Thompsii, 10 Gr. 'A2. (d)J':e WeuU, 42 Ch. D. (174. (AChisholm v. Barnard, 10 Gr. 47!), 481. Where the misconduct was no wilful they were not charged with costs: Kennedu v. Pingle, 27 Gr. ;iOi iH 1 Hagg. 105. ((/Smith V. lioe, 11 Gr. .311; and see Re Ilonnherger v. Kratz, 10 0. R.i21 ; Vanston v. ThoinpHon, 10 Gr. 542 ; Simpson v. Horn, 28 Gr. 1. rests. mm :^oo INVENTORY AND ACCOUNT. Accoiint- iiij,' party cliiirjfcd witli iii- tlTt'Mt. ".liiHt al- ii iWiiiiccH.' Travcllinp exjieiises. acconntB taken with restH. Such is the practice in the High Court of Justice, Ent;. {h) : and also in Ontario (t). Compound interest will not be awarded where there haH bcai rn miBConduct ( J). An executor employing the assets to bis own advantage is liable to be charged interest (k). The award of interest against trustees and executors is no loiger punitive but compensatory (/), and where in an administration aition executors were ciiarged with t» per cent interest with annual rests, tiiey were allowed their commission for services including conmiissioi oim sum paid in pending the proceedings (w). In making up his accounts the trustee is entitled to char^' the estate with expenditures know as Just Allowances, that is, he is eititled to all reasonable expenses incurred therein (nj. What are justiilow- ances depends very much upon the circumstances of each case (<>) It Ib however a settled rule that whatever a personal representative or riislee has expended in the fair execution of his trust may be allowed lim in l)a88ing his accounts (p). He is entitled to his travelling expenses (7), and if he lim uKed his own conveyance, the better opinion seems to be that he nay be allowed for it, yet not so as to make a prolit thereby (r). This pinciple is acted upon in Surrogate Courts of Ontario. He is allowd pay- ments made to acct)untants where the accounts are lengthy or in- tricate (,s), and payments made to Agents (t) ; e. .) c. 73, s. 8, (It, H. 0. c. 147, 8. 1'2) he referred to a taxing officer. What is done under that rule is not taxation (a) ; but moderating; tlie bill ('*). A hill under the third pa''ty clause referred to, is as between solicitor and client upon its beinj^ referred to the taxinf^ officer for moderation. He may take off such items of char<,;e8 as were not necessary for the administration of the estate, thouj^h expressly ordered by tlie trustee ; leaving the solicitor to look for payment of such char^^es totliL' trustee personally; it maybe different where the bill has been piiil. Wliere m solicitor had acted for a trustee under a will, and upon the truiit estate hLiuj; ^^ot in and distributed, he delivered his bill of costs and received payment frqm the trustee, and upon taxation at the instance of one of t!!'- centni qiif trust, the taxing,' master disallowed certain attendances upon the trustee and certain letters : upon application to review it was held as above, and that on questions of nwintiim and quoties the Court always allows the opinion of the taxinj^ master to be para- mount and follows it (c), A trustee may be liable to his solicitors for certain charj^es, which tiie Court will not allow to the trustee out of the estate as where he instructs his solicitors to do thinj^s which properly belong to liis own oSice ((/). In the case of an estate as to which there had been a probate action, ftnd an administration action, the Court takinjj into consideration the fact that the latter action was remarkaMe in the circumstance of its commencement, and the great delay (1» years) in conducting it, and the (/■) Speiiiht V. Giiunt, 22 Ch. D. 727 ; 9 App. Cas. 1. [w) Wms. Exor's., Hth ed. 17(i8, Walker, 272. {x) Chisholm v. Barnard, 10 Gr. 470-481. ((/) Lewin, 9th ed, 714. (;) Wms. Exors., 9th ed. 1708. [a] ]tnHcit V. Burden, 40 Ch. D. 253, 2G2. (M /// re Broa-ii, L. R. 4 Eq. 4C4. , {(■) Ih: {li) Wms, Exor's. 9th ed,, 1768, 1B15; Lewin 9th ed., 298. .•\pi'nts. For puy- ininis iiiadi' to solicitor. or eoun- hill.s iModcratM. l>nn- ciplis. Qua at II 11^ and Co., Ailin'or (irill) ; Snrr. Ct. t'«. York, Way, IHIU. Case: Estate sworn at ftoS»(i,9liO, Jan., 18!t2; interim audit, April. 1894; assets realized about »2(J7,0GO ; paid out, »101,()(.tO ; allowance t) executors, ftlO,291, including commission on collecting *32,O0U revenue: Kgtate of John Ley.i. dec, Toronto Gen. Trmt Co., c.r'ors.; Sur. Ct. Cu. York, No. 89r)4. [t) Tiiowpson V. Fairhairne, 11 P. R. 333. («) Thomv.xon v. Freeman, 1.5 Gr. 384. (d) In Re Fleminri, 11 P. R. 42C. {w) Thompson v. Freeman, 1") Gr. 384; Re F'leminrj, sup. The IIis;li Court tariff fixes sheriff's poundage as follows : — On sums not exceediii(.' ^1,000, six per cent; «1,000 to *4,000 three per cent; upon excess over 84,000. one and a half per cent. COMPENSATION' TO TRUSTEES, ETC. 303/> I 1 i usually allowed to a receiver; in cases of difficulty, live per cent; in very rare cases, ten per cent (x) ; and sometimei? a sum in s^ross by way of salary (;/). A further analojjy may possibly be fourd in the case of liquidators under the Windinj^ up Act. In a recent case, commission at the rate of one and a quarter per cent, on the gross amount of all moneys realized witiiout pressure, and three per cent, on moneys realized after pressure, was allowed to liquulators of a bank whose assets were upwards of S'2,000,000. On appeal this was sanctioned by the Court, except as to a sum which was only constructively received, in adjust- ment, as to which one quarter per cent, was allowed. The rates of per ceutage in the United States and in Scotland are there referred to (--). Five per cent commission may be too much, or a very insufficient allowance (i;). Five per cent on all moneys received and paid over, and two and a half per cent on money received but not paid over, was allowed in one of tiie lirst .jases under tlie statute of 1758 {!/). A commission of four per cent, upon all tranfers of stock and moneys paid in and collected by executors was allowed and sustained on appeal (-■). In a case where E.xecutors were authorized by the testator to carry on tlie business of lumberer, miller and f,'eneral merchant, carried on by him at the time of his death ; an estate of S2',)S,Oi)0, liavinj; been in the executors hands fifteen years ; !p20,000 pussinj,' throuj^h their hands annually ; the lands being situate partly in Canada and i)artly in Fnited States, involving travelling, it was held a case not for commission but for a fair compensation, an agent having been employed on a salary {d) Whore executors received all testator's personal estate £8234, and propprly paid and expended for debts and expenses £3(307, the Judge of the Surrogate Court allowod £22(>, about two and two-thirds per cent, and that notwithstandin;,' the n\isapplication of funds of the estate, viz., by applying them to the maintenance of the testator's children before creditors were fully paid (c). The retaining of money in hand two years unemployed was not con- sidered a reason for disallowing executors commission (/), l.r) Kerr on Keceivers (1801), 18(5. (!/) Daniells Chy. Prac, 5th ed., IfiOfi. (;) AV Central Hank, Lye's claim, 22 O. R. 247. ('j) Chislwim V. Barnard, 10 Gr. 47!) (18(i5), Vankoughnet, C. (M McLennan v. Ileward, 9 Gr. 178, 270, (181)2), Vankoughnet, G. ((•) Tiirrance v. Chewitt, 12 Gr. 407 (1800), Mowat, V. C. id) Thiwwin v. Freeman, 15 Gr. 384 (1868), Spragge, V. C. {e\ Il,uri>ion v. Patterson, 11 Gr. 105, 113 (1805), Vankoughnet, C. (/) Ouuld V. Burritt, 11 Gr. 523. lb Ik ^ 30.3c K.-al estate. Interim account. Iiivest- UIOIltH. Number of items ill account. Com'ission credited from time to time. INVENTORY AND ACCOUNT. Trustees were allowed a commission on real estate (/;). A commission of five per cent on ^41.000 was allowed in a case in which there were investments. There were aOO items on one side of the account and 400 on the other (h). A comniission of $5000 v/us allowed on SoOO.OOO {/). A commission of four per cent was allowed the trustees of a marriaj^e settlement on income received (estate ?'72,000), and properly e.xpended durinji about tifteen years. One-half the commission payable then, and one-half at the end of the trust. " I think it would not be unreasonable if the trustees cliar^^'ed against the income §21(j, and against the corpus 6150 annually" (j). Five per cent on 312,000 invested in mortt,'a<;es, and one per cent on liT'J.OOO, residue of estate con3istin;4 of debentures and specific securities to the value of S7'J,000, which the executors simply transferred to the legatee amountinj^ to §1000 as compensation was allowed (h). Not haviuf^ kept a re^,'ular set of books showing; a debtor and creilitor account of his dealings with the estate is not a sufficient reason for the omission by the Master to ascertain the amount of the trustee's expenses and conmiission, unless fur that reason the master was unable to ascer- tain the amount (/). Vv hero it appeared that there had been a good deal of labor, care and trouble ui the management of the estate ; $11,818 had come to tiie hands of executors, of vvliich they expendetl 52.>,000, and tiie rents of real estate come to their hands were $1,0.")1, of which they expended ijiisiij, and there appeared a larj^e number of items on each side of the account. over iiOO on one side and over 4 i(J on the otlier ; it was held that the per cent on the total sum come to their hands, was not excessive as conipuu- satiun, although §10,',);33 of the estate moneys remained in their hands. with which they were chargeable (/»). The commission or other compensation should be allowed from time to time as earned ; an I credited from time to time, and if allowed to stand should carry interest which mif^ht be set off against interes; charged against an accounting e.xecutor (;(). Or lialf the compeusatioi; (,;) Iluld V. Thomxon, 17 Gr. 154 (1870), Mowat.V.C; McMillan v. .ly.'.V. '21 Gr. 2G'J (1874) ; Stevewriinipeiisa- t!ie .Statute if the legacy is not suft'icient compensation {(•). But if executors bafore taking probate, arrange with the beneficiaries for such compensation as the statute would give instead of such inadequate bequest, the Court would not disallow such an arrangement (w). Where there is a bequest of a share of the residuary estate to execu- tors, it is not to be inferred that the bequest was given in lieu of compensation as in the case of a legacy of a definite sum, but it is one of tlie elements to be considered in dealing with the question of compensatiou (.r). (0) Ikikdey Trusts, 8 P. K. 193. (;j| Sfirah H. Wallig, Surr. Ct. Co., York, .Tan'y, 18;>"). (7) Tli Gr. 4ri8. 11) R. S. O. c. 110, 8. at). (./■) :i L. R. Eq. 3(5.S; approved in Uitntcr v. Yoidui, 4 Ex. Div. 'i-^O ; In re Frcircr, (JO L. T. ',).V^ ; \v'. N. (IHM'.I) lO'.l; sec'/;/ re llowden. -ii) r.h.D.Ui. ill] Fur Form ol Notice, ride Appendix. (/) Lewin on TriixtK, '.Ith ed. 7'27, 7-"i4. (m Ih. in] lb. 757; See also lie Ihi^Ii, 19 O. R. 1 ; Mitchell v. M., Hi S. C. Rep. T2-2; lie //<•/;).?, 15 P. R. 7; /i'<' Hawkins, 10 P. R. J3G. ■I I i, , i''. 304 OATHS, AFFIDAVITS, ETC. Adminis- tnition of OlltllS. Affidavits, Forniali- tiu.s. CHAPTER XXVIII. OATHS, AFFIDAVITS, ETC. By the Surrogate Courts Act it is provided that : — " The Judges and Registrars of the Surrogate Courts shall have full power to administer oaths in matter,^ and causes testanieutar}' and in all other matters in an^^ of the said courts ; and Commissioners for taking atlidavits in the High Court and Notaries Puhlic shall also have full power respectively to administer oaths in all matters and causes testamentary and in all other matters in tlu; sai'l Courts to parties desirous of making affidavit or deposi- tion before them respectively." — S. C. A. s. 2o. The Surrogate Court Rules, 1892, prescribe the formal- ities to be observed as to affidavits as follows : " Ever}'' affidavit shall be drawn up in the tirst perhon, stating the name of the deponent at the commencement in full, and his description and true place of abode and sliall be signed by him. (See Rule 605, Consolidated Rules of Practice.)"— S. C. R. 37. " In every affidavit made by two or more deponents, the names of the several persons making it are to be written in the jurat. Except that if the affidavit of all the deponents is taken at one time by the same otKcer, it shall be sufficient to state that it was sworn by both (or all of the ' above-named' deponents. (See Rule ('»()(j, Co". Rules of Practice. V'—S. C. R. 38. "There shall be appended to or endorsed upon every affidavit, a note signed by the solicitor or the party in person, showing on whose behalf it is filed. (See Rule G08, Con. Rules of Practice.!*'— S. C. R. 80. OATHS, AFF[l)A\riS, KTC. '0)5 "When' an alHilavit is inartinij to have affixed, impressed ^.••='' '*'"' (»!' sulisci'iiii'd thereon or thereto the siijfnatare of such mtd not Coininissioner or the sio;nature and official seal of such " i""^" • Notary Public or Prothonotary, oi* the seal of the Corpora- tion, and the signature of such Mayor or Chief ^laj^istrate (ir {li)vornor as aforesaid, or the seal and signature of such .Iiulge, Consul, Vice-Consul, or Consular Agent in testi- mony of such oath, affidavit, affirmation or declaration liiiviu"' been administered, sworn, affirmed or made b\- or liet'ore him, shall be admitted in evidence without proof of Huch signature, or seal and signature, being the signature uv the seal and signature of the person whose signature or seal ami signature the same purport to be, or of the official character of such person." — R. 8. O. 18>S7, c. 61, s. 'So. See further as to persons authorized to administer oaths: — All Act liesipectinf) Comminxioners for Tdking AjMavUs and Recognizances (I)) ; also An Act Re-^j^ectiiu/ yi't'ira.'.^ Public (c) ; also lite Interpretation Act(d). By The Canada Evidence Act, 180S, that : — "If any person called or desiring to give evidence, Attiinin- objects, on grounds of conscientious sci-uiiles, to take an l^jf","^;, oath or is objected to as incompetent to take an cjath, such iii-*t''»''i of 1 1 i» 11 • ▼> • oath. persun may make the roUownig affirmation : — ■'1 soicmnly affirm that the evidence to be given by me Form. sliall be the truth, the whole truth, and nothing but the truth." ('') R. S. 0. c. 62. ('') R. S. 0. c. 1, 3. 19. (c) R. S. O. c. 153. :\0H OATHS, AFFIDAVITS, ETC. " And u[)oti the por.son iiifikin<;' Hueli soleinn utHrinatioii his evidence .shall Ije taken and liave the same etlect as if taken under oath." — Statutes of Canathi, l.SO.'i, c. 81, h. 2;]. Attimm- " If a pei'Hon re(|uired or desirintj to make an atlidfivit tldll III- ... . Mt<:ul of or dei)osition in a proceedinj^ or on an occasion wlier/oii or touchiiiff a matter respectin<^ which an oath is ro<|uimi or is lawful, whether on taking ofHco or otherwise, nfuises or is unwilling to be sworn, on {^rounds of conscientiouH scruples, the court or jud;jfe or other officer or pt-rsdii c|unliHed to take affiav^ I'ltA'Tlfi;. MO!) ('haitI':r XXIX. I'liArTIClK. " FnlosH othoi'wise ni-ovidcd 1)V tliis Act oi- livtlu; Rules '''"'^'fi'""f ' ; p " ■ ,. tilt" Courts, ()!• OnliTH respectin{.( .Sun'();4at(^ (.(nirts lici-ctotore iii lorcc, (ir hciuat'ter to be iniulo uikIlt this Act, the pnictico of the Surro^nite Courts shall, so far as the circumstances of the disc will admit, he accordiiif^ to the practice in Her — u'H'imI Miiifsty's Court of Pi-ohate in Kn<;lan(l, as it stood on the :,th (biy of December, l.So!) " (a).— S. C. A. s. 84. " ( )n every application to a Surro^^ate Court for prol)ato Troufs, of will or letters of administration where the testator orsir.'fdr iuk'state was resident in Ontario at tl»e time of his death," l,',',','"',"*^ till' iiliice of abode of the testator or intestate at the time of i";"'';'^^'' "•■ ' ... tidniinis- his death shall be made to appear by affidavit of the per- tnuiun s)ii iir siMiie one of the persons applying for the same : andccus.d tliereupijn ami upon proof of the will, or in case of intes- Q^,f,J,'.i,,"' t;icy, upon proof that the deceased died intestate, probate nf the will or lettei's of administration (as the case nuiy be) ii.iv l)e irranted midcr the seal of the Sui-roijate Court to which the application has IxM'u so made; and the pixjbate ,,' '|'','|'j",,,. 'flutters of administration shall have efi'ect over the pro- "'l"'.'"i^- ' tratidii. [I' ity [the word ' pro)>erty ' being substituted for the worils personal estate' by 53 V. c. 17, s. 7] of the decease;! in all jiarts of Ontario [subject to tlie limitation under section 58 <«f this Act or otherwise, 53 V. c. 17, s. 7.]— S. C. A. s. 35. " < )ii every application for probate of a will or letters of Wh. n t•• 'I'M liiiH been held to apply to procedure only, not to the principles on which the Court acts : Tlion. Hi/. OUphuut, 1 Sw. & Tr. 52'). l^ Ill ^' 'i 'i. iil 310 PRACTICE. out of Ontario. ■ proof. tioticf. (ifiibode in place of abode in or resided out of Ontario at the time of or n^sided '^ . ^ liis death, the same sliall be made to appear by affidavit of the person or some one of the persons applying for the pro- bate or administration, and that the deceased died leavincr personal or real property within the county in the Surro- gate Court of which the application is made, or leavdn^r no personal or real property in Ontario, as the case may Ijt, and that notice of the application has been published at least three times successively in the Ontario Gazette ; and thereupon and upon proof of the will, or in case of intes- tacy, upon proof that the deceased died intestate, i^robate, of the will or letters of administration, as the case may be, may be granted under the seal of such Surrogate Court ; and the probate or letters of administration shall have effect over the property [the word ' property ' being substi- tuted for the words ' personal estate ' by 58 V. c. 17, s. 7] of the deceased in all parts of Ontario." — S. C. A. s. 36. " The affidavit as to the place of abode and property [the word ' personal ' before the word ' property ' heuv^ Affidavit grounding ^il)plic'a- t ion for atrnck out by 53 V. c. 17, s. 91 of a testator or intestate grant tt) be •' ' -^ _ conclusive under the next preceding two sections, for the puniose of else of giving a particular Court jurisdiction, shall be conclusive m"es.s° '""for the purpose of authorizing the exercise of such jurisdic- .sliewn to ^Jqj^ • ^nd no grant of probate or administration shall be be incor- _ ' n i rt"jt. liable to be recalled, revoked or otherwise impeached by reason that the testator or intestate had no fixed place of abode within the particular county at the time of his deatli, or had not property [the word ' propert}^ ' being suljstitutid for the words ' personal or real estate ' by 53 V. c. 17 s. [<] therein at the time of his death ; and every probate and administration granted by a Surrogate Court shall effectu- ally discharge and protect all persons paying to or dealing with any executor or administrator thereunder, notwitli- standinir the want of or defect in such affidavit as is lieiL- by re(|uired ; but in case it is made to appear to the Judire mm^rmm I'HACTICE. 311 of a Surrogate Court before whom any matter is pending mulcr this Act, that the place of abode of the testator or intestate, or the situation of his property, has not been cor- rectly stated in tlie affidavit, the Judge ma}' stay ^1^ ^^111], J.s'^''* further iiroceedings and make such order as to the costs j" C'^'^'- of ( the proceednigs beiore him us he thinks just. — .S. L. A. stauniont. s. 87(/>). The purely practical steps that a solicitor must take in Practice, making' applications in common form may be stated shortly us follows : — Having" i-egard to the directions set forth in Append' ■ for describing testator.s or intestates the practitioner .,i iirdiiiar}' cases proceeds as follows : — On application for letters probate of a will the peti- :-"htiiin- tion of the executors to be presented to the judge (Foi-m 1 piubatfi. to Surrogate Court Rules) is to be tilled n\) and signed aiiil annexed to the will and codicil (if any) together with atiiilavits and papers as follows : 1. Petition of executors — applying for letters probate. 2. Certiticato of Surrogate Clerk. (This is sent from the otlice of the Surrogate Clerk to the Registrar by mail under Rule 04.) ^. AHiilavit of death and place of abode of the tes- tatfij' (n. 4. Sclu'dule of real estate, and inventory of })ers(mal istate with affidavit verifying same (W). (M other sootions of the Surrortiite Courts Act placed in tlie Act uiukrihu heading,', " Practice" are referred to elsewhere in this treatise. (i) " Tlie necessary afiidavits to lead grants, and the usual oath of executors and administrators, may be taken at the time the application for urant is si>>ned, or afterwards at any time before the application is submiltt'd to the Judge for his order and direction. The proofs to load Uraiit may bj embodied in one affidavit."— S. C. 11. 8. (th A.S to Inventory and time of ii\iu<^ vide ante chapter on Inventory ftiid Ai'connt. I!'; * , '1 I .i ^■l 'i ii^^^ ' ■" 312 PllACTICE. 5. Affidavit and value of property devolving. G. Affidavit of plight and condition of finding of will {o\ 7. Affidavit of execution of will (/). y signing- their names thereon under a memor- iUKliiin of exhibit, or without such exhibit. ■ Every will or copy of a will, to which an executor or filiniuistrator with the will annexed is sworn, should be iiiiirkc 1 liy such executor or administrator, and by the per- s 111 lirfiuv wlinm he is sworn." — S. C R. 18. If three years have ela])sed since the death of the ti'stator, a certificate signed by the party and his solicitor, 111' ly the solicitor alone if the facts are within his know- li'ilirc is according to the practice High Coui't of Justice, I'lohato Division, Eng., ( j) tiled in explanation of the li.'lay. If the certificate be not satisfactory an affidavit is it;i|uii'0(|. Incorporated documents and papm's are proved as part ln(. otherwise directs, the will having been previously (M S. C. ]{. 4-2; also Rules 40, 41 aiitr i>. ;ior,. Ill !''■'/(' rlmiitor DM Oaths. '. iji (-'. iV Tr. 2.V,I. I mmu 314 PllACTlCi: sworn to as beinfj contained in the paper writings inarkcil "A" " B," etc. If another will which has already Ijotn proved be incorporated it is not engrossed or rcgistercMl with the incorporating will if the executor of each will is the same person ; and the same exception applies in cases where tlie testator being himself executor of the incoipoi- ated will has transmitted per catenam the representation to his own executor. In each of these cases an atfi(la\it of the fact is made by the executor. betters Q,^ application for letters of administration to the of aciniin- I ' Ntration. estate of an intestate the following papers are to be piv- pared and taken into the registry : — 1. Petition of person or persons applying for grant. 2. Schedule of real estate with short description of each parcel of land, and inventory of personal estate, staiini' value in both case, and athdavit verif^nng. .*}. Affidavit of value of proi>erty devolving. 4. A certificate of Surrogate Clei'k. (This is sont hy mail b}' the Surrogate Clerk to the Registrar according; tu Piule 64.) 5. Affidavit of death and place of abode of intestate. G. Affiilavit of search for a will or other testameiitaiy papers. 7. Oatli (jf office of a, P'^wer to appoint an administrator other than tlic person s. C. Act. ^yijQ^ prior to the Act, would have been entitled to the gi'ant. (Sec. 50.) Whenever the Judge sees fit to e.xercise such a power, the fact should be made plainl}' to ajijiear in the oath of the administi'ator, in the letters of aduiiuistra- tion and in the administration bond." — S. C. R. 18. Limited ildlllini^l- t rat ion. " Where litnited administi-ations are applied for, it must be made to appear that every person entitled in distribu- tion to the propei'ty has consented, or renounced, or has been cited and failed to appear, except when the Judf:e sees fit otherwise specially to direct." — S. C. R. 14. " No person entitled to a grant of administration of tiie property of the decea.sed generally shall be permitted ti> (m) 1«. S. (). c. 137. fi. n. if f; PRACTICE. 817 take a limited grant, except grants for personal estate only under section 50 of the Surrogate Courts Act." — S. C. R. 15. " In administration of a special character the recitals in Rocituls in the oath and in the letters of administration nmst be framed "'*"'^' ^^'■ in accordance with the facts of the case."— S. C 11. 16. (See Forms, Appendix.) In the case of limited or special letters of admini.stra- tion, with or without the will annexed, the same rules are to be observed, the oath being according to form given in Appemlix. In cases of a double probate, or cessate probate, the I'luf'ticc in . - dduhli' ;uid practitioner will proceed as follows: — cssate The executor will, m either case, make arhdavit tor the Provincial Revenue Officers (/?) as in other cases of- duty, probate, swearing " under " or to, the same amount of property as did the first proving executor in taking pro- bate. This rule is, however, in the Probate Division, Eng. {(>), occasionally relaxed. But in regard to being sworn to the will and markino-^^''^^'"'!"'"- . ^ liatc to bo it, he may be either sworn to and mark the original will, marked. or the proi)ate which was granted of it, provided, in the latter case that the first proving executor be dead, or he may be sworn to a certified office copy of the will. If thu first probate issued from the former Court of Probate, an office copy uinhu' seal must be obtained, unless the original will be sworn to. It' the executor a. (t) And C. & Tr. G97. I'llA'TICE. :n<) Where an (ij^plicant for a second grant is unable to ijiucure the i-e(|nired int'onuation for satisfying' the Revenue Di'iiartiiieiit, the Court will assist him. A citation was issiieil at till' suit of an executor a<;'ainst his co-executoi- — • to brini>- in the probate with an Account of the personal estate of the testator, in respect of which the probate was l,q';uite(l " (II). When a grant is made to two persons in equal degree, Joint represented by distinct practitioners, the grant is extracted ^''^'^'"^"' liv, and delivered to the senior as to admission of the two. A joint grant to an intestate's widow and next of kin, is hy order of the Judge, prepared by the practitioner, ami noted by the registrar. Wlien a grant of administration is to lie made to adiantsf.pi- i;nan]ian for the use an''*, >"■ aii'l in tiie case of minors, the instrument of election as jirovided in Rule 17. A Judge's order is drawn up and siii'iied. The statute which requires publication of twenty days' liulilic notice (r) does not apply to guardians appointed uiiilrr this rule. Ill the case of a person who has taken out letters pro- Voiunt uy hate, adniiiiistrati(m, or guardianship, voluntarilv seeking ''•'V'*''^'f tile revocati(m of the grant, an atlidavit must be submitted t?»'it"ts. to the Judge. If the affidavit be satisfactory, an order for the revocation of the grant is prepared and issued in the usual manner. The executor or administrator who is to take the new grant, following upon the revocation, cannot be sworn until after the revocation of the former grant has been made. (ii) C. ATr. 273. ('■I U. S. 0. c. 137, s. 11. 11 la 1 I ' hi p ti' ; 'f' #11 c5 * 320 l'KAr letters of uiliiiinistnition, or f^uardianship, searches for the record of the <,a'aiit in the re^nstry. officiiil " An ofriciiil cop\' of the wliole or any part of a will (;()1)V iif tin- *. • 1 • . (• 1 ■ whole i.r or an othcuil certihcate or tlie ^Tant ok any letters df ^|!i[l,|i',,yi„. administration, may l)e ol)tained from the Kej^istrar of the obtiiinid. Surro^nite Court where the will 1ms Ijeen proved liliaii- proliiiti' or . . iKlmiiiis- ship are only issued to tlie actin<^ executors, ailministnitdis tration. ,, ,i • i- •, i ,i • or (>'uar(lians or their sohcitors, and upon their wiitttii application. In the Probate Division, Eni;., if the applica- tion is made after the lapse of six months from the issue uf the orio-inal j^rant, an order is recjuired. When a will can bo shown by affidavit of the witin'ssos to it to be invalid, the Jud<^-o will write his tiat tlKienii. refusing probate. It is provided by the Act that : — " Such fees as the Lieutenant-Governor in Couiu-il imn think proper, shall be payable to the Judges and Registiars of the Surrogate Courts, on proceedings under sections lil and 08, but the total amount for all proceedings and ser- vices to be charged to applicants, shall not in ;iiiy one case exceed tlu! sum of S2." — S. C. A. s. (>!>. TKivai'lc to " ''"^ ^*^^'^ mentioned in Schedule A to this Act shall tluiCrowii. ]j^. payable to the Crown in stamps, subject to the provisions Fiat apainst a will. Scale of fee.s. As to fei llcv St' t '^*^' J^f'C -^ci rei^pectivg Jaiiv Stamps, on proceedings umlcr c- --• this Act, ansto "The stamps for all fees payable to the Consoliilated eil to order Revenue Fund ot the Province in resi)ect of a grant or pro- of probate, bate or administration shall be affixed to the order for the I'UACTlci:. 321 I'mut, and not to the proI)ate or lettor.s of adniiiustnitic^n." Is. C. A.s. 70, s-H. 2. " Subioct to the provisions of section 7.'}, the JudL'tSs ol" A« *"/<••■■' the several Surrogate Courts may demand and take to their i>y .lud^'c-, (iwii use the fees mentioned in Sehechile B of this Act, and tiiciVown such fees shall lie collected l)y the Registrars of the said "'^''' Courts on or before; each proceeding and paid over to the .hul^es, and annual i-eturns of such fees, u|> to the 31st day ol' J),!C'eiiih'r in each year, shall he made hy the Registrars nil or hefore the 1st day >. roiiiiiiiite (iie fees ])ayable to him under this Act for a fixed .imiual sum : such sum not to exceed the income derive(l Ip nil such foes in some preceding year: and any sum so tixeil may, as vacancies occur, be resc'inde(l, or liniy bt' «. varied and the amount increaseil or dinunished ; provided that in no ease shall any Order in Council name a sum I'AeeeiliiiL;- the receipts for fees during some preceding y.;ar, "- S. C. A. s. 7:5, s-s. 1. "In easi' of connmitation, the likt; sums and fees lu/ie- "7 '" ^^^'' ' ot c'oiniau- '."fni'e piiyable to the Judge shall continue to be payable, '^''^*'iate Judj^es hy the Act passed in the 4()tli yi^;iv n't llir Majesty's reign, chapter 7, schedule A (Oo). " — Jhid. s-s. 4, "Out of the excess afoi'esaid a sum not cxceecliMy SiJiJG may on the authority of an Order in Council he paid to tht- Junior .Judge of the County (if any)." — fhi istrviti HtiiinpH undur the .statutory ^t'lu^dulc of — '' I'Vh-.s l"';'^,|iiv> " -^'J ' _ *' _ iihlc III piivaltU-^ to tlic Crown " — arc jih foUowH: In a case ol' I'l-o-stiuiips. lijiti-: ii[)|)li('ation or petition, .50; certiticato oF Surro^'ate cliik, .')(): on value of property (if over li?l,2()0 and under S2,()()()i, 1.00 (t'lis item bein^^ increased on the .scale before rruotiuf. ivtVrri'd to) ; probate i.ssued initler weal of the Court, .50. The fees to the Crown in cases (;f grants of adniinistra- ti(.ii,<)i' iulniinistration with will ann«;xed, are the .same as ill cases of probate. In ca.ses of letters of guardianship they arc the same with the exception that on value of pro- jii'ity there is no fee to the Crown. Till' succession duty, " to V»e paid to the use of tlie I'l'o- vincL' is over and above the fees provided by the Surro- ;,'ate Courts Act (.»;)• To i)r()eure remission of duty in Ontario on account of ^/'V'"**'"" . . . . . "f 'l"t.v. (li'lits of a testator or intestate or otherwise a memorial is uldressed to the Provincial Treasurer, who is in charge of till' revcmu! of the province (»/). Tile following; Form should be attached to the front of the papers in each case : — U.vTo THE Surrogate Court of the Count of Upon reading the application of deceased. thf affidavits and papers filed in support thereof, and the Ki'[)ort of tlie Registrar thereon I do order that issue to the Applicant. Dated at Ghamhers, this day of A.D. 189 Surrogate Judge, (r) n') V. c. (), 8. 4. And vide infra, memo, of Proceedings and Fees. As to Registrar's and Judf^e's fees, see schevlule to the Act, and the Table of Fees subjoined to S. C. Rules, 1892. For examples shewing how fees are made up, vide Appendix. [y) R. S. 0. c. 20. |: |r;5 If .S2-1 PUACTICE. Memorandum of Fees payable to Registrar, Judge and Crown. 10. 11. l'_>. 1:5. 14. lo. IC). 17. 18. li). 20. 12. 22. PROCEEDINGS. Forservice.« rendertnl iindersecs. 'h and (IS of Act(Uule 4(1) where valiic of ])rcj[)erty does not exceed ^Mo Petition or application Receivin>j, exaniininf^ puijers and enterinj^ applieiition livery necessary nc^tice to Surro- gate Clerk Certificate ot Siirrof,'ate (Jlerk. . . . Receivint,' and entering certificate. lU'cortlin),' evoiy Tond with affida vits of Juslilicat'n and I'^xecut'n ( ; Submitting Pai)ers with Rej^istrarV re;)c)rt thereon Co ,Tudf4e, to lead (Jrant Grant —value of jU'iiiJerty uniler .•? For preparing I'rohateor Ijcttersol Administration or Guardian ship, isKUt'd under Seal of Couit Recordin;^ Grant, 10c. per folio folios Transcri^it of Will, lUc. a folio folios Certified C^opy of Will for Surro gate tJlerk — per folio 10c Certificate .Atteudint; and enterinf,' every order or minute Takinti every affidavit or adnn'nis tration oath to a witness (only chiir<,'ed when actually sworn by Re,L^istrar) "idc. each Drawini; Special order or other papers directtid by the Jud<.!e 10c pf r folio Writir.K necessary letters, each "i'lc. Search for Will (Hule (i) and certi- ficate Si)eci!il Att'ce by Jud-^e Fiat (jn Roml Postaj^es — No f^reater sum than 'i'l cents should bi' charf.;e(l unless Will extra heavy (a) 1 00 50 50 r,o •50 50 (-) In cases in which the bond is dispensed with, this .item is to be omitted. (a) It is almost unnecessary to explain, that only the items in tins Form are used which are apjjlicable to the particular case. For exampks with blanks filled up, vide Appendix hereto. PRACTICE. 825 .)0 ."0 31) Wluro the estate exceeds in value 8400 but does not exceed 81,000, the registrar's and Judge's fees in non-con- tentious cases to be one-half the above fees {b). W'hei'e the estate does not exceed S-iOO the fees of Judge ;uiil registrar are tlxed by statute at 82 (r). In till! case of auditing executor's.administrator's or guar- rracticf iu (lian's ;iccounts, the accounts showing receipts and expendi- accnunts. tares nnd balance on hand for distribution, if any, are pre- [);ire(l and tiled, and appointment obtained from the Judge, and served on all necessary ])arties. If there are infants the ullicial guardian of infants is notified. On completion of til': audit an order is drawn up, and signed by the Judge. Tills (ir'ler also provides, in a proper case, for the allowance J) tlie executor or adnnnistrator, as to which ride infra. Siv Fonns in Appendix. Till' general ndes which govern in tlie Master's office of • the Sii])reine C inelusive.)"— S. C. R. 10 (a). ih) Keu .■)? V. c. 22, s. 2. ('•) U. S. O. c. TjO, s. m, rule antr p. IC. 1^1 m- PA 11 T Till': S1{;C0N1>. PART T 11 1^] SECOND, COH.HOX FOlJ.n PISiCTICi: MOTIONS AND SUMMONSES ClIAl'TKit 1. Mf/noNs. Ill certain matters application is iiiaflr to a S'arro^^ate Ciiiiit oi- Judo'c on motion in non-contentious, as we'll as in oiiiteiitions liusiness. Cnder the ejeneral rule (^0, as to mattei's not proviileil i'^' in the' Surroii'ate Court Iliiles, it would seem that the I'lMctice on Motions is to he ri'i^'ulated hy analogy t(> the ('i)iisiili(late(l Rules of Practice of the Supreme C'ourt of •hidicature for Ontario, which Rules correspondin;;- i'oi the must pai't with the Rules of the Siijireiiie ( 'ourt of Judica- ture, En;:., the practice respecting .Motions will aecoi'd with that of the Probate Division, \'a\'<-.. whei"el)\-a decree of the Ciiurt which can oidy he o1»tained on motion, is i'einiii'e(l in the following cases : — 1. Tor a general grant of proh.nto or ailministration to a person ha\ ing an inferior title, in the ahsence (tf the (ii) r/. renunciation of j^crsons luiving a prior or .supt'i'ior title to the gra)it (/>). 2. For a ^rant of administration de J)(>itis non to ;i party haviii;;' a derivative, in i)referenf e to a party liavin- a din.'ct title {(■). 'A. For a 14 rant of pi'obate or administration wliciv tin proof of d''atli is presumptive ((/). •i. For a grant of probate, or administration with wiii annexed, of a lost will, as containerl in a draft or in a copy. or of its contents or substance as eud)odied in ;iii alliikvit, where the orio'iiuil will has been lost throui;'h Hodernultdii the part of anyone interested in the deceased's est;iti.\ anl it IS desired, with the consent of all the parties inti resit,'!! in the estate (none of them beiui^' minors), to obtain pio- bate of the contents of the will as contained in the draft or a copy, or of its substance as set foi'th in an afiidavit ('/). ; 5. For a irrant where there is a doulit cjr a contest as to the pel-son to whom the o'rant ouoht to issue, or as to whether a paper is entitled to jirobate, or as to win tluT any portion of a testamentary paper ou^^'ht to b(! exchiiled from the probate, and the parties consent to the (idostinii in doubt or in dispute bein;,' determined, in the first instance, on motion {e). 0. Where the reo'istrar considers that there ai'i) ililHcnl- ties in the matter which ought to be referred io the ni'luv in Court for his dii-ections thereon (/). 7 In cases of special cii'cumstances under 5i)th s>'ctioi! S. C. Act (fj). (b) Powles ifc Oakley, 3rrl ed. 342. ((•) See La the Dmuh of Can; 1 P. A D. 2'.)1. {(I) PowIe3 ct Oakley, Hrd ed. 842. ((/) Ibiil. and villi' ante p. 180 et se^i. (,') Powlea i il f^rant (/,•). t.i rc- I. If an executor or administrator become lunatic after taking' a L^rant, a temporary administration will, on tlie liiiiieiplc of necessity, he i4-rant(.'d without revoking' tlie fiiniii'i- gi'aut dtiring the incapacity of the ])er.sonal re])ri'- Mlit;lti\c (/). 11 Administration dc Ixniix nm) with will annexed was ■ 11 liiotiou decreed to a legatee, InintiMi to rt'ceive a legacy i,....;icv. ill iiie funds and the di\idends due there(m, the chain (jf I'xi'cutnrslii]^ having been broken, and the [»erson entitled r,i) tile Lii'iicral ^'rant df honis non beini>' in Italv and not t'XliL'C't"d to return for some years (in): and the iiL'ent of a ioivii;iici' obtained on motion admniisti'atiou limited to Miljstaiitiatu proceeding in Chancery for the recovery i f a ii'ht, and to the receipt of the debt ( /*). i//i Wins. E.Kors. '.Itli ed. ■113--11. (') S. C. 11. 80. I,/) Sue I'owlc's A Oakley, 842. (/.) See Prothero, 3 P. .t D. 20'.). (') ."i. (.'. Act, s. ;j(j ; ami K^piiiatix,', I.. U. .'5 Ir. Ch. D. ; J!inn,:lil, 1 !.-■, I'l-J.-p. ('»! >(t'fij«i(i»i, 2 IIaK'j4. ■"••i and soe Rule 1."), tiiilc ]>. 17,1. I'll Tiie F.lector i>/ //, .s,(i- rary grant. - ,iil ,„//,■- IK mill. — rcvoca- ti'in I if {,'raiits. - til.' Cniwii. .Tudpes order. 18. A toinpoi'ary j>Tant of administration for a spoejjil pui'poHc, durin;;' the absence out of tlie jiu'isdictioii oi' an executor or administrator, to whom a ;,a'ant lias alrciily- issued, is ol)lained on motion (o). 14. For a <;Tant of administration ad hoiia voHicji'mhi. (hfiinrtl, owinj^ to the impossibility, under the speci;il circumstances of the case, of the Court constituting i <^'eneral personal representative in suthcient time to inci t th(> necessities of the estate ( j>). 15. The revocation of letters probate or letters . ;' administration, or <;'uardianship, obtained on an erroneous su;j^<;'estion, or /if^r i iicariji m, is also upon motion. IG. For a (jrant of administration to the Attorney- (ieneral, as nominee of the .sovereir^ni jure roron a', on t\w ground that the deceased died a bastard or with(jut known relations, and that the Crown is entitled to the estate, aii'l therefore to have a grant of letters of administration vi the same issued to its nominee (q). The facts, in supjiort "■ the ap[)lication, should be sufficiently set forth in the wai- rant or be verified by affidavit (/')• A Jud^'e's ordei' is necessary in the following" cases and is a[)piied for on motion, viz. : — For reduction of tl\e penalty of the usual adminis- tration bond (s), oi' to dispense with sureties, or to limit their liabilit\' to a part of the sum under which the estate is sworn, or to allow a substitute to execute the bond iusteful of the administrator (/). m lis. (()) I'(-/(' S. C. Act, s. MK S.111I iiiitr, y. ITS. (p) ]'i Sw. A Tr. 20; .Sico/././V'yf/, 1 I' D. l-'i. ((/) ]'iili' antr p. 183. (r) (lri[litli, (I r. 1). (',:{. (n) Vide mile [>. H'.-J. {!) Gent, 1 S. .t T. 5 1 -. •_>; 1 ,. .) . :;7 : Slm-pimh; -2 Sw. iV Tr. :iU\ ; 'M L. J. VM ; Ross, 2 V. 1). 27i : Il.illnieil. 10 I'. ]). Ills. *. MtCl'loN'S. 881 Siin'tii's dispensed \vith("). I. i.-iliilit}' <»l' surety limited ('•). An Older Tor tlie ))roducti()ii in the ivyistry oi' any tt'stniiu'iitary paper ii<;'ainst any pei'sou, may lie ol)tained (111 liintioii, upon atlidavit sliowiiiL;' them to he in the iMisM'ssion, or under the (MiiitiXjh oi' a ]ierson not a. ]Kii'ty to the action. Ill ea^i's in wliieh it has heen lieretoforG necessary to issue a suhpoMia, as uuiler the provisions of tlie Sun'Oi;-ate Cniirts Act.ss. 28 & 24, to hrini;- in a testanientaiy j)aper, iiiid in similar cases, a Judf]fe's order shall be made, and sliallliave the like eti'ect as a citation or suhpo'na formerly liiul I ir). All lU'der i'oi' the examination in Court, or upon in- ti'i'i'oj^'atories, or l-efore a commissioner appointed hy the; Ciiurt (,'•) of a person who ap^ieai's to have knowledn'e of the contents of a testamentary paper, when it caiuiot lie sliown that he has it in his ])ossession, or under his cniitnil, is to lie had on motion. (See Suri'o^-ate Courts Act, S.2+C21. Tlie means ol' ent'orcin'r the orders of Surroii'ate Courts. wlii'ilier in non-contentious or contentious ])usiness, are lirii\i(l('(l I'lir by section 19 of the Sui'ro^'ate C'ourts Act, viz.: the like powei's as are vested in the Count}' Courts. That priAisi(jn. it would seem, may he taken as enlar,■ L.i ytinjue, -2 S\v. A Tr. GIU ; ;U L. J. ISti). \r) IIVo', 1 Sw. A- Tr. iV2() ; Fo'iard, H S. it T. 17.S ; ILtlUin'U. 10 1'. 1). 17h; Earlv, 10 P. D. 190. (If) S. C. R 21 and Form 80. i.r) I'.iiniiehi v. l>irh been jiei'sonally served {n:i v. I),-iin,\ 27 L. J. P. & M. 103; and see I'tirkiuson \: TitornUm, ib. 3. (a) William.'i v. Ihiris, 3 Sw. & Tr. 437 ; 33 L. J. P. .t M. l'J7. As tn iittacliinent for not liliii^ an Inventory see Miirslnmiit v. lirook^. ii'i L.J. 1'. iV- M. '.).-,. MOTIONS. MV.i dliovin^' the jud^^niicnt or ordei-, then upon the slierilf's ivtui'ii that the person has licen so taken or (h'tained, the piu'ty so ]i'"osecntiMf,' the judgment or order nhall be entith'd, uiiiin jiriii'ipc, to a coiiniiissioii (jf se((uestration aj^ainst tlu' SiMniotia- (stntc and ett't'cts ol' thi' disolicdient party." — C. R. I'rae. 'If ;;ii attaehnient cannot Ije execute; Itiui.cirs Chiui. I'rac. Citherl. '.lOS. ii'l Tiniiiirln v. Siiiart, 10 1\]). 1st; see also /fi(/-;/.s- v. Jinulhun/. 2 Hw. .V Tr. 4;V,), ('/I See Ah„il V. nirlicf, 2 Cli. Div. o28. ;i:}4 MOTION'S. mi I)isor('ti<)ii ,)f tJiidi,'!'. •ludiciitiin T'rt'.siiiiii)- ti[ Attachment and SecjUestrufjun. tsec Nos. ]!ils !!)!>, Scliedule to Judicature Rules. The practice oF the l^robate ])iviHi(jii Ku'^., in cases of jKirsouH havino' disa]){)eared or not havin^' been heaid (if is tlnis stated in the accepted autliority on that practice i /'}. " Wliere the })r(jol' of the death of the deceased is [nc- suinptive in C(jnHe(juence of his sudden disappearance, or (»f liis not ha\ing been heai'd of for seven years, tlie a}p|)li- cant'.s atKdav'it of the facts on whicli tlie Court is aske'l to presume the deatli should be corroborated in some niateiial ])oints l)y a member or friend of the deceased's family, who is not interested in the estate. The circumstances of th.' family or friends of a man, whose habit was to connmiiii- cate with them, receivin<^ no communication from or of him for seven years, leads to the presumption of his death at some time during the seven years, but not at the beein- nint^ or at the end of the seven years, provided there is no assignable cause for the cessation of his conniiunicatioii,>. The mere fact, however, that he has not been heanl of lor seven years, where it was not his practice to coiuuninicatc does not lead to such an inference, but it may, coupKii with other circumstances, induce the court to act <»n the presumption of his death. Where the proof of the death of the deceased is pre- sumptive in consecjuence of the disappearance at sea of the vessel which he was on board, and of the absence of tidings of those who were on board her, evidence of th ■ following facts is recjuired : — (1) That the deceased was on board when the vessel sailed from her last port. In proof of this it is usual to (e) See Ashwcll v. Oulram, 5 Cli. Div. 'J4.i. {J ) C. A Tr. lltli ed. 32.-). MolloNS. 833 iiiuK'^: t'> fi.i uttidiivit the lust Icttor written on Ijounl l>y thi' ili't-eased. (2) The (hite find })ljice, when und where the v.ssi'l \v;is last seen. {'^) Her non-ari'ivnl in the port to whit'h she was hound within reasonaI)le time. (4) Absence (pf tidin^^'s of tlio vessel from the date when she was last M"ii. (•')) That the shi[) and car^n) were eitlier iiisiiivd or iiniiisurrd, and if insured, that the underwriters have i)aid (,;i the policies as for a total loss. The application should be supported hy an atlidavit of lilt' (iwner, managing' owner or a!.^-ent of the ship, deposing" tiiJill material facta beai'ini:^ on the case within his know- \vhn'. as well as by that of the applicant, and by otlx'r atKilavits, when the circumstances of the ease require it. "he facts upon which the Court is asked to pr ilie ( loath of the deceased should l)e verified i n esum .soni son who is not interested in the iiiaterial poirit by a pei istate {(j). Copies of any affidavits or documents to be read or used S I'^'t-'w "f 111 lopiis or snp[)()rt of a motion are to be delivered to the other attidavit parties to the suit, who are entitled to be heard in oj)posi- liDii thereto (//). in\ Villi' iiHte p. 28'2. Jiy a recent Act, where grants have been made on a presumption of lU'iitli, and sucli presumption issliown to have been erroneous the execu- tor or administrator actinj^ under the fjrant is protected : 53 V. c. 29 (O.) {h) S-'e R. 455 et seq., Con. Rule Prac. Sup. Ct. Jud. (Ont). IMAGE EVALUATION TEST TARGET (MT-3 1.0 III I.I 1.25 ■~iM ilM •■ :i|3 2 m 14 |||M IlM U IIIIII.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 iV iV •1>^ \\ % V > o'^ % V M % n? C^ (/i 336 srMMOXHKS. Deliiv. 1^1 CM [APT!: II II. SUMMONSES. -lanni'iiis (!liiiiiil)crs. A plri it iff may obtain a suniinons calHnrr upmi thu •lelViidant v .show cause why a j^i-ant .should not be inailo witliont fu. ther nvoceediuL^s, if the defendant make dffiiult in ''\vi'^ or ''. ' v "in.:" a defence (a). " li' the pp. .} who lias entered an appearance sliali \m use ) C. & Tr. 34H. (c) C. (fc Tr. 3iS. nm SIJMMOXSKS enterinj; an appearance of his own mere motion in the matter, is liable to a proceeding by summons. It is said of Kules OS to 10(5 of tlie liules of 1,SG2, v.. C. Pm — that thoufjh laid down for contentious business, thev iipply eijually to non-eontentious business, and are now folic iwed in the Probate Division, Kng., in matters not rr ))iirlr, which are proper to be heard in Jud^^e's cliainbers ((/) ; and as the Judicature Acts and Ituies do not affect ii()ii-Ct)ntentious business (e), it would seem that such practice? is applicable in the Surro;jate Courts of Ontario, in proceodiuifs which are not to be adjudged contentious within the meaning of Rule 1 C. B., of the Surrogate Court Rules, l.S!)2. 337 FORM OF SUMMONS IN CHAMIJKUS. In tlie Surro^jate Court of the Countj' of In the estate of , deceased. Between , plaintiff, and , defendant. Let all parties concerned attend before me at my Chambers, on (lay tlie day of IHK , at o'clock ill the noon, on the liearing of an application on the part of f.r Dated the day of 18'.( . Tills summons was taken out by , of Suhcitdr for To ,(/). ((/I V. A O. 3:;-_'; see also C. & Tr. ?03, 34S. (.) Tomlinson, (i P. 1). 2U9. (/I C. it Tr. 4(1S. On the day and at the hour mentioned in the ^umiunns, the jjarty issnin>j the same in to present himself, with the ■ ri;,'iii!il, at the JiuiKe's Chambers. The followiiij,' is the practice i;: the I'riilijite Division on Summons as preserilied by {{ules. Hoth 'parties will be heard by the jiids^e, who will make such order i> hi? iiiny think lit, and a note of such order will be made by tiie rej;is- 'nt ill the summons book. If the party summoned do not appear after the lapse of half an hour hfim till' time named in the summons, the other parly shall be at liberty t' t!o before the judge, who will thereupon make such onler as he njay think lit.' • (' iV Tr. nth c 1. 4r.7. 839, Sed vide. Itule .ViO Supreme Ct. Jud. Ont. II. .•,.(: - '21 u iS|: (LkKI ^tj -f m 'fJK^ '^' ff It^f ' 1 i|^ ':: i, ««' ■.; ^ ffi l^Ui . ' 'S P' ^ S ■« ; ■ .(H ■-; ■ k^r f' { . , , V' 'i J h *j I- J 338 SUMMONSES. In the Probate Division, En- lis from the application or the cniw ,11 order wil; h summon tl a consent. lereon. an till' inili:e- ^istrar. oii'- ,/i',C.A-Tr. PART THE THIRD. ■■■■ VH pT|P BHkhI ' f . M-:| ■ 1 ): Ml|| ! :■ IJ 4W^^ ■5 .» ! ■ / PART THE THIRD. THE PRACTICE OF THE SURROGATE COURTS IN CONTENTIOUS BUSINESS. CHAPTER I. jnUSDICTION OF SURROGATE COURTS IN CONTENTIOUS BUSINESS (a). "A piMceedinf^ shall be adjudged contentious when an Conten- , , ill • • i • tioHs busi- iipjMiinuice has been entered by any person in opposition „e8s, to the party proceeding, or when a citation or Judge's order has been obtained against a party sujiposed to be interested in a proceeding, or when an application for ^nant is made on motion and the right to such grant is "ppiised, or when application is made to revoke a grant, (ii) Certain proceedin^B, e. (jr. citations, caveats, warniiifj of caveats and KtVuiavits, are common to contentious and non-contentious business; D. A- B. :m. m i i 342 —causes t( tary. Jl'lUSnifTIOX OK SrHROCATE coruTs or when there is contention lis to the ri^ht to ohtain pro- l)at(! or nchninistration, and before contest terniinuted."— S. C. R. 1 C. B. (b). Contentious business, or a Probate action, docs iidt necessarily begin witli the entry or with tlie warniii;,' of a caveat (c). That is a proceedinij which, though in certain instances preliminary to an action ((/), is by Rule 1 in- chulcd in non-contentious business. " Contentious business " also includes suits or contcstt'il proceeding in relation to the grant or revocation of littiis of guardianship; and geiieralh' all (juestions, causes, ami suits in relation to matters within the jurisdiction of tliosc Courts (e). The same general language is used in the Sunn^oiti' Courts, in deKning the powers of Surrogate Courts Act as that used in the Imperial Statute, section 4, defininjf tln' jurisdiction of the former Court of Pmbate in England, now exercised by the Probate Division. Saving the juris- diction of the High Court of Justice (/"), the deteriuiiiatiuii of the ({uestion whether a given pajier constitutes a will (b) The definition of "contentious businoss " as t;i veil in ilie Rules E. C. P. in force 5 Dec, IS.'Ji), ami in tlic liulef of 1802, is : " .Ml iiroeewi- iutjs of tlio (3ourt of Probate, or in the re-iistries thereof, in respect of business not inchuled in tlie Act itself, under the expression, 'common form of busiiiL'ss,' pxcept the wixriiiiif; of caveats, shall he deenieil to be contentious business." And " Coninion Form Bu^^illess " was delineil as it is in the Ontario Surrogate Courts Act ; Vide ante p. 'Aii ; 4 Jur. (N 8.) pt. II. Fp. 7-'.», '24, 27, 37, M, 45; and 5 Jur. (N. S.) pt. II. p. 107 (viz. of Jan. and Nov., 1858, and Mar., 1859); and 27 L.J. (N. S.) Prob lADo; and see Horsey, 3rd Ed. App., and C. & Tr. 11th ed. 826. (<;) Dixon on Probate, 382. (d) Powles A Oakley, 353. The caveator being entitled to notice or " warning" before a grant can issue has thus the opportunity of entering an appearance, and may thereupon oppose or support the grant us lus interest may dictate : lb. 375. (e) Vide ss. 1(5 and 17, S. C. A. ante p. 10. (/) Vide ante p. 14. T^ IN CnN'IKNi'lur.S I'.I'SIN'KSS. ,'U.'} of pcisdiialty, and whether it he valid iis a testniuent, Ijelon^s to the Surrogate Courts of this Province (iuliii>j in that I'uurtoii Ist Sept., 1858, were transferred to the Surro^^ate Court, York and I'cel. U) 4 Myl. & Cr. 80; and see Cbancery and Probate jurisdiction in r.nKiaiul compared. Flood vn Wilh of l'er»omilty, 557, 501, and cases there cited. w m Ill I k 844 When buniiii'SB becomes Cdiiten- tioiis . JUIUSUICTION OF SUUH()(;ATE couuts bound to pronouncu its opinion tlmt the in.strunicnt is not entitled to probate " (l). This question involves tlie Jactum of the will, "which means not barely the sij^aiiny; or formal execution, hut also proof, in the language of the coiu/idit that thf testator well knew and understood the contents tli» leof, and did give, will, dispose and do in all things us in the said will is contained " {in). Under the title " Factum of the Will," the learned authors already referred to {n) oonsider the (juestions : " Ist, by what law the validity of the will Ib to be determined ; 2iid, the capacity to niiike a will ; ancl 'An], the nature and form of the will, — and therein of the execution, revoca- tion, and revival of wills." If in an interest cause the decision turns upon the question, which of the parties is next of kin to the intes- tate, such decision has been held to be conclusive upon that question in an action for distribution between the same parties (o). If an a[)pearance is entered by any person in opjiusi- tion to the party proceeding(^>) the business becomes conten- tious, and no further steps in respect to auch grant are to be taken except under the special direction of tlie juIfiim fcriii . {>■) S. C. R. 1, C. B. i») Tliis, in the Probate Division, Eng , is part of the " contentious business " of the court, which commences by the issue of a ss'rit of sum- iiioiis in iin action now substituted for the citation formerly used there ; Wins. j:xors. '.tth ed. '274. (I) Wnis. Kxors. Oth ed. 274. |i'l S. C. Act, 8. 51. For recent cases of proving a will in Solemn Form, see In the Estate of Elizabeth (iirliiiii, ,tec., March 2t;, lss(), and In the E.'itute of John B. Milgon, dec, January 30, 18'J4 ; Surr. Ct., Co. Yorlt. (r) S. C. A. B. 2, 8-8. 3. («•) Moore v. Holgate, 1 P. & D. 101. 346 .ICUISDICTION OK srUIKXiATK (OIUTS Heirx, kv. iniiy l>i' cittMi. {K. C. I'. Act, H. til Proof (if will in 8( ileum form. 8 *1'' • " Whore prf»ceef the validity and contents of such will in all suits or proceetlinys aflectint^ (b) Xirhnlh V. Dinii», 1 Sw. & Tr. 1!», 18.58. (f) arr();^ate Court Act does not contiilii tliis provision (//,). I*n)l)at(' in solemn form is in the nature? of a timi jiiuu\ witlioiit limitation .as io tiiiid//), Ijr- rciuiri'il t<) liriii;^ in tli(! prohjitf, siud Imj j)Ut ujion iiioot" of tilt' will in solemn form (/). But jirubatt! in Hok'Uin form when ouco ^'raiiliil is, \vitli niio exception, irnn'ocnhlc as ji^^ainst all jn-rsoiis fi.nu ^.n who were cited to hc • pi'oci'iMJiiiMS. or wlio can lie proved ,.,.'v,,,'al.lc to have lieen priv}'' to those procceilin^s ( /;/ 1. 'I'lie excrji- tifiii is the discovery at'tern'ards of Ji uill of sulisetpu'ut (lute, ill which case the prohate of the earlier one, though niinti'il in solenni I'oi'm, would he nn'oked {)>). I'.irtii's irliii, r'.s Pill i itt I 'i'^, (ire ciifillfil hi jiroi'i a Will /;/, Sdliniii Fiii'in. (I) The exeeutoi" is the person upon whom this (Jntv ''•'ictifs , , -111- ■<]■ " ^^ '"' '""■y iiriiiinnlv d''Voh'es, j)i'ovide(l lie is wiihn;^ to a'-t. Ii.' iilain- •II • I 1' II' tiffi. Ih' may jtrove a will m solemn hn'iii .1) Ity his own imiv iiintjon I'O, or ( -) hy compulsion -at. the instance of a ji.uly whose interest is ailvei-sely atl'eeted liy the will. // ■ //((/// (hi .'■•'o <>l Ins (iil'ii nii'i'i' iiiolnni ( in. It is I'''*:''"''"' ..... iimv prn luways oiimpeteiit to an exi'cutor t(; pi'ove a will in solt.'iiin .i will in iimv pi'iivc viU ii I'lini I'VI Intc ]) I I llo[l'iifin V. Xorri^, '2 LMiilliin. 'i.'Sl, n.; Mernjireiitlti'r v. Tinner, \i Cun s:l>. s17 ; Sai-'ili TiijiiinKi, 2 Hob. tl'JO. (ml Siiiell V. Wt'ckx. '2 I'hillim. 'JL'i ; J!,-llv. Armslnmo, 1 Add. 'M^l; HihI- ,-l{[},- V. Ilarn,'.^, 2 Hw. .V Tr., ISCi; Wiiih. Kxois. !»tli imI "278. Hoc. .'Jli 0. J. \. iforiiU'i'ly s. 41 mntdtix iinit/iiiiliK of the (jlmiiccry Actl, (jfovldcs tlmt " tliu Hinli Coiii-t hIihU liavo jurisdiction to try tlu; validity of last wills and testaiiit'iitH, whothcr tlio saMu: rosjiecst roal or personal estate, ami wlK'tluf iii'obat(,' of the will has been granted or nut, and to |)rononnco such wills iind testaments to be void for fraud and undue intliKiuee, or otherwise in the same manner and to the same extent as the court has jurisdiction to try the validity of deeds and other instruments ; " and by s. HI, (1) " In nnitters teatamontary as provided in s. 30 to ii'2 inclusive of Iht' Sitrniiidtf Courts Acty ill) Thomas v. Priestman, 'J T. D. 70. (d) In the Estate of John II. Milson, dec, Surr. Ct., Co. York, Jan. 30, 180-1. {]i) !). cV J?, tin, amis, "il, S. C. Act. Ivvccutors cannot cite Ict^atees '11 pr.'piiiuid a codicil. 'I'hey nuiy proi^ound a will and cite persons ntcrested undor die codicil ; lienhow, dec, HO L. J. P. it M. 171. 850 JURISDICTION OF Sl'IUUKiATK COIitT.S '^^ form oi" his fonii. Ill iiiauy ca.'-ea, as a matter of prudence, it is lii i-hlv niotioii. "^ expedient that lie sliould do so. For his own pi-oux'tiun this cours(; \V()uld seem advisable, whenever serions douhts are entertained as to the validity of the will, or \,\-]u'ii Hiskuf 11.1. thoiv is a risk or an a|)prehension of it.s validitv hv'ww at s(i proving-. « . , .. p a hit are time contested. When the exeentor propounds and proves the wili j„ ,■ fcHfes, oi^ himself, duly citinn- the next of kin to so- ji^j- cc^edings, all next of kin so cited an . generalh' m]!( akinir thercb)' forever Iianx-d ; and if he so propounds and ]i;(i\>.k tin; will against certain only of the deceased's next nf kjii witiujut having cited them all to see proceedings, cIk- others, even though uncited if to a certain extent jtrivv tr, !ind aware of the suit, shall not put the executor ou i'ro<4' j>i'i- /^.>7r'.s' of the will, so once proved a second time {ip. It is often inconvenient for an executor at a distanci'of time from the death of the testatoi- to be put on proof of a will in solenui form. Sir .John Dodson on this jioint says, " 1 knou' of no wa^' in which executors can prott^ct themselves from that inconvenience, exce])t by exaiiiiiiiiig the attesting witnesses before taking iirobnte " (r) By the jiractice of the Court of Probate (Eng.). to inovc a ^\•ill in solemn form, it was sufHcieiit to examine -//({■ only of tl'.e attesting witnesses, unless the court veijuiivd the production of the other (.s). rracticc. ^'^ '* exccKfov maij he put on proof of a wilJ m suh-ii;)} form, hi/ compulsion, of f/ie inshince of ate. If the executor desires to sustain the will he must I'itlur plead and i)ro[)onnd it in the action for revo- cation, or he must counnencc an action hiniselt' to obtain prodl' ill sulcnin i'onii (/). T>) I'lititle a person to put an executor on proof of a will, lif must show that he has some interest in impugning the will, however small (c). Thus a person in the charac- tir of tlif next of kin would have a right to oppose all the testiuiicutaiy [lapi'rs of the decea.sed, yet he would not have a right to oppose one paper only in which he has no intfivst. A iiossibilitv of interest is sufficient ( r) to entitled him- P''**"'- ' - ^ l.ility of [v ill I SI). iiiten'st Hiifiii'it'iit. The following are the parties by wliom an executor '|'ii,.|,;irti(s may l>- put (^n proof of a will : 'mt'th.'-' ^" 1. The widow and next of kin of the deceased, and all!,',, pr.M.f iithei- persons entitled in distribution to liis personal estate,' * " ijf their i-epresentatives ; and in the event of his dying - widow without known relations or a bastard, the Attorne\'- ,''["i^i'',*"'^(^j, GeiK-ral ( w). Troliate was granted of the will of (!. to his widow, •'"'■K'"' who was appointed sole executrix and legatee, and who proceeded to collect and take iiossession of tlie estate. More tlian a year afterwards one McL. produced another paper which he alleged to be the last will of the deceased. The executors were cited by the wiii. (ii) Ihiscnmhi- v. Hitrrinnii, '2 Rob. lis ; Wins. Ivxors. litli ..d. 'JTH. |i) Kipiiiiiit V. AkIi, 1 Rob. 270; 4 No. C'li. 177; CrinDin v. Doalioni, •'.'A^^■.\^\\•. 17. I") Vide, ante p. 220. ii ,l3i 352 JURISDICTION OF SUIIROGATE COURTS alleged v/ill in solemn form ; and after hearincr oviji.'iice the Judge of Probate made a decree setting aside the first will, and declaring the will produced by McL. to be genuine. This decision was reversed on appeal, the Court of Appeal holding that the evidence showed that the paper produced by McL. was a forgeiy. McL. was condemned in costs {x). 2. A legatee named in the will in question, if liis legacy is omitted in the probate, or his representative. 3. An executor or a legatee named in a prior testa- if'tratfe in mentary instrument of the deceased or their represen- .111 V otlllT . ' will. tatives. It is open to any one of these to put the executor on proof of the will either before or after he has taken pro- bate in common form. But the two following can only do so before probate in common form has been granted (yi, viz. : — - lepatce in will. — execii tor or Creditor in posses- sion of ad- ministra- tion. 4. A creditor in possession of administration. 5. A person in possession of administration under sec- tion 56, Surrogate Court Act as appointee (z) of the court, Apiiointee without having a beneficial interest in the estate of the or (xmrt. • ° deceased. WhPH ox- ecutor bound to 1 trove will in solemn form. 6. The heirs at law, devisees, and others referred to in section 51 of the Surrogate Courts Act. If an executor has taken probate in common form, upon being called upon he is bound to proceed to prove in solemn form. So also if, since the death of the testator, lie has intermeddled in the administration of the effects of the testator, done any act in relation to his effects, showing an (.r) Entate of Gammell, 7 R. & G. {Nova Sco.), 205. ((/) Diibbs V. ChUman, 1 Phillim. 159. (z) See Meiizieg v. Pulbrook, 2 Curt. 851. M, ■i*SS^'3 ' n IN CONTENTIOUS BUSINESS. 353 idi.'iice lie first to be ; Court e paper ieiimed , if his ive. ir testa- epresen- 2utor on ken pro- 1 only ilo uitedi^i, nder sec- lie court, ;e i the .•re< I to in ^rm, upon solemn m Ir, he lias Its of the low ink' an intention to accept the executorship (((), or any act which would make him liable as executor de son tort (J)), it is obli.'-titory upon him, if required by any of the parties interested, to prove the will in solemn form (c). When he has n(jt so compromised himself, he h at liberty to refuse to act ('/). The usual course for an executor who is unwilliii<; to act, v*','*'"" 1 • "IltltltMl to is to renounce probate. Should he omit or decline to do th ■ rcsi- so, the person entitled to the residue, or a legatee named ii.;,r.it,.,./ in tlio will, or their representatives, may cite (V') the e.\ecu- !|'^|.,;',,,"',"{;';i tor, or other parties interested. The executor, upon beiii<;''^- cited has then one of four cour eo open to him : 1. To appear and pray time to consider whether he will act or not ; ■ 2. To appear and propound tho will himself ; ;i To appear and refuse to act ; 4. To fail to appear. By Rules of the Supreme Coui't of Judicature, Ontario, it is provided that : — 300. All persona may be joined as plaintiffs in whom the rif^ht to Who ni.iy any relief claimed is alle^^ed to exist, whethi;r jointly, sevepally, or in the he joiiuci iilternLitive. And, without any amendment, jiidnent. such service) indorsed with the notice set forth in Form No. 'i'.i in the Appendix, and after such service, they shall be bound by the proccedincs in the same manner as if they had been orifjinally made parties to the action; and upon service of notice upon the plaintiff tliey niav atteri I the proceedin;;^ under tl'.e judf^meut. Any party so served may appiy to the Court to add to, vary, or set aside the judgment within fourtecL days from the date of such service. Jwdprnu'iit 333. Where a defendant, at the trial or on motion for i'ldfiuient. saving; objects that an action is defective for want of parties, the Coart, if it rights of •* 1 ' • absentees, thinks fit, may pronounce a judgment saving the rights of the absent parties. Action IK defnated by mis- joinder. Addiuf,' and ."trik- in>.' out parties. )t 334. No action shall be defeated by reason of the inisjoinder "f parties, and the Court may in every action deal with the matter in con- troversy so far as rogar'Ta the rights and interests of the parties actually before it. (a) The Court or a .ludgo may, at any stage of the proceedings, eithir upon or without the application of either party, and upon such terms a? may ajjpear to the Court or Judge to be just, order that the name of any party, whether as plaintiff or defendant improperly joined, be struck out, and that the name of any party, whether plaintiff or defendant, who ouf^ht to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and comi)letely to adjudicate upon and settle all the questions involved in the action, be added. (b) No person shall be added or substituted as a plaintiff sniiis; without a next friend, or aa the next friend of a plaintiff under any disability, without his own consent in writing thereto to be filed. (c) All parties whose names are so added or substituted as defendants shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such writ of summons or notice. IN CONTENTIOUS HUSINKSS. 857 ' the absent ;j25. Any njiplicivtion to add, or strike out, or substitute a plaintiff Appliea- or deiViuliuit may be made to the Court or a Judj^e at any time before '"^" ^"'^' trial by motion, or at the trial of the action in a summary manner. •'ISO* Wliere a defendant is added or substituted, unless otlierwiso AnitiuU'd ordered by the Court or Judfjo, the plaintiff shall sue out an amended "''•< whore writ of summons, and serve the new defendant with such writ, or notice f,,,„|.'„',f in licii of service thereof, in the same manner as original defendants are added. ■^I'lveil. 3'i7. If a statement of claim has been delivereu previously to such Ann ndcd defendant i)i'in;,' added, the same shall, unless otherwise ordered by the '''.■''''■""'"' Court or .Iiid^f, be amendid in such manner as the making; of the new difemlaiit a party may render desirable ; and a copy of the amended statement of claim shall bo delivered to the new defendant at the time wlicn he is served with the writ of summons or notice, or afterwards within four days after his appearance. Rules .'328 to 3.S2 inclusive, relate to contribution and iiidLMiinity, and notice to third parties. tlltll A plaintiff is not to be unnecessarily delayed in recoveriuf^ ri.iiiitiff Irs claini by reason of questions between defendants in which the plain- ni't '" '»■ tilf is not concerned ; and tiie Court or Judj^e is to give such direction as ,!!,■;■, '^ may be necessary to prevent such delay of the plaintiff, where this can lntv(cii be done, on terms or otherwise, without injustice to the defendants. deffml- aiits. 3;i5- In all cases in which lunatics and persons of unsound mind, t,,^„,,„ Hot so found by inijuisition or judicial declaration, might respectively persons. before the passing of The Ontario Jitdicaturi' Act., IHHI, have sued as lilaintiffs, or would have been liable to be sued as defendants, in any iition or suit, they may respectively sue as plaintiffs in any action by their committees or next friends in manner practised in the Court of Cliancery before the passing of the said Act, and may in a like manner d-'fend any action by their committees or guardians appointed for that purpose. ^-,, j^,,. for a defendant who is a person of imsound mind not so found by inqui- j it-.-uancc aition or judicial declaration in lieu of an inquisition, the idaintiff may''-)' I'it'^oh 1 i I ,■ -r -1 » 1 ,, . ,- . , iif unsound apply to the (. ourt or a Judge for an order that a guardian of such jj,j„j_ defendant bo appointed, by whom he may appear and defend the action. (a) Hut no such order shall be made unless it appears on the hear- ing of such application that the writ of summons was duly served, and that notice of the application was, after the expiration of the time T^TIT'" !.•'* 358 JrUFHDICTION OF SUIIUOUATE COURTS allowed for appearance, and at least six clear days before the day in the notice mimed for liiiirinfj the application, served upon, or left at tlie dwellinfj-liouse of, the person with whom or under wliose care such d-jfondaut was stayin;^ at the time of sorvinj^ such notice (U. 13U). (b) Upon such application the Ofiicial Guardian sliall be su ap- pointed, unlesH a Jud<^e otlierwiso orders, Ouiirdiiui JIJIT. Wlieii infantH, or persons of unsound mind not sit Unwul h\ III/ lilnii incjuisition, are served witli an office copy of a jud^jment or oiiji r in aiiv after iudk'- procecdinf^a, or arc made parties to actions after judf^nient, jjuardiiins'ni iiifut. litem are to be appointed for them in like manner as before jud^iiu nt. K( of I'crsdiis dcsirint.' lu have a giiariiiiin (('/ lih III appointt'd to himself. 33S. Where a person rerpiired to bo served with an office copy of a infant or judfiment or order is an infant, or a person of unsound niiiul not so with judif- found by inciuisitioii, tiie service is to be effected upon such person or nient. persons, and in such manner, as the Master, before whom the reference under the judf^ment or order is beiii^ prosecuted, directs. St!t9. A person desirous of appointing,' a t^uardian for hiinsclf nthrr tlian the ofliciiil guardian to defend an action or matter, may ^;o btfuru a Judt^e or master witii the proposed f^uardian if he thinks iit to do so. But he must satisfy the Judj^e or iNIaster by affidavit tiiat tlie proposed guardian is a liL person, and lias no interest adverse to that of tlie ])('rsoii of whom he is to be the guardian in the matter in (juestion ; luid if the affidavit is not suiHicient for this purpose, *!.o Judge or master may examine the proposed guardian, or the person making the aflidavit, riVii voce, or require further evidence to be adduced until he is satisfied of the propriety of the appointment. J84©. Subject to . . . Rules, the plaintiff may unite, in the same action and in the same statement of chiim, several causes of action. In an action for probate, tlie Probate Division, Eiitj., refnsed to allow the plaintiff to include in the Miit of suimnonH a jirayer for a declaration of legitijiiacy. That would be joinino; two causes of action, one of which is triable by the Pi'obate Rules and the oth ~r by ])i voice Rules, the tirst being commenced by writ, the second by petition (h). When an executor appears to the citation or Ju(l<;e's order, and propounds the will himself, he becomes only What eaiisfs of action iiiiiy be joiiifd. Probiite • joinder of action - declilra- tion of leKit'niacy (h) Warier v. ir , 15 P. D. 35. T^ IN C(tNTEN"n(>L'S HUSINKSS. :io'J noiiiiiuilly the (Iffeiitlaiit in the ut'tion, ami will do the acta wliicli onliimrily devolve on the plaintilV, e. ;/. deliver the .statfiiieiit (if claim, etc. (i). WlicM the executor fails to appear, or a])pears and Wii.n th.. jmiiii'Uiid the will in loco exec'iforis {j). icfiisfsto act, the pai'ty entitled to the i-esidue, or a lc;^Mtet' iitl..| to iiniiK'd in the will, or either of their I'epresentativeH, may ,„I'./]',i^.'j,',',',', iiiiiy pni- |">iiMuiti//). Aiii«vri't'i' i" has 1h( 11 oiui'ct'.d from the probate, or his representative ; All executor or ley-atee named in any other testa- •^" ''^;'''"- ',. , , 1 I "^ • • tor cirli't,'a- iiioiitaiy instrument or the deceased, whose interest is t.c in any adversely aliected by tlu; will in (piestion, or their repi-e-" st'utatives. When an administration has been previously oranted : — Cr.tnition. (0 Kw' Umndreth v. B.. 2 Sw. it Tr. liO. (j) Sfe Cootc & Tr., lltli ed. 'ATI [k] Brotlicrton v. Hellier, 1 Lee, 599. I II \i\f < i^MMfBI^ m 1. ;,*ii 1 ; ■wt 3(J0 An a|i- poillti t tlic c'liurt . Tlio li.'ir- iitliiwiiiiiy bo citwi. May iiitiT vene. JUUIsmCTloN OF SUUIKMJATE COURTS A pei'Hon in posHcs.sioii of adniiiiiHtrution under scctif.n T)*!, SuiT()i,'ato Court Act, ii.s aipjKjlnteci of the court, witlumt liavini^ a hcnuHcial interest in the estate of tlie (iect'iiHcd; The hist two may recjuire proof \v stdenm form hufcne, l)ut not after probate in common form has issued (/). When the will relates to real estate, the lieirH-iitdaw, devisees, or other persons pretending' interfst in such ival estate are made defendants (*/i), unless the court ( //)slmll, with reference to the circumstances of the propcity nl" thi- deceased, or otherwise, think iit to direct that tlu.' ciuise nuiy proceed without their l)einf;' cited. They are made defendants Ity bein^- cited liy citlur party to the suit, to see proceedings in pursuance of mi order obtained for that purpose on motion. It sliould he shown on affidavit that the M'ill in ipiestion ati'ects, nr l>urports to affect the real estate of the testutoi', and lie may then make any special directions as to the persoiLs to be cited (o). The heir-at-law and other parties interested in the real estate affected by the will, though not cited, may beeoiiie parties defendants and intervene with leave of the .bulge obtained by order for their respective interests in such real estate (/)) ; also any person whose interest may by possi- bility be affected by the suit, is allowed to intervciie to protect his interest. The devisees in an earlier will may be cited {) See S. C. A. s. 51 ; S. C. Rule 30 ; ami Kfniuiicaij v. A'., 1 V. D. 148. B. 51. ip) See Rule 4, E. C. P. 1858 C. B.; C. & Tr, 11th ed. 401 ; ami S. C.A, 1. (q) Lister v. Smith, 3 Sw. & Tr. 53. IX CONTEXTIOlS ItrslXKSS. .S()l In an nction as to the valio cit 'd as a person liavitii;' or iirotciidiu;^ iuteri'st in the real estate afl'ected \ty the will (/•). Tlie apijlication for any order to cite the ludrs-at-law, or otlu'rs referred to in the Act, is siipporte*! l>y an artidavit that tiie plaintill' intends to pntve the will in suli'iiiii form, and is desirous that the probate should hintl iho ival estate («). Ill a probate suit the persons interiisted in estabji.shin!'' '''i'''«''*'» all intestacy were the widow ol tiie testator ami bis intfn-Ht. Iiiotlier, the heir at law. The wiilow was a lunatic coniined ill an asylum in Australia, and as the heir-at-law had alruaily a])i)eared as a party in the suit, the coui't ri'fused Id order tiie widow to bt; cited in the suit (/). Till! partv opposin;; a will mav, with his statement of ^"tiv'.'f ^ . " ' I " "^ . lu.ivlv 111- •left'iice, ^ive notice to the [»ai-ty scttin^' nj) the same that .si^tillK' on he merely insists upon the will bcin;; proved in solemn il',!,".,',,,!" toriu oi' law, ami only inti.'nility in respect of costs ; which however, is now. in accordance with Rule 1170 as amended by 1274 Rules Supreme Ct. J., Ont. ('•) D. k B. 757. 362 JUUISDICTION OF SURROGATE COURTS puts in an appearance in answer to a citation served upon him by the plaintiff', or at the commencement of the action, he would be calhnl a defendant, and not an intervener. An intervener in a cause might be allowed to plead in the principal cause, if at the time of his intervention the cause was not actually and formally concluded (iv). " Any person not named in the petition or in the order of the Judge may intervene and appear thereto on filing an affidavit showing thnt he is interested in the estate of the deceased." — S. C. 11. 5, C. B. An intervener may support the case of the plaintiff, tlie defendant, or another intervener, or set up an independent case in his own behalf (,c). The affidavit must show interest (?/). The proceedings are thenceforth intituled, A. v. B.; C. intervening. By Rules of the Supreme Court of Judicature, Outaiio. it is provided that : — Service on 3»I8. Wliere tho action is iu respect of an estate in wliicli an infiuit ofticial is interested, service on the oflicial guardian shall be f^ood service on ihi guardian, i^f.^nt defendant. (a) If in such case there are more tlian one infant defendant, for whom service is to be nuide on the olficial guardian, one copy only need be HO yerved. (b^ From tho time of such service the oiificial guardian shall become and bo ihc guardian ad litem of the infant, unless and until the Court otherwise orders; and it shall be his duty forthwith to attend actively to the interests of tlie infant in the action, and for that purpose to conimu- nicate with all proper parties, including the father or guardian (if any) of tl"j infan ., and also the person with whom or under whose care tiie infant resides, in case such person is not the infant's father or guardian ; (if) Clements v. lihoden, '6 Add. 40. (j) C. & Tr. llthed. .3()H. (y) See Kipi>iiip v. AkIi, 1 Rob. '270 ; 4 N. C. 177: Crixpin v. Doijlioni. 2 Svv. cfe Tr. 17 ; llcmcuin v. Htirrinoii, 2 Rob. 118. , ■ :.5»,?>i»i ^m IN CONTENTIOUS BUSINESS. 363 and tlie fjuardian is to make such other inquiries and to take such other procecJiiiti>i o,a the iiitiTests of the infant may require {z). 201« When the infant is personally served and is not represented (Juardian by the ol'licial guardian, there may he a f^uardian appointed for the infant "J^"'.'" '"*" as in actions at cop-'"' m law before the Judicature Act. guardian. 203« Anv person interested may move before a Judge in Chambers, Motion for '. , , ii ■ 1 i 1 • ..• L'liardian. on sucli material as he may think proper, for an order appointing a^ guardian other tlian the official guardian ; whereupon such order as may be considered moat conducive to the interests of tlie infant shall be made. 20!l> Where a lunatic, or where a person of unsound mind not so Lunatics. found by iiKjiiiniticin or judicial declaration, is a defendant to the action, service on the committee of the lunatic, or on the person with whom th'j person of unsound mind resides, or under whose care he or slie is, shall, uidess the Court or a Judge otherwise orders, be deemed good service on such di.'felidant. 301. No further pioceodings are to be taken against such a defen- (Jiiardian dant who has no committee, until a guardian ad litem is appointed. "" '"""• A minor (/. c. a person above the age of seven years and uailrr the ao'c of twenty-one) may elect a o-uanlian for the {luriiose of carrying on, defending or intervening in a suit- An infant (i. e. a person inider the age of seven years) wuiiM, hy the E. C. P. practice, have a guardian tissigned to hiia by the judge on afKdavit (a). This practice is con- tinueil in the Surrogate Courts of Ontario (b). Any person who is not worth £25 (c) after payment of his just debts, save and except his wearing apparel, is alluwL'd to sue ((/) or prosecute {e) a suit in forma (:l Where the guardian of a minor residing abroad who had been served with notice refused to ajipear, the Probate Division nominated the ollioial siilicitor of the Court guardian nd liti in. and ordiTed the pUiiiititf to prcjvide for the guarciian's c jsts. White v. liiii-cnuiy JH'Jlj 1'. -'JO. ((() See also p. [h] Vide iinte, p 192. li'l In the Ecci. Courts the limit appears to have been £.>; Coote, Ecol. Law, so. [d\ 7iV J,m,'K, 1 Hagg, 81. W Cathrell v. Jeffiee, 33 L. J. P. & M. 178. 364 Forma paupei-is. m ijH|HHiiii JURISDICTIOX OF SUllK. COURTS — CONTENTIOUS HUSIXESS, 2muj)cris(f). And by Rules E. C. P., Contentious Rusiness now followed in the Probate Division (g), it was provided that : — " Any person desirous of prosecutinf^ a suit in forma liaiiperis is to lay a case before counsel and obtain an opinion that he or she has reasonable grounds for pro- ceeding (/i). " No per^eon shall be admitted to prosecute a suit /)) forma pauperis without the order of the judge; and to obtain such order, the case laid befoi'e counsel, and his opinion thereon, with an affidavit of the party, or of his or her solicitor that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit by the pai-ty apply- ing that he or she is not worth £25, after payment of his or her just debts, save and except his or her wearing apparel, shall be produced at the time such application is mad(!. " Where a pauper omits to proceed to trial, pursuant to notice, he or she may be called upon by sununons to show cause why he or she should not pay costs, though he or she has not been dispaupered, and why all future proceedings should not be stayed until such costs are paid "(/). The siiine practice appears to have been followed in the Prerogative Court in those matters ; exeept that £5, instead of £'25, appears to have been the limit for paupers (j). (/) 11 Hen. YII. c. 12 and 23 Hen. VIII. c. 15. See also Parr v. Montgomery, 22 Gr. 17(3. (.7) C. & Tr. 397. (//) As to dispanperizin;^, see Lovekin v. Edwardii, 1 Phill. 183; Lait V. Bailey, 2 Kob. 150. (t) See E. C. P. Rules, 1802. (j) D. & B. 633 & cas. cit. 11 if ■ Pf l^l CON'TEN'TIOUS BUSINESS— PRACTICE AND PUOCEDURE. 365 CHAPTER II. CONTENTIOUS BUSINESS -PRACTICE AND PROCEDURE. A writ of summons has been substituted for citation Rules, as the process for instituting!,' an action in tiie Probate Diviaion, Eng. ; the citation being still in use for other purpcisos (a). The rules as to contentious ))usiness recently promul- i;atefl for the Surrogate Courts have not introduced that part of the practice under the Judicature Act ; but the practice and procedure of the High Court after appearance is introduced (6) ; as well as the practice as to appearance so far as practicable (c). A step fre(iuently resorted to preliminary to com- Cav.ats. menciiig an action, when a grant of probate or adminis- tration or guardianship has not already passed, is entering in the registry a caveat {d) against such grant passing without notice being given to the party entering the caveat or to his solicitoi*. (See s. 49, S. C. A.) This caveat will remain in force for the space of three months (S. C. R. 21^) and then expire, but may be renewed from time to time ; and so long as it remains in force, no grant can pass without notice being given to the party who ((!) Powles & Oakley, Srd ed. 251-'2, 413. In the Probate Division, Enji., actions for revocation of grants there, must commence with a cita- tion, wiiicli must irisue either before or concurrently with the writ of suLinions ; Ih. 414. (fc) S. C. R. 3, C. B. (c) S. C. R. 2, C. B. {■i) It is said that an act done pending caveat is void. (C. A Tr. fiR9.) 366 !^»3l , Wiirninp of caveats — ai)pear- uiice. — conten- tious biisi- I1M8S coni- iiienceH with . CCJXTliNTIOL'S BUSINESS. lodged it or to his solicitor, so as to give him an oppor- tunity of appearing and opposing the grant. The giving of this notice is technically termed warniiKj the caveat (e), In the Surrogate Courts the foundation of every action inust be a claini to either probate, letters of administration, or letters of guardianship. The warning to a caveat requires the caveator to outer an appearance, and set forth his interest, (8. C. Rules, Form 83); and if such person claims un) S. C. R. 24-27. The warning of caveats is included in the defini- tion of non-contentious business, S. C. R. 1. See also Ch. on Caveats, ante p. 275. (/) C. & Tr. 11th ed. 338. See Sup. Ct. Jud. Rule 284 infra. (()) The source of the practice here stated is C. R. 74, E. C. P. 1856. (h) S. C. R. C. B. 1. PRACTICE AND I'UOCEDUUE. 367 Another mode of commencinf; an action is by cita- Citutions. tion (0 or judge's order (;/'). This mode is resorted to where an executor or person acting laco exccutoris \n'o- noHes to i)rove a will in solemn form of law, and no caveat has bcLMi entered, or a caveat has been entered and no iippeurance given to the warning tliereof, the contentions ^^j^^^^^ business is held to commence with the extracting of a cita- ti.niHbusi- ' iifss coin- tion l^). So, also, a l)arty interested, who proposes to putmonces an executor who has taken probate of a will in common"' form, on proof of the will par fextfs, or to call i;i a gi'ant of a liuiuistration that the same may be revoked, would coimiifiice his suit by citation, excepting in the cases pro- viilfd fi>r by Surrogate Courts Rule 21. (See Forms in Appendix) (l). A citation is only allowed to io.-,ue where there is an An affi- (I'i VI t TH- utiidavit in veriHcation of the averments it contains filed in (['uisitc to tl'.e registry and a judge's order (m). The afiidavit should Jf '^'^*' tions. be made by the party, or one of the parties, on whose behalf it is extx'acted. Before such a citation is signed by the reinstrar a^'^^' caveat is entered against any grant being made in respect ht-forti cita- of the estate and effects of the deceased to which such cita- signed. tion relates. Such caveat is to be renewed from time to time, so as to be kept in force so long as the })r()ceedings arising frf)in the service of the citation are pending. ((') S. C. K. 1, C. B. And it is an inherent part of probate practice that every one before extractinj^ a citatio Kliould hIiow in the aflidavit which loaiis tlie citation the charact'r in which he does it, and thereby the interest which justifies it. Cliamljerlain, 1 P. & D. 31(5. (j) See S. C. R. 21. (/() S. C. R. 1, C B.; and R. li E. C. P., C. B., 1802. (7) Before a citation can issue under S. C. R. '21, the order of the judge ie to be taken. (i/t) S. C. R. 30. B^B '^ t; m J ' ^^j '^'i«ii!F£exTi' ii 368 CONTENTIOUS BUSINESS. By the recent Rules : .Tud^fc's << jjj j^ii cases in which it lias l)een heretofore necessarv Htitiittdfurto issue a citation to accept or refuse probate of a will^ or to accept or I'efuse letters of administration, or to ismie a suhpo'na to brin^ in a testamentary paper, and in all simi- lar cases, the Judge's order shall be made, and shall have the like effect as such citation or subpcena formerly had." -S. C. 11. 21. citation II curtain cases . Service df pajjern. Service, (other than as provided in the case of certain citations by Rule 80), of notices and other papers is re(|uired to be ])ersonal service on the party, unless he lias a solicitor, in which case it is on the solicitor. This, ht'iiifr a matter not provided for in the rules, is to be reirulatod bv analo^^y to the Rules, Practice Supreme Ct. Ont. hi). The practice of the Hi entered has in the estate and effects of the deceased. The practice of the High Court of Justice ii.s to appearance is regulated by the following among other rules : — — when lttlO> Rri^E 27o is roscinded and the following substituted tlieiofor: '• '27.). When a defendant is served within Ontario, and not in service m Algoma, Rainy I'.iver or Thunder Bay, he shall appear within ten tiny,-. n ano, including the day of service. (0) R 21, E. C, P, 18(52, C, B. (;)) By entering an absolute appearance the defendant admits the jurisdiction of the C!ourt (Bond v. Bond, 2 Sw. & Tr. 1)3), and waives any irregularity in the citation, or in the copy, or in the service of it (D. ivH. 71'), and cases cited) ; but not a nullity {Ackerley v. Parkinson. 3 M. cV S. 411.) Upon an appearance under protest, the jurisdiction of the conrt, {Broti-n V. Cnates, 1 Add, 34o, jt.), or the capacity of the plaintiff to sne, may be put in issue ; in the same way the validity of the citation m of the service may be objected to, and it may be shewn that circiuii- stances which do not amount to a legal bar to tiie suit, rciuler ;t unconscientious that it should be prosecuted in the particular ci'-ie. (D. &B. 71')) IV t. PRACTICE AND PUOCEDUUE. 871 (a) If served within Algoma, Rainy River or Thuniler Ray, unless otlierwiHo ordered under Rule 185, he is to have tliirty day^ in an action fortlif recovery of land, and twenty days in other actions, after the Her vice, iiicliidm^ the day of service, except where he is served between tlie 1st liny of Novenil)er and the 30th day of Jane or on either of the said davs, ill wiiioh case he shall have an additional period of ten days." litll* RnLK 27(1 is rescinded and the following; substituted therefor : — time for " •27ti. Wlien a defendant is to bo served out of Ontario, the writ ,j. ,.„,,„.. of suiiinions may be in the Form No. 2 in the Appendix (7), and the state- aticc (lud lueiit of claim is to be served therewith, unless the writ is sneciallv , ^ '""'^ indorsed under linlen 21"), 24(5 or 248. 277. A defendant shall enter his appearance to a writ of summons jf„^y bv delivering a memorandum in writing, dated on the day of deliverinj^ entered. the same, and containint,' the name of the defendant's solicitor, or stating thiit the defendant defends in person, to the proper officer in that office ill the same County where the writ of summons was issued, in which, by the memorandum subscribed on the writ or by the notice of the writ, the jil)|>earniico is re(\uired to be entered, except where by any Rule of Court it may \k otherwise provided, or where the Court or a Judge otherwise directs. • 378. If two or more defendants in the same action appear by the Two or aiuiie r^olicitor and at the same time, the names of all the defendants so more de- , ,, 1 . . T ■ n fendants, iippeanii;; shall be inserted in one irMiiorandum. ^.jj. 279. All proceedings in actions to final judgment shall be carried on Appear- in the olti.x' in which the appearance is to be entered. aner.wliere entered. 'iHit. When an issue is directed to be tried it shall be filed as soon issue to lie as settled, and may be tiled in thecomit> in wliiidi it is directed to be tried, tih'd. and tliereiifter the proceedings in the issue shall be carried on in the said cniiiity in the same manner as the proceedings in an action commenced in such county. But the Court or a. Judge may order otherwise, and may chanj.;e the place of trial in the same manner and subject to the same rules as in an action. 281. A defendant may appear at any time before judgment. If ho Apjiear- appear.-i at any time after the time limited for appearance he sliall.on the 'm'e niay same day, give notice thereof to the plaintiff 's solicitor, or to the plaiiitit'f ^'^^^^ ni.tice himself if he sues in person, and he shall not unless the Court or a Judgi? given. Iaintit}" tiles his statement of cliiiin within tlie time limited for the pur[)OHe. At the time of lilin;; his Htatem^nt of chiiin, the phiin- J^criiitH. tiff should tih' therewith an aHidavil ')f scripts (r). An npiilication is made on motion to the Judj^'e for his ijiroctiou as to the mode of healing' the cause (w) Tlicro beint; no defendant, and therefore no issue, the "•'■j'V'^f, . . . n (Iffuulr. action will he directed to be heard before the court without a jury. A ri'curd is prepared and dep. And the plaintiff is not compelled to deliver his state- ment of claim until eight days after defendant has filed his affidavit as to scripts. When necessary, the party propounding testamentary papers was ordered to furnish particulars of the papers to which the declaration was intended to appl}' (a). A motion for particulars of unsoundness of mind was refused (6). (:) C. &Tr. llthed. li'JT ; 830. ('() .i;«().s/( V. Carry, 8 Sw. & Tr, 4()0 (18(i0). (/•) llaiil;i)i>iiin v. Biirrhujham, \) P. D. 02. Particu- lars. m I'llACriCE AND PUOCKDUllE. 377 eiv iiffi- not any le 1 •y or \vi 1 or hicl I the 1 ;,- • his St()( iV ov vit is to reg istry. Filing and Delivery of Statement of Claim. The piii'ty propounding the alleged last will and testa- ineiit lit' the deceased is in all cases the projjcr party to (h^livt'V a statement of claim (c). In ordinary cases it belongs to the plaintiff to deliver it, but in certain cases. I'.il.. in actions for the revocation of probate, it is the tliity of the defendant to do so ((/). 15y the practice of the Probate Division the statement (if claiiii is to be delivered to the opposite ]>arty, and a cnpy thereof filed in the registry on one and the same day, within one month (e) from the entry of appearance by the -leffiulant: but the party whose duty it is to file the stiUoment of claim is not compelled to deliver it, or to tile a copy thereof, until the ex[)iration of eight days after the uthei' party has tiled his athdavit as to scripts (/). FiliiKj (iiid Deliver]/ of Statement of Defence. The defence to be tiled will depend on the circumstances Diffiiw. of uach case ; e. //., denying that the will is the will of the (luccased ; denying the due execution of the will ; den^-ing th(' testamentary capacity of the deceased, or alleging that till' iiinking of the will was procured by undue inlluence or hy tlie fi-aud of some person or persons named {g). The time for filing the statement of defence is by Rule •'i"l. H. C. J., eight days from delivery of statement of cUiiii. i.| C. * Tr. nth eil. 3'.I7; and see M,iil,ler v. /V;,nix^ '2',) L. R. Ir. K'.. ('/I E. C. P. R. 3.i, C. B. 1802. [e] 111 the Hi{«h Court of Justice, Out., the time is three months unless, etc., Vide Rule 3(i!l, nt/ra. if) E.G. V.1{.U C. B.; 18f,2. (y) ('/'(/.' i/i/r' x'leadin^;. 378 Eiilarpc- meiit or abrii la- ment of time. Power of judge to extend time ft)r delivering pleadings, &c. CONTENTIOL'S BUSINESS. Replication. In the Higli Court of Justice the plaintiff is to deliver his reply (if any) within three weeks after the defence or the last of the defences shall have been delivered unless the time shall be extended by the Court or Judge. Rule 381. Enlargement or Ahridrpnent of Time. 4Si1». A Court or a Jiulj,'e shall have power to enlarge or abridge the time appointed by these Rules, or any Kules relatinj^ to time, or lixid by any order enlart^ini; time, for doinj^ any act or taking any procutrlinj;, upon such terms (if any) as the justice of the case may require; ami any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. Rule 185, Supreme Ct. Jud. Ont. ; and see Rule 8'.), Rs. 18(;2, E. C. P. By the practice in force in the Probate Division, Eng., if a party in an}' cause fail to deli\'er, or tile a copy of the statement of claim or other pleading within the time specified in the rules, or within such extended time as may have been allowed, the party to whom such stateiueiu of claim or other pleading ought to have been dcliveied shall not be bound to receive it, and the copy of such stiite- ment of claim or other pleading shalTnot be filed, unless h\ direction of the judge, obtained on summons. The expensi- of every application for such direction or order slifili fall on the party who has caused the delay, unless the jnd^e or registrars shall otherwise direct (//). As to the power of the Court or a Judge, High Court of Justice, Out., to extend the time for delivery of pleiul- ing,s.— See Rules 309, 371, 372, 381, 383. In the Probate Division, Eng., in order to prevent the time limited for brinijinfj in the statement of claim or other pleadings, from expiring before a])plicati P. D. 2(); see also liuliitu v. ilaa-kiiis, U P. D.'oO; and Rules i'l'.f, Hi, 44% Supreme Ct. Jiul., injm. (ill) Riding v. Hnirhiii.-i, It P. D. 50. (//) //*. "-'.I. PLEADING. 381 CHAPTER III. TLEADING. If one party propound a will in his statement of claim, ^y^lt•re two and the other party in his statement of defence allege the iiroiHniiid- existoncc of another will, each party may, with the subject''" to the permission of the judge, adduce proof at the trial or lieari'.ig of the cause of the validity of the will upon which hu relies (>')• In all cases the party opposing a will may, with his plea Notice by give notice to the party settnig up the will that he merely as to cmss- insists upon the will being proved in solemn form of law, ^j^^n'""^' and only intends to cross-examine the witnesses produced ^^'t'lt'ssf^^- ill support of the will, and he shall thereupon be at liberty to Jo so, and shall be subject to the same liabilities in respect of costs as he would have been under similar cir- cumstances according to the practice of the Prerogative Court ib). The form of pleading, adopted in the Englii.h Court of Pmbate, was similar to that in the Common Law Courts (c)- Wliere pleadings contain irrelevant matter, application Tmle- slumld be made in Chambers to have it struck out ((/)■ 111 Contentious Proceedings in the Surrogate Courts the practice and procedure are as nearly as may be to {«) C. .t Tr. 831— Rule 40 E. C. P. 1862. {h) Hid. Rule 41, unci Vide S. C. R. G C. B. (c) Uake V. Hunt, 80 L. J. (P. A- M.) 8!) (1800). ((/) l'\nler v. i-'., 27 L. J. (P. & M.) 103 ; Rosbothuiii v. R., 2 Sw. A- Tr. 382 CONTENTIOUS BUSINESS. \pm U ■'; correspond with the practice and procedure in tlie Hiirh Court after a])pearance entered (r). The genera! Rules governin*,^ the last named practice in relation to pleadim are as follows : — Di Statement cliuiii. Tiini' with- in which to be deliv- ered. When de- fence niu'it be deliv- ered. JMtS. The plaintiff shall state the nature of his claim and the relief Hou^^ht in a pleading to be called the Statement of Claim. And where a statement of claim is to be delivered, tin- time for so delivering it, unless otherwise ordered bv the Court or a Judge, is " within three months from the time of the defendant's entei'ing his appearance."— R. 36!). ^71. ' ? a statement of claim is delivered to a defendant he shall dolivci- h.' -^•;.^' counter-claim or demurrer within eight days from the delivery ■ .. ( .a,'oment of claim, or from the time limited for appear- ance, wlijchever shall be last, unless such time is extended by the Court or a JnJ'.e. ^ ,. ;IN1. A plauitir ih.i)' der.vei' his reply, if any, within three weeks Delivery i ./ ,/ of reply, ^f*^'^' t''*' defence or the l.ist ol" the defences shall have been delivered, unless the time shall be extended by the Court or a Judge. Leave for 383« No pleading subsequent to reply other than a joinder of issue sub.'jequent sliall be pleaded without leave of the Court or a Judge, and then upon pleadings, such terms as the Court or Judge thinks fit. Time for 3S3. Subject to the last preceding Rule, every pleading subsequent delivery, to reply shall be delivered within four days after the delivery of the previous pleading, unless the time is extended by the Court or a Judge. R}^ a recent rule no demurrer shall be allowed. (Rule 1822). Denuirrers 1323. RuLES 384, 385, 386, 387, 388, 389, 390 and 391 are rescinded abolished, and the following substituted therefor : "384. No c'emurrer shall be allowed. „ . " 385. Any party shall be entitled to raise by his pleading any point of law,liow of liiw, and any point so raised shall be disposed of by the Judge who tries to be de- the cause at or after the trial, provided that by the consent of the parties, termined. ^^ ^^ ^^^^^ ^^ ^j^^ Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before tne trial. (<•) S.C. R. 3,C. B. PLEADING. 388 " 38'i. If in the opinion of the Court or ii Juclr;e, tlio decision of sucli point of law siibstantiiiUy disposes of tlie whole action, or of any distinct ( ause of action, {ground of defence, set-off, counter-chiim or reply therein, the Court or Jiid^jo may thereupon dismiss the action or make such other onltr therein as may be just. '• ;}H7. The Court or a .Tud<;e may order any pleadint? to bo struck out I'liNidinjr nil the Kronnd tliat it discloses no reasonable cause of action or answer. "''^>' '"' ;iiul ill iuiy such case, or in case of the action beint; shown by the plead- '__,„. .^^.l^^^^^ iii;_'s to bo frivolous or vexatious, the Court or a Judjje may order the stayed. iii'tioii to be stayed or dismissed, or judgment to be entered accordinj^ly us raiiy be just." !{03> As soon as either party has joined issue upon any j)leadint^ Close nf of the opposite party simply, without adding? any further or otlier ploadin<4 1'l'*'idings. t'lereto, or as soon as the time for amendin'^ the plead inj,'s under these Utiles or under any order made in the action or for delivoriu}^ a reply or siibsequent pleading has expired, the pleadin<,'3 as between such parties sliuil be deemed to be closed without any joinder of issue bein<5 pleaded by liny or cither party. !tf)S{t Where any paity makes default in delivering a statement of citfeiice, or subsequent pleading', within the time limited therefor, ill cases whore interlocutory or final jud^^ment cannot be siijned, the opposite party may, at any time before the pleading is i..od, upon proof id tlie default, by prd^cipi' to the otficer with whom the pleadings are tiled, require him to note that the pleadings in the action are closed as to t:ie p irty in default; and thereupon the oflicer shall enter such note in tiie pleadings book accordingly, and thereafter no pleading by the party in default shall be received or tiled without the order of a Judge. Jlftrl. The following Rules of pleading substituted for those used in the Court of Chancery and in the Courts of Common I>aw, prior to The 'intario ■Judicature Act iS'6'i, shall continue to be used. Sft5. T'.very writ or pleading may be either printed or '.vritten, or pirtly printed and partly written, but no more than four copies of any writ or pleading or other document are to be allowed to any party in a cause or matter, exclusive of the draft, but inclusive of all other copies tliat may be required or made, in the progress of the cause. 30<». If more than three copies exclusive of the draft, are required of any writ or pleading or other document, the party may have the v.rit 01' pleading or document printed for the purposes of the cause or matter, *nd ill that case he shall in lieu of all charges for copies be allowed thirty cents per folio of the writ or pleading or document, and his reasoiutblo disburs^'meiits of procuring the same to be printeil. Note may lie ciircred (.f ({.■fault. Tleadinj,' t'encrally. Ol.l Rules alili.shod. f 'iipies (if jih 'ad lug's. rriiitiiipr pleadiiiK'S. ; V' N 384 I low l)lnailinf,'.s (If-liverci.l marked. CONTENTIOUS BUSINESS. 307« Every ploadint,' in an action sluill bo dolivered between parties and shall be marked on the face with the date of the day on which it is fil'ed, and with the referenco of the Division to which the acti(jii is ass:;4Med, tlic title of the action, the description of the pleadinji, and the name and place of husiness of the solicitor and agent (if any) of the jmrtv liling the same, or the name and address of the party filing tlie same if he does not act by a solicitor. Delivery includes filing. JI98 Delivering a statement of claim or defence or otlier pleudiiK' includes filing. Form of ItOOt Pleadings shall contain a concise statement of tlic material pleadings, fn^^.^n upon which the party pleachng relies, but not the evidence by wliicli tliey are to be jiroved ; dates, sums and numbers shall be exproHS. d in Jr thev sliall be stated, as far as may be, separately and distinctly. And the sfinie rule shall apply whore the defendant relies upon several distinct nrounds of defence, or counter-claim founded upon separate and distinct facts. •10ft. Where the contents of any document are material, it shall be I^fTcct nf siiffu'ioiit in any pleading; to state the effect thereof as briefly as possible^ (locuimnt witliui't setting out the whole or any part thereof unless the precise words stiitcd! of the document or any part thereof are material. ■107. Where it is material to allege malice, fraudulent intention, Alh iMtinn kuowlodgo or other condition of the mind of any person, it shall bo sufti- of nuilicc, cient tf) (dle^'e tlio same as a fact, without sotting out the circumstances ^' "" from wiiich tlie same is to be inferred. jble, to be by which they ,ev for pro- thus-" the Id and third |ch facts not rtdy on, m<\ [may be, as if [iposite pi^viy ij. out of ll'-f In barred by a heading as to [pposite party |i of sucb nlle- leventin^ snch ltelligi''5le the 110. Neither party need in any pleading allege any matter of fact j.Victs pit- whicli tlie law presumes in his favour, or as to which the burden of proof siinicd lies upon the other side, unless the same has first been specifically i*']'^.. 'I! i deuied. 411. If either party wishes to deny the right of any other party to i),.,iiai ,,f ci m as executor, or as trustee, or as assignee in insolvency, or in any rtjircscnt- reprc'sentatiye or other alleged capacity, or the alleged constitution of "M^.'' '^'^i"^' »ny partnership firm, he shall deny the same specifically, or the same will be taken ' j bo admitted. city. 4l3 Unlesd the incorporation of a corporate party to an action is Imidrixira- ■uflcilically denied in the pleadings, it shall not be necessary to prove it. tion. 414. No plea or defence shall be pleaded in abatement. ^"" 1'''"' '" abattnicnt. 415. No new assignment shall be necessary or used. But every- No new as- thin;,' which was formerly alleged by way of new assignment is to be sigmnent. introduced by amendment of the statement of claim. 419. No pleading shall, except by way of amendment, raise any Incon.sis- nsw <,'round of claim or contain any allegation inconsistent with the M'"*^ ' previous pleadings of the party pleading the same. H.s.c— 2.5 m ^ 'SHii CONTKNTIOl'S lU'SlXESS. h M^ Sfttlcnii'iit of issiif.i. 430. Where in any action it appears to a Jud^'e that the pleading'- do not sufficiently deline the issues of fact in dispute between thu iiai'tit^ lie may direct the parliuH to preiiare issues, and such issues shall if the parties differ, bo settled by the Judf^o. (!(un't iu:i> 4S1- If upon the hearing of a cause or matter, the Court is if ■"' ''~'-''^"' opinion that any pleading,', petition or atlidavit, or laiy part of a pieadini.', petition or affidavit is scandalous, the Court may order the phadiiii:, petition or affidavit ^o be taicon off the file, or may direct the scaiiJaloib matter to be expunged, and is to give such directions as to costs as it mav think light. 4SI3 A motion to have any pleading, petition or affidavit taken off the file for S';andal, or to have the scandalous matter expuiii,'e(l, maybe made to the Court or a Judge at any time before the hearing of thecau-e or matter. (Iidiius luiittcr to he e\- puii!4c Amend- 403. As amended by 182(i. The Court or a Judge may, at air. st .«e of the proceedings, order to be struck out or amended any iiiattir in the pleadings respectively which may be scandalous, or which nuiv tend to prejudice, embarrass, or delay the fair trial of the action. PartJLU- "(a) A further and better statement of the nature of the claim w r"'iY defence, or further and better particulars of any mutter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered upon such terms, as to costs or otherwise, as may be deemed just." The object of ordering piirtieulars is " to enable tlu' party asking them to know what case he has to meet at the trial, and avoid allowing parties to be taken by sur- prise. . . The old system of pleading at couimkmi lav. was to conceal as much as possible what was going to be proved at the trial, but under the present system it is our duty to see that a party so states his case that his opponent will not be taken by surprise " : Speddmg v. F'dzFatrkl;. 38 Ch. D. 410: Mason v. Vancamp, 14 P. R. 29G. 424. The plaintiff may, without any leave, amend his statement 0: claim once at any time before the expiration of the time limited fffeply and before replying, or, where no defence is delivered, at any time befoiv the expiration of 4 weeks from the appearance of the defendant who Lut appears. I'LEADIXGS. ;is7 ■125- A ilufendaiit wliohaa set up iiiiy set-off or countercliiiin, msiy, oil ii|iiilic';itioii in Cliainbers, bo iiUowed to ainciul tlie siMiie upon sucli terms in all respects as the Court or a Juil>,'e sliall see tit. — lliilf i;i'27. I'-Jfl- Where any party has nmendeii his pleadings under Rule IJl, l)i>,i]!n\v- tlie oDDiisite i)arty, may, within H davs after the delivery to liim of tlic '""''"/ ' ' ■ . iiiiiiii'i- amended pleadiii<,', tvpply to the Court or a Juilt,'e, to disallow tlir |,|,.,|f aiiit'iiilnieiit, or any part thereof, and tho Court or .Judj,'e may, if siitistie.i that the justice of the case requires it, disallow the same, or allow it, subject to Huch terms as to costs or otherwise as may seem just. '127. Where any party has amended his pleading under Rules 421 T.»iivH to or I'.'.'i, tlie other i)artv may without leave amend his former pleading; ' ,"" witiiiu i days after the delivery of the pleadin>^ so amended : or he may .-ifti r apply to the Court or a Judge for leave to amend his former pleading """'id- within such further time and upon such terms as may seem just. 128- I'ither party may amend his pleading at any time without AhhikI- order on tiling the written consent of the opposite partv or his; solicitor, miu' hy t'lll-IUt. ■129- In all cases not provided for by the preceding llules numbered Apiiliea- from f-'t to 42.S, application for leave to amend any pleading may be*"'" *" Miude by either party to the Court or a Judge in Chambers, or to tlu' ^,)|. ,„,)„.,..< Jiultje !it the trial of the action, and such amendment maybe allowed <>r at trial, upon such terms as to costs or otherwise, as may seem just. ,8 statement o: It" the application isvexution.s, tiio Court will rcruse it, hut where it is made with hona. jiilc< tlu; Court will ^raiit it, suhject to such terms a.s it may ttpprove (/'). When a pleadinoj had been tu'dered to he altered di- .'uuciided, the time for tilin*,^ tlie next pleading' commenceil liuia the time of the order having lieen complied with (7 . 430. If a party who has obtained an order for leave to amend u 'I'i,,,,. Umi. pleiidiii^; delivered by him does not amend the same within the tiinr ted ftl. A pleading may bo aiiiciKk'd by written altoriitions in the copies filed and served and by additionH on paper to be interleaved there- with if necesHary ; unlerts the amendments require the inHertion of niore than 200 words in any one place, or are ho nnnierons or of Buch a nuture that making; them in the copies filed and served would render the sHiiie difficult or inconvenient to read ; in either of which cases the ann iKlnicnt must be made by delivering a re-print or fresh cci)y of tlie pliii.ijng ^g amended. Markingiif 4513 Where any pleading is amended, such pleadiiij^ when amfn;le(l amended HJiall be marked with the date of the order, if any, under which the snnie I' •'■» 'K • jj, gQ amended, and of the day on which such amendment is nimk', in manner following;, viz: "Amended day of umlii' (inltr dated day of ." ( .\ny groviiil of di fence or counter claim which has arisen aftir action brou;.;lit, but before the defendant has delivered his KtateinLiit of defence, may be pleaded by the defendant in his statement of defence ur counter-claim, either alone or together with other grounds of defence. 4St«l- Ifi after a counter-claim has been delivered, any ground of defence arises to anything alleged therein by the defendant, it may be pleaded by the plaintiff thereto, or be introduced by amendment into the statement of claim, within three weeks after the counter-claim or the last of the counter-claims iiaa been delivered, unless the time is extended by the lourt or a Judge. 4!)0. Where any ground of defence or counter-claim arises after the defendant has delivered his statement of defence, he may within 8 day.s after such ground of defence or counter-claim has arisen, deliver a further defence or counter-claim setting forth the same, or introduce the same by amendment into his statement of defence or counter-claim. 437. Where a ground of defence to any counter-claim arises after the expiration of three weeks from the time of delivering the counter claim or the last of the counter-claims, the plaintiff, within 8 days after such ground of defence has arisen, may deliver a further pleading setting forth the same, or may introduce such new ground of defence into liis statement of claim by amendment. I'LEADINCS. 389 wrilU'ii ui .|:|H. Ill any hucIi cine the amfiidmoiit of tlio pleiidinj,' ttlo(\ may bo Airnml- m.i'lf willii.'it ail order, on filing ii ij lif 394 Will net fxccatcd ill accind- aiit'i' witli til.' Act. CONTEN'J'IOUS IJUSIXESS. The plaintiff liavinf,^ propounded a will dated Sth January, 188G, tlie defendant in his statement of defence ciin'testcM] tlie validity of such will on vai-ious ^■ronn) 'I'hat it was either so made or was aekiiowh'do'eil by the testator as liis sin'iiature in the presence of two M'itnesses j)i-eseiit at tlie same time. (4) Tliat each of these two witnesses suliH(M|UentIy to the makin;^ or acknowhuigment of the testators sij^nature, subscribed the will in tlie j)resence of tlie testator. All the aljo\e ([uesticjiis are raised by the plea dl' undue execntion, includin;; tlie charge that the sitinatiire ir mar k of the testator is a foru'erv. Ihit where it is Fwi^. ly. iiiti'iided to set up a case of foryery, it is convenient, with ,1 vii.'W to prevent an adjournment at the hearing' on the ;:rouiiil of sur[)rise, either in tlie statement (jf defence, or Ijy \\ritten notice, to make the char<^-e of forgery. A will after providin;^ for payment of delits by the lii.uik fmiii (if xfcutrix thereinafter named, iiave all the testatrix's real am 1 jnTsonal property " mito- -to and for her ')\\ii use and benefit absolutelv," continuin"-. " and ] nomi- ri\ constitute and appoint my neice, Catharine Hellard, ■ executrix of this my last will and testament." It held that the orig'inal will mig'ht be looked at for the aidiuii' the construction, and tlie Court came to iia (■> \va^ -IIIIJISSlllll. |aii'|i:)se ol thu c)iii:lusion that the will might l)e I'ead as (dlij)tically I'.iii'tV'i'ring a gift on the intendi'd bcneticiary. Lord Ksiiei', M, i{., laid down what he termed a g'oldeii rule of construc- tinii, viz.: that wdieu a testator has executi'd a will in Lri.lilcii ml.-. SlllL'l 1111 form, you must assume that he tlid not intend to farce, — that he did not intend to die make it a solemn iiitestnte when he has tTone through the form of making a w;ll. ^ m; ought, if possible, to I'ead the will .so as to lead I'U testacy, not an intestacy (//). (") In re Ilinriioii, Tiirn-r v. Ilcllnnl, ;^0 Cliy. 1). ;5',lO. V ■V' ^'^ ■'' ■ ■' ''V ■ lii' J. Ijlv', !' 'HI ii 39G CONTENTIOUS BUSINESS. A testatrix having duly executed a will, sul;)He(|iiontlv executed a paper drawn up by her hu.sband with her full concurrence, which was headed, " Tlii.s is not meant as a legal will, but as guide." It was held that the paper was not a valid testamentary document, and that probate must be refused (o). Ext'ciition Xhe testator's signature to a wnll as recuiired bv Tlw by tt'Mta- ^ . " . tor'sinark. WiUs Act may be made by the testator himself sij^ninif his own name, or by his signing under an assumed name, the assumed name being regarded as liis mark (/)). Or by his making a mark, and then it is usual to place tin.' testator's name against tlie mark. But a will sigiieil liy a mark is entitled to probate, although the name of tin.' testator is not placed against the mark, providc(l it lir identiiied as the will of the testator (7). The placiu'jf of a wron;^ name aij'ainst the mark of a testatrix instead of her real name, where the will was in the commencement described as the will of the testatrix by her real name, has been held not to vitiate the mark(/). Where the testator was in the hal)it of using a stami' with his name engraved on it t ) impress his signature tn letters, and one of the attesting witnesses with this stauip impressed by the testator's directions, and in his presnicr his name at the end of a codicil, this was held to be a (;ool execution by a mark (■-). The affixing by a testator, in the presence of two sul'- scribing witnesses, of a seal bearing his initials without signing his name to his will, which was entirelv written by himself, was held a sufficient signing, Pe/' C'/(/'. -" H'' (o) Fergnton—Diivie v. F., 15 P. D. 100. (p) Redding, 2 Roberts, 3H!) ; and anti' p. 83. [q) Ante p. 83. (r) Ante p. 83 ; Clirhe, 1 Svv. .t Tr. i>3 ; 27 L. J. 18. («) Jtiikiiu V. Gauford, 3 .Sw. A Tr. 93 ; 32 L. J. 122 aiul (i'it<- >^'- Wrong name aifainst the mark Mark, how made. DEFEN'CE — WILL NOT DULY EXECUTED. :}97 siiid, tuucliin). Under the Act, s. 12, the testator's signature is to If made " or acknowledged " by him. The acknowledgiin'iit may be by the testator producing the will with his siuiia- ture apparent on the face of it to the witnesses, ami recjuesting them to subscribe it (c). A testatrix exhibited a codicil to her last will, which was entirely in her own handwriting, to one of the attest- ing witnesses, telling her that she had something which re(juired two witnesses. .Subse(|uently, the second attest- ing witness having come into the room, they both signed. but the testatrix did not tell them that it was a testa- mentary paper, nor did the}'' know what sort of paper it was that they liad attested. They did not recollect sccinn' the testatrix sign, but one of them was clear that her si^ii;;tuiv was there at the time they signeil. It was held, atKnnhii: the decision of Butt, J., that this was a sufficient ackiiuw- (ti) Cottrell, n Sw. & Tr. 419 ; 33 L. J. 106. {!,) Cniik V. Lnmbert, 3 Sw. &. Tr. 4() ; 32 L. J. 93 ; GausiU'u, 2 Sw. A Tr. 3U-2 ; 31 L. J. 53. ((•) ri(h' ante p. 80. Cr,iz>' v. G., 3 Curt. 451 ; Blake v. Kninhl. ib. 547 ; Ilott V. Gciige, 3 Curt. 172, 175. I)I;FE\CE- WILL NOT Dl'LV EXECrTKl). .S9f> l(il"iii('iit liy the testatrix of lier siouature, and tliat the (•(idii'il was entitletl to probate 01). Hv "cstures (c) ; hy the testator's ap])arent assent to a ivijuost made by another person in his jiroscnce to the witnesses to subscribe the will, his si^-nature being visible to the witnesses I /). A'h.Tc a testator sij^nod his will in the presence of the iittistini,^ witnesses, who saw him in the act of wi'itinijf on till' p;ii)i'r containing; the will, which the Court presuiii('(l til lie his sit>'nature, and then by his re([uest suliscribcd t icir names to the paper, the attestation was held to be nciiiil, jilthouj^h they did not know he was L'xecutint; a will, anil 'lid not see the signature, and he did not acknowledge it.;/). WliiM'e the witnesses are unable to see the testator's si^natiu-e, and he merely re(|uests them to sign without giving them any explanation of the nature of the instru- lueiit they are signing, there is not a sutKcient acknow- kMJifmeut (h). The witnesses must, at the time of the acknowledirment, sue, or have the opportunity of seeing, the signature of the testator, and if such be not the case, it is immaterial whether the signature be in fact there at the time of the attestation, or whether the testator say, that the paper to he attested is his will, or that his signature is inside the paper (0. (./) Diintree (0 liiitcher v. F,iiscriji- place and in such a position tliat the testator nii<^ht have tii.u cif un s^eii tlu'in sitrn if he had chosen to look : liut if lie could witnegs,.'' not st'O them sign had he looked, the attestation would bo l)a.l(»). In 1S7!S the testator who was a y-ood man of Inisiness ^/V^*'"'=^ " _ _ 1)1 iiiii' liut not a lawyer, wrote a holograph codicil upon the same exLcution. )i;ijK'r us a will which he had made in lS(j(S, and wrote at the end oF it an attestation clause ado{)ting that at the end of the will to the case of the codicil. He called the nurse into the schoolroom, and asked her and the nursery gover- 11 'ss to ' sign the paper." There was evidence that he took hi-; own pen into the room. Ijoth witnesses signed. At the trial which took place between four and five years at'ti iwards, the codicil was produced bearing the testator's >i<,'iiiiture, and both the attesting witnesses were examined. '['he !4uverncss tleposed that she had designedly abstained I'loiii hiokiiigat aii}'^ of the writing on the paper and the nurse, it appeared, liad been very nervous. Neither of them Could say anything as to what writing was on the jiixper. nor as to whether the testatoi's signature was there when tlioy signed, and both said they did not see him sign. i'he I'resident of the Probate Division pronounced for the valiility of the codicil. On appeal it was held that the reasonable conclusion was, that the codicil was signed by the testator in the presence of the witnesses ; and by O'tton, L..J., that, although on the evidence he should have CMnif to a contrary conclusion, the tinding of the President, who had seen and heard the witnesses ought not to be reversed: And by Fry, L.J. — that as the codicil ex facie apiieaiXMl to be properly executed, and the presumption oianid I'ttr es8e acta wan strengthened by the conduct of the testator, which showed an anxious and intelligent 'lesire to do everything regularly, that i)i"esumption was ('0 Ante p. 89, and see Colman, 3 Curt. 118. u.s.c— 2G 402 COXTKNTIOUS Hl'SINKSS, — sul)- Hcri])tii)n of iittest'g witnesses. not rel)utto«l l)y tliu (ivklcncc of the witnesses, who (ippcartil to liave l)oen nervous lunl conFuscd on the oecjision of the att(ist!ition, and whose recollection (>( wiuit t(jolv plaw \v,is evidently imperfect {»). A tostati-i.K Hi<(ned a document in the presence of tuu witnesses, who twenty minutes afterwards suhscriiMij tln' document in an adjoininj^ room, but out of her si;^lii aui| without her beini;' conscious (jf what they were iloiu^. The attestation was heUl to l»e bad (/>). Where an attestin<;' witness instead of sio^nin*,^ his iiiiinu wvota," Servant to Mr. N.," intendini^-at the time toattfsr tJi-' testator's signature, it was held a sutiiclent subscription uy), T\u) correction of an error in the name of a witness', nr his acknowledgment of his name, or the adding a diite ti> the will, would not be a good subscription (/•). In the case of persons who cannot write it is a conimnii pi'actice for them to hold or touch the pen while nnotln r writes their name or maki's their mark. A M'itness to u will signing in this maimer has been held sutlicient (.s". Where a witness through feebleness or some other cause is unable to complete his signature, the execution is invjilid >ti The signatures of the attesting witnesses shouM he en the face of the instrument, and it should appear that they were meant to attest the signature of the testator (v.}. (o) ]Vri(jht V. Sauiidersoii, 9 P. D. 1-15. (p) Jenner v. Fjincli, 5 P. D. 100. (q) fiperlhiij, 3 Sw. & Tr. 273; and see Oliver, 2 Ec. tt M- ' (r) Wms. Exora. Ofcli ed. 83 ; and vid<; ante p. 90. (o) Bell V. Hughes, L. R. Ir. 5 Eq. 407; and ante p. 90. (t) For instances of defective attestation see i1/a(/(/ocA:, 3 1'. a !'■ l^'J MeConrille v. MrCn-cxIi, L. R. 5 Ir. Ch. D. 73; Taylor, 2 lloberw. iU Fhippx V. Hall, 3 P. & D. I'UJ. (») Davig, 4 Curt. 748 ; CItamnei/, 1 Roberts. 757 ; SiiUican v. i.. L. R. Ir. 3 Eq. 299 ; see also ItoberU v. Phillips, 4 E. & B. 450. DKFENCE — WILL NOT DFLV KXKCUTEU. 408 \ tfstator left a coilicil entirolv in his own lifiniiwritiii"' •• 'l«vrHi'l> • 1 • 1 '11 • • I 1 • i;<" It'll written oil the tliu'il Hiuo <>t tli(! .sheet oi htolscap, the first Att stiiiK' siile of which contuine*! his will. 'I'here wus an attesta- ,„yii, ,T\o tiiiu clause in proper form, ami the testattjr had sio-nL-d his|','^';|^;^',|'|||^j^ imiiH' at till' foot of the corlicil but there heiny no more —(""j- . . suriptiiin. snaco oil the sheet the names ol tlit.' attestmu;' witnesses ivpnean-il at the bottom oi' tin.' second pa<;'(> opposite the iUtcstatioii clau.se. Tlir attestin;,^ witnesses admitted their Hi::iiatiiiL's, but liad no n.-eollection of ha\iii,n' signed the jail.'!' nor ever liavin;^ seen it before. It was held that tliL' coiHcil was duly executed ( '•). The siu'iiature of a third ])art\', subscribinefore or after the execution of the will, are admissible to show what papers constitute the will (d). In a case in wdiicli the two attesting witnesses to a will were father and son, both working at the same workshop, after testa- but on 'dift'erent floors. The testator produced his will (which was entirely in his own handwriting) first to the fiither alone, and telling him it was his will, askeil him t" witness it. T'he testator's signature was already on tlk' Foot or end. Parol ovidence of inten- tion. — hoth witnesses sliould 8ubscril)o tor. (z) Cooper v. lioekett, 3 Moo. P. C. C(i3; T.Ioiid v. Itohn-tf, 12 'SI'- P. C. I(i5. (a) Vinmcomble v. nntler and another, 3 Sw. A Tr. HSO; 'M L. J. H- See also Wriijht v. Sdiulcrsoii, note p. 74; and seo (yScill v. (hrrn, tint; p. J18 : Scott V ,S'., (uite 87 ; IVilliamson v. 11'., \) C. L. T. ;J'.»a, 0. H. {!)) Dumiaii, 3',) L. J. P. & M. 24. (c) Maryary v. Robinson, 12 P. D. 8; and vide ante p. 8;i, 81. (rf) Gould V. Lake, 6 P. D. 1, and vide ante iip. ',>'>, 103. DEFENCE — WILL NOT DULY EXECUTED. 405 will, and the fatlier signed it. The testator then asked that the son, who was working on the tloor below, sliould Ix' called in, and when he came in, asked him to witness the paper, saying, in answer to questions, " It is a bit of onloring f ni}^ affairs. I have signed it and your father has signed it." The son then signed tlie will, all three beint;' present. The learned judge, after stating the facts, siivs: "On these facts, if they be accurate, the case wculd fall within the principles of two decisions. . . . One of them is the case of Moore v. Kiiu/, li C'urt. Ecc. 248, imd the other is Hindmarsk v. C/unitoii, 8 H. L. C. 100, V) both of which cases the one before me is suljstantially siiuilar. lu the fii'st of them the will had been signed by the testator in the presence of his sister, who attested it, ami I'll a subse([uent day when both the testator and his sister were present the testator re( [nested another pierson to sii^ai it, his own signature and that of his sister being acknowledged at the time. ... In that case Sir Herbert Jeiuier Fust said at p. 25:}, " I am inclined to think that the Act is not complied with, unless both witnesses shall attest and subscribe aftei* the testator's si^niature shall have been made or acknowletlged to them when both are actually present at the same time. If the one witness has previously subscribed the pupei- and imnely points out her signature when the testator ac- knowledges his signature in her pi-esence, and in that of the other witness, which latter witness alone then sub- scribes, that I hold not sufficient." The learned iiido-e then distinguishes the present from the case of Wriij/il v. ^'mndrrsini (t) and IJof/d v. h'ohcrts (y"), and observes that; " Tlu'V really go to this, that where there is any iloubt about the recollection of the attesting witnesses, where there is anything from which the Court can fairly {e) 't P. 1). 14'.). 1,0 1-' M.'o. !• C. 1.^8. 406 )&■: tions. CONTENTIOUS HUSINESS. say that the will ou<;'ht to ])e held to be good, and that the recollection of the atte.stino- witnesses ought not to be relied on as against the will, the Court may say that it is satislied th;it the will was duly executed. . . . iJut, unfortunateU', the recollection of these two witnesses is too good for that, . . . as pointed out hy the judges in the House of Lords' case, they were bound, and I am bound, by the provisions of the Act of Parliament. . , I nnist, therefore, pronounce against this will as beiin' invalid " Qi). Defem-e of Tesldmentartj Inrapdciii/. (b) The deceased at the time the said alle^'ed will and codicil nspM'- tively purport to have been executed was not of Hound mind, memory. and understanding^ (It). There is a legal presumption in favor of sanity. Every man is presumed to be of sane mind until the contrarv is shown (i). But ni a testamentary cause, or probate action, pro- pounding a will involves the proof in open coui't, /"(• tcHfcft, of testamentar}' capacity, as well as due (.'.\eeu- tion(\/); the party relying on the will nmst estaldish tlie atfirmative of the proposition contained in the above fonii of statement of defence (/.■) ; and, unless he does so, the decree of the Court must l)e against the validity of the will(/). ((/) U'l/ntt (iiid lien II v. 11., ilHD.S), P. r,. (h) Vi(h; .\pp. Schedule to S. C. R. ls!)2. ('/) Win. Exors. Dtli od. 1-') ; I'avlor Evid. Sth ed '21(i, ;il(i.7 ; Of- wri'iht V. 6' , 1 Phillim. 100; l\ cllr.iiq/ v. IV/v, 1 No. (Ja. 247. (j) Hnrwoodv. llakei,'d Moo. P. C. 2'10; Austin v. Onih'im, ii 'Hoo. P. C. 50. (A-) Ilutleij V. Grimsloiie, 5 P. D. 21 ; Tiirrcll v. P.iintov. (islU) P. lil C. A. (0 Slimes V. Green, 1 Sw. & Tr. 402; Suthyn v. Sculler, W E. fc R hr. Thomson v. Tormnre, 28 Gr. 2r)3, 28? ; U'ihon v. JC, 22 (Jr. 81; y,'iwW/v. Le Francois, 8 S. C. Rep. (Can.) 385, at p. 382. DEFENCE— TESTAMENTARY INCAPACITY. If it lias aii'eady appeared tliat there was in some par- ticulars unsoundness of mind, the burden is considerably iiicrciised, and is not discharged where the unsoundness consists of delusions, unless the Court is satisfied that there is no reasonable connection between the delusion and the be |uests in the will (in). Ill referring to the principles which should guide in ijetennining whether an instrument duly executed in P'»iiit ol" form, so far as legal solemnities are concerned, is or is not a v^alid will, Lord Chancellor Cranworth, in the case of Boij/^f v. Rossljo rough (;/), states the first in(juiry tol)e— "was the alleged testator at the time of its execution a person of sound mind i " and upon this head he says : "Tlie difficult}^ to be grappled with arises from the circumstance that the (|uestion is almost always one of ile;;'reo. There is no difficulty in the case of a raving iiuuiiac or of a drivelling idiot, in saying that he is not a person capable of disposing of property. But between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect and every degree of mental capacity. There is no possibility of mistaking midnight for noon, but at what precise moment twilight becomes darkness is haixl to cleti-rniine." These words of Loi'd Cranworth are U'lopteil Ity Sir J. Hannen in Boaf/hfoii v. KnUjlit (o). Lord Chief Justice Cockburn in the leadinrj case of Jliiakx V. Goodfdlow i p), a case in which a will which had been opposed on the ground of insanity was upheld, ilesci'ilu's affirniativel}^ the degree of mental power '.viiich should be insisted upon, as follows : — " To the due exercise D 'gree of mentiil power nct'pssnry to make a will. (wi Smee v. .S'., o P. U. '.)2. 01) 1) H. L. 2, at p. 44. (->) 3 P. A- D. (14. [V) L. 11. 5 Q. B. 513, p. 5t;r,. i;j I I'm llff! m 408 CONTENTIOUS BUSINESS. of a power thus involving moral responsibility, the posses- sion of the intellectual and moral faculties common to onr nature should be insisted on as an indispensible con(liti()iv It is essential to the exercise of such a power, that a testator shall understand the nature of the act and its etiects ; shall understand the extent of the property of which he is disposing ; shall be able to comprehen(| uutl appreciate the claims to which he ought to give etl'ect, aiul with a view to the latter object, that no disorder of tliy mind shall poison his affections, pervert his sense of rij^ht, or pervert tiie exercise of his natural faculties ; that no insane delusion shall influence his will in disposing of his property, and bring aljout a disposal of it, which, if tin* mind had been sound, would not have been made. Ik' re, then, we have the measure of the degree of mental jiower which should be insisted upon " (7). Sir J. Hannen, in a case already cited, refers to this as follows : "■ The hovd Chief Justice lays down with, I think, singular accuracy what is essential to the constitution of testamentary capacity " (r). The Court in that case pointed out what is testauiun- tary capacity, and what incapacity; and also the distinction between ijenoral and pai'tud insd n Ih/. The Chief Justice. after referring to the cases of WdriDfj v. Wcriinj, anil Smith V. Tehbiit, says : " We do not think it necessaiy to consider the position assumed in Warliig v. Mhirlnn, that the mind is one and indivisible, or to discuss the subject as matter of metaphysical or psychological in([uiry. It is not given to man to fathom the mystery of the huniau intelligence, or to ascertaiji the constitution of our sentient and intellectual being. But whatever may be its essence, everyone must be conscious that the faculties and func- tions of the mind are various and distinct, as are (q) llaiika V. GiHidi'i'lhiw, L. It. ') Q. B. 'i4H. {)•} Bouyhton v. Kiiujht, :\ P. A D. ()1, p. 74. l-i- f DEFENCE — TESTAMENTARY INCAPACITY. 409 tlie powers and functions of our physical organization. The senses, the instincts, the affections, the passions, the moral (jualities, the will, perception, thought, reason, iiiiaeination, memory, are so many distinct faculties or Fidelities functions of the mind. The pathology of mental disease mind. and the experience of insanity in its various forms teach us that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties or functions may he disordered, while the rest are left unimpaired and undisturbed; that while the mind maybe over-powered by delusions which I^t-lusions. utU'i'ly demoralize it for the perception of the true nature (if surrounding things, or for the discharge of the conunon olilii^atiuns of life there often are, on the other hand, (.Ifjusions which, though the offspring of mental disease, anil so far constituting insanity, yet leave the individual in all other respects rational and capal)le of transacting the ordinary affairs, and fulHUin^- the duties and obli'ra- tions incidental to the various relations of life. No doubt when delusions exist, which have no foundation in reality, and spring only from a diseased and nnn'bid condition (jf the mind, to that extent the nuntl must necessarily be taken to be unsound ; just as the body, if any of its parts or functions are affected by local disease, may be said to he unsound, though all its other members may be healthy and their powers or functions unimpaired. But the ([ues- tion stiili remains whether such partial unsomidness of the iiiiii'l, if it leaves the affections, the moral sense and the g-neral powei- of the understanding unaffected, and is wlidlly unconnected with tlie testamentary disposition, siiould have the effect of taking away the testaiut.'utary capacity " (s). [SI See ulbo liKjoldxbij v. /., '20 Gr. IHl. 410 CONTENTIOUS BUSINESS. Mental SCJUIulllCSS necessary for mak- ing !i will. " Wo readily concede that where a delusion has hul, as in the case of Dew v. (Jlark {t), or is calculated to havo had, an influence on the testamentary disposition, it must be lield to bo fatal to its validity. Thus, if, as occurs in a common form of monomania, a man is under a delusion that he is the object of persecution or attack, and makes a will in which he excludes a child for whom he ought tu havo pi'ovided, though he may not have adverted to the child as one of his supposed enemies, it would Ix; hut reasonable to infer that the insane condition had iniluenced hin\ in the disposal of his property, but . . . tlie (juestion is whether .a delusion . . . wholly innocuous in its results, as roLjards the disposition of the will is to be hold to liave the eflbct of destroying' the capacity to make one." " The (juestion of unsoundness of mind is one of def^ree, and it is impossible to la^' down any abstract prop(»sition of law which will guide you in determining it. Pmliahly the mind of no person can be said to bo perfectly sound, just as the body of no ])erson can be said to be perfectly sound. The (piestion is — Whether there was such a de^n-ee of unsoundness of mind as to interfere with those faculties which ouo'ht to bo brouo-ht into actitm in makinurili'ii (pf he (lividcil nuioiisjfst tlio claimants ; and, tlicicrorL'. wlint- ever de^'feos tluTo may he ot" soundness of mind, tlie hi'diest de;:free must lie iXM^uired Toi- making a will" ((')• "Where a delusion has hail, as in the case of J)('ii' v. Wlnrc tlu- Clad', 'i Add. 7!), or is calculated to have had, an inlhience ii;is hiu) m, on the testamentaiy disposition, it nnist be held to be fatal ,'"i.."""^'' ' to its validity. Thus, if, as occurs in a common foiMii of iiionoinania, a man is under a delusion that he is the object of ])ersecuti()ii, or attack, and makt's a will in which he oxcluiles a child toi* whom he ought to have provided : thoiinh he may not have adverted to that child as one of ' ^1,'',']''' his supposed enemies, it would b(i but reasonable to infer that the insane comlition had influenced him in the disposal of liis propert3\ Jiut where the delusion must l)e taken neitlicrto have had any influence on the provisions of the will nor to have been capable of having any, the Court held that such a delusion did not destroN' the cai)acity to make the will, and that a will made undei" such circum- staiK'i'S should be upheld " (r). Till! learned author of the American Notes to Jarman >( its execution and attestation according to law, the instrument disclosinu" on its face nothini; to cast doubt ujiuii it, will, by the l)etter view, raise a presumption in favor of the capacity of the supposed testatoi*. But this doctrine of presumptive capacity is ncjt admitted (") Per Sir Jiunos Iluiiiian in Hiiidctt \. 'I lioiiij>.- V. i^' I). 7".^, note. (ri H.nd'n V. (I'lnill'.'lloir, Ih. .5t')l-.")7',) ; see /;,'// V. Lc,', 8 A. K. Out. IS.j. ('(•) Oth od. Jaruian by Bif^elow, 1)4. (ri li.iiiku V. il.nulMlow, Ih. .5t')l -.'iV',) ; Mnrf'itt v. Sinilh, li2 P. I). IK); diid see /;,'// V. L,',', 8 A. K. Out. IS.j. ^ilii ► Wa^gBl tt Hh 11'? ■ ^Ib f *"'■ Kliil 'm II Mil 412 CONTENTIOUS BUSINESS. by some courts. . . . Speakinjr, tlien, for thu better, it' not tho universal rule, it' the attcstinj^ witnesse.s oi- anv of them are before the Court they will be questioniMJ on the subject, but after they have j^iven their testiiiiony, assumintj that it is in favor of the will, the bunlen of proof is fully sustained, unless evidence is brouj^rht for- ward on the other side. ... If evidence of want of capacity is produced, the question will become one (jf the weight of evidence. . . . And the burden of profjf bein;^ on the proponent, the evidence of capacity should outweigh the evidence on the other side. . . . I'ut tlio raising of a pi'esum])tion touching capacity is usually a presumption against capacity, and the only effect, of course, is to make the burden of proof of cap.-i.city the more ditHcult to support. This ap[)ears to be the case with regard to lucid intervals ; the evidence of capacity in such supposed intervals must be very clear " (citiiii;' as to this W/iife v. JJrivcr, 1 Phillim. (S8 ; Brojjdeii v. Bnnxu, 2 Addams, 445, IS2.5 ; Ayreij v. Hill, id. 210). la Massaehussetts, upon an issue as to capacity, an insLi-uction l)y the Court to the jury in substaiici' as follows, was upheld : Soundness of mind, such u.s is re(piired for making a will, has relation to the business to be transacted. The mind must l:)e sound with reitMvnco to whatever the transaction of the will involves : that is, the testator must he able to understand and carry in niiiul, in a general way, the nature and situation of liis property, and his relations to the persons around him, to those who winilil naturally have some claim to his remembrance, to those in whom, and those things in which, he has been mostly interested. He must be capable of understamlini,' the nature of the act he is doing, and the relation in which he stands to the oljjects of his bounty, and to those who ouii'ht to be in his mind on such an occasion, free from any delusion, the effect of disease, which might lead DEFENCE — TESTAMENTARY INCAPACITY, 413 him to (lispoae of his property otherwise than lie wouM if lie knew ami understood correctly wliat he was (h)ini;' (,c). roniiula to the aanu effect, or with Hli'd the will of John KniLjht. The defendants pleailed ,,,•',',','1"' that the deceased was not of sound mind, memory, and uiiihTstandino- on the 27th January, LSiif), tlu; day the will hears date, upon which issue was joined and trial had liL'fore Sii- J. Hannen and a special jury. The lindini;- of the jury was for the defendants. Sir J. Hannen in sum- iiiMin" up to the jury boj^^an by explaining- the meanin;;' of the phrase " s(iund mind." He said : — "The sole (|Uestion iu this case which you have to determine is, in the liiii!,niai;-e of the record, whether ]\Ir. John Knii;'ht. when ho made his will on the 27th January, 1SU9, was of sound iiiiiid, memory, and understanding'. In one sense, the first phrase, soiiiul nilivl, covers the whole subject: hut emphasis is laid upon two particular functions oi the luiud, which must be sound in order to create a capacity t'oi' makinijf a will; there must be a memoiy to recall the several persons who may be tittinij objects of the testat(.)ra houuty, and an understandinj:^ to compi-ehcnd their )V'la- tiouship to himself aiid their claim ui)on him. Hut, for convenience, the phrase ' sound mind ' may bo adopttMl." The learned judi^^e then explains that these wcu'ds did iii)t ni'-an a perfectly balanced mind. " If so, which of us would be competent to make a will '." . . . " l']ccen- trieities, as they are commonly called, of manner, of haliits of life, of anuisements, of dress, and so on, must l^e disi-e- garded," and observing that there are de\iations from the ordinary type, the learned judge further says : " We must not cusily a.ssume that because a man indulges his 145. (.'•) 0th ed. Jarman by Bigelow, G3 ; Whitney v. Twomltley, IHG Mass. M B ^■ ■ i f;a. 414 Tent. Ilt'imlsii)ii tuwiml-f children. Own pr: fill III/ 1. CONTENTIOUS lUJSINESS. hiiiiiours in unaccustoinod way.s that ho is, there t'oiv, of un.souiid iniiid. We uuist apply .some other te.st. . . Now, the te.st whicli is usually apj)lit'(l, and wliicli in almost every case is found sutlicient, is this : Was the inaii labouring under delusion ;' If lie laboured under dcliisiun, then to some extent his mind nmst be iinscjund. Hut, though we have thus narrowed the ji'round, we ha\e not <^ot free alto<^ether from dilHculty, because the question still arises : What is a delusion :* " And the learned jud<;'e jn'o- ceeds to discu.ss that (|uestion, referrin<^ to Dew v. Clark {i/\. If repulsion to children, amounting to a delusion as to character, is slunvn to have existed ]n"evious to the exctni- tion of the will, it will be for the pai'ty setting up tlu.' will to establish that such delusion was inoperative when the will was made, and the jury in ascertaining whether it was opei'ative are to have regard to the contents (jf the will, and the circumstances surrounding the execution of it (~). xV diseased state (>f miud, once proveil to have estab- lished itself, will be presumed to continue, and the biu'deii of showing that at the time of making the will or oi doiiij,^ the testamentary act in question ; health has Ijeen restored falls upon those who assert it [(i). American authorities are to the same effect (b). Proof of calmness will not be sufficient ; as where the deceased was admitted to have been insane before the execution of two asserted wills, and wliere there was evidence of delusion and other Indlckt of derangement existing shortly before, as well as subsequent to the act ()/) 3 Add. Keel. 79: and Sniitli v. Tehliitt ; McNaiiijhtcn'n Case, 10 CI. & F. 200 ; liinikii v. UoodfMow, L. K. .j Q. li. 54<». (z) Biniijhton v. Kniijht, 3 P. D. Gl, {a) Sijmi'n V. Green, 1 Sw. * Tr. 402 ; Smce v. S., 5 P. D. 81 ; UiifneU V. Le Fnincios, 8 B. C. (Ciiii.) 335. p. 382. (b) Gth ed. of Jarman by Bij^elow, Gi n. DKi'EN'CE — ti:stami:ntauy INCAl'ACrrV. 415 iiiuof of cahnnesH, and of his doin;;" i'onnal mutters of lni>-iiu'ss under the sanction of Ids fandly, were held not to 1).' sutKcient to rebut tht; presumption against tht; |lil]M'!'.S (<•). II' a huiatic person have clear or calm intermissions wiii miK (Usually called lucid intervals) then duriiin' the time of such i,',I'j',i"i'„. (|uii'tness and freed(jm of nnnd, lie may make his testament, |.j.,^|^_^,.^|. ■ aiiiiitintintrexecutors and disiiosinu' of his o'oods at pleasure. «"^-'l' '■^^^'■■■^'■ (liirui!,' lucid I tirviil It .•I ■ It' \(iu can estahlisli," saiil Sir \\'m. Wynne in Carhrriij/it pni'im/ V, { iirhri'ujht (d), "that the party afflicted hal)itually liy a iiialiuly (jf the nund has intermissions, and if there was an iuti'iMuission of the disorder at the time of the act, that, heiiin' [iri»\»'(l, is suHicient, and the general habitual insaidty will ui)t affect it; but tlie effect of it is this, it imerts the order of proof and (jf presumi)tion ; for, until proof of an liabitual insanity is made, the presumj)tion is that the party a-iired remeiiiberiuij words, but wdiose intellect remains unim- Piiired as to tilings, was upheld (x). Into.xication is temporary insanity (?/). Where a Drunken- testator was proved to bo not properly a madman, but an"*^"'"' habitual drunkard, who under the excitement of liquor, acU'd 1 " respects like a madman : On its being shown that at the time of making the will the testator was not miller the intluence of li(jU0i- tiie will was upheld (s). Vii : mere fact that the testator was addicted to drink- ... ^ I' i had suti'ered . A person attains his '25tli year wlien he becomes 24 years ohl. Grant v. (iraiii, 4 Y. & C. 2."(i. (d) Gth ed, Jitnnan htj Uiui'loir, 41 «. (e) II. S. C. c. li;j, R. 8. (/) nioxam V. Faurc, L. R. 8 l\ D. 101. (/() Harwood v. Iiuk>'r, :^ Moo. P. C. 290; and Freeman \. F., M"\ Il(ipti~'it V. ii., ante. Old apfi' or illiies.s. 31 r DEFENCE — TESTAMENTARY INCAPACITY 423 r twonty- lity in the f capacity 1 personal iiy one uf 1 the same u1)jeetslr. alien, the £ that Act I the ton lis ■omieile (if le time <'i not to be lie ol'l ac;e. ■ h(■in^■ Mi f (lisposiii;: le Ju(hcial constitute 3t only he the \vhule ie of a ptrsoii is ii'cliidc'l; ! would llHVC I the hiw does d at the tirst 5. A person rant v. Graul, of lii.-^ property to the object of his refrard, but must also havi ca])acity to coiiipreliend the extent of his property aiii] till' nature of the chiinis of others whom, by his will, he is cKcluilinfj from participation in that property." A will made in ar/icido mnrfiK may be estal)lished, for ^nurticuio . tiiortis. tjic liberty of niakin<^ a will doth continue to the last gasp, but ill siicli a case the next of kin are justified in investi- cratiii"' the circumstances and will in general be allowed their costs out of the estate {i). A will i)i"epaiv(l for a testatrix from instructions given hy her when of complete capacity, but executed by hei- in P///V'/// i.s' when unable to remember the instructions, or to have understood them had they been put to her, pi'onounced for as she understood she was executing the will for which she had given the instructions. Rule nisi fur new trial ;:i'aiiti'd. Case compromised (j). All idiot is a iiei'son whoso mind has been continuously idiotn. inisuuiid from his ini'ancy. An idiot that is a fool or a madman from his nativity, who never has any lucid intervals, is inca])abk! of making a will. Such a one is ilescribed to be a person who cannot r.iiiiili.'i- twenty, tell the days of the week, does not know his own father or mother or his own age (/'). As to wills made by blind or deaf and dumb testators Blind. • I / f>n -/x (l"*.if, and vnleniUc pp. 69, <0. a.imh. Undue Injiiience. (e) Tlio execution of the said alle»jed will and codicil was obtained rinluf by the mulue intluence of the plaintiff [and others acting witii iii„i '"'1"^"°^- rid n V. f.. M' (i) D. ct B. ()8. (j) Parker v. FelgaW, 8 P. D. 171. (A) Wma. Exors. 'Jth ed. 12. 4,2^ CONTKNTIOUS HUSINESS. whose iiS'iies arc; at prosent unknown to the defendant or as thi> ruse mnu bf}\ . — See Forms of Statements of Defence, S. C. II. IHtl'J, p. 4.T. The oims oi" proving iiiiduc influent'*; is on the [cirtv alleging it; and he is entitled to begin, providfMl he neither disputes the due execution of the will nor the testator's c;ii)acity (0. Wherever a will is executed under such oircuins(aiic(.'S as to excite the suspicion of the Court, it is for those wlio propound it to remove sucli suspicion, and to prove filHrin- atively that tlie testator kn(!w and approved of thf con- tents of the document, and it is only when; this is done that the onus is thrown on tliose who oppose the will to prove fraud or undue inlluence, or whatever else they rely on to displace the case made for proving (U). - distin- "Though uiidue influence, and partial incapacitv are from want apt to l.)e louud together, they have no necessary connec- city!' " t''^" with each other ; undue influence nia}' have been exercised upon one whose capacity was sufficient for the most complicated will. And, on the other hand, if ca])acity was wanting, the supposed will is no will, whethoi' there was undue influence or not ... it is idle to speak of undue influence where there is want of capacity : undue influence implies capacity. . . . What might be umliie in regard to one man, might not be unchie in regard to anothei". . . . 1'he test to be applied is agreed to he this : Was such influence brought to bear as to take away, that is, did it take away, tho supposed testator's free agency. . The appaivnt testator is but the instru- ment 1>v whicli the luastoring desire of anotlui' is ex- ]iressed; the supposed will, or the ])articular part in (]uestion, is not the will of the sup])osed testator, except in the sense that he has consented to put his name to the (I) Ihithi, V. GrhmUme, r> V. 1). '21 ; Wingnn-e v. »'., 11 I'. D. 8- ill) Tifrrdl v. Painton [18i)4|. P. 151, C. A. j ';■ ii% DKFKNCK— U X DUE IN FLUENC.'E. 426 instminent in the t'oi'in in wliich it Jippoiirs. ... It is f't'iieralh' laid down that the bui'(h3n of proof on tlie issue oF undue inlhience rests upon him who raises the obiuftion [m). I'or.suasion is not unhiwful, but pressure of wliatever ehanic'ter, if so exerted as to overpower the volition with- out convincing the judgment of the testator, will constitute luiiiuc influence though no force or restraint be used or thnati'iieil (n). riiilue influence may exist in the form of bad com- piiniiiii.sliip and l)ad example, and yet not be sufficient to iiivuli'ljite a will made under its operation. To be within till meaning of the rule of law, so as to produce that ert'ect it iimst be an influence exercised by coercion or by fraud. I!ut uetual violence is not necessary to constitute coercion. Im,i;;iiiiiry terrors may be sufficient for that purpose. " In order to set aside the will of a person of sound iiiiiiii, it is not sufficient to show that the circumstances atteii ling its execution are consistent with the hypothesis uf its having been obtained by undue influence. It must 1)0 sliown that they are inconsistent with a contrary hypothesis. The undue influence nnist be an influence exercised in relation to the will itself — not an influence in relaiiuu to other matters or tran.sactions. But this prin- ciple must not be canned too far. Where a jury sees that rtt aiiil near the time when the will sought to be impeached was executed, the alleged testator was in other important transactions, so under th). " To make a P. D. 2(j. 42.S C'OiNTENTlOirs HUSI N KSS. I, em. W' I vo lit mil ^;5 : 1 IhM !Pi ^1!* ■■ :!'; !:i:i been obtiiinod l)y the undue influence of Mrs. Thorold, the residufiry le<,^'itee und duel' beiielieiarv under it. Tlicy also cited Mrs. Thorold to see pr()ct!edin;.(S. She entered an appearance and pleaded a denial of the undue inllucnce. The case was heard before Butt, J., and a special jury, luit at the hearinj,^, aiul bt'foi-(( the jury were sworn, all <>[)[)(>- sition to the will was witlwlrawn. Evidence of due execution and the testamentary capacity of the testator havin;^ been ;^ivt;n, the jury fouml all the issues for the piaintitls. Butt, J., pronounced for the will, and cun- deiuned the defendants in the intervener's, as Well as plaintifi "s costs (t). Frdud. Defence of (d) The execution of the Haid alleged will and codicil was obtained fraud. by the fraud of the plaintiff, such fraud, ho far as is within tli<' (iefcnd- ant'K i)resi'nt knowledt;e beinj^ ilwrt' utati' the nature' of the Jnntd) {a . — pent'ial plea of. Where a j^eneral plea of fniud is pleaded, the particu- lars of which are only procurable by exaniiiifition of the ])laintitK, the defendant should, upon and forthwith after the plaintiff's examination, formulate and serve the juir- ticulars of the acts of fraud on which he intends to rely, in »„ VI Cliy. 431; Whit.; Kerstf'nv. Tune, 22 Cliy. 547 ; 24 Chy. 224 ; H'iUon v. ir., 22 Chy. 3i», 24 Cliy. ^77; and Martin v .1/., If) Chy. 588; Lavin v. L.. 7 A. R. 107; Bell v. Le,8 A. R. 185; Ilogii v. Maul Approval of Contents. (0.) Till! iliiOOiiHol at the time of the oxecutioii of the said ulli'i^cil will Know- »ii(l coilioil ilicl not know and approve of tho cuntents tlieifof, or of the 1'''k'i' .■viid contents of tho residuary clause of the said will {or na the nisc imty be) (z). *,,[ j,^ (■iilltc Iltx. This form of defence was sanctioned by a rule of Court of Probate, En;;., in 18(55 (^j); it having been jireviousiy held on denuirrer to a plea setting up this defence tliat it was essential to the validity of a will, that at the time of its execution the testator sliould know and apj)rove of its conti'iits (a). In the case of Barry v. Ihdlin (t> RIoo. P. C. 4.S()), before '>nu.s,rro. tho Judicial Committee of the Privy Council, Mr. P)ar()n Farke, didivcring the opinion of the Judicial Committee, •said this : — (I) "The rules of law according to which cases of tliis nature are to be decided do not admit of any dispute, .so far as they are necessary to tlie determination of the present appeal, and they have been acquiesced in on botli sides. These rules are two : the first, that the '>»!t.s probandl lies in every case upon the party pro- pounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a (x) Allfn V. McPherson. 1 II. L. 207-8. See also Rhodes v. R., 7 App. Caa. l'J2 ; and Ridiny v. Hawkins, ante. [y) Estate of Price, 2 R. & C. (Nova Sec), 307. (2) S. C. K. 1892, C. B. Forms. («) C. & Tr. nth ed. 841. (ii) Ilasletoe v. Stobie, 1 P. & D. 64 ; 35 L. J. 18, 1865; and Forms of Statement of Defence, ante p. 393. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 la K5 '■ !y 112,2 |||M U III 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4503 iV <^ ■^^ i\ # \ a' 6^ ? tf (/a ^ ,♦" iRii mm ' ' ^ V I 1 I )l 430 CONTENTIOITS BUSINESS. benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judi- cially satisfied that the paper propounded does express the true will of the deceased [b]. These px-inciples to the extent onuspro- that I have stated, are well established. The fonnei- is Ijfindt. undisputed. The latter is laid down by Sir John Nicholl, in substance, in Paske v. Olbdt (2 Phillim. 323); Iv;iram v. Wyatt (1 Hagg. 388) ; nilUwjhm'Ht v. Vickers (1 l^hillim, 1■ ..fated by that very learned and experienced Judge to have been handed down to liim by his pix'de- cosssors, f'.nd > li.f-' ti'ibunal 1ms sanctioned and acted uiion it in a rec<^: -ie. That recent case was the c;ise of Balyr v. Ban (2 Moo. P. C. 317)" (c). Those who take a benefit under a will and have heoii instrumental in preparing or obtaining it, have tlirown upon them the onus of showing the righteousness of tlie transac'ion ((/). The rule to be deduced from Barry v. Bidlia {c), Ful- ton V. Andrew (f), and Brown v. Fisher fr/), is that wherever a will is prepared and executed under ciioum- stances which raise the suspicion of the Court, it ouglit not to be pi'onounced for, unless the party propounding,^ it adduces evidence which removes such suspicion, and satis- fy) Sir James Hannen referred to this as laying down tlie fiiiiding piinciple to be acted upon in cases of this kind. Brown v. Fisher, tiiJ L, T. 4C5, C. A. (1890). (<•) Per Lord Cairns in Fulton v. Andreic, 7 L. R. H. L. ,148 ; 14 L. J. 17 ; 32 L. T. '209 ; 23 W. R. 50(5 ; 1875. ((/) Per Lord Hatherly in Fulton v. Andrew ; See also Uegarty v. King, L- .11. Ir 5 Eq. 249 ; 7 lb. (1880). (e) 2 Moo. P. C. C. 480. ( f) Supra. {(,) 63 L. T. 465. IW DEFENCE— TESTATOR DID NOT KNOW AND APPROVE. 481 ties the Court that the testator knew and approved the Cdiitents of tlie instrument (h). In an action instituted by residuary lej^'atees as plain- tirts, a^niinst executors as defenihints, for revocation of probate of a will and codicil taken hy them in common t'onii, the (|uestion raised was as t«) whether the words ■ tln'rciii rimroiH)Uiirove of the contr-nu ,>l' the will in (juestion before it can be admitt<'d to |)rol)iit(' (,/")• Lonl Penzance, in the case of After v. Alliiiftm, cliar^ctl the jury as follows: — "The (juestion of fact is, did Mrs. Xowcombe really ever read the contents of this doeuniont :" If you are satisfied she read it, then, as a |»r<'-- positioii of law, I feel bound to direct you that she muHt b'; taken to have known and approved of its cont«-nts. If, litin;; of sound mind and capacity, she reail this rosidiiaiy clause, the fact that she afterwaivls put h'-r sit,'iuiture to it is conclusive to show that she knew iind approved of its contents. Ketlect on the contrary proposition. Suppo.se th.'it a lon<( will with a nunibi-r of complicated arrant^ements is read to a coiiipetiMit tt'statur, and is executed by him, if we were p<'rniitt«-d some time after his death to enter into a discussion as to how far he understood and appreciated the bearinj^s of all the (JiHtTcnt parts of the will, we should upset hah the wills in the countiy. (Jnce get the facts admitte'l or proved that a testator is capable, that there is no fraud, that the will was read over to him, and that he put bin (I) Fulton V. Andrcjc, ante. iwl i'h-iire V. r., 1 P. A' D. 658 ; 3a L. J. P. 81; See also Alter v. AH.ni- "m, 1 P. d- 1). 670. II.S.C, 28 434 CON'TEX'I'IOUS BUSINESS. If i'i ' 4 I!' v "l! Reading over or ex planation of the will ,t() testati ir, liund to it, and the question whether he knew und ap- proved of the contents is answered." Of this Lord Cairns in Fu.lton v. Aiydrew, says:— " Although I do not think it necessary in the present case to detennine the question, I do not know that tliere is anything in that direction, taken as .a whole, to which I couhl venture to make any objection : but you will ob.serve the ver}' important (jualification — I ,sav ' taken as a whole.' In the first place, the jury must Ic satisfied that the will M-as read over, and in the second place must also be satisfied that there was no fraud in tin case. Now, applying these observations to the present case, I will ask your loi'dshijjs to observe that we have no means of knowing what was the view which the jury, in the present case, took with regard to the rejHling over of the will. The only witnesses upon the suV et were tliose witnesses who themselves were propounding the will. No person else was present — no person else knew anything' upon the subject. It appears that these witnesses stated either that the will was read over to the testator, or that it had been left with him overnight for the purpose of being read over. The jury may, or may not, have believed that statement, or may have thought, even if there had been some reading of the will, that that readino- had not taken place in such a way as to convey to the mind of tlic testator a due appreciation of the contents and ett'ect of the residuary clause ; and it may well be that the jurors finding a clear expression of the intention of the testator, or what they may have thought to be a clear expression of the intention of the testator, in the instructions for tlio will, were not satisfied that there was any such proper reading or explanation of tlie will as would apprise the testator of the change, if there was a change, between i\\f instructions and the will. ... If your lordships find a case in which persons who are strangers to the testator, lb ilJ^J DEl'ENCE— TCSTATOR DID NOT KN'OW AND AI'I'UOVE, 435 who have no claim upon his bounty, have themselves prepcaretl, for their own benefit, a will disposing in their own favour of a large portion of the property of the testator; and if you submit that case to a jury it may well be that the jury may consider that there was a want, on the part of those who propounded the will, of tht ^^^*^\ execution of the duty which lay upon them, to bring home amount to to the mind of the testator the effect of his testamentary jxct : and that that failure in performing the duty which iav upon i-hem amounted to a greater or less dot^i'ee of frauij on their part. The qualification of Lord Penzance in the charge I have read may entirely appl}- to such a case." . . . "It appears to me that consiste.itly with the rules inentionod by Lord Penzance, the jurors here may not have been satisfied that there was a proper reading of the will to the testator, or may have been satisfied, after hearing all the facts submitted to them by Mr. Justice Mellor, that there was, on the part of those -vho propounded the will, such a dereliction of duty, such a failure of duty on theii- part, as amounted to that degree of fraud to which Lord Penzance refers in the rules I have mentioned (??)•' A testator, having in his instructions for his will, TiH.iti.m directed that all his B. shares should be given to his J"j^j|ii^,,'-\,f nophewH, but the word " forty" was inserted several times ^'^''"*^''^"'' ' •' ^_ man. by the draughtsman before the word " shares," and the tes- tator e.\ecuted the will with this insertion without it having been read over to him, or his attention directed to the insertion, the Court on the finding of the jury, directed the word "forty" to be struck out (o). (n) Per Cairns, L. C, in Fulton v, Andreio, ante. Sec uIho Vreemnn V. i\, 19 0. R. 141. (o) yinrreU v. M., 7 P. D. 68; See also Mitcnell v. Thomas, G Moo. PC. 137; Collins and Tuffley v. Elttone, P. (185!'2) 1. 436 ("ONTENTIOUS JJUSIXESS. Knuw ledge, etc., (if revdcii- tory clause, I'lirticu- !arn. If a person has j^iven instructions for a will, ami it is prepared in accordance with tijeni, the will will bo valiij. thouKi;i». VM i non-approval of the residuary clause was alone occasioned 1)\' iiu'ntal prostration brouufhton by habitual drunkenness and disease of the brain (r). DcfcndaiU, may i^ei U]> anot/icr Will. |f) The deceased niado Ilia true liiHt will mid testiiincnt dated the day of A. D. IS , and thereby appointed the defeiuliint sole pM'cutor thereof {Here add (inij other iir>und:i of de/encf) (n). A testamentary paper maybe propounded by statement D.f'.uv of defence in opposition to one projioinided in the state- t.r.eiiiiin. nient of claim (t). The defendant may also by way of counter-elaim set up anothei- will (ii). Drjevrc <>/ R<'r(U'<(i ion. Hv n»' Wills Aef, R. S. O. c. lOf), s. 20, " Every will K.v,«a 1 11 I 1 1 1 11 • !• 1 1 1 i " i tii>n iif will shiill i)e revoked by the marriage or the testator except a by mar will made in exercise of a power of appointment, where ['!^j'^,',|lr ,,r the ival or personal estate tluu'eby appointed would not, ''''''^""■'^■ in default of such appointment, pass to the testator's heir, t'xocutor, or administrator, or the person entitled the testators next of kin, under tiie Statute of Distributions." That the deceased had subsecpiently to the execution of the will, contracted a marriage valid by law, may there- fore he pleaded in a testamentary action. A testator by liis will beijueathed all the estate to which Tnstanrf .f he niio;ht be entitled at the time of his death, or over which from'n'vo- he had the power of appointment, to A. l>., and npp()inte-). 439 rapacity til revoke. ('(xlicil— i-t;iiiding or falliiijir with will. (:) Thiinan Price'n Case referred to in Jenkins v. Morrix, 14 C. D. ()8(). ('() O'Leary v. Douglass, L. K. Ir. 3 Ch. /). .S2.S, JWi (1878). ('<) Farrar v. St. Catherine's Colh'(je, Camhriilye, L. R. Ki E " iilll to i-. :ir ill. (', :- 1 J'* 1 ■ i, 1 W (' fe^ 440 I'rfHiiini)- tioii. By flt'H- tnictiim (if will uiMlieil revoked. Codicil tlif ojilj' duly executt'il i)!i|«'r furtlicdin iiig. ApiKHllt- nicnt un- der |x)wt'r CONTKXTKMS IM'SINKSS. Hut u codicil is prlnin Jar!*' (h'jM'ndriit on the will; aiKJ where a will lui'l codicil to it liiivf; ln'cii in existence, an(| the will has been sulisetpiently destroyed hy the testator, the Ituithen of proof is on the ,mity settinj; up the cdtljcjl, to show that it was the intention of the testatoi tliut it sliould operate separately from the will ; otherwise the presunipticMi is that by the destruction of the will *.\w codicil was revoked (/). At the death of a testatrix the sole testamentary ])aiici-s forthcominKi:i>. 441 Wlirif tlioiv lire two tt'staiiK'ntmy papers, onoh pro- ftssiii;f in form to lie the lust will of the deceased, the ('ourt, ill detenninin^f whether one or both of them art ontitled to probate, must be <;nided by the consiileration, not whether the testator intended them both to form his will, Imt what tlispositions of his piojierty as colheted from the lan^ua;,je of all tlu; paper's he desi<;ned to revoke (tr irtiiiii. So that where a subse(|uent testamentary paper is only partly inconsistent with one of an earlier dat •, the liitti'i' instrument is only revoked as to those parts where it is iiu'onsistont, and both of the papers are entitled to jiroliate (h). A will may be revoked by burning;, tearing;, or otherwise ik'stroyiiiff, by the testator, or by some person in bis invsence by liis direction, with the intention to revoke the >aiiie(/). The will ( f a testatrix was destroyed in her presence, I >f*tnic liut without her consent or authority, by a relative. Sub- without se(]UL'ntly the testatrix, thou<,di presserl to do so, refused to|,IJ,'J','.^J,''' make a new wilbsavinsx that she could not briiiii, with the intention to revoke the .^aniel/). The will truc but without her consent or authoi-ity, by a relative. Sub- witiu,-.!" se(|Uently the testatrix, thou^di pressed to do so, refused to[,J|.'J'^^|,''' make a new wilbsayin;^ that she could notbrin^her mind"'"*' to it, and that it must reiiiain as it was. It was held that there was no sutKcient evidimce of a siibsecpuuit ratification of the desti'uction of the will so ns to constitute it an act ih^iit' livf.lio iliri>ef.irt)) nnil Isv^ flio nnf.liniMf.v' (if <■>».» f i.i..<-.i»..:xr I ' *\ ;'•' i-i Mil) 41-1' CONTENTIOUS BUSINESS, aj^ainst his wishes, an J afterwards promised him to Imrn it, but never did, the envelope, but no part of the will was affected by the fire ; the Court of Queen's Bench iield that the will, so far as it related to freehold property' was nut revoked, as there was no such burninrj as would satisfv the Statute of Frauds (i?). ti.)rbv Where the testator in a fit of suddon anger against uir- tearing, fjf ^he devisees, under his will, tore it twice through : hut. his ai-m being arrested by a bystander, and his anyvi mitigated by the submission of the devisee, proceedcil no further: and, after having fitted the pieces together, and fiiiding that no pai'ticular word had been obliterated, sai'l. " It is a good job it is no worse " : the Ci) Doa V. Harrh, G A. & E. 209 ; and see 1 Wms. E.xors. 8th od, i:*'.'. (o) Doe V. Perki's, 3 B. it A. 489 ; aud see Colberg, 2 Curt. 832. (p) Elmes V. E., 1 Sw. d- Tr. 15.5 ; 27 L. J. 9(). ^^■■pi DEFENCE— WILL UEVOKEI). US thereby intended to revoke tlie codicil as well as the will, and it was held to have been I'evoked (q). A testator after duly executing; his will, which was in |''"H"l'>'" •' _ '^^ _ total rcvii- live sheets, each of which was signed by hiniself and <:iti..ii. initialed by the attestinjjr witnesses — took out thi'ee sheets, ami substituted three new ones — which he signed, but which were not attested. He did not alter the date of the will, nor did he re-sign it, nor was it re-attested, and the throe original sheets could not be found. It was held that the will was not entitled to probate, it having been revoked (/■)• Where a testator tears or cuts away only a portion of a will, leaving his own signature, or the signatui-es of the iittesting witnesses untouched, this is only a revocation of the portion of the will torn or cut away (.s). Wiiere a testatrix tore up a codicil under the eri'oneous iinju'ession that it had been unduly executed, and sent the torn pieces to her solicitor to re-copy for execution, but ■■■■: U W' 444 CONTEN'TIOI'S HUSIN'ESS. Proof of 'fije stroimest pi'oof of adherence to the will, and of adluTcncH , V . , . . . to wife. the iinprobjibiiit}' of it8 destruction, ariseH from the con- tents of the will itself («'). Two incon Histent wills. Where there arc two totally inconsistent wills, of the same date or undated, and there is no satisfactory evi(ience to show which of the two was last exocuteij, nei^^her of the wills is entitled to pi'o])ate {,/". Will e.xe cutcd ill When a will has been executed in duplicate, the revo- duplieate. catiou of One duplicate by any of tiie modes directed by the statute, is a revocation of both (//). A. will proved to have been in the custody of a testator There must be the((»/»n/.9at a time when he lias been of unsound as well as of reviicaudi. sound mind, and on his death discovered to have been torn b}?- him, or not forthcoininrj, the burden of showing tliat it was revoked by him, by tearing or by destruction. when of sound mind, lies upon the party who sets up tiic revocation (2). A testator, havinj;^ erased a clause in his will after the execution, asked a friend to make a fresh copy of tlif, will omitting the erased clauses. The copy was made, but the person who made it by mistake omitted several other clauses. The copy was duly executed, and the omi.ssinn.s were "^ot discovered luitil after the testator's death, both wills having remained in his custody up to that time. The two wills were not inconsistent with each other, and the latter contained no express clause of revocation. Probate was granted of both documents upon parol evidence of the circumstances under which they were drawn up and exc- {w) Saunders v. ,S'., N. C. iV2'2. (.r) 1 Wma. Exors. 8th ed. 1(19. (2/) KiUicnn v. Parker, 1 Lee, 6(52; liovghi'y v. Morton, 3 Hiiyt;. I'.H. (z) Ilarrh v. BerrnV, 1 Sw. & Tr. 15:^; Sprinne v. >., 1 P. il' !>.<'«** 38 L. J. 4, I '■" -?S"" DKFFNCE — WILL HEVOKEI). 445 cuted, iis tojifother contaiiiinj^ the deceased's last will and testiUiient {d}. A will torn under an erroneous belief that it was invalid, WHS julinitted to probate, as the act done was not acconi- paninl by the intention to revoke (/>). Wliere a testator had executed a will in 1SG4, which he l>''i»'n(le' '. ... . 1 1 • rtl.itive (It'siniyeil ni iSGo. with an nitention expressed at the tnuf, i(V(ita- that he wished to substitute for it a will of 1S02, which he lu'M ill his hand, it was held that the act of destruction Ix'iiii;' reforablo solely to his intention to validate tlie will of lS(i2, and that act beini:;' conditional, and the condition hein;,' unful tilled, the will of 1S()4 was entitled to pro- bate ('•'. Till' Court refused to revoke a grant o^ adniinisti'ation with the will annexed, on the ;^round that the adnnnistra- trix had intermeddled ((/). Tht-reare other defences which may be set up to a will TcstKintn- iii addition to those specified in the foi'in of a statement of notinti'iid- (lefeiice n-iven in the schedule to the Sui-roy-ate Court lij^p^.j^j^'^!;! Rules of 1S!)2; e.-h testamentary on "'''^■ the face of it, and duly executed, was executed by the deceased without any intention that it should effect the ilisposition of his property aftei' death ; in other words, that it was executed as a sham will (e). Where a testatrix executed a will in virtue of a power i»f app )iiitin;^ and disposinjjf of a fund, and subse(|uently executed a document headed, " This is not meant as a will, in) IlirhH V. n., 4 Sw. & Tr. 23 ; U L. J. 90. (M Hik^ V. Wiirren, 2 P. A D. 401 ; 41 L. J. 50; see also Cnmpbell v. French, ;j \\-». ■}2;i. (-■l rom-n V. p., 1 p. & D. 20'.»; 35 L. J. 100; see also Dancer v. Crahh,:\ V. ,V D. •}8 ; 42 h. J. 53 ; and ant,' p. i>7. (<() Reid, 11 P. D. 188. (") I.inter V. Smith. 3 S. & T. 282 ; 33 L. J. 29 ; Trevelyan v. 2'., 1 I'lulllm Kit; Sicholh V. .v., 2 Philiim. ISO. ■; ;i ;;j[f ' T" ( ■ Mi 1'^ 1^ H^f. 1 ail. ■' i ■J, li. ■ 11 • *" fit '' '" ll \i j" ! ; Compro- mise of action. Estoppel. 446 CONTENTIOUS BUSINESS. but a.s a lej^al guid«}," and by it making a different tli.stri- bation of the fund, probate was refused of the docu- ment (/). In an action as to the validity of a will when terms of compromise are agreed to by the parties who are suijwrl*, the Court of Probate will not make an order bindinrj infants to the terms of the compromise {g). From a will, the validity of which had been contostcij in the Prol)ate Division, was liy a compromise prououneeij for. 'Subsei|uently the party who had contested the will discovered that it was a for ^orv, and obtained a docree in the Court of Chancery setting the compromise aside on the (ground that the alleijed will was a foriferv, and that his consent to the compromise was procured by fraudulent representation. The defendant then propounded an earlier will, and the former plaintiffs the forged will, and the Court held that they were estopped from denyini,^ the forgery (A). A[iii')rity. The defendant may plead that the deceased was umkr twenty-one years of age and therefore incapable of nmkin;,' a will (i). A will made by a person under twenty-one years is invalid ; and it was so held where the testatrix was a married woman eighteen years of age {j). Si i Hi ' (/) FeriiuHon Davie v. F. D., 15 P. D. 109. (//) Norman v. Strains, C P. D. 219. (/() Priestman v. Thomai, 9 P. D. 70, 210. (i) See The Wills Act, K. S. O. c. 109, s. 11. ij) Re Murray Canal. — Lawson v. Powers, 6 O. R. 685. i|H 'IV \i IIKPLV. 447 B siii jari*, CHAPTER V. REPLY. " The plaintiff shall deliver his reply, if any, witliin thn-e f:<'i'iy. weeks after the defence or tlie last of the defencs shall have heeu delivered, iinless the tiiuf shall be ext<.'iid''d In' t)ie Court oi-aJudge." — R. 3S1, Rules Supreme Court .lud., Out. Adding' tlie formal commencement and concluhion, the j.-,„.,„ ..f replv may he in tlie following form: — "-I'ly- '• 1. The plaiutirt' joins iasue upon the Ktat<;inent of di'tViin' of the defendant, as contained in the fii'st, s^-'cond, tliird, fourtli juid tiftli para;;raphs thereof. " 2. The plaintiff says that the .said w'll of th<- said deceased, dated the was duly revoked by the will of the propoutnled by the ])laintiti' in his statement of claim" ('/). Where the statement of defence contains a chart.'*; of wii.n- imdiit! inHuence or of fraud, or an alle;,'ation that tin- r,.,',nin.' t!'^ dtceased at the time of the execution of the instrument '"■..'■i"''''' inopi)un< 1(3(1 did not know and approve of its contents, or-l'-ni.Mi. any averment other than a denial of the due execution of tho will, and of the testamentary capacity of the deceas.wl at the time of his execution, the plaintiti" sliould in his rr-[dy specifically traverse the charfre or allegation as pleaded (A). To a counter-claim setting up a wdll of subsequent date \{,.^,\y „f to that of the will propounded, the reply of incapjicity will ""■■'!''^'-itv- not be struck out as embarrassing (r). "There is no limit," said James L. J., "as to what may he said in reply, except that it must not be* scaii'lalous or irrelevant. The plaintiff is left as much at liberty in his ('I) See Form No. 62 A.pp. to Rules Supr. Ct. Jud., Out. ('') Thorp V. IMdsworth, 3 Ch. Div. 0:^7 ; 45 L. J. Ch. 400; Dyrd v. •Vi»i», 7 Cb. Div. 284; 47 L. J. Ch. 1. ('•) Smith Riijg v. Hughes, 9 P. D. 68. 448 CONTENTIors lUSIXESS. h L reply as in liisstatoinent of claim. . . . It is no part of the statement of claim to anticipate the defence, and to state what the plaintiff' would have to say in answer to it "((/). Uovivivl i)f Whei-e in the statement of defence it isalle75 ; 37 L. J. 7'2,Jn. ii.H.r.— 29 (II 5 -^ li'. ': 450 CONTENTIOUS lU'SINESS. M he ' iil^: CHAPTER VI. EVIDKNCE. Rules (if [lie nihvs of evi(lei)C(! observed iii the flicli Comt cvKlciK-tin , ,, , 1- 1 1 1 11 1 • '^ HIkIi Hhall be ai>i>liC!il)l(; to and observed iii tlie tnal of al! obscivni.' '(ii^'-'^tions of fact in the Surro^rate Courts." — S. C. A. s. 20. Attend- ance of iMltles iiy \vitnes>es. I'l'DlllU'- tion "f deeds. Mode.if taking' evi dence in conten- tious mat- ters. " Kvery Surro;;'ate Court may require tlie attendaiici'ni' any party in person, or of any penson Avlioin it may tliiiik fit to examine or cause to be examined in any su't or other proeccdin;^; in respect of matters or causes tcstainciitiiiv and Ui.iy examine or cause to be examined upon oatli or affirmation, as tlie case nia^' rcfjuire, parties and witnessis b}^ wonl of mouth, and niay either before or after, or wit!! or witliout such (examination, cause them or anv of tlieiuto be examined on interroo-atories, or receive their or any of their aftidavits or solemn atlirmations, as tlie case ni.iy 'w; and eacli of tlie said Courts may, by writ of svJijxiiki oy suhpn'iKi i/accs feriLJii (as the case may be), rei^uii'o sueli attendance and order any deeds, evitlences or writiiif^'s, to be produced Itefore itself or otherwise." — S. C. A. s. '2'-). "Subject to the regulations (established b^- the Knlos and Orders heretofore in force respecting; Surrogate Courts or hereafter to be made under this Act, the witnesses, ami where necessary, the parties in all contentious jiiatters where their attendance can be had, shall be examined orally by or before the Judge of the Surrogate Court in open Court; and subject to any such regulations as aforesaid. the parties may verify their respective cases by jitlidavit: but the deponent in every such affidavit shall, on thf EVIDENCK. 451 liu-h rouvt trial ol" i\\\ C.A.s.2ii. ttemliinci'iii t luiiy think Rll'.t oi' ntht'i' •cstaiiicnti^i'y ipon oath "V Lncl witnesses if tor, '>!• \\'itl* ny of them to leir or any of case may he: f Milij'ii I'" ^^" or writin<:'H, to :. A. s. '2:^. by the ^A"l'-^ n-o^ate Conn^^ witnesses, awl iitious inattov? xaminecl orally Court in opfii „s as aforesaia, ,^.shvatli'lavu. t sl.all, on tlu' ,q>plication of the opposite party, be subject to be cross- txaiuiiie nnitter bef<^i'e them respec- tivily were an action pendino- in the County Court." — > i'. A. s. -is. On the subject of discovery and inspection of docu- Discovery. iiieiits generally, it has been said: — " Thei-e is nothino- in 'iiodfiii times which, requires greater care than makint; 'ii'ders tor discovery and inspection of (h)cuments. 'i'he "Id practice of the Court of Chancery was limited to cases 1 1 452 CONTENTIOUS UUSINESS. fifft^ Kxaiuiiiii- tioM of [iiirtii'M f(ir • liscovcrv. witli which the Chancery Courts were familiar, — such as breaches of trust, M'here all the documents were in the possession of a trustee, and the cestui, - tion in the action by any party adverse in i)oint of interest; unil mav 1 compelled to attend antl testify in the same nninner, upon the san terms, and subject to the same rules of examination, as any witnt- except as hereinafter provided. The practice provides for two methods of discovon ; tirst, by production of documents; and second, by cxaiiiiu- ation of the party (b) ; the rules providinfj for it bein;; " two groups of rules, 487 to 500, and 504- to 575 " (c), as amended by subsequent rules. Under the Judicature Act the rules previously followed in the Court of Cliaiiceiv are continued as to the ri^ht to discovery ((/): and any party to an action is entitled to a discovery of any fact within his opponent's personal knowndge ; andtoatlis- (a) Per LhuUnj, L.J., in Re ]ViIlis (181)2), 3 Ch. 201. In that matter which was a motion to remove a trade mark from the register, an order had been made for discovery of documents which was by the Court of Appeal considered to be oppressive and rescinded. (b) Per Boyd, C, in Lavery v. Wolfe, 10 P. R. 488. (c) The Union Bank v. Starrs, 13 P. H, 108. (d) Anderson v. Dank of British Columbia, 2 Ch. D. 6(>1. i:VII)KN(.'E. 45:J ,,iv(iv <>r ivny \aniiim- has been ilulivered or after the timn for delivering' th(! same lias cxjiircd ; ['"'' "'''^ ail the examination on the part of a defemlant may taUe I'lace at any time after suoh defendant has delivered bis statement of defence; and the examination of a party to an issue, at any time after the issue has I .-en liled. (fl I.ij^ll V. Ki-nii,,lii, S A pp. Cas. SM: .'hmllnn v. Illihi', 11 P K. IW; Caultuit V. Mi-Plu'fsoit, 12 i'. K. Ci.iU ; ll'ii,ilelii v. Cniiri'onI, 'i K & B. m. if] Queen llrtoriti Si(t!iiirii /•'( (7s Park Cunimissiniifi:-. v. Howard, i'il' R. 14; niiatelij v. Cnu'c/vnl, o [■] & li. 70',). I.'') A.ihlnj V. Jteiiiton, Ki P. R 98 ; Knnjsleii v. Diinii, i;{ V. R. :500. C'l C. A Tr. lltbed. ITr,. rli ;• 111' ^^ 451 CON TExrious nrsi n kss. SubiMHna 400. Wlienevcr a party in entitled to examine anotlier party Ik *"• »^'* .„f '"'^y ITwouro an appointment therefor from the Local Ue^istrar, L p()nitin"Tit. ■ocal MaHter, Deputy Clerk of the Crown, or a special examiner, in the Cduntv where the party to ho examined resides, and the party to be examined upon bein;^ served with a copy of the appointment and a subpoMiii, mil upon payment of tiie proiier fees, uhall attend thereon and Hubmit tt examination. Serviooof 401. The parly examinin;; whall nerve a copy of the appointmen; iiH-iit upon the nolicitor of the party to be examined, if he lias a aoiicitorintlu cause, at least forty-ei/^'ht hours before the examination. Onlcr to exiunii)H. Time, 403. Upon application to the Court or a Jud^e, an order may bi made for the examination of any party liable to be examined aw aforenai' beforo any other person or in any other county than those before men tioned, and upon service of a copy of the appointment of the person beforo wlmin the examination is to take place and a copy of tliu ordii upon the i)arty to be exainincd, and upon payment of the proper ftij [.:■ is to attend and submit to examination. A copy of the appointmen'. shall bo served upon the solicitor of the party at least forty-eight hours before the examination. Prodiic- lOJI. The party or person to he examined shall, if so required by tioM iif notice, produce on l.lio examination all books, papers and document- whicli lie would be bound to produce at the trial under a subpiemt itiict- tecum. (" Tlio rule as to discovery is the exact contrary to that as to proiluo tion. You must set out every deed yon have in your possession, whtthti you are bound to produce it or not ") (i). Partit'sand 494. Any party or officer so examined, may be further examinel otheiv may on his own behalf, or on behalf of the body corporate of which he is or ha- e(i on their ^^'^" '^" '>^^'^^^^'< i'^ relation to any matter respectinf{ which he bus beti. own be- examined in chief; and when one of several plaintiffs or defendants lia- ^'^^^- been examined, any other plaintiff or defendant united in interest niav be examined on his own behalf or on behalf of those united with him in interest, to the same extent as the party examined. When ex- 405. Such explanatory examination shall be proceeded witi; planatery immediately after the examination in chief, and not at any future period examnia- ^ ,(. ^^^ j^j^^.q ^f ^jjg Court or a Judye; and for the purposes of this ami take place, the precedint,' Rule, when the officer of a body corporate has been lo examined as aforesaid on behalf of the body corporate, the body corpc rate shall be deemed to be fully represented by such officer. (/) Per Jessel, M. R., in Swaiiston v. Linhinan, 45 L. T. N. S. 360. if HO rt(iuire(i Mrxlti of ciilidlKiti ttxiuiiiiiu- tidii. A |i.arty luliiiittiiiK till' pllHHtJS- ni(in (if lIlM^IIIIII'lltM iiiiiy li(' < in If Tod to IHUllllUH tli"in. EVIDENCE. 455 HMI- Any )> irty or person examined orvUy under the procedinu HiilcsHliiill liu Htibjuct tocTnuH-i'xainiiiation and re-examinatit)n ; and tlio examination, cronH-exaniinution and re oxaminntion stiall be conducted an nearly aa may be in tlio mode in use on a trial. 'lOT. A party to the action who adniitH, upon Jiis examination, tliat he liiiH ill IiIh custody or power any deed, pa[)er, wrilinji, or document ri.iiitiu>i to tliii matters in question in the cause, is to produce the same for the inspection of the party exaniiniu},' l\im upon tlio order of the Court or a Judt,'e, or of tliu Deputy Clerli, Local Ue>»iHtrar, Hpeciiil Kxiimiiicr, or Local Master, before whom he is examined, and for that liurpime a reasonable time ia to be allowed. But no party sliall be obliged to iiniijiice any ilcod, paper, writinj^, or document, which is privileged or |Tot(;ctcd from production, 498 Hither party may appeal from the order of the Deputy Clerk Local Uet!i.stnir, ]\IaHtor, or J^xaminer ; and thereupon the Deputy Clerk, Local Rej^istrar, Master, or Examiner, is to certify under his hand the question raised and the order made thereon. 400' Any party or person refusing or nej^lei^tiiit; to attetul at the ri'iialtv re- time and nlaco appninti'd for his examination, or refusini' to be sworn or '""■"'i-' ^" , , , . , • , , iitti'iiil or to luinwer any lawful question put to him by the examiner or by any answer, &3 IDirty entitled so to do, or his counsel, solicitor or agent, shall be deemed u'uiliyof a contempt of Court and procoedintis may bo forthwith had by attiieliinent. If a defendant, he shall bo liable to have his defence, if any, struck out, and to bo placed in tlio same position as if he had not defended ; and the party examininj,' may ap^iiy to the Court or a .Tiulge for an order to that effect, and an order may be made acconlinnly. 500. If the party or person under examination demurs or objetits Demurrer U) iinv ((uestioii or questions put to him, the (]uestion or (questions so put, t'> qiifH- iiinl till' (kinurrer or objection of the witness thereto, shall bo taken down "*"'*' by till' examiner and transmitted by him to the office of the Court where the iileadiiif^s are filed to bo there filed ; and the validity of such demurrer or objection shall be decided by the Court or a Jud','e ; and the costs of and occa9i(jned by such demurrer or objection shall be in the discretion of the Court or Judj;e. 501. Subject to the 2 next followiiifj Rules the depositions taken |),.,,„si. iil)on any sucli oral examination as afore.^taid shall be taken down in In ms to writiiif} by the examiner, not ordinarily by question and answer, but in ,"' '-'"•'*''" : , . ~ 1 down. the form of a narrative, expressed in the first [jerson ; and when com- pleted shall be read over to the party examined, and shall be sii^ned him in the presence of the parties, or of such of them as may think fit to attend. ^1 •■m I) t .' ij, ( m^) 450 CONTENTIOIS JilSlNK.SS. Sigiiiii},'(l(- (a) In case the party or pci-Hon examined rcfusefi or is unable tosijn pDJsitKins. j-j,^ depositions, tliun the examiner shall si^rn the saire ; and llie Lxaminer may upon ovt ry examination state any special matter to the (.'duit if lie liiinks lit. Taking' ddwii qui'stions. Sliort- haiid. Exauiina- ticms, Ikpw to he taki 11 ill sliurt- hiuid. Certified copy ti> have etfect, of original depipsi- tiiins. Dejupsi- tions ti) tie returned to Court. OHice copies. (/)) It shall be in the discretion of the examiner to put down uiiy particular ([uestion or answer, if thei'e a))pearH to be any special reason fi)r so doiii^', and any question or questions objected to sliail id tiie request of either party be noticed or referred to by the examiiio:- in or upon the depositions ; and he shall state his opini(jn thereon to tlie counsel, solicitors, agents or parties, and if requested by cithei- p:irly, lie shall on the face o; the depositions refer to such statement. SOS. In case of an examination before the trial, or otherwise than !it the trial of an action, if the examining party desiies to have sncli examination taken in shorthand, he shall be entitled to have it so taken at the place of examination by the examiner or by a shortlumd writer approved by the examiner and duly sworn by him, except where the Court or a Judge lees fit to order otherwise. ]33<>. Rci.K 503 is rescinded and the following substituted tiierefor : " oOii. Where an examination in a cause or proceeding in any eonrt is taken by the Examiner, shorthand writer as aforesaid, or any otlier duly authorized person, in shorthand, the examination may be taken down by question and answer ; and in such case it shall iiothe necessary for the depositions to be read over to, or signed by, the person exiiniiiied. tmless tl'.e Judge so directs where the examination is taken before a Judge, or m -(jther cases unless any ot the parties so desires.'' {(i) A coi;y of the depesitions so taken, certified by the person taking the same as correct, and if such person be not the Exanuner.also siiiiied by the Exaininer, shall for all [uirposes have the same effect us the original depositions in ordinary cases. 504. Whereser, by virtue of these Rules, an examinatinn nf any party or witness has been taken before a Judge of the High ('(iiirt or ot any County Court, or before any oflicer or other person autlmrized or appointed to take the same, the depositions taken down by the examiner shall, at the recpicst of any party interested and upon pa\nient of his fees, be returned to and kept in the oi'lice of the Court in which the pro- ceedings are carried on ; and ot'lice copies of tiich depositions may be given out, and the examinations and depositions certified under tlie iianJ of the Judge or other officer or person taking the same, or a copy thereof certified under the hand of the proper oflicer, shall, without proof of the signature, be received and read in evidence, saving all just exceptions. EVIDKNX'E. 457 tuted therefor : 505 Every .ludj^e, ol'licer or other iierson takin)^ examinations I'lMUiiiritn's iindur these Rules, may, and if need bo sliall, make a special report to '"''-^ ",'•' i^' the Court in wliicii such procee lin<^s are pending, toucliinti such cxaniin- ie|„,it tu iition and the conduct or absence of any witness or other person tliereon tin (imrt. or relatin^^ the.^.Lo; and the (Jourt shall institute such proccedui<,'s and make such order upon such report as justice may recjuire. and as maybe instituted and nuide in any case of contempt of the Court. 506. Any party may, at the trial of an action or issue, use 'n evi- Tartnf t^x- (lence any part of the examination of the opposite parties; provided"'"','"''',''" ftlways, that in such case the Judge niay look at the whole of the deuce, examination, and if he is of oi)inion that any otlier )iarL is so connected with tlie part to be so used that the last mentioned part oni^ht not to be used without such other part, he may direct such otlier part to bo put in evidence. The i)()wei" oF comitellitisj' discox ('r\' is jiuxiliarv tc the l>i^i-"v»ry. trial of questions of I'act by a jury Itel'ore the Court itseli", and the Court of Probate in Eno'hmd exercises sucli power ill cases where the Court of Chancery would Ljrant a discovery (j). In an action to establish a will, all {tapers tiio>i,nh not (.■videiice jx")' •'^c-, if not protected, are to be produced (/•). The defendants in an action pro})oundino; a will having applied for inspection of documents, it appeared that the sDliiMlor for the plaiutiti' had for many years acted as solictor for the testatrix whose will was in disptite, and hail ill his j)ossessi(ni diaries, extracts from diaries, cash iedi^crs, bankei's casli books, and other entries and memo- laiidii rehiting to the testatrix and her afiliirs. It was held that the papers above mentioned bein<^ the private j)i'opei'ty "l tlu' solicitor, the })hiintirt' could not be compelled to jiro- iluce them foi' inspection : and further that an order could Hot he made directino' the ah\ to recall probate on the La-ouml that (looumcnts the testator was not or souiul mind, and that the will was sidnal*^ obtained by the undue influence of the defendants, two rif privilege— ^^,j^^jjij were the executors, and the third universal le^attc. After the conunencenient of the action, four anonymous letters relating to the matters in dispute were rec(i\;Ml_ two by the plaintiff", one by her solicitor, and anotlur liy her counsel in the action. It was held by the Court of Appeal, varying the order of Butt, J., that the letters to tlie plaintiff' nmst be produced, but that the letters to tli'^ solicitor and counsel were privileged, for they must be taken to have been sent to them for the purposrs oF the action and by reason of their being the plaintiffs h'<^al advisers in the action, and the privilege was not lost because they were not sent in consequence of any r('(|iu'st l)y the solicitor and counsel nor obtained by tlujr exer- tions. The plaintiff in the same action delivered intoiro- Intprroga- gatories for the examination of the defendants, askiiio- tories, what sums they \\iid received from the testator by way nf payment for services, loan or gift, and whetiier the uni- versal legatee had, since the death of the testatm', iiiailr over any and what part of the ])roiierty to the other defendants. The defendants declined to answer these interrogatories as iri'elevant: -It was held, affirming tin- order of Butt, .)., that the interi-ogatories must be answereil, the period in the first interrogatory being limited to three years (in). -T'lirtifU- lai-M. In an action for probate the Court will not onler particulars to be given of incapacity (/?). Nor of undui influence (o). {ill) In re Tliomns HoUoiraii; Youmj v. Hoi Iowa 'j, 12 P. it D. It'w. (n) Ilaiiliiiixon v. lUirniiuiham, 9 P. D. (i'2. (()) Lm-d Siilishiini V. Xii:iciit, P. D. (C. A.) 23. EVU)EXCE. 459 507. It shall bo lawful for the Court or a Judge at any time pend- OnitT for iiiu' itiiy action or proceeding', to order the production by any party ''r'",'"^'^'"" thereto, upon oath, of such of the documents in iiis possession or power mfnts. reliitini^ to any matter in question in such action or proceedinj^, as the Couit or Judge thinks rij^lit ; and the Court may deal with such docu- ments, when produced, in such manner as appears just. 50H. Any party nmy, aftm- tlie defence is delivered, or a plaintiff may, ufti r the time for deliveriii;^ the defenct! has expired, and any party to an issue may, after the issue has been filed, obtain an order of course upon praicipe, dircctin;^ the adverse party within 10 days after the service thereof, to make discovery on oath of the documents whicli are or liavi' been in his possessioi: or i)ower, rehitin^; to any matters in (jnesiioii ill the action ; and to produce and deposit the same with tlie proper offi- cer for the usual [jurposes, and such party shall make discovery and province ;ind deposit, the docmnonts accordingly, witiiout further notice. 509. As to third party. 510. A person for wliowe immediate^ benctit an action is prosecuted Pii-snn or defended is to be regarded as a iiarty for the ijurnose of production of " '" ' ",-' ' " 1 J 111 ;t iiaity tor doi.-iiiiients. ,• brlietittei eel-tain |iur|Mises. •111. Where the party required to pr.)diice docui7ients is a corpora .VfHiavit tioii ULigregiite, the allidavit shall be niade by one of the oHicersof the cor- "." 1'""'"^" • -^ • tMM l)V a poiiUioii, and his affidavit shall have the same effect (as nearly as nniy ,., .ipcira- be) as the affidavit of a [xirty, unless where the Court or Judj^e sees ti""- I'ensiMi tor holding utherwise. ."513. Pvesciiided hv ]:j:}7. •IIJI. The allidavit to be made bj- a party against whom an ordei- .Allidavit for [H'oduction has been made, shall specify which, if any, of the docu "" '"'^ "'^" nieiiis therein mentioned he objects to produce, and said allidavit may fcim ,,i. be in the Form No. 18 in the Appeudi.K with such variations as circum- stances in:iy rei)iication is made, or disclosed in his affidavit of documents, such application sliidl be founded upon an afiidavit showini; of what documents inspection is souf^ht, that the party iipi)lying is eiititle liscovery and inspection, or the production of dociiments, neuded upon the ([uestion as to the will being det<;rriiined ill the plaintiffs favour ; and not having been so deter- iiiiiied. discovery and production were refused ('/>. .I'iO. If any party fails to comply with any order for production orConsr- iiisi)ection of documents, he shall be liable to attachment. If a defend- 'i'.'<"'''"< "f I (lls;il)i'Vllltf ant, he shiill be liable to have his defence, it any, Htruck out, and to bean or.lVr placed in the same position as if he had not defended; and the i)arly fordis- wlio obtained the order for production or inspection may apply to the '*' "^'" Court or a .Jnd^e for an order to that effect and an order rnay Ix; madi' aor.irdiiigly. H'il. Where the application for such last mentioned order is made Service of bv i-fason of default in production of books and papers in tlie Master's "I'tice on iiliico, or pursuant to an order to produce, or in carrying '" '*'''-'^""^'*' wli. n siirti- service of the notice of motion upon the solicitor of the j/arty requirerl cient. to obey the same, is to be sufficient service. 5'i'i. Service of an order for discovery or inspection made against Sciviic of any party on his solicitor shall be sufficient service to found an applica- 'i"fi''' on tion for an attachment for disobedience to the order. IJut '.he party „.||,.ii .sutK- at^ainst whom the application for an attachment is made may shew in eicni. answer to the application that he has Viad no notice or knowledj^e of the order. 523. A solicitor upon whom an order atjainst any party for dis- \tta.(!i- covery or inspection is served under the last Rule, who netjl'.-'.'ts without "I'lit of reasonable excuse to give notice thereof to his client shall U; liable to an attachment. 5*-J4. The preceding' Rule as to preliminary examination of parties, Hulcs ^i.- to and discovery and inspection of doc ments, shall, so far an pncticable. e\aiiiina- id in such cawK the (Jourt or tion, (lis apply to parties residinj^ out of Ontario, and m sucn tai»«.-)» mc «.(jiiri, '" (.,,v,.py .^,,,1 Jiiill^e may order the examination of the parties to be taken at such iiis|icct ion place and i.' such manner as may seem just and convenient, atid service •■" ■''I'l'lv to .... , . 1,11^1 I'.irtirs rc- n *>'<:: order nr examination, discovery, or inspection, and of all otiier ^j^j,,^, ,,||{. papers necessary to obtain the benefit of the provisions of the said Rule of Ontiiriu. shall be sufficient if made on the solicitor of the parly in action, in tin' (|ilicii- statfil in an action or nuxt..er or in any proceeiliiii' inoiilental to an '^";" "' ■' ^ ° rules. actiiMi. Evidence GeiieraUy. ."►."iO- Ml writs of subpoena may be tested, or tn.iy bear date upon Siili|i«iiiiis. the (liiy when tlie same are issued. 50S. Wherever any party in any civil action desires to call the^'dlin^; opposite party as a witness at the hearing or trial he shall either subpoena, '.',!![.ty ' such parly or give him or his solicitor at least eight days' notice of the intention to examine him as a witnes.s in the cause, and if such party does not attend on such notice or subpoena, such non-attendance shall be taken as an admission pro cmifcuso against him in any such action, unless otherwise ordered by the Court or Judge in which or before whom such txamiiuition is pending, and a general finding or judgment may be had .\ilniissiiin a^^ain^5t the party thereon, or the plaintiff may be non-suited, or the pro- ceedings in the action may be postponed by the Court or Judge, on such terms as the Court or Judge sees tit to impose. 563. Upon proof to the satisfaction of the Judge presiding at the r,|.)icii sittings of any Court of the service of a subpania upon any witness who warrants. fails to attend or to remain in attendance in accordance with the require- ments of the subpoena, and that a sufficient sum for his fees as a witness had been duly paid or tendered to him, and that the presence of such witness is material to the ends of justice, the said Judge may, by his T^i^P^i^ 46 1 coNTENTiors iu;siNr;ss. warrant, directed to any slieriff or otlier officer of tlie Court, or toativ constftbli'. cause sucli witn(;aH to be apprehended and forthwith biniioht before him or any otlier Judfjo wiio may thereafter preside at Kiicli sit- tin{,'s, to f^ive evidence, and in order to secure hia presence as a witness, such witness may be taken on such warrant before the presiding Jiiik'e and diitiiined in the custody of the person to whom the warrant h directed, or otiierwiso, as the prosidin}^ Judge may order, until liis presence, as such witness, sliall be required, or, in the discretion of the said Judue, he may be released on a recognizance (with or without sure- ties) conditioned for hia appearance to tjive evidence. (ii) The warrant may be similar to the Form No. 202 in the .Vppcii- dix, i\nil may bo cxecuttMl in any jiart nf Ontario. Evidence at Trldh (ind References. Evideiici' on trial to he cnv nice. l)r l)fffire a Ma.ster. tH\%.- In the absence of any aj^reeinent between tiiu parties, imil subject to these Rules, the witnesses at tlu; trial of an action or al an assessment of daniaj^es shall be examined viva voce and in open Court. but the Court or a Judf;e may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that tlie affilavit of any witness may bo read at the hearini^ or trial, on such conditions as the Court or Judj^o may think reasonable, or that any wit- ness whose attendance in Court ou<,'ht for some sufficient cause to lie diH|)eiised with, bo examined before an examiner ; provided that whore it appears to the Court or Judi,'e tliat the other party hi)iui fule desires the ])roduction of a witness for cross-examination, ar..i that such witness can be produced, an order shall not be made authorizini,' the evidence of the witness to be f^iven by affidavit. 505. All witnesses in any matter pending before a Master, Lociil Master or Referee, shall give tlieir testimony viva voce, and be subject to examination before the Master, unless it is otherwise ordered by the Miist'^r, or by the Court or a .Judge, on special grounds, or with the consent of the parties in the suit or controversy to which the testimony relate-. Exan «SUG. The Court or a .Judge may, in any cause or matter whore it tioii lu'cps- uppgj^^.g necessary for the purposes of justice, make any onler for tho purposi'M examination upon oath before an officer of the Court, or any other perso;i i)f justice. Qj, pji-9ons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower anv party to the cause or matter to give such deposition in evidence therein. on such terras, if any, as the Court or Judge may direct. EVIDENCE AT TRIALS AM) KEFEHENCES. 4»)5 131 li Rum: •'>')'"> iHiniioiHled by iiddiiij,' thereto tlio tollowinj^ words: " (rt) Such exaininatioii in tlie absence of any order to the contrary gliall be conducted in accordance with th;i practice lioreinbefuro pre- scribed upon examinations for discovery in ho far an tin; same sliall be applicable." " This rule does extend no doubt, tiH it says, to all cases where it .shall appear necessary foi- tiie pur})(>ses of justice"' (/'). «"Jrt7- At the trial of an action, or of any further directionn therein, AHid;n it- all'ulavits of particular witneHscs, or af1ida\itH as to particular facts and byi'^nsint, 1 11 i 11 I ii /^i 1. 1 "' hv l>a\i' curiiinstances, may be used by consent, or by leave of the I'ourt; and ,,f ^i,,. Buch consent may be ;^iven on behalf of persona under disability, with Court. tlic apiii'obation of the Court. 50S. In case the parties in any action consent to the evidence bein^; Wlicn tn tiikuii b" affidavit as between the plaintiff and the defendant, the plaintiff'"," f^'"'.'' ''•^' ,, , , , . .,, . , , . |iliiMitdt. witluri li days after such consent luis been j^iven, or witliin sucii tune as tlie parties may aj^ree upon, or a Judj^e in Ohambors may allow, shall file hif iiilidavits and deliver to the defendant or his solicitor a list thereof. 5(H). The defendant within 14 days after delivery of such list, or Wli.n t.> '.viihiii such time as the parties may a^ree upon, or a -Judj^c in Chambers ''c tiled li.v iiKiy allow, shall tile his afHidavits and deliver to the plaintiff or his 'ulicitur a list thereof. 570. Within 7«h Court, or of uiiv «".'/** frf'^' County Court, or before any other officer or person appointed to tiike the adn'iiMsii)le same, copies of such examinations and dejjowitions certified under tlh' inevidb'ce. liand of the .Indue, ofllcer or otJier person takinj^ the same shall, without proof of the sif^nature, be received and read in eviilunce, savinj^ all just exceptions. K\ ideiice !i7ii. An affidavit of the solicitor in the cause or his clerk, of the ot .ser\ic»( service of any notice to produce, and of the time when it was served. or notice to r ■ produce, with a copy of such notice to produce, siiall be sufficient evidence of tlic service of the notice, and of the time when it was served. Evidence on motion, or petition. lOvidence oncoinmJH- sion may be taken in shorthand. Attend- ance of witne.s.ses for exam- inaticm on mcitions, how })ro- cured. Evidence on Motions. •17(». Upon any motion or petition, evidence may be {{iveii hy affidavit. I>t43. Hole i>77 is rescinded and the following substituted therefor; " 577. Every person who makes an affidavit to be used in any action or proceeding other than on production of documents shall be Hableto cross-examination thereon, and may be required to attend in the saii>e manner, and subject to the same rules as a party to be examined in the cause, but the Court nevertheless may act upon the evidence before it at tlie time, and may make such order as appears necessary to meet the justice of the case." 578- A party to any action or proceeding may, by a writ of subpcena ad tentijicaiidnm, or duces tecum, require the attendance of a witnes-s to be examined before the Court, or before any officer having jurisdiction in the County where the witness resides for the purpose of using his evi. dence upon any motion, petition, or other proceeding before the Court, or any Judge or judicial officer in Chambers. EVIDENCE OX MOTIONS. 407 ((/) The attcnrlance of siicli witness is to be secured in the aanio maiiiu!!', anil siil)joct to the same rules, as upon the exiiminiition of a, party in the cauwe. 5y!>. Upon the hearinj* of any motion before tho Hif,'h Court or a Jiidgi! the Court or Ju(lt,'e at discretion, and upon such terms as it or he thinks reasonable, may from time to time order to bo produced sucli documents as it or he thinks fit, and may order such witnesses as it or iu' tliinks neceHsiiry, to appear and be examined viva voce before such Court or Jii'lijo, or baforo a Judf»e of any County Court, or before any other persDii, and upon roiidinj^ the report of the Judge of the County Court, or otlicr (icrsoii, as the case may bo, or If no such reference is made, then upon oxaminin^' such documents or hearing such witnesses by the Court or Juiljio, the (jourt or Judt;o may make such order as seemB just ; and in casis within the jurisdictiDii of a County Court, the Court or a Judge tliLri'in liiiviuL; jurisdiction in the case, may order the production of doc- iiinuiits (ir the attendance of witnesses before such Court or Judge, or before the Clerk of such County Court, and upon hearing such evidence or reading the report of the Clerk, may make such order as seems just, in like niiinner us if the proceedings were had in the High Court. Coiu't or •luilxe iiiiiy, (lu lii'.iriiii,' umtidii iir ^-nunniiiiiM, ordt-r |irii- ductioii or ririi fire f'xuinina- tioii. And hiay ui;i'i 01' muy coinmanil the production of any writings or other documents, to ,,i. prnihic- be ineiUiiiiiud in the rule or order, and in the case of a Judge, ho may, if ti.m iu.such necessary or convenient so to do, direct the attendance of tiie witness to"^''"'"" be !it bis own place of abode or elsewhere. !nHl, If in addition to the service of the order an appointment of Ijjsulu-di- the tiino and place of attendance in obedience thereto, signed by the per- ''"^'•' •■" '"' sun or persons appointed to take the examination, or by one or more of [Jf '('',,iiit tiuch persons, is also served together with or after the service of the order, tlio wilful disobedience of the order shall be a contempt of Court, \\'it„f.sses and proceedings niay be forthwith had by attachment. But — 1. Eve'v to \n- puid person whose attendance is so required, shall be entitled to the like |)a\ - V,"''," '^""^r' '■ _ ' ' W llilt (idC- meiit for attendance and expenses as if he had been subpiBuaed to attend uinfiits upon a trial ; 2. No person shall be coini)elled to produce under any sucli '"•'"' ""'bo rule nr order, any writing or other document which he would not be com- '' '"' pellahle to iiroduce at the trial of t!ie cause ; 8. The Court or Judge, or ,, 1 , ,1 ■ T , . l',.\ainuiii- persoii appointeii to take the examination, may adjourn the same from tiuns ad- time to time as occasion may require. jounicd. 5M**. The Sheriff, gaoler or other officer having the custody of any prisoners prisoner, shall take the prisoner for any examination authorized by these brontrht U> Itulcs, when so directed by an order of the Court or Judge ; which o'*'^'^''". ' m •jHii OopifH of J>riicrt'(l- iiiKH may l)n oh- taiiD'il. |)i'fiinlt in hiiw tn bo provtM!, 4()H CON'TKN'TIOI'S lU^SIXESS. may he iHHiiod liy tlm ( 'oiiit or Ju(l>^() imder hucIi circunistiiiiceH uh appear to wiuriiiit tlio production of tli'j prisoner. 5H!l. Wlienevcr iiny party wIhIu's to produce to tin.' Coint or a Jud^c, tlio writ or any iiluiidin^', or otlior procoodin}^ liled iniiiiy nrtire nf the Court, lie nmy deimind iiiid receive from the officer in wlitjHc otiloe tlie writ, ploftdin;^ or other proceeding is, a copy of the Hunio certified by the officer to l)e n true copy of the ori^^inal, luid tiie copy hd certiliichiihH he a(hnisHil)lo in evidence in all canseH iinil matters and hctwetn all -i r- Hons and particn, to the same extent as the orij^inaln wonM he udinis!,.ble. •'JN4. Where default in made in the payment of money appointed to be paid into a Ihvnk, the certificate of the Cashier, Ma!ni<,'er, or Aj^'cnt of the Ihvnk, whei'e the same is m;ide payable, or of the like Hank (il'ticiT, shall he suMicieiil evidence of default, Where the aftidnvit of the piirty entitled to reooive the same is by the present practice required, the smiie uhall Btill bo necoHHary. Further 5N5. In all ap])eiilH, eitlier to the Court of Aiipeal or the IIit,'li Court ejK ence ni ^j. ^ .Ju,],;,., and on all motions to set aside or varv verdicts or iud''ni(.iits all appeals, '^ . j ^ etc, or hearinjis in thi nature of appeals, the Court or Judf^e apjualed to sliidi have all the powers and duties as to amendment and otherwise of the Court, .Tud^'e or oflicer appealed from, together with full discretioniuy p(jwer to receive further evidence ujion (juestions of fact; such evidciict to be eicher hy oi'al examitnition before the ('ourt or Judye appealed to, or by nfiidavit, or hy depositions taken before a 8[)eciiil examiiiur or Commissioner. ('J) Such further evidence mny he f,'iven without special leave 11)1011 interlocutory applications, or in any case as to matters which liiivf occurred after the dati; of the decision from which the appeal is l)rouj;lit, (ii) Upon appeals from a jud/^ment upon the merits at the trial or hearinj,' of any action or matter, such further evidence (saveas afortsiiidi shall be admitted on special grounds only, and not without the spi^iial leave of the Court Non-resi- Covwiisi^iovN to Kraniiiw Witnrssrs. tHO. In case a party to any civil action is resident out of Ontuio, dent party. ^^^^ j,j Q(^i,^, ti)^> opposite party requires a commission to examine suoii non-resident party, and states by attidavit ihe facts intended to he proved before such commission, and in case the Court or .Indf^e is satisfied tluit such commission is applied for in jiood faith and not for purposes of delay, the Court in which the action has been brought, or any Jiid^e thereof may, at the instance of the opposite party, isduu a couiu)is»ic;:i ^mm i;\ inKNCK — COMMISSIONS I'O KXAMISE WIINESSKS. 4(iO Iff ceH iiH iippear fortlui oxainiimtion of bucIi iioii-reRident party in tlie satno manner hh a Facts u> Iw BommiHHiDii niiiv bo isaiiocl for tho examination of witnesses. ^''''V" "" 5M7. If >< the parties order ihe issue of a commission or commis- Hioiia uuder tho seal of the (.'ourt in which tho action is peiidint^ to a (-.,,„j,j|j^_ ('oiiiiiii.s8ioner or ('ommissioncrs, to take the examination of such person hIoii. or persons respectively. Uiiloa 500 and oSS .-irc in pn ri mafprin aiul contoiniilate l/Xinnlna- ' _ ' tions lie tlie examination oi' a witinvss dr hciic rssc who is ahont to '"'f tw . withilraw tVoni Ontai'io or who is rcsi(lin<^ withont tlie limits tlicieot'. And whi-ie snch a witness comes witliin the jmisdietion, ami is about to return to his home an order may be made for his examination while within the juiisilietion (s). Tiidcr sec. 2() (jf 20 .S; 21 Viet. c. 77, Imp., the Probate Division has power to order a commission to issue to examine a person as to his knowle>.>,' 1)11 Hi' Xoticp of t'xecutii)ii of cmiimis sion. mm. A commission (j/) may be executed ex parte, unless the opposite party kIuiII, upon the liearint^ of the appliciition for the order or Masters certiticrtte for the issue of tlie commission, require notice of the execution of the commission, and ji^ive tlie name and place of abode of some person lesiilent within two miles of the place where the commission is to bo ixeciued, upon whom notice may be served. 507* Where notice of the execution of the commission is re(juiied to be served, 4h hours' notice shall be sufficient ; such notice is to be in writiii",', statinj^ the time and place of the intended examination, and is to be addressed to the person named for that purpose in the order or certificate for tlie issue of the commission; and service upon him, or upon a tirown-U[) person, at the address stated in the order or Master's certiticale, shall be sufficient. If the name or address stated in such onli'r or certificate shall prove to be illusory or fictitious, or if the party so iiotitied fails to attend, pursuant to the nrUce, ihe commission may 1)6 executed ex parte. 5U8< In the event of any witness on liis examination, cross-exami- Copies as imtion or re-examination, producing any book, document, letter, paper ''^''h-uc)'. or writing,', and refusinj^ for good cause to be stated in his deposition, to part witli the original thereof, then a copy thereof, or extract therefrom, cortitied by the commissioners or commissioner present to be a true and correct copy or extract, shall be annexed to the witness' deposition. 590. Every witness to be examined under the commission shall be o^tii ,|f exainiiKil on oath, affirmation, or otherwise in accordance with ins witness, religion, by or before the said commissioners or commissioner. 000- If any one or more of the witnesses do not understand the Kxami- Englisli language (the interrogatories, cross-interrogatories, and rira rare "ation ,• ., 11- • I i 1 . 1 1 ii 1 tlinnii'M an questions, as the case may be, being previously translated into the Ian- ;„(■,. ,.,Vi-,.. t;uage with which he or they is or are conversant), then the examination t*-T. 8liall be taken in I'^nglish through the medium of an interpreter or inter- lireters, lobe nomiiip'ed by the commissioners or commissioner, and to be (.r) Luc •■•ood V. Heiv, 10 P. K. Cij:). (•j) R. 1888. 472 CONTENTIOUS HUM NESS. Deposi- tiiiiia to he diKued. Evidence on com- mission niiiy be taken in siKirtliiinil previously sworn accordin}^ to his or their several relifjioiiH by or before the said commissioners or commissioner truly to interpret the (luestions to be put to tlie witness or witnesses, and his and their answers thereto. 601. The depositions to be taken under and by virtue of tlie said commission shall be subscribed by the witness or witnesses, and bv the commissioners or commissioner who shall have taken sucli depositioiig. 1346. Rule GOl is amended by addiu}^ thereto the following clause: " (a) Provided that the commissioner or commissioners, if tlie ex amining party desires to have such examination taken in sliortlmtid. may take the same in shorthand or employ a shorthand writer, approved by him or them and duly sworn, in which case the examination nisiy b,; taken down by question and answer ; and it shall not be necessiuy for the depositions to be read over or si<^ned by the person examined ini!tss any of the parties so desire ; and a copy of the depositions ho taken. certified by the commissioner or commissioners, or in case tlie same shall have been taken in shorthand by some person em[)loye(l for the purpose as aforesaid, certified by such shorthund writer as coriect mid signed by the commissioner or commissioners, sJiall, for all purposes, have the same effect as the original depositions in ordinary cases." (b) J'"orm No. IIH (-) is amended by inserting after clause six the following words : — " But where the examination is taken in shorthand it is Udt neces- sary for the depositions to be read over or signed by the witness or witnesses, unless any :)f the parties desire; but in such case a copy of the depositions in long hand certified by the shorthand writer as correct is to be attached to the commission and signed by the comniissioiier or commissioners who shall have taken the depositions." Ketnrn of 003. The interrogatories, cross-interrogatories, and depositioim commis- together with any documents referred to therein, or certified copies sion .and thereof or extracts therefrom, shall be sent to the Judge or oflicor on or vise thereof "^ as evid- before such day as may be ordered in that behalf, enclosed in a cover enee. under the seal or seals of the said commissioners or commissioner, and oflice collies thereof may be given in evidence on the trial of the action, by and on behalf of the said parties respectively, saving all just excep tions, without any other proof of the absence, from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the party as to his belief of such absence. Parties 603< Where, upon the application for a commission to take evidence, con una-" *''® opposite party desires to join in the commission and examine sion. (z) I. c. of the Forms in Schedule to Jud. Rules. Form amended. lijir:; ! ■ EVIDENCE — AFFIDAVITS. 478 witnesses on hia own behalf thereunder, or names a commissioner, each party is to pay the cost of the commission consequent upon the exami- nation of his witnesses and the appointment of hia commissioner, with- out pi'ejudice to the question by whom such costs are ultimately to be borne; and if for any reason the commissioner named by either party refuse:! to act in the execution of the commission upon receiving 48 hours' notice in writinf^ from the other of them so to do, the commission ma\ be executed by the commissioner giving such notice alone. 004. I'Jvery order for a commission shall be read as if it contained Order for the above particulars, and shsill not set forth the same, but may contain ■' '"i'/''")' any variations therefrom, and any other directions, which the Court or read as in a Ju(i}^e shall see fit to make. eluding aljovc |i:ii-- ticidars. Affidavits. CO."?. Same as 8. C 1{. 37. 000. In every aflidavit made by two or more deponents the names Affidavits of the several persons making tlie affidavit shall be inserted in the jural., '""■'''' ''>' ... twj or exiept that if the aftidavit of all the deponents is taken at one time by murti dc- th.' siune officer, it shall be sufficient to state that it was sworn by both ponontH. (or all) of the " above-named " deponents. (Same as S. C. R. 38.) 607. As to jurat ; see S. C. li. 37-l'2. 008. S. C. R. 39. 000. Affidavits shall be confined to such facts as the witness is able Affidavits t.f his own knowledge to prove, except on interlocutory motions, on which ^ |'"' ^ , statements as to his belief, with the grounds thereof, may be admitted. 010. Any affidavit in an action or proceeding to which a municipal .\ffidavits orotlier corporation is a party may be made by any officer, servant, or ''>' officers a},'eut of the corporation having knowledge of the facts required toboyti,,,, deposed to, and he shall state therein that he lias such knowledge. 611. Alterations in affidavit. Same as S. C. R. 11 ; but amended by l:)17, inserting after the words "Court or a .Judge'' the words "or officer before whom the affidavit is to be used." Ola. As to illiterate deponents. Sea S. C. U. 40. Oi:{ See S. C. R. 42. 014. As to stamps on affidavits in High Court of Justice. li , ! 474 CONTENTIOUS BUSINESS. Affidavits, 615. Affidavits to be used on a motion in Chambers shall be filed til d*^^ with the Clerk in Chambers, who shall, in cases in the Chancery Divi- sion, transmit them to the Records and Writs office when the motion is disposed of. Affidavits 010. All the affidavits upon which a notice of motion, or petition when to'be'^ founded, must be tiled before the service of the notice of motion or filed. petition. A dmissions. Notice to ©IT. Either party may call upon the other party to admit anv admit T . • 11 • i. .• docum'nts "Ocument, saving all just exceptions. Form of 6I§. A Notice to admit documents may be in the form No. 26, in iK.tice. ti^g Appendix. Proof of admis'unH. Actions not to abate, etc. I'ropound- iat? a loxt will. 610. The production of any written admission purporting to be admissions in the action, and to be made in pursuance of any notice to admit documents or otherwise, and to be sijjned by the solicitor of the party by whom, or on whose behalf, they purport to be made shall be sufficient ^Jrima/acie evidence of such admissions. Rules 620 to 031 inclusive relate to the Transmission of Interests 2H'iiih'iitc lite, providiiifj inter alia that an action shall not become tibated by rt'ason of the marriage, death, or bankruptcy of any of the phrties; and that in case of an assij^nment, creation or devolution of any estate or title pendente lite, the action may be continued by or against ihe per- son to or upon whom such estate or title has come or devolved,— Quod ride. In ail acti(jn for prol)ate of a lost will where a draft or authouticated copy is in existence and brouoht in under the affidavit of scripts, such draft or copy is referred to in the statement of claim as containing the will executed by the testator. The statement of claim, in addition to the averment in the ordinary statement of claim— {vide ante p. 390) — should allege : (1) That the said will never was revoked or destroyed by the testator, nor by any person in his presence and by his direction with the intention of revoking tlie same, and that the same was at the time of his death a valid and subsisting will, but the same cannot l>e found. (2) That the contents of the said EVIDEXCE — ADMISSIONS. 475 will were in .substance or to the effect as follows : — 'Mfffiofi out the contenffiofthe ivill as far as they can he f/roiefliay Where, Hubstantiallv, the only evidence of its contents, ''-'•'>1 evi- upon which a lost will had been pronounced for in the f^'oittnts. Probate Division, was that of P., a solicitcjr, to whom the testator had given, or had begun to give, instructions for a will, as to the statements then made to him by the testator with regard to liis intentions, and aW> rjf fK)st- testainentary declarations of the testator to tlie eH'eal to the House of Lords. It is there qufieried whether, if a lost will is pi-opounded for probate upon parol evidence alone, with evidence of a residuary bequest, but no sufficient evidence of the rest of the will, probate ought to bo ;franted of the residuary bequest alone, unless the Court is satisfied that it has before it substantially the testa- iiientaiy intentioii of the testator ; and also whether fX)st- i>"st testamentary declarations of the testator as to the contents tary dt'cla- art' admissible in evidence. And their lordships distiniruish '■''*^'""''- httween this case and the case of Stujdea v. St. L'-onanfn, Hersc'liell, L. C, pointing out that in the hiWtv tvtse the tniileiioe of contents was corroborated in thri>i V. Kiiiijht, 1') P. D. 170 (C. A.). {d) Goulds V. Ltiken, (! P. D. 1 ; and see Ilardij, :tO L. J. 1*. & M. M'2. m ^WHP INTKItKST CATSES. .i I chapti!:h VII. caiistis. OF INTEREST CAUSES. In the action technically termed an ' Interest Cause,' [nten^t the ri^ht ot' a person applyini]^ for a ^rant ol' adnunistra- tion is contested, either on the ground oF his jiaving no interest, or that his interest does not entitle him tt) the o'lunt, or that for some cause he is incapaeitated from receiving the grant, or is an undesirable person to receive it('/). Ill interest causes in the Probate Division, Kug.. as in tlie former Court of Probate, each party is at liliiTty tf) ileny the interest of the other; and in such cases botli parties may, with and subject to the pei'inissioii of the jud^'e, adduce proof on one and the same trial of their iiiteivst, respectively (/>). In such actions the fact of a claimant having the majority of interests on his side may decide the (piestion (/•)• In the I'robate Division, Eng., in interest causes the pleading of each party^ must, b}'' a Rule of 1802, show on the face of it that no other person exists ha\ing a prior interest to that of the claimant [il). For example, that the deceased died a widower, without child, jiarent, brother, or sister, uncle or aunt, nephew or neice, leaving (.1) The next of kin may contest administration with the widow. Mkinsuii V. Ladi/ Ann Bernard, ante. (b) Rule 01, 18G2; C. * Tr. 11th ed. 408, 834. (c) Ante pp. 115, 110, and cases cited. ('/) See Form of Statement of Claim in an tnterest Action, C. A Tr. 478 CONTENTIOUS BUSINESS. the claimant, the hiwful cousiji <,ferinan, and one oi" thii next of kin (e). The Foi-in of Statement of J)efence in the Schedule of Fonns to the Rules of the Surro;j;ate Courts, I8!)i, Conten- tious Business, is as foUow.s : — 1. (Formal commencement an in statemenl of claim.) The defendant is nepliew and next of kin of tlie deceased, beiii^^ tlie son of W. B., the brother of the dcoeaaod, who died in his lifetime. Tlie defendant claims that the Court pronounce that he is the nephew and next of kin of the deceased and entitleil to a >^rant of letters of administration of the property of the deceased. {Formal conclusion an in statement of claim alwiH'.) Greater particularity than this is not required e.xcept wlien the Crown claims administration on the ground that the deceased was il legitimate (/'). Pedigree. To narrow the issue, and so to save expense, the parties slunild set forth in their pleadings the p(;digree they intend to i-ely upon in support of their respective interests. And where both cases are disci jsed on the pleadings, it is advi.s- ahle that each party should admit so much of the other's case, the whole if he may, as he can consistently with and without prejudice to his own case ; since such a coui'.sc will often save expense, and the sooner enable the court to arrive at the justice of the case (17) A plea of legitimacy in answer to a statement of claim alleging bastardy should set out the steps of t!ie pedigree. showinir that the decea.sed and claimant were deseeiuled from a common ancestor : but it is not recjuisite that the time or place of marriage, or the name of the wife, or the date of the birth of any of the parties in the pedigree should be stated (h). (e) Dijhe v. Willunm. 2 Sw. & Tr. 405. (/) Ihid. (ij) Lanrcnce v. Maud, 1 Add. 334. (h) See Rutherford v. M.iiile, i R&ii'A. 238. TXTKHKST CAUSES. 479 It Wfis the {inictice in tlie Preroj^jative Court for the pai'tifs to i)ro[)ound their respective interests in allega- tions; these allegations were exchanged for a party had no rijrht to see the adverse plea till he had set out his own pt'di^ree (i): and they then proceeded pari piisi^a, even wIk'Iv the a!leg/h'. v. ll'Uluims, which, on motion, and on looking at the Forms of Declaration and Plea in an interest cause, given among the forms of 1IS57, for contentious business, was held to be sufficient {I) : — 1 '■ .Hit Mary E., itc. , was not a bustiird. 2. That the said Mary E. was tlio loj^itimate child of Samuel Williams and Mary, Iuh wife. ' ii Tliat the last mentioned Samuel Williams and Jlary, his wife, liad issue one other lawful child only, namely: Samuel Williams who (i) Dahhs V. ChLvnan, 1 Pliiilim. loo. (ii) Hibhen v. Calemberg, 1 Lee, C58. 0) Thomai>\. Maud, 1 Add. 482. (k) Djikc V. U'illiiims, miprd. "I iVc Sir C. Cresswell in that case; See also 2 Sw. & Tr. 460; i'lme V. J)t> Costa, 1 Phillim. 173 ; Dabhs v. Chisman, sup. and D. & B. 727. 1'%.: i' e I - I: 480 COXTKNTIOUS 15i:SlN'ESS. died in the lifotinio of tlio said Mary K,, to wit, on tlie day of leaving him snrvivint^ the Haid Satnnel Williams tlie defendant, I'Jiza. beth Gotz, wife of Gotz, Abraham Williams and Joseiih WillianiB. his natural and lawful and only children and only next of kin. The Attoniey-Ooneral has no privik'fjo in the iruitters mentioned that is not common to every suitor; ami n defence whicli would be a sufficient answer to the state- ment of claim of any other suitor will bo a sutHcicnt answer to liis (m). Other cases of contested administrations have been incidentally referred to under the titles " Administration. and Administration with Will Annexed," (ivfc, in which tlie estate is insolvent and the next of kin luitit, vide (inle p. 219 {,}). Kill.- as to i,^ interest causes costs generally follow, where the p..iSon whose interest has been denied succeeds in o.stah- lishino- it, almost of course without some special ground of exception to the rule (o). But the Judge at the trial has a discretion as to the costs ( p). (m) See Rules 3(51 to :t(>7 inc. of Rules Supreme Ct. Jud. Ont. (n) Farmiid, 1 P. D. 43!). (o) Northeu v. Cock, 2 Add. 204. ip) See Rule 1274, Rules Sup. Ct. Jud. Ont. costs. ANS I'dl! IU:\). ('(I Sl'o S. C. R. 21, whioli provides for Judj,'(,''> order liein;,' ;.ui)sti- tited for citations in certain cases. ('») 8eu further Chapter ou Revocation, ante 257, and form of Htiito- meiit of claim, ante p. JS'.d. ii.^.c— SI if 482 tidii of )>r(il)iit('. -—)f Utter of adiiiin- istrutiiiii. ( ( ) N I K \T I O U S 1 1 1; S I X ESS. TIio cx/iniplc of st!it(.'iiient of claim in an action for revocation of pi-obate subjoined to tliu Siirrooate I'lilcs, |.Sf)2, is as follows : — ft. Fonnal I'dinmenccini'iit. Tlie plaintiff is tlio oxooutor appointed tiruier the will of A li,, deceased, Litu of tlie of in the (Joiiiily of , will) died on or about the 'lay of .\.l). 'J'ho said will hears date the day of A.l). Is and a oodicil thereto bears date the day of A.lJ. IH. The plaintiff claims to h'lve the ))robato of a pretended will of tlit said di'ceased, dated the day of , (grunted l)\ tills Court, revoked. K. L. I'lahitiirs Solii-iliir. * Anil for I'ovocation of li.'tters of atlniinistration ,1^ follows : — Tlie plaintiff elainis to b ■ executor, etc., an hefore. The plaintiff claims that the grant of letters of administration of the property of tlie said deceased, obtained by M. N. the dcfenilaiit, slioiild l)e revoked aiul probate of the said will j^ranted to him. The o-roiuuls upun which the I'cvocation of tl'c niant is soui;ht shoul'l be set forth, in the statement of claim either that the will proved was not entitled to ]>i'oliiito on tlie ;;i'oands of its havin<;' been unduly executed, of tin incapacity of the deceased or any other of those oroimd.'- which have been particularly referred to in previous pai^i-s as (^rounds of defence to an action for probate (c). This will enable the plaintifi", in case the will is abandoned by the defendant, to adduce evidence at the hearinj^ impeach- ing- its validity, and the Court if satisfied with such evidence, will then be in a position to pronounce aifaiust the will and revoke tlie Probate. If the case is one for revocation of a grant of letter-s ot administration, the statement of claim in addition to the (<•) Ante p. i}94. et iteq. s 1! ACTK'NS roK |{i;V|ii)u!d in the hist ease S, the plaintiif claiming- tOj^,.,„|' ifpresunt tiie next of kin of the intestate, and the defeml- iints luiinij thc^ represcnitatives of the (U'Ceased administra- tor. It was held, that, havino^ i-enard to the lapse of time, tin.' filet that the defendants diil not and could not succeed to the administration sou<;ht to bo revoked, and tlie other circunistiuices of the case, the action was frivolous and cxatious, and was therefore dismissed {>'). In a suit for revocation of probate on the ^jrounds of uinliic execution, and incapacity, where it appeared that ■\ r\- cH'oi-t had been nuide to find one of the attestin■ Iti .'■ 484 liivi'iitorv and ac- count. iW; CONTENTIOUS HUSINESS. Action for Iiireiitory ami Accoanf (//). The suit for uu inventory and jiccount in use licluii' tlic establishment of the Court of Prolmte in En^^Luid, \vii> retained by that court with scarcely any variation (i). In the Probate Division, Eng., as well as in the former Court of Probate, every administrator 'pcudeiili' Ilia uini receiver of real estate is to exhibit an inventor}- hikI render an account of the property of the (h;coased which comes to his liands and the accounts are referred to tlir rey;istrar for investigation and report {]). By the tenor of his oath (/.;), every executur ami administrator engages to exhibit an inventory, and rcinK v an account of his administration whenever retjuired Ity luw so to do: and one of the conditions of tin- administratinn bond(0 is tiiat the admiiusti'atoi' shall make, uv c.uihl' tn be made, a true and perfect inventory, of all and siiionlar the property of the deceased, which have or shall cotiieintu his hands, possession or knowledge, or into the hands uy possession of any other person or jjersons for him and tlic same so made shall exhibit, or cause to be exhibited, into the registry from whence the grant was made : and fnrtluT. shall make or cause to be made a full, true and just account of his aibninistration at the tinic sjM'citieil m whenever re(|uired by law so to do. It is a matter of duty, therefoi'e, for an executor oi- administiatoi- tn deliver an inventor}- and account when piopeily callt'ij upon for that purpose : and it is always most pi'Uilcnt for him to III] lh;>tlifrt')n V. nilli,;r, 2 Loe, l:U ; Ii,;iilij v. Ilildui, I A. 11. 'i;!',!. {(I) Tdijlor V. Newton, 1 Lee, lo. (/I) liaili'n V llrixtiuo,', 7 N. C. 387, 2 Rob. 1 15. (./) Ititfhie V. Ilet-x, 1 Ad.l. 114. (r) lldl V, Liialon, 18 U. C. L. J. 178. Is) 2:i S. C. liep. :ilO ; 1 1 C. L. T. HC:!. 'I'lio " Act respectiii-^ certain Duties, Powers tind Iiiabilities of Trustees,'" ')4 V. c. 11), Oiitai-io, cited as " rill' Tni>itei's Act, IH'JI," provides that for tlie jmrposerf of the Xi'X, "trustee" shall include an executor or administrator, and also for a modilication of tlie responsibilities of such persons as to investnujit of trust funds, etc. See also Revised Statute, Ont., 1887, c. lit), and tlie "Act to protect pcr.inii.'i actiiifi na I'Lrcctitor.i nr Adiniiii.ttKitorH,^' — ;'>;{ V. C. li'.t. Ont. See also cases collected in chapter on Inventory and Account, mtejy.'I'M. K\ iff Pf- fit wM ■ '! ' \ 486 CONTENTIOUS HUSINKSS. CHAPTER VIII. TRIAL AND OTHER PROCEEDINGS. Unless the parties concur in statin(( the (|ue.stions of law in the form of a special case, which by analo(i;y to the practice of the Hi^h Court they may do («), the action proceeds to trial. ^^'"''^•■' "The Surrofjate Courts may cause any question of fact may cauHe , , . . ./ ./ i (luestions arising in any proceeding under this Act. to be triiMl l)y a be tried by jury before the Judge of the Court ; and upon order boin^^ "''"'•^" made allowing a trial by jury, such trial shall take place at some ensuing sittings of the County Court for the County and be conducted in the same manner as other trials hy jury in the County Courts, and the parties shall be eiititlol to tlieir right of challenge ; and, for all purpost-s oi ov auxiliary to the ti'ial of questions of fact by a jury befoiv a Judge of the Surrogate Court, and, in respect (if new trials, the said Surrogate Coui'ts and the Ju': ! 'I'lilAI. AND OTHKU I'liOlJKKDlNCJS. 487 loo'iite C.)urt .shall have the same powers, jurisdiction and jiutliority as belon<^ to the Judge of a County Couit sittin^^ for the trial of issues of fact." — S. C. A. s. 21. By Rules of the Supreme Court of Judicature, Out., it is provided : — iiiiO. Notice of trial shuU state whetiier it is for the trial of the Kmiii nf action or of issues therein ; and the place and day for which it is to be I't'','"'" "^ triul. entered for trial, and shall be j^iven before enterinfi the action for trial. It may bo in the Form No. 27 in tlie Appendix (b), with such variations as circumstances may require. 661. 'I'en days' notice of trial shall be j^iven, unless the party to m ,\ny^ whom it is t^iven has consented to take short notice of trial ; and shall notice. l)e suf'licient in all cases, unless otherwise ordered by the Court or a Short ■]nd<'c. Short notice of trial shall be 5 days' notice. notice " ■' ;) (lays. 669. Notice of a trial at bar shall be ^iven to the Rej^istrar of the Ni.tice of Court before giving notice of trial to the party. trial athar. 663. After notice of trial is given, either party may enter the action Entry for for trial. If both parties enter the action for trial, it shall be tried in *'''''• tlio order of the plaintiff's entry. 6(>1- On the day before the day for holding the Court at which the Hcci'rd. artioii is to be tried, the party entering the action for trial shall deliver to tlie proper officer one copy of the %vhole of the pleadings in the action for the use of the Judge at the trial, such copy to bo certified as a true cojiy by tlic officer having charge of the pleadings filed, and to be called the Keeord (f). Mia. Actions shall be entered for trial not later than the third day Tji ,f next before the first day of the sittings ; but the Judge may permit any '"*''>■ f'"' Action to be entered after the time above limited, if ujion facts disclosed i>ii affidavit, or on the consent of both parties, he sees fit to do so. 666. Any action which is not to be tried by a jury, may bo entered \uii-jiiry for trial at any Sittings appointed for the place named for the trial of ''otion-;. ■•iii^h action. 667. If both parties enter the action for trial at the same Sitting Two it shall be tried in the order of the plaintiff's entry. entiic^. I'') /. e.. Appendix to Supreme Ct. lUiles. (<•) Pantiiiig the Record. — The copy of the pleadings so to be delivered iiuiHl lirst have been compared in the ofiice in which the pleadings aro Jilod, certified and fees paid. I LipilP If'' Ivl: 4.S8 T»mie« of Ihw au(i fftCt. Hivlit t. trill] hy Jury. CONTENTIOUS BUSINESS. And see further Chap. VI. 20, title, Trial, Rules Supreme Ct. Jud., Out. ; and the Jud. Act. Ont., sec. 76, et fteq., title " Trial and Procedure." Que.sti()ns of law will be directeeing one of mixed law and fact, the p)'es\uiipti\e revocation of a will, a jury wa^ refused {(/). In an action by an executor to establish a will, tlu' iieii - at-lavv was cited. The plaintitt'gave notice of trial by jmy. The action was twice tried by a special jury before Sir.i. Hannen.and in each case the jury disagreed and were (lis- chargeil. The plaintitt' having set the action down t'(jr tiial again before a s])ecial jury, the ilefoidants !(p])lie(l lor special directions as to the further trial. Sir .1. Haiun'ii. the heii'-at-law appearing iind not opposing, madtj an onlti that the action should be tried by a judge without a jury ((/) Cii--r appealed from; annrt refused to order a Jury ( / )• Ft is within tht> discretion of the C direct «|Ues- tioiis of fact to be tried with or without a Jury > j). If the only issue raiseil is to the due execution of the will, tiie foiiit directs the cause to Ije tried without a jurv. Where tlii> issties raised are testamentary capacity, un- due iiitbienee or fraud, it is the practice of the l'rol»atc Division, Vav^., on application made by either party to j,'r,iiit a Jury (k). Where any of the parties t^> a suit, apjdy foi' a juiy. and the Coui't refuses one, such ivfu'^al i.s subject Ui ail ajipeal (/). The ( "ourt has refused to direct an issue v,\\*-vf the caas" had excited consideralde discussion an(l fe-i-lint.' in the county where it was ju'oposed to be tri<'■ ■ ■ i " -5: l|ii! m ' i 1 ^if: 400 COXTENTIOL'S lU'SJNESS. The Sui-ror,oxte Court Rules, l.S02(7?\ introduced prac- tice by analogy in certain cases to the Rules of Practice of the Supreme Court of Judicature, Ont., which as to these matters provide as follows : — Xon-ap- 673. If, when an action is called on for trial, the plaintiff appears, jpvranceof a^jjjj jjjq defendant does not appear, then the plaintiff may prove his " claim, 80 far as the burden of proof lies upon him. Xrin-.-i])- 673. If, when an action is called on for trial, the defendant appears, !T.'';',!V'fv'" 0'"'^ the plaintiff does not appear, the defendant, if he has no counter- claim, shall be entitled to jud<{ment dismissing the action, but if iie luiii a counter-claim he may prove such claim so far as the burden of proof lies upon him. Witne.sses 6'?'4. The Judse at the trial shall at the request of either party ""y c '*" cause the witnesses to be removed from the Court durin" the trial, and out or " Court. also the parties to the suit tendering themselves as witnesses, if the Judge deems necessary ; or he may instead require the party intendiiif^ to give evidence for himself to be examined before his other witnessns; and any such witness who returns to the Court without leave, shall be liable to be punished in such manner as to the said Judge may seem proper ; and the Judge may in his discretion exclude the testimony of any witness who returns to the Court without leave of the Judj^e. How ad- dresses of counsel to jury regu- lated. 073. .'^^t the trial, the addresses to the jury shall be regulated a . follows: — the party who begins, or his couusel, in the event of hi^ opponent not ainiouncing at the close of the case of the party \v!io begins, his intention to adduce evidence, shall be allowed to address the jury a second time at the close of the case, for the purpose of stiininin;i up the evidence; and the party on the other side, or his counsel, shall tlien ba allowed to open his case, and also to sum up the evidence (if any), The right to reply shall be the same as at present. I'^vidcucc 076. Wliere, through accident or mistake or other cause, a party omitted by omits or fails to prove some fact material to h s case, the Judf^c m;iy proceed with the trial, subject to such fact being afterwards proved at iniHtake, how sup- plied. such time, and subject to such terms and conditions as to costs and otherwise, as the Judge shall direct ; and, if tiie case is being tried by n jury, the Judge may direct the jury to find a verdict as if such fact hni been proved, and the verdict shall take effect on such fact being after- (n) Vide (inte p. '.). ! ',. ' either party the trial, and nesses, if the ,rty intendiuf* ler witnessns; leave, shall be dge may seem ) testimony of Judge. regulated a i event of lii^ he party who to address the of suiumiii'^ counsel, shull ideuce (if aiiyi, cause, a party le Judge m;iy irds proved at s to costs aii'l eing tried by a such fact bft'i ct being after- TKIAL AM) OTHKR I'KOOKKDINMiS. 4fM icod prac- f Practicf lich as to itiff appears, ly prove his wards prove 1 us ilirccted ; aud if not so proved, judgment is to be entered for the opposite party unless the ('ourt or a Judge otherwise directs. This Rule shall not apply to an action for libel. A83. E.vhihita put in at the trial are to be marked thus: " In the Exhibits High Court of Justice— Div. [short title] . This exhibit (the property of '•■t trial, ,) is produced by the plaintiff (or defendant C, ax the case may ,„^,.i^,.,| be,) this day of 18 A.B.," (Reijixtrdr. Depiiti/ Clerk or Local lleiiUtrur). lant appears, ,8 no counter- but if he has rden of proof tt84. Where a party or witness ia examined at the trial or a docu- Kvidencc raent is put in as evidence and marked by the Registrar, Deputy Clerk, not with- (\ I' 1 W Tl Deputy or Local Registrar, the deposition of the party, or witness so ^yj^i,,,,,^ examined, or the document so put in, is not to be withdrawn as evidence leave, without the leave of the Court. 492 (JOXTENTIOI.'S UL'SINKSS. CHAITKR IX. iiiiiili jf, ': JURISDICTION OF SriUlOOATE COURTS AS TO INFANTR AND :\[IN01{S. .Si'.cTioN- 1. -CUSTODY OF 13;FA>;TS AND :\I]NOHS. Court uiiiy " 'p],j3 Hio-ii Court (jr Sm-roo-atc Court, or anv .]\hW iiiivkf'ordcr " . . . ' ^ iistocus- of either Court, may, Upon the application ol" the iiiutlKT todyof and „ • f , - i ' i -ii i , ,■ • , right of or an lutant (who may so apply without next n-Knid) hifiuits'^" •ii'i'^ti such order as tlie Court oi- .Tu«l^e sees tit re^aid- inj^ the custody of the infant, and the rij^lit of access thereto of either parent, having regard to the wel fart,' of the infant, and to the conduct of tlie parents, and to the wishes as well of the mother as of the father, and iiuiv afterwards alter, vary or dischiirge the order on the appli- cation of either parent, or, after the death of either parent, or any guardian under the Act, and in every case ma,y make such order respecting the costs of the mother and the liability of the father for the same, or otlujrwise as to costs as the Court or dudge may think Just."' — \i. S. (). c. 137, s. 1, (1). Ordfrusto "The Court or Judge may also make order for the timmt.ii iiiaiutenance of tiie infant hv payment by the father thero- of, or by payment out of any estatii to which the infanl is entitled, of such sum or sums of money from time to time as according to the pecuniaiy circumstances of the fatlu'i' or the value of the estate the Court or Judge thinks just and reasonable." — It: s. 1, (2), Tliese provisions arc similar to tliosc of tlio Tmperiul .Act caileii Serj^eant Talfourd's Act (<(), mioii vvliicli it lias Ineii held by tlic House of (■^ST<>1)^■ ()!•• INI'ANIS AND .MIN(ii;s. vx\ ) INFANTS LonU suslaiiiiiit; the jiidf^nu'iit of Forj^usou, J., (Out.)- tlml the Court may Icr suthcieut cause tiikc cliihh-eii iiruhT 12 ye:irs Irom the custody of the father— (notwithstiuKliiif^ Win comiuoii law rifjhtK)— and ^ive tlioin ■I. 10 tliiit of the mother. Oil the applicivtioii of ii hus));iiid ii;^iiiiiHt IiIh wife for a writ of IkiIichh loiiiu.i ill respect of their tiireo children, two of them heinj^ iihovu twehe ytiirs of age, and therefore not within tlie discretion as to custody given hy a local statute, (\iz., tlie jirovision above set forth), framed on the [iiiiiciple of Talfourd's Act, it appeared that the wife had twice left liim. taking iier children with her, on account of his habitual drunkenness : that on each occassion he agreed that she should maintain and educate tlu(:lnl(hen apart from him ; that afttir the second scpai iition he publicly and falsely alleged on oath against his wife, charges so injurious that she (duld not be expected ever to live with liini again; that the wife liad iiiii|ile means, wliile the husband had only a narrow income : — It was IkKI Hull the Courts below had exercised a riglit discietion in discharg- ing' the writ and remanding the children to the custody of their motlier a!i(l tiiat the father's li;gal power was controlled as to the youngest child, I'V ;i statute which gave absolute authority to the (Jourt ; it was materi :illy utt'ected as regards the other two by breacli of marital duty, by ronsiileratiou v ' .aspect to their welfare, and the objection to separat- !!ii; tliein from eacli other (//). I,()rd llobhouse, iii delivering the judgment of the Privy (Jouncil loters (p. V-'>'2\ to the case of i'l/nii (c), where the legal j)osition of the father, apart from the statute is stated, and says that their Lordships do iidt ilissent from the terms in which it is stated, and proceeded to say tliat: -"It seemed to them that the N'ice-Chancellor, while acknow- " leclging that the effect of Talfourd's Act ought to be considered, has not "stilted its effect in any adequate nniiiiier." In the next year the case of Wanle v. Wurde id), was decided by Lord Cottenhani, and it illustrates both the direct and the indii'ect effect of Tiilfourd's Act. There, the wife had left home, taking her children with liei- on account of her husband's misconduct. He applied to the C'ourl to have the children delivered up to him, which Slnxdwell, V.C., ordered to 1)0 (lone. There were four children, two above and two under seven years of age, which was the line drawn by the Talfourd Act. On ajipeal Lord Cottenhani pointed out tluit the Court had now an absolute autho lity over the younger children, and a larger power over the elder than it (M ^uii,n-t V. .S'., (18!)'J) A. C. 12- (r) 2 DeG. & Sni. -157 (ISIH). {d} -2 Ph. THO. ; .Mm .■ti- :.'. i .■)■■■ • ■ t ■ rppn 494 Court'H iibsohitc control over tlir younger ehikheii. Main ft'aturcs the Act. < :< ) N TK NT I ( ) r S I il ■ S I N KSS. poRHeBsed wlieii WcUedeii v. Duhr of lieaiil'oit (e) was deciiled. After- wards he said : " (!liililr>'ii ar'j by nature mititled to Ilia caro of Ix^tli their parents; hut when the conduct of one or both of the parents has been such as to reiidur it impossible that tlu'y can live to^^cther, and the Court has therefore the painful duty cast upon it of docidiny wlietlier the chiklren shall be brought up by one parent or the other, all that ii can do is to adopt that course which seems best for the interests of the children." He then decides as to the eldest child, a ^'irl of eleven, tlmt she is likely to be injured by remainini,' with her father. As to the next, a boy of nine, Lord (Jottenhain thinks it unncessary to decide wlietlior, if that boj' stood alone, he ought to ho removed from his father's custody, because he says : " When 1 am compelled on sucli a tjround to takeout child from its father, I must not accompany that measure with tlie ^;reat evil and dan] 25 Ch. D. 220. (0 'i Ph. 78(i. hunt. 406 < )r(l(r iii>i to he iiiiiil ill favour of lllotllfT f^iiilty of ailnUcrx . (JIAIIDIANSHII'. rltiviif^e of viow which imderlioH the poxitive leninlatioii. Tliiit chauye iniiHt also iiftVrt tlie qiiOHtioii, vvliivt is recpiircit for the welfurc nf the oilier children wlieii their fiither's iniHbohiivioiir Iiuh made it iiiiiiohsilile that thoy Hhoiild havo llic care of both ])ureiita. A jud^^inent on y.\X(:h h (jiU'stioii iihvavH was and must be a diHcretioiiarv jud/^iiieiit, vi/,, nn,. ;,'iiided by views on social and doiiioHtic matters absolutely incaimbli^ of boin)4 broii^ilit under le^al ruleH and definitions. DoubtlesH it is exoiciHtnl within stricter limits and under ^'reater pressure than in cases where tiu' lo{,'islalure has in express terms ^iven a diHcretion. Their lordslii|i> ure now actiii;^ under that pnsssure. iJut the welfare of a family is jiowcr fully allected by the opinion of relatives, friends, and neif^hbours, wli:cli no Jnd;.;e has a. rit^ht to disre^^ard ; and that opinion will be the npinin:: of the da\', not of a by-'^one day. And whatever nii^ht have hucii tli- view taken prior to the year 1h;{U, it is quite impossiblo at the prisfnt day to say tliat under such circumstancifS as are disclosed by the present case it would not be scri«)usly prejudicial to the children to take imy if them away from their mother in order to place them in the custody of their fatlu>r. The result is that the appe-al fails ; and tiieir lordships will hunihly advise Her Majesty to ilismiss it. The appellant niiist pay the costs. In a case in which tiie father of certain infant children wlio [tie deceaseil his wife, their mother, had left a will appointing' their unci.' to be their testamentary ^'uardian, directiiif^ that they slioulii li" brout{lit up in his faith ; and tlie children had been clandestinely removed from his iiustody by an aunt of different faitii, who claim ■! the right of j^uardianship under an instrunient sitjnod by their luDtlu'i- which proved to be invalid, an order was made in tl o Chancery Divisinn for the delivery of the infants into the custody of the uncle as their testamentary (guardian (/'). •' Nu oi'dcf iliftjc'tiiio' tliiit tlie iiKjther hIiuII lia\i' the ' cii.stody of or access t i tin iiiraiit hIijiII lie iiiadi' by \ irttie oi' this Act, ill favour (»f a tiiotlicr aj^ain.st whom aihiltciy has been estabb'shod l)y juiloineut in an action for ci'iiuiiin! convci'satiou at the suit oi" lier husband a^'ainst any per- son.'— U. S. (). V. 187, .s. '2. Skition lI.-APrOINTMENT OF GHAKDIANS. To what " The Surro_i;-ate Court for the county withii rigiitVir" ii" infant resides nwiy appoint the father of the it aiipointiii',' lo (/) AV Chlllman Infants, Street, J., 25 O. K. --'(iS ; U C. L. T. 102, citiii}^ lie Mrdivth. (18i»:{) 1 Ch. 14;{, 148. AIM'OINTMKNI' OK crAUIHANS. 4i)7 hciUiii'ilian ; or muy with the consent ol' Mw ratlicr apj^oitit^'" soiiif other suitiihh; porson or porHons ; Init if the inffuit i> i»' of the a<|0 of fourteen years or over, neither of siich (inpiiintnientH shall he made without the consent of the infant; or, if the infant have no father livin;^ or any ley rei^istrurs respec- tively to the Sun-oe-ate Clerk in liluf manner as is re<|uired by The. Surrogufc. (hmrfs Act in the cas(.' of ,iie appointment of guardians. At the hauw time tliiit Court discourages applicatifjns to it in the first instance " icii < luld be made to the Surrogate Court: lie .^tuiuund, 1 Chy. imb. 1"). The father is the natural guardian, and, by the Common Law, tied to the custody of his legitimate children, even to the exclusion «t tlie mother, although they be within the age of nurture, and he is entitled also to have them brought up in, and taught the tenets of, the i;.s.c. — .'i'i [iifiint> and lllillnrs. I.'il^llts nf !:itllt'r. t-.l 498 GUARDIANSHIP. church to which he belongs, if lie desire it {The King v. Greenhill, G N. 4 M. 244 ; Re Leigh, 5 Prac. R. 402 ; Re Carswell, « Prac. R. 241 ; He Rog,^ fi Prac. R. 285; D' Alton v. D' Alton, 4 P. & D. 87 ; Re HakewiU VI c. B. 223-231 ; Sed vide Sim»rt r. S., ante, from which it appears that the father's common law rights have been much modified by legislation). But the Court of Chancery, under certain circumstances, exeroisiny the controlling power of the Crown as parens patria, did, and the Hi<,'li Court of Justice does now exercise the power of removing cliildien from the custody and care of the father {k). Testainen- A wife obtained from that Court an order gi%'ing her the custody of tary guar- i,er infant daughter, until she had attained the age of twelve years. Held, that this did not prevent the fatlier appointing testamentary guardians of the infant {Davis v. McCoffrij, 21 Gr. 554). A contested suit in the Surrogate Court of the County of Forth resulted in an order appointing the stepfather of an infant of ten years to be its guardian. It appeared that evidence liad been adduced in tht Surrogate Court to the effect inter alia that such an appointment was in accordance with the expressed wish of the mother in her last illneys, anj that the child herself, wno had lived some time with her uncle, preferred to live with her stepfather; that she had got on very well with lier uncle until he got married, but that his wife was " awful cross," and she would rather live with her stepfather. On appeal, the Court of Chancery being satisfied, from the whole evidence, that it was for the real and perman- ent good of the child, reversed the order of the Surrogate Court in favour of the uncle. In Re Irwin, 1(5 Gr. 461 ; See also Linfoot v. L., 'J C. L, T. 432; U. C. L. J. 188J, 543. Contest between stepfather and uncle; appointment of the former. The father of the infants died intestate, and his widow obtained letters of administration, who, by her will, appointed her sister, a mar- ried woman, sole guardian of her two infant daughters. After her death. the paternal grandfather of the infants applied to the Judge of tlie Sur- rogate Court, to be appointed their guardian, which in opposition to objections made by the sister, did appoint him their guardian :— Held, on appeal from the Judge of the Surrogate Court of the County of Simcoe: (I) That although the Court of Chancery has jurisdiction to appoint guardians to infants, notwithstanding the enactment of the Sur- rogate Act, it will not do so on an appeal like this ; (2) That the fact of the person named as guardian in the will of the deceased mother of the (fe) Story Kq. Jur., 12 ed. §§ 1328, 1341, and cases cited; Macl'herm on Infants, p, 101, ct seq. ; Simpson's Law of Infants, Loud., 1875, p. ISll €t seq.; Smart v. .S'., [1882J A. C. 425. APPOINTMENT OF GUARDIANS. 409 chiltlren, being a married woman, was itself sufticietit to prevent the Court oppointinf^ her (Re McQueen, McQueen v. McMillan, 23 Gr. 1!)1) (/). It is not the practice of the Court to give weight to the objection that a person sought to be appointed guardian to an infant is the next of kin to whom the hinds of the infant would descend (lb). A guardian appointed by a Surrogate Court obtained an order of the C(.' t of Chancery for the delivery of the person of the infant into hc-r custody, Re Gillrie, 3 Gr. 279 (m). '• Tpon the written application of the infant, or the When friend or friends of the infant, residinfj within the jurisdic- y,\",,,!j|J.^t,, tioii of the Surro;jjate Court to whicli application is made, ^''"'"'* aiul after proof of twenty days' public notice of the a]:)pli- pvintgiw- cation, the Judge of the Court may appoint some suitable and discreet person or persons to be sj^uardian or <^uardians of the infant " (i?).— R. S. O. c. 137, s. 11. Where an infant is sole executor, administration with the will Giatits f(jr annexed is granted to his guardian, or to such r)erson as the Court may }'""' 'V.' , . , , ,, . Ix'iit'ht of think fit, until he attains the full age of twenty-one years. And if a jufjiuts. jieison entitled to administration be under age, administration during the minority may be granted in like manner, (ride ante, ' Chapter on Grunts for the use and benefit, ./its liahentiuvi'). "The Judge shall take from every guardian appoint- Such snar- ed luulor sections 10 and 11, a bond in the name of the |jj''^','rswur- infant, in such i)enal sum and with such securities as the !'-^' ''^' •^ _ _ bond. Jud^e directs and approves, having regard to the circum- stances of the case, and such bond shall be conditioned that (^'""''ti'm •11 c • 1 f n c • 1 "^ horn!. the said guardian will raitlitully perronn the said trust, and that he, or his executors or administrators, will, when t!ie said ward becomes of the full age of twenty-one year;;, or whenever the said guardianship is determined, or sooner (7| See also llulh/ v. Chamberlai.t, 1 Redtield (N.Y.), 333 ; and Sivart- uont V. S., 2 iiedlield, 52. \iii) See further as to the custody of infant children ; In Re lunnei/, fiP. K, '>ir, ; In Re Allen, ilV>.;^ v, Alleii, 31 Q. B. 458 .V: a P. R. 413 ; aiid Mtmro V. ^1/., 15 Chy. 431. Anil as to tiiu enstiubj of Uleijitnaiite c.'iihlren, eee lUileshed, 5 P. R. 251 ; und in Re t le Queen v. Annatrunij, 1 P. R. 0. (ill The Surrogate Court for the county in >vhicli infant rosnles may ai)nunit the father guardian, (8. 1(*, ante). oOO Bond to be r-'corde.!. GUAHDIAXSHIP. if thei-eto required by the said Surrogate Court, render to his ward, or to his executors or administrators, a true am] jiist account of all goods, moneys, interest, rents, profits or other estate of the ward, which shall have come into the hands of the guardian, and will thereupon without delay deliver and pay over to the said ward, or to his executors or administrators, the estate or the sum or balance of mone}^ wdiich may be in the hands of the said guardian belonging to the ward, deducting therefrom and retaiiiintf a reasonable sum for the expenses and charges of tlit; guardian, and the bond shall be recorded b}'^ the registrur of the Court in the books of his office." — R. S. O. c. I-ST.h. 12, On clfatli of fatlicr, IDdtllfl- to be priiai- diaii aloiu', ur jointly with others. The Act to xecitri' to icii:e>! and cliildren the benefit of Life Inmmnce. R. S. O. c. 130, s. 1*2, does not justify an Insurance Company in payinj; the amount of a policy to a testamentary f^uardian ; the f^uardiiui tiieie named beinj^ one who has f^iven security (n). It is contrary to tlie uni- form practice of the High Court to appoint any one as the custocliuii of infants' money whether as trustee or guardian without recjuiriiis; security (o). "()n the death of the father of the infant, the niotlior if surviving, shall be the guardian of the infant, eitlier alone, when no guardian has been appointed by the father or jointly with any guardian appointed by the father. — K. S. O. c. i:i7, s. 13, (1). Apprenticiny.—See R. S. O. c. 142, respecting; "Apprentices aii.i Minors;" and see for Form of Deed of Custody of child in cases of adoption. Vide App. of Forms. "Where no guardian has been appointetl by the father, or if the guardian or guardians appointed liy the father is or are dead, or refuses or refuse to act, the Hi<,'li Court or Surrogate Court, or any Judge of either Court, may from time to time appoint a guardian or guardians to {;() Campbell V. Dunn, 22 O. U. '.>8 (IHil'i). (o^ lie Thin. 10 P. R. 41)0; followed in lie Slosson. ir, P. 11, l.'iti. (Guardian appointed by foreign Court.) See also Seeord v. Contello. 17 Gr. 828. APPOINTMENT OF OUAHDIAXS. )()! act jointly with the mother, as such Court or Jucl|:(e shall see tit."— /6id (2). " The mother of an infant may, b}' deed or will, appoint M"tl»r any person or persons to be j^uardian or guardians of the ixiint ^niai- infant after the death of herself and the father of the t,'ii',"e!!^'irs infant (if the infant be then unmarried), and where niiardians are appointed by both parents they shall act Jointly."— R. S. 0. c. 137, .s. 14, (1). "The mother of an infant may, by deed or will, pro- visionally nominate some fit person or persons to act as guardian or opuardians of the infant after her death jointl}' with the father of the infant, and the Court or a Judf^e after her death, if it be shewn to the satisfaction of the Court or a Judge that the father is for any I'eason imtitted to be the sole guardian of his children, may confirm the appointment of such guardian or g'lardians, who shall thei-enpon he empowered to act as aforesaid, or make such otlier order in respect of the guardianship as the Court or Jnd;;c shall think right " (p). — Ib'ul. (2). 'In the event of guardians being unable to agree Divpctimi among themselves or with the father upon a (piestion ,;|^ „i:it't!n-^ atfectinii' the welfare of an infant, any of them or the i^tVcitni'.,' " , infant--. father may apply to the Court for its direction, and the; Court, or Judge, may make such orders regarding the matter in difference as to the Court or Ju: noted that Powers weringof ^w.w- that Coint to make such appointment, an express trust. 'I he guardian '"''""'• could therefore acquire no title to lands of his ward as ag«dtt\ ; I.ipnett v. Perdue, IH O. K. ■)7.'). But no sale, lease, or other disposition shall be made a^'ainst the provisions of any will or conveyance by which the estate has been devised or f^ranted to the infant, or for his use, (//>.) Infant's '^'^'® application to the Court shall be in the name of the infant by (ioiist'iit if ills next friend, or Iiy his "guardian, but siiall not be made without the 14 years consent of the infant, if he is of the a''e of fourteen years or uiiwards. (///.) of age. ^ J L \ I In matters " 111 f^H iiuittoi's and JippHcatioiis touchino- or rclatiiii; 'i- T'"i":l to tlic appointment, ctjiitrol or removal (jf iiuardians, ami (iiansni|), 11' 1-1 ' Courts to the S(^curitv' to be o'iven, the cn.stodv, control oi' or riirlit ol' have same " . ,. " . , , , piiweis foi accens to an nitant, and otherwise, the several Surrooate tioiK.f wit- Conrts shall have the like powers, jurisdiction and autho- I!!ir*.?.;n!l' I'ity lor the examination of witnesses, the in-od action of decriMs deeds and writinrjs, and ^enerallv for the enl'orcins. 1 apply to any children as to whom any a])plication has been and i.Mti. aiiide to any Court or Judge with respect to their custody 111' iiiaiiitenance, before the 2;3rd day of April, 1N.S7, and '.vhether or not such application was then pending.'' — IIi'kI. ^ '2;}. Sej also S. C. Rules (iioml) as to appointment of GuaiHiians. The grant of probate to an infant along with a person wlio is of full age is not a nullity (/)). ('') Cnmmintj v. Landed lidiiluHri <(■ Loan Co,, 'JO O. H. I5H2, 'M'> ; and see Mriclianl'x I'iank v. Monteitli, 10 V. K. aJil. 50() GUAItDIANSHIP. See also the Act for the Protection and Reformation of Nefjlectoi} Chihlren. />! V. c. 40 , and an Act for the prevention of cruelty to, mid better protection of children. 6(1 V. c. 45. See aa to authority of {guardians appointed by foreigu Courts to receive Life Insurance monies ; 5G V, c. 32, s. 7. G'lardians and Infants. — Hales, etc. H. C. Rides l«!t2. The Judges of the Supremo Court of Judicature for Ontario do, in pursuance of the powers conferred upon them by the Revised Statutes of Ontario, c. K37, s. 20, iuul C. 50, H. 7S, order and direct that the rules, orders, and directions hereinafter set forth shall be the be taken."— S. C. R. 8. 508 GUARDIANSHIP. l-aiiri; iii " Solicitors and counsel in tlio .said courts shall le entitled to take for the perfoi'inance of duties and servicen in said i^uardianship matters, the fees and costs prescrihed in the Tarifi'."— S. C U. L», (ititicsof "The duties re(|uired of the Surrorjate clerk in respect hUlTOgiltl' ^ " ' Clerk. to matters and causes testamentary, so far as may be applicable, shall be performed by him in respect to appli- cations for letters of <,^uardianship, and in relation to <4uardianship business." — S. C. K. 10. Actions Respectinfj Guardianf^liii) of Infants. When a caveat is lodj^ed a<^ainst the grant of letters of Ljuardianship, the practice in respect to it is, to conform a.s nearly as may be to the practice in the case of ciuuats against the grant of administration (Gdn. Rule, 4) ; jind generally the practice and procedure, except where (tthoi- wise provided by rules, or orders under the Surroiratt; Courts Act, is to coufoi-m, as nearly as the circumstances of the case will admit, to the ])ractice and procedure pre- scribed by the Act {''• 510 ui:i"i;i{i:n'<'i; or iu:.moval ok (jontkntiol's husinfxs Not cant coiitettt. ;i'v.rv delay, it whs huM tliut causes which iiii^ht be ivinovnl to ■ ttf , the Court ol' (chancery, must have l»ecn not only causes in which contention arises, but causes in wliich disptitcd ([uostions of law or fact arise. In this case dittcnvnt parties luivinijf applied for administration, there was a contest as to who was entitled to the ^rant. 'J'here beino; siidi contest, there must be n citation, and to decide it the matter sliould l)e ai-<,nu'd in term ; before the Sul•r()^llte .lud^fe. And as to tlni question of delay the Surrogate Court has power to app(jint an administ)'ator pendiui;' the litigation. The Court did not think that the le<^dslatuiv intended eveiy case of contest to be removed, and the application was refused (a). There was a conti'oversy as to the validitj' of a will, aiiij upon a sworn allegation, which was not contradicted, that there was a lari^o anunint of propei't\', real and ])ersi)iial (over 82,000) and that " the ([uestions to be tried ami determined were of such importance and tlifficulty that the isamo could be more effectually tried and disjwsed of in the Court of Chanceiy than in the Surrog'ate Court,"— tiie matter was removed to Chancery (b). Unless a case of contest is established the application for I'ejuoval will be refused (r). It is not intended that the l)Usiness of the Surroo-ate Courts should in a large measure be transferred to the High Court ((/). Upon an application to the Higii Court by ceitaiu of the next of kin of an intestate, under s. 31 of the Surrogate Courts Act to remove from a Surrogate Court into the Hiirh Court a cause in which a contention arose as to the (a) lif lic'chwith, per Blake, C, Spragge, V.G., concurriuf,', o U. C. L. J. 18.JW, p. •2ru\. (Ii) In re Kcr.lcs, 1 Chan. (7hara. 370 ; and Untciii v. Moical, \U\. Gen., by order of I7th Sep. 1875. (c) lie O'Brieii, 3 O. 11. 320. (d) Meir V. mison, 13 P. R. 33. TO TlIK IIKill t'orUT. 511 <^fmnt of JidiiiiinHtnition, it Jippmivtl that tlic wiilow ami n trust coinpiiny had petitioned for joint udniinistnition of tiie estate, wliich wiis ji liir^e one : that the next of kin ()|)])(ised the petition; tluit neither wid«jw nor next of kin could uniiided 8U|)ply the necessary security; and that tlioiv were no creditors; it was held that the jurisdiction to iiiuke the <,n'ant, held;;' of a discretionary kind, could he k'tti'r exercised hy the Surroijfate Jud' )V0(1 MS iit'oro- ite Court, l-M- .•istvav of the ic'i't'tlinu' Nvas rt aiiilH'fs uptm Jr' AppeiKlix. being" sitvimI the Suvro<;ate CHAPTER XL Al'I'KALS. ■ Aii\'pi>r.s()ii considerino-hiinsclP an'^^rii'vcd liyaiiy oi'di r. I'ii-;u> si'iitcnce. or jiul<;"nu'nt oi a hnn-o^ate I ourr. <>!• Iinn^' Wis- in^-tin'in- satistit'd with the deterniinjition ol' the .lutluc tluTfol" in ^,■',.i^,vt■(|'''l,v lMlint ot" law in an V matter Ol- canst.' niidei- this Act. in,iv,'"'>' ''"'-■ ^ , " . . ' iiii'iit, iti'., within fifteen days next after sncli ordi.'r. sentence, jnd^- may , ij.- iiu'iit. ur determination, Mppeal tiierefi'DUi to tlie ( 'nnrt nf (V.mt'.it ' Appeal or to a sino-le Judye of snch Court ir tiie maimer '''"'" anil, suhject to the re(;'nlations pro\id('d for hy the IJnles ami ( )rii('h appeal shall be had or lie unless the \alu" of tlic'^'-'-' pidpt'i'ty [tlie word "property " lieing- substituteil in acconlauce with 53 V. c. 17. s. (>, for the words: — " ^-oods, diattcls. rights or credits'] to be att'ectcd by such older. SL'UU'iice. judgment, or determination exceeds S2()() : and in case of an appeal to a single .ludge he may. in his discre- tion, and upon such terms as he think' pro|)er, refer the aiiiK'al to the said Court of A])peal. — S. C. A. s. 'M\. The appeal to a " sing-lo .liulge," here pi'o\ided for. is not to he regarde(l as an appeal to a Judge in Cliani- '•ers ((/ ). ('!) Ill ir West, U C. L. T. O. N. 4:2-J. iis.c— 33 m i4 h ■ 514 APPEALS. Under the Court of Probate Act of Upper Canada (h) an appeal lay fi-oni judg'inents of the Suri-ogate Court to the Court of Pro])ate ; upon that Court being abolished tlic apjteal was to the Court of Chancery, and so continued until 40 V. c. 7. The appeal now is to the Court of Appeal as al»ove provided, and subject to the regulations provided in Surrogate Courts Rules 57-59. Sec. 19 of The Court of Appcdl Act, consolidated as sec. 44 of Tke Ju.dl- cdtiirc Aft, includes appeals from the Surrogate Coiuts, as provided in the Surrogate Courts Act. Until the amending Act, 53 V. c. 17 in estimating tlie 8200 which made the limit, personal property only was taken into consideration ; the amendment inserts tin' general word " property " as above, so that real estate is now to be taken into consideration. Under sec. 19 of the Act respecting Cuardians .if Infants {c), as under this section, the appeal is to the Court or a sinsfle Judije. Aiipciil. It would appear from the follov.-ing case that the appeal will lie whether the business is contentious or non-coii- tentious. A oerson, claiming to bo a creditor of an intestate applied for letters of administration, having cited the next of kin, who did not appeal". The Judge, finding that tin^ applicant was not a creditor of the intestate, refused the grant. On appeal, it was held that whether the a))plica- tion was contentious or non-contentious business, as tn which the Court gave no opinion, there was, under sec. 1!> of the Judicature Act, 1873, (corresponding, in part, with provisions in sees. 48, 50, 51, 57, Jud. Act, Ontario (K. S. (b) Vide ante, p. 11. (c) Vide post. APPEALS. 515 1887, c. 44), an appeal from the Judge's decisicn to the Court of Appeal (d). The appeal may be on the facts as well as on the lll\V(''). From the Court of Appeal, Ontario, there is an appeal to the Supreme Court of Canada (/). But it has been held that, having reference to the pro- visions of 'The Supreme and Excheqiter Courts Act, that an ajipeal would not lie from a Court of Wills and Probate cuuiity in Nova Scotia to the Supreme Court of LiUicula (-u- iiK'ut, and from any order tn' decree of the Judge in Out itv Surro;.'fit»' (')urt, as security, a sum of moii'V not less than ."^lOu." — ■>. ( '. li. 57. " When an ap])eal is so lod<>'ed the Judj'e of th<.' Siirro- :^i,'i '-j' ' ' ... l'), r. n. 5cS. " L'pon certificate from the Registrar j^:aled, deposited or filed in such Surro<;-ate Court, togetlj<,'r wifh tlif judgment or decisions of the Judtj;'e." — S. C. \i. ')*.). \\s\- I'^orm of Bond on Appeal vide appendix. And see ilult's Supreme Ct. Jud. Ont., c. VIII. t'dUt " Apjx.'ul.s" and mnendinents. .\ .lud^^-' of the Court of Appeal will not into-rfere with an oi'der of a Surrojrate Court Juearf» to have exercised such discretion unreasonably or uj)on a ^vrong i)nncii)le (j). (/) hi i\: iVest, anU ; and sje McDonald v. DariJson, .\. li 320. iiiii 111.-, ii.^\Mil\. iFMitisn m «l 518 COSTS. m CHAPTER XTL ill [i > COSTS. Costs in contentious business were in the discretion ot' Court, and not matter of strict law (a). " Discretion of the Court" is not understood to mean that it is in the power of the judge to give or witlihold costs as he pleases ; but that they are in his legal discretion, adhering to general rult> and former precedents. In fact, the award of costs is but practice {b). Certain general principles governing the question of costs, and the liability of persons to costs in contentiou> proceedings, which had prevailed in the Ecclesiastical Courts, vvere continued in the English Court of Probate under the Act of 1857, and under (ieneral Rules of the last named Court, the practice of which was made appHcaM'' to the Surrogate Courts (c). The principles embraced in those rules, relate to : — (1) Executors, or other parties, proving wills in solemn form of law. (2) Compulsory proceedings at the instance of next of kin and others for proof of wills in solemn form. (8) Interveners (f^. ('() By a recent rule of tlie Supreme Court of Ji ^•■^at^re of Ontario, it is provided tlnit --" Where any Hctwii or issue is l. d by a jury tlio costs shall follow tlie event unless upon application made at the trial the Judge before whom the action or issue is tried in his discretion other- wise orders.' (U. 1274.) (b) D. it B. 801. and cases cited. {c) S. C. A. sec. :U. (tl) As to iut'jrveuers, ride dute p. ?)1\. COH'J'S. 519 le discretion ot >iscretion of the in the power (A eases ; but tha' general ruk- of costs is but he question ui ill contentioib Ecclesiastical lurt of Proluiti' lules of tho last iiade applicali!" ruhite to : — wills in soloiiiii ance of next <»t funii. '■■ mature of Ontario, L. d by a jury tliv ladeat the trial lln' .3 discrotion otln'r- In MItcheLL v. Garcl (e), on motion by an unsuccessful <'eupral opponent of a will to have his costs allowed out of the estate, the Court (Sir J. P. Wilde) laid down the two t'ollovvin<^ important rules for its future o'uidance : — FIrsthj. "If the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate." Secondly. " If there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent." Sir James Hannen Hnyn : " It appears to me that an 'r.stator executor is ^^ruuct /acie justified in propounding a will, ,,f'liti(fa'- * * I think tho (piestion of the testator's capacity was a ^'""''' very grave one and he could not be expected to take on himself the resjjonsibility of leaving it undetermined. * * The decision of the question of costs must depend on the infinitely varying circumstances of each case ; and the eouelusion I have arrived at brinijs tliis case within the principle of tlie decision to which I have referred on former occasions — was the testator really and sul)stantially t'.ie cause of the litigation that has occurred T' The Ct)urt there ordered, althourohahiIity, cannot escape I'roni tht.> liahility ol" hein^ cdii- d(Mnned in costs b^^ the fact that lie takes no interest uiiilri the paper (// ). Such executor, if he has any doubt as tn tln' validit}' of a testamentary paper he should, beloic pvd- ])ounilind- it, take security for his costs from the person interested ( t). Where an executrix, throuiih her own neirlio-cnce, lijul • lost the will, and estalilished a draft of it in solenm form (jf law, she was allowed such costs out of the estate as she would ha\e incurreil in })r()vind' the original will in solemn form, and it was held that the costs of the next of kin should be paid by her and out of the estate (J). The rule and practice by which a party may compel ]»ioof of a will in solenui form, without liability for costs. do not extend to a residuary legatee under a prior will (I:). In such a case each jiarty has been recpiiivd to pay his own costs. Xor does that rule extend to a legatee (/). On decreeing probate of the contents of a destro^'ed will, the Court condennied in costs a party who had destroyed the will, although she had not entered an ai)pearance (//M. (//) linhcrtx V. Coirmendoir, 21 L. T. N. S. 'Ml. (/) Ui'itnie V. Miissie, 1 V. & 1). 118 ; 14 W. 11. 510 ; Robcrtx v. Con- mriidow, 21 L. T. 3G7. (./) I!url,;s V /.'., 1 P. ifc D. 472 ; 3() L. J. P. A M. Tio. (/.) Ilorkleji V. Wijatt, 7 P. D. 23!). (/) Ihqiihiirt V. Fricker, 2 Add. 57. (w) King v. Oillard, 1 P. A D. (iSi) ; 17 L. T. 2',»7 ; and see Conliii V. C , ante. ( '( )STS. 521 Rnbertx v. Con- and see Cnnlii) An heii'-at-liiw wIm iiitervenos in ji snit ami opposes the will, thouijh not citcil. is entitled to his cvjsts il' the will is pronouncod !i;j,'ainst (n). A next ol' kill who unsuccessfnlly apj)lieil for rcN'ocM- tiuii of the probate ol" u will, was condemned in euslsi ,iltliim,i;h there was strong- evidence ol" the incapacity of the testator, on the lironnd that he ha). A urxt of kin, who was co;;ni/.ant of a suit ending;' in till' cstaljlishment of a will, thon;j^h not cited to se*^ i)ro- oeedin^s, and not havinxt of kin who unsuccessfully ()p{)osed a will on the ^Toiuid of incapacity was not coniU'nuied in costs, where the ()p])()sition was induced by a statement of the medical attt'iidant of the deceased, who also attested the will, that III' read over the will to the deceased, who signitied his assent (/•). Defendants who had unsuccessfully op))ose(l probate of ■1 will on the ground of undue influence were condemned in {'I) Simileton v. TomliiiKon, 3 App. Caa. 40i ; HS L. T. (i');? ; -JC) W. K. '.'■-'; see also Raijson v. rarton, 2 P. & D. Us ; 31) I,. J. P. A 'SI. -'O. {■') Clayton v. Daytcx, 3 S. & T. 21)0; 3'i L. J. V. & M. 28. (/:| Cross V. C, 3 S. & T. 292; 33 L. J. V. & M. 49 ; 12 W. R. COi. {'I I liatdiffe v. Barnct, 2 S. & T. 48(5 ; 31 L. J. P. & M. til ; (i L. T. OuH. V) Tippilt V. T., 3;') L. J. P. & M. 41. X.'xr ef kill ICII- ^<6 V .4^ ^ X'" "ittii conduct. Pnibatf uallwl ill. — later will. Eviilenoe as to I'M'- cutioii of will. COSTS. In interefst suits the unsuccessful partj'^ is, as a jTfeneral rule, condemned in co.sts. But where the only question in dispute between the parties in the suit was, whetiier the defendant had been law fully married to the deceased ; durintr the pro^^ress of it, applications were made personally to the defendant, and in writinj^ to her attorney, to state where such marria<;o liad taken place : no answer was returned by tiie attorney, and the information given by the defendant on this point was false : the marriage at tlie hearing was establislied, but tlte Court refused to condemn the plaintiff n i!ie costs of the suit (c). Nine years after a testator's death his executors pro- (liic''d aud prv'|>' udeJ a will : it was opposed by the next of kin: til-'" ux ■ :■.-( accounted for the delay by sayinj; that the testatov n.'.l desired that it should not be produced until after his mother's death : the will being admitted to ])robate, the Court held that as the conduct of the testator in desirinii' its conceahnent had y;iven the next of kin a reasonable ground for suspicion, she ought not to be con- demned in tlie costs of her opposition (<^). In the case in whicli a defendant, a widow, had taken probate of her husha.nd"s will in which she was appointed executrix, and was cited by the plaintitt' to bring the pro- bate into the registry and obeyed, and the plaintiti' then propounded a later will, and after a short time the defen- dant withdrew from the suit, the Court made no order a.s to costs {('). Where the executor propounded a will and examined one of the attesting witnesses who proved due execution, but his evidence was contradicted by the other attestin;,^ witness, a jury having found that the will was duly exe- (c) Wisciiuin V. W., \ P. & D. 351 ; 30 L. J. P. & M. 22. (./) Kmhethnj v. Trevmiion, 5 Sw. & Tr. 197 ; 29 L. J. P. * M. H:t, (.') Smith V. Fl.'trhn: 2 P. A- 1). 20 ; 21 L. T. (UC. f rw'fi i'l C( )STS. 525 a general uestion in letlier the deceased ; personally y, to state isvver was given ))y iaii'e at the io condemn cutors pro- by the next r by say'.nf,' OQ produced admitted to the testator xt ot kin ii )t to be con- had taken ,s appointed lino- tlie pvo- laintitt" then |e the de fen- no order as lid cxanuned le execution, lier attesting,' |as duly exe- p. * T.I. 141*. cuted, the Court decreed probate, but refused to make anv - "« '"''"■ . . ^ " ii.s to costs. order as to costs (/'). An executor of a former will has the same right as a next of kin to put an executor of a subse(]|uent will upon proof in solemn form and to interi'ogate his witnesses without being liable to pay costs (//). An attorney pi-opounded, as executor, a will, pur- Kx.cutor porting to be attested by two of his clerks. On the i;;"','^^"''' iiioruinu" of the trial his counsel stated that he would consent to a verdict for the defendant ; the Court, in the absence of a satisfactory explanation of the circumstances under which the will had been ])ropounded and withdrawn condemned him in the costs of the suit(/t). In England the Court has no authority to condemn the Costs. Queen's Proctor in costs of unsuccessful litigation (/). ('rti\ni. In a suit between the Queen's Proctor and a party Api)lica- claiining to be next of kin, as to the legitimacy of the*,|'!,','^'',i;.„. deceased, a verdict was given in favour of, and adminis-y^.''^'" '•■''*''' tration granted to, such alleged next of kin. Under the fi"<''i impression that he could pay his costs of suit out of tlie property of the deceased, no application was made by liim U) the Court at the time of the trial in reference to that matter, but, in conseipience of proceedings in Chancery, he had been unable to recover such costs. A citation having been served upon him to show cause why the administra- tion should not bo revoked, by reason that he was not one of the next of kin of the deceased, he applied to the Coui't, after the lapse of nine y-ears, to make a formal order that his costs of suit against the Queen's Proctor shoidd l)e (.0 IWrey v. King, 3 S. & T. 51 ; 7 L. T. 219. {<)) lioston V. Fox, 29 L. J. P. 1). A- A. ('.8, S. A Sm. 137. See also Seuion V. Stim:lt, 29 L. J. P. D. & A. 195 ; and Foale v. Tretltewy, 9 L. T. H7. (/() Richards v. Humphreijs, 29 L. J. P. & M. 137. (/) Atkinson V. Queen' n Proctor, 2 P. & D. 255; vide ante p. 133. , » ! t' |l: 526 as to part of the costs. Defence that di • cisiiseii did not know and ap- prove con- tents of will. — undue influence or fraud. Vexatious- ly calling in probate. COSTS. paid out of the deceased's estate. Tlie Court refused to do so after such lapse of time (j ). The Court will in special circumstances condemn tlio executor in costs who has unsuccessfully propounded a will, and that although the Crown did not a.sk for costs (/,). Where, previous to the cominj^ into operation of the Judicature Acts, the plaintiff in a pi'obate .suit amended what was termed a special declaration, and the amend- ment havinsj been made the defendant withdrew fi-om the suit, the Court held that, as the plaintiff in amendiufr his sp'^cial declaration had relinquished t! . legal position intended to be maintained by it, the dei'endant was not lial)le to pay any costs. The Rule E. C. P. corresponding with Rule 6 (S. C. R. l). If a defendant withdraws from the action, upon the amendment of the plaintiff's statement of claim, it would seem that he is not liable for costs incurred subsequently to the delivery of the statement of claim (q). A legatee who has propounde' a codicil and succeeded Costs, is entitled to the same costs as an executor under similar /,f„,wr«w. circuiustances (/•) ; and where the plaintiffs, who were leffiitees, propounded a codicil, the defendant, who was the executor, having proved the codicil only, the Court, having pronounced for the will, condemned the defendant in costs, and gave the plaintifTs also, out of the estate, such sum, iiiiiiihie expensarwni, as would cover the additional expenses (s). (<)) Orton V. Smith, 3 P. & D. 23 ; 38 L. T. 112. See also Cousins v. Titbb, L. J. N. of C. (1891), 148 ; Davien v. (irenori/, 3 P. & D. 28 ; 28 L. T. 239 ; .Tenner v. Ffmch, ante ; IVest v. Goodrich, 31 L. J. P. & M, 39. (l)} Swinfen v. S., 1 S. & T. 283 ; 29 L. J. P. & M. 153 ; and C. & Tr. m. (-/) Archer v, Burke, 1 P. & D. 558 : 37 L. J. P. & M. 30. ()•) Wilkinson v. Corfield, 6 P. D. 27. (») Suttonw. Drax, 2 Pliillim. 323 ; Bremer v. Freeman, 1 Den. 192, 258. 528 COS'J'S. ScJ 'l" {. ;i nv •» 4' rllfl 5 'IfNI Costs (lilt of the t 'state. iriuliic intiiuMU'c |)l<-adtf(l. N.'Xtof kill iiisi-.t- iiiK' oil proof. KxcCMt'll' acting in i lite rot uf infants. Lt'jfatt'i' acting in interest i-f infant. When liti;;ation is rendered nece.sHnry by the stfitc in which the deceased left his papers, the costs of it, thouirlt unsucceHsful, will be allowed out of the estate {t). Where the is.sues of undue e.Kecution, incapacity, and undue inHuence, raised by the ne.xt of kin in opposition to a will were found against him, the Court, however, refused to con;cution, proceeded to trial, notwith-;tani or so doubtful that he is entitled to have it decided by a competent tribunal (:). And where there is sutHcient anMve co> ts to a ilufeudant who had failed to L'stal)lish the plea o!" undue iuthience, on the ; [kjfi ii i ; 1 *IP 11 It o:i2 OiniMMioii to nil iitimi iiistruc- timiN fur will in iitKiliivit uf Ncript. Will «('t jlHidc III) Ki'diind of iiicii|ia- city. S|i«^ciiil eircmn- -tllllCfS. KxfiMitiir cnlKlciiiir'I in cii.sts. CdstH in- curr«Ml by cri'ditor. COSTS. that, as lu' had rai.seil also the (|U(.\sti<)n of domifilo, and without reason, lie was not entitled to such costs (/.•). The ((mission to annex to, or mention in the atHdavit ot scripts, the instructions for a will, is no i;roun ; 7 L. T. 757; 11 W. R. 32. (m) Cntchell v. ('., 3 Sw. A Tr. 41 ; 8 L. T. 173; 11 W. R. 401. (n) Nash v. Yelloly, 3 Sw. A Tr. 5i) ; 11 W. R. 541. (o) Tichhurne v. T., 1 P. A D. 730 ; 20 L. T. 820, 1015 ; 17 W. R. 'i'^'^- I I lill ( •( IS'I'S '..S8 jiinl if tilt' nsHcts liavo been propei'lv cxhiiUHtoil, no attach- '^'"-'■' ""^ . . . ' "' '■"' iiiciit will l)e n'l'aiitfd for disolKMlience to such (nuer ( p). ♦•. An application for the certificate of the costs of aC<>st,s(.f spt'ci.'il jury ou^ht to be made inntiediately after the jury. vtM'dict has been ;j;iven {x). In Knu'land the Court of Probate followed the Rule of Stcmitv the Common Law Courts, that a defendant residing out of the jurisdiction shouhl not be re([uired to give security for costs [I). The Probate Division will not order a plaintift' to tind Fdifisfner ■security tor costs wlien, tliougii a roi-ei^Mier, lie is staying; Kn^fland. ill Kiii,dand at the time of the ajiplication, and there is nothing;' to lead to the supposititni that he \y on the point of leaviiio- the country (11). 115 ; 17 W. K- »^-^- (/-) Williiim.^, ■^ Sw. A- Tr. 437; :« L. J. P. .V M. 1'_'7 ; 10 L. T. o83. (-/) U-illiamg V. Ilenn/, 4 Sw.it Tr. 471 ; 12 W. U. 101.".. (r) Smith V. .S'., 4 Sw. A Tr. 3 ; 11 W. K. 504. («) Skipper v. .S'., 2 Hw. >t Tr. 1; 2!) L. J. P. A- M. 133. it) RnliMm V. 11, 3 S\v. .t Tr. 5(18; 11 L. T. 45il. (i(^ Crispin v. Ihxjliimi, 1 Sw. .t Tr 522 ; 2<.t L. J. P. .V M. 130 ; f. Jur. N. S. :i03. When a party is out of the kint,'ci C. L. T. 10. [e] Edicarih v. Payne, 1 Sw. & Tr. 27(5 ; 29 L. J. P. & M. 1 ir,. (.0 liaijHon V. Parton, 2 P. & D. 38 ; 39 L. J. P. A M. 20 ; 21 L. T. M7. See also Fi/.inn v. U'enlrope, 1 S. A. T. 27'.> ; 21) L. J. V. A :V1. 13!) ; 5 Jur. N. H. 250 ; DuHoisoii v. Maxicell, 28 L. T. 300 ; 21 W. R. 575. {(J) Jeffrey v. ,/., 38 L. J. P. & M. 43. {h) Thomas v. Crowther, 2 S. A T. 501 ; 10 W. R. 801. H-v :!li H H4 III 5:i6 Hi lll^ ili CostK {if ])rii)r actiuii. — sequt's- trulioii. COSTS. ijieni'i'cd in pi-oceedings in Chancery, the Court rofiisuil to stfiv proct'e(lin frivolous, \exatious, and an abuse of procedure <\ (jr.. wluve it attempts to re-try, in another form, a (inestion already decided a^'ainst the defendant (j). Tlio next of kin of ;i testatoi" instituted a suit for administr.ition with the will annexed, dated LSGS,of which the s;)le executor and universal le;;-atee was tlie testatoi-'s wife, who ))redeceased him. In opposition, parties claim- ing to bi> len^aiees set uj) the contents of a will, sninc twn yeai-s latei-, but which could not be found. The Coiut of Appeal, re\"i-sino.se (/). (/) Ilaiikin V. Tiinur, IS L. J. P. HH ; 40 L. T. 335 ; 27 W. 11. '-'^i. (./') Rcifhi'l V. Mcdymh. 14 App. Ca.?. (iOo ; see also Willis v. l!,-iut- i'//'/»(/), (inte. (A) Peter.-< v. Tilly, 11 P. D. 145 ; 55 L. J. P. D. & A. 75 ; 35 W. R. 1*). (/) Bayley v. 11., 4 S. A' T. '2'2-> ; 185'.». 'm COSTS. 387 e Court iH'i'nsLMl lien paid {)). :e out a (k't'cnci' procedure «\ iji:. i'orin, a (juestion Luted a suit fnr L'd LSCS,oi" wliicli vas tlie testiitor's jn, parties claim- a will, SDiiu' two .1. The Court of Probate .Division. deuce ol' the con- m was ai"Hriiu'(l in [' proljate ot tin- toi* of the testator id vipon fi'esh cvi- d, that thou^di the ,)n, au application grauted, hut only had beeu paid (/■•). issued to euforcc secjuestrator du- Ihich was in the [sou whose estate ))()ssession. The liou by au attach- writ ot" assistance |}35; 27 W.K. -':Vi. also Willis V. y;. liushand. The funds were handed over to the husband in the life-time of liis wife, and by him transferred to the trustees of a settlement made on the marriage of his adopted ilauojiter. ' Tiie husband survived his wife, but did not prove her will, and died possessed of property of only nominal value. Subse([uentl3' his representative pro- pounded the will of the married woman, and was oppf)sed hy her next of kin. A copy of it was pronounced for, and the costs of the next of kin were ordered to be paid out of her estate. Tlie Court held there was no property out of which such costs could be paid (o). In England a defendant in a suit having been con- ^) '''; ''^ ileinned in costs, and having neglected to pay them, and having no personal property, but having real property, the Court held that it iiad power under the Prolmte Act to issue a writ of elegit {p). (mi 5 U. C. L. J. (185pe, 2 CI .V F. 84). But it is payable on bonds of a foreij^n f^osernment, which pass by delivery, and are coiise (juently capable of being dealt wi'.'i in this country (Atty-den. v. Jlnnicein. 4 Meect W. 171), and on Canadian ships (yjrftf ante, p. 2.5), |.:T Mi- : ((/) C()iniiii:. I'i'll'l:' APPENDIX. oO VIC, CHAPTER 14, ONT. An Act respecting Securities in the Surrogate Courts. [Asuented to 27th May, 1893] . Her ]\la.jesty, by and with the advice and consent of the Legislative Assembly of tlie Province of Ontario, enacts as follows: 1. The Lieutenant-Governor in Council may, by Order in Council, direct that the bond or jiolicy of guarantee of any incorporated or joint stock company empowered to grant guarantees, bonds, covenants or policies for the integrity and faithful accounting of oflicers, servants or persons occupying positions of trust or other like purposes, and named by such Order in Council, may, at the discretion of the judge, be accepted, ill whole or in part, in lieu of the security re(inired by section (il of 'J'lu- Surroiidte Courts Act and the provisions of law therein contained with reference to the legal effect of sucii securities when given by individuals, and to the mode of proceeding thereon, shall apply to the security given by every such company. ("2) The interim receipt of the company may be accepted in lieu of the formal security, but the formal security shall be completed within one month. (H) This section shall apply also to the security to be taken by the Surrogate Court under the Jet reHpectiiirj Iiifant)i. 3. Every Order in Council under tlie provisions of this Act shall, immediately after the making thereof, be published in the Ontario fj(l:t'/^■, and shall be laid before the Legislative Assembly within fifteen days after its first meeting thereafter. 57 vie, CHAPTER 22. An Act to amend The Surrogate Courts' Act. [Assented to 5th May, 1894.] Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — Tf ■!rf m :il i:!. wj ijf(fM| ?i .'j I'M' ■ 542 APPENDIX — STATUTES. 1. Notwithatiindint» anything,' to tlie contrarj' contained in any rule of court or otlier prov ision havin<» the force of law, or in any bond or otlior security heretofore or hereafter made and entered into with respect to the administration of an estate, or in any letters probate or letters of administration, no executor or administrator shall be comj)ellable to render an account of his executorship or administration to the Snrro^'ute Court within eighteen months, where tiie value of the real and personal estate under administration is less than f I.OOO, and the oaths to be tuken hereafter by executors and administrators, and the bonds or other security to be given by administrators, and letters probate and letters nf administration hereafter issued, where the estate involved is leas than 1?1,000, shall require the executor and administrator to render a just and full account of his executorship or administration only when thereunto lawfully required; provided, however, that the executor or administra- tor, or any surety of the executor or administrator, or any person beneficially interested in such estate, or any creditor thereof, may, at any time during the said eighteen months after the issue of probate or administration, apply to the Surrogate Court to have such executor or administrator render a just and full account of his executorship or administration. 2. Where the whole estate of the testator or intestate exceeds in value the sum of #400, but does not exceed in value the sum of f 1,000, the fees payable to the registrar and to the judge on proceedings unuer T'lf Surropate Courtu Act in non-contentious cases, shall hereafter be one-half of the fees now payable in the case of any estate which does not exceed in value the sum of $1,000. 3. As regards estates over $1,000, the 19th of the Surrogate rules adopted by the Judges of the Supreme Court of Judicature for Ontario, is hereby suspended until after the next session of this Legislature, except where a party interested in an estate takes proceedings to obtain 8uch inventory and accounting as therein mentioned. 51 VIC, CHAPTER 9, 1888. An Act respecting Ancillary Probates and Letters of Administration. [Assented to 23rd March, 1S88,\ Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : 1, Where any probate or letters of administration, or other legal document purporting to be of the same nature, granted by a Court of competent jurisdiction in the United Kingdom, or in any Province or territory of the Dominion, or in any other British Province, is produced to, and a copy thereof deposited with, the registrar of any Surrogate Court of this Province, and the prescribed fees are paid as on a grant of probate or administration, the probate, or letters of administration or other document aforesaid, shall, under the direction of the Judge, be sealed with the seal of the Surrogate Court, and shall thereupon be of the like force and effect in Ontario, as respects personal estate only, as if AXCIIJ..AUY GUAXTS. 543 tlie same had been oiifjinally {^ranted by the said Surrogate Court of this Province, and shall (so far as rcj^ards this Provincu) be subjuet to any ordors of the last mentioned (^)urt, or on appeal therefrom, as if the probate or letters of administration had been ^^ranted thereby. 2. The letters of administr.ition shall not be sealed with the seal of the Surrogate Court of this Province until a certificate has been filed under the hand of the registrar of the Court which issued the letters, that security had been given in such Court in a sum of sufiicient amount to cover as well the assets within the lurisdiction of such Court as the assets within Ontario; or, in the absence of such certificate, until like security is given to the Judge of the Surrogate Court covering the assets ill Ontario as in the case of granting original letters of administration (c). 2. This Act shall not go into force or effect as relates to the United Kingdom, or to any Province other than the Provinces and territories of the Dominion, until a day or days respectively to be named with respect thereto by Proclamation of the Lieutenant-Governor. leeds in value ,000, the fees ^s unaer T'w ir be one-half es not exceed irrogate rules 3 for Ontario, Legislature. ngs to obtain linistration. rch, 1S88,\ he Legislative )r other legal by a Court of f Province or e, is produced my Surrogate on a grant of inistration or the Judge, be ereupon be of ate only, as if [L.S.] GEORGE A. KIRKPATKICK Canaha. Province of Ontario. Victoria by the grace of God, of the United Kingdom of Great Britian and Ireland, Queen, Defender of the Faith, etc., etc., etc. To all to whom these presents shall come — Gueetino. O. Mo WAT, Attoiiney-Geneual. ' PROCLAMATION. J Vvhereas by an Act passed by the Legislature of our Province of Ontario in the session thereof held in the tiftyfir.st year of our reign, iiiituled " An Act respecting ancillary probates and letters of administra- tion," it is amongst other things enacted that the said Act shall not go into force or effect as relates to the United Kingdom or to any Province other than the Provinces and Territories of the Dominion of Canada, until a day or days respectively to be named by proclamation of the Lieutenant-Governor ; And whereas it has appeared expedient to our Lieutenant-Governor- in-Council that a proclamation should now issue bringing the said Act into force. Now Know Ye that having taken the premises into our royal consideration, we, by and with the advice of our executive council ;f our Province of Ontario, and in the exercise of the power in us vested iu this behalf by the said in part recited Act, or otherwise, howsoever, 'lobythia.our own proclamation hereby proidaim and declare that on ?rom and after the FinsT day of Jc.ve Now Nkxt, the said Act shall go iiU.o full force and effect. (t') A copy of a will executed b3fore a notary in Quebec, is not equi- valent to probate granted by a Court of Competent Jurisdiction for the ,^„. ..„„„,. ,.f *u;„ „„„i.: T.. -. jif..r ^a .i„„ t^^ jg,,- g,, appeal C. L. J. 55. valeut to probate granted by a Court of Competent Ju purposes of this section : In re MicLaren, Osier, J. A., from Surr. Ct., Co. Bruce, 15 C. L. T. 0. N. 30 ; 31 U. ^H ^p* W " r- ! 'Ih j i 1, i i II ! 1 ' ! If]; 1 1 Iff ■ !■.■ |.i;: ■ 1 i iW ■:trt IfH 5441 A IM'KX I )l X — SI'ATUTKS. In testimony wheix'of we Imvu caused these oil'' letters to bo made patent and tlie i^reat Heal of our said Province of Ontario to be hereunto aftixed : Witness thk lIoNoritviii.K (iKoiuik Aihy KiiiKi'ATiiicK, member of our Privy Council for (lanada, and Lieuteinvnt-Governor of our Province of Ontario, at our Oovernmont Uouue. in our city of Toronto, in our said Province this twenty-seventh day of May in the year of onr Lord one thousand ei^jht hundred and Ninety tiiree, and in the Fifty- sixth year of our lleij^n, by command. (Siyned) J. M. GIBSON, SecreUmj (,(). u -)-, \IC., CHAPTER C, (Imp.) An Actio i)rovide for the Ui'co^'nition in tlie I'nited Kinf^ilom of Pro- bates anil Letters of Adnuni.stnition granted in Britisli Possessions. l:i()th May, 1892.] Be it enacted by the 0"cen s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, antl Com- mons in this jiresent Parliament assembled, and by the authority of tb'? ^ame, as follows : — I. Her ^lajesty tlie Queen may, on beinj; satisfied that the Le(,'islature of any British possession has nnide adeipiate provision for the recosiiii- tion in that possession of probates and letters of administration graiiteii by the courts of the United Kingdom, direct by Order in Council that tliis Act shall, subject to any exceptions and modifications specified in the Order, apply to that possession, and thereupon, while the Order is in force, this Act shall apply accordingly. 3. (1) Where a court of probate in a British possession to which this Act applies has <.;ranted probate or letters of admi)UBtration in respect of the estate of a deceased person, the probate or letters so f^ranted may, on bein^ produced to, and a copy thereof deposited with, a court of probate in the [Inited Kins^dom. be sealed with the seal of that court, and, there- upon, shall be of the like force and effect, and have the same operation in the United Kinj^dom, as if granted by that court. (2) Provided that the court shall, before sealing a probate or letter of administration under this section, be satisfied— (rt) That probate duty has been paid in respect of so much (if any) of the estate as is liable to probate duty iu the United Kingdom ; and (b) In the case of letters of administration that security has been given m a sum sufficient in amount to cover the property (if any) in the United Kingdom to which the letters of administration relate ; and may re(iuire such evidence, if any, as it thinks fit as to the domicile of the deceased person, [a) Ontario Gazette 1893. p. 07. m } : • m COLONIAL I'UOIJATES ACT, IH'JJ 54-) obate or letter to the domicile (K) The court mivy alHo, if it thinks fit, on the application of any crcilitor, reqtiire, before sealiiif^, tliiit adequate security be tjiven for the PHViiieiit of debtd due from the estate to creditorH residing; in the United kiiifjiloin. (4) For the purpoaes of tliis flection, a duplicate of any probate or leiti'i!* of administration aealed with the seal of tlie court urantinj^ the 5iiinf, or a copy thereof certified as correct by or under the authority of the court -^rantinfi the same, shall have the same effect as the ori^^iual. (,)) Rules of court may be made for rotiulatinj,' the proceilure and pnictice, includin)^ fees and costw, in courts of the United Kiundom, on iiiil inculuntal to an application for sealing,' a prol)ate or letters of uliiiiiiisstration t,'rantuil in a British possession to wliich tills Act a])plies. Such rules shall, so far as they relate to probate duty, be made with the Consent of the Treasury, uiid subject to any exceptions and inoditications imiile by such rules ; the enactments for the tinu' beiii),' in f(jrce in relation to [irobato duty (includiiif,' the penal provisions thereof) shall apply as if till' [lersoii wlio applies for sealiiif^ under this section were a person Hililun^' for probate or letters of administration. it. This Act shall extend to authorize the sealing in the United King- loiu iif any probate or letters of administration t,'raiiteil by a Hritish ■iiuit in a foreif^n country, in like nmiuier as it authorizes the sealing )f a probate or letters of administration granted in a Hritish possession to wiiicii this Act applies, and the provisions of this Act shall apply iccoidingly witli tlie necessary modifications. 1. (1) I'^very Order-in -Council made under this Act shall be laid ikfnre both Houses of Parliament as soon as may be after it is made, 111(1 shall be published under the authority of Her Majesty's Stationery Ul'licf. [■2} Her Majesty tlie Quoeii in Council may revoke or alter any Order ill Council previously made under this Act. (M) Whore it api)ears to Her Alajesty in Council that the Legislature otpiu'tofa British possession lias powor to make the provision requisite for briiif^ing this Act into operation in that [lart, it shall be lawful for Her Miijesty to direct by Order- in Council that this Act shall apply to tlmt part as if it were a separate British possession, and thereupon, while tlie Order is in force, this Act shall apply accordingly. 5. This Act when applied by an Order-in-Council to a British possession shall, subject to the provisions of the Order, apply to [irobates ami letters of administration granted in that possession either before or after the passing of this Act. 0. In this Act — The expression " court of probate " means any court or authority, by whatever name designated, having jurisdiction in matters of probate, and in Scotland means the sheriff court of, the county of Edinburgh; The expression " probate " and " letters of administration " include confirmation in Scotland, and any instrument liaving in h.H.C. — 35 f.! >4C AIM'KNDIX. a Hritish poHHOHHimi the miriio effect which under Knglish law Ih >,'iven to probate and letters of ndministratioii respectively; 'I'lie expression " probate duty " includes any duty payable Hii'oN Ti) L()iii> KiAsi.i'Y ()!■• Phkston. Canada (Joneral, l")th March, IH'.i;}. DowNiSrt Stkekt, '25th Marcli, IWia. My Lord, — With reference to my despatch, General of the liithrf Marcli, I have the honour to transmit to you, for j)ublicatioi. in tie (Jolony under your (iovernnient, an (jrdtr of li. M.in-Council Hp|ilyit): the provisions oi " The Colonial Probates Act, 1H'.»2," to the Province uf Ontario. 1 also enclose copies of the Rules and Orders which liave been msile for the f,'uidaiice of the llef^istrar of the Principal Probate Heyistry. Somerset House, in carry inj,' out the provisions of the Act. and 1 liaveti re(]uest that notices correspondinf^ to those mentioned in Hides lOl aiiJ 102 may be sent to that lUt^istry. Rules ref^ulatiii^'the procedure under the Act in the Scotch and Irish (!ourts have been ))repared, but copies have not been received in tins Department. I have, etc.. (iovernor-Oencral, etc., etc. (Si>»ned) RiroN. AT Tin: COURT AT WINDSOR, the 15th day of March, 1H'J3. Present : Tiie Queen's Most Excellent Majesty, Lord President, Lord Chamberlain, Mr. Bryce. .1 COLONIAL rilOHATKS ACT, ls I.e^islattires of the llrilisli i'ossessions heroiiiattfr iiu'iitioiuul have luiide a(it(juati! provision f;ir till' recoiitiition in those I'lissessionH of Probates and Letters of .Administration granted hy tlie Courts of tlic United Kinf,'doni; Now, therefore, Her Majesty, by virtue and in exercise of tlie powers l)y till' above r('cited Act in Her Majesty vested, is pleased, by and with tlie ;ulvi(,'' of Her Most Hononnibie Privy Council, to order, and it is liireby ordered, as follows : Tlic Colonial I'robates Act. \>^'.r2, shall apply to the r>ritis!> I'osses- simis hereunder mentioned : Iloii'.^ Koii},'. Western Australia, and Tilt' I'rovince of < )ntario in the Dominion of Canada. .\ii(l the ^lost nonoiiral)le the Manpjis of Uipon, Her ^Majesty's IVincipal Secretary of State for the Colonies, is to j^ive the new'.>.sary ilircL'tiDMs herein accordin;ily. c. L. rKKi.. .Idilititiunl liiih'K (did Ordern wriy made the 7th dat) of herciiificr. 1893. \h have been niaJ .\ililitioiial Rules and Orders for the Re^^istrars <>t' the Principal Probate I!('>,'istrv in )ioii-contentious business for cairvint^ out the i)rovisionft of the (julonial Probates Act. lHi)'_'. !!•_'. Ajiplication to seal a Clrant of Probate or f.etters of Aduiinis- tiiitioii or copy thereof inider the Oilonial Probates Act, IB'.t'i, may be made in the Principal Probate Ke^jistry by the I'j.xecutor or .Administra- tor or the Attorney 'lawfully authorized for the purpose; of such E.si'Ciitor or .\dniinistrator, either in jierson or throut^li a Solicitor. '.tii. Such application must be Hccompanied by iin Oath of the llxcijutor, .\(lminiKtrat')r or Attorney in tlie form in the .Appendix, or as iit'iii'ly tiierelo us the circumstances of the eiisc' will allow. '.'1. The Refjistrars are to be satisfied that notice of such application has been (]uly advertised. (Form of advortisenieiit in Apiicndi.x.) 11"). On application to seal Letters of Adniiiiistriitioii ^ne .,'.'iniinis- trator or his Attorney shall f^ive l)ond (in the form set out in the Appeiulix) to cover the personal estate of the deceasfui within the juris- iliiitidii of the Court. The same practice as to Sureties and Amount of Penalty in JJond is to be observed us on application for Letters of Administration. I'll. Application by a Creditor under section '2, sub-section 'A of the roloiiial Probates .Act, is to be made by summons before one of the lU'j^istiars, sujjported by an attidavit settinj^ out particulars of tlie claim. I*'";'. ''.'■ ■;' 111! r ' ! ' '•''•: '•<■■ ■ i c. 1 4: ■ ' • i ■ ' i ■■ i < .^ !' .J ■■kL 7 , . ■ ' . " '" ' .1 , 1 i'i nim 1 III I n 54H AI'I'ENDIX. '.(7. Ill cvory ciiHe, and oHpeciiilly when tlio domictilu of tlic dcccaM at tho tiino of dfiitli iih hwoimi to in tlu! iinidiivit difforH fiorii lliui hiii/ >iiU\ ili'CoiiHcil wifs lit till' time of liin (ioitth (loiuicilod ut , llif /(illiiirinii word* to hf Htnirk out if imtiipliiuilth witliin tlic jiiriH'iiclioii of tlio Hivid ('ourt. :t. Tliat the Notice horoiinto iiimexod was iiiHortcd in tliu " Tiiiu's " Ni'WHimpur on tho day of \. Tliiit I am the Attorney lawfully appointed of (5. 1). iiiidor hitt haiiil iind Heiil, and am duly atithoii/od to apply to thirt Court for the seiiliiii; of tile Haid ^rant. 1 liin payiujniph to he ttrncli out if inujipliidbU.] a. That tho value of tho Poraoiial Kxtato in England amountH in vftliif 111 tiio sum of and no more, to the best of my know- Itdtjf, infoniuition and hulief. Sworn, etc. not to be scaled AdviTtiMciiient. is to bo Hont to tl:e nta and Scliediiles \.dmiralty Division A. B., deceased. Notice is hereby t-iven that after llie expiration of ei^ht days appli- Cfttiou will be made to the I'rineipal I'robate Ile^istry of the Hi^'h (Jourt 01 Justice for tho Healint^ of the Probate of tho Will (or liettcrs of Administration of tho personal estate) of A. B. , late of , deceased, granted by the Court at on the day of 18 . Solicitors for {To Ih' advertised owe in the ilimtedhi/ one of th,' lieijiKtruiK.) Tinie.i " SeifiiiKtiier iinlexs othencine AdininintrutioH Hand (icitli or without Will.) Know nil men by these Presents, that wo, A. B., of , C. 1)., of , and K 1''., of are, jointly and severally bound unto G. U.. the President of the Probate, Divorce and Admiralty Division of Her Majesty's Hiyh (Jourt of Justice, in the Kum of Pounds, of t^ood and lawful Money of Great Britain, to be paiil to the said G. H., or to the President of tho said Division for the time bein^', for which payment well and truly to be made we bind ourselves and each of us, for tho Whole, our Heirs, Executors and Administrators, firmly by these presents. Sealed with our seals. Dated the day of , in the year of our Lord One Thousand Eight Hundred and Ninety The condition of this obligation is such, that if the above named A. B,, the Administrator (with the will dated the day of , annexed) by authority of the Court at , acting under Letters of Administration granted to on the day of , and now about to be sealed in England under the Colonial Probates Act, 18{t2, of the Personal Estate of K. L., late of , deceased, who died on the day of , IS , do, when lawfully ijr.' ■■■■ .!'• II 550 AI'l'EXDIX. Oil lied on ill tliiifc behalf, miike. or cause to be made, true and perfect Inventory of tlie I'eraoual Estate of the said deceased in Eiif^land which baa or shall come to hands, possession or knowledf^e, or into the hands and possession of any other person for , and the same so mafic do exhibit, or cau^e to bo exhibited, into the Principa.1 Probate Uei^istry of Her Majesty's Hi^h Court of Justice, wliuncver rt'nil {iritk or witlnuf irHl) nii (ipplication hij Atlonii'ij. (Obligation a^ iiilaxt I'orin.) The condition of this obliijation is such, that if K. L., of tlio Administrator (with the Will dated the day of annexed), l;y authority of the Court at , acting; usider Letters of Administration ^^ranted to on the day of , and p.i.'W about to be sealed in England under tlie Colonial Probates Act, 18!)'2, of the Personal Estate of M. N., late of , deceased, who died on the day of , IH do, when lawfully called on in that boha! make, or cause to bo madi.- a true and perft(!t Inventory of the Personal Estate to the said deccast'il in i';nj»land which has or shall come to liands, possession oi knowledge, or into the hands and possession of any other person for , and the same so made do exhibit, or cause to be exliibited, into the Principal Probate Registry of Her IMajesty's High Court of Justice, whenever re. WILLS IlKKOKi; isl' .I\M\1!V, IS7l. 2. Ill tlie iie.\t s^'" eedini,' three sfuitions of this .Xct tlie w^7I ; but every v. ill re-executed or repnblisliuil, r,r revived by any CDdici), hIuiII, for the purpuses of tlie said sections be deemed to bftve b(>en made at tlie time at wliicli the same was sore- executed, repnblisbed or revived. H. S. O. 1H77, c. lOt), s. 7. H. SectioriH "20, 21, '22, 2") and 2("> of tliis Act shall not apply tn the will of any person who was dead before the tirst day of .lanuarv, lHii;i but shall apply to the will of every j)er8on who has died since thetliirtv- first day of December, IHflH, or who dies after tlie passing of tliis \ct K. S. (). ]H77, c. IOC), s. 8. 5). In the construction of the sections numbered 10 to .30 inclusive in this Act. 1. " Will '" shall extend to a testament, and to a codicil, and to nri aj)pointment by will, or by writin<^ in the nature of a will in exercise of a power, and also to a disposition by will and testament, or devise of the (!Ustody and tuition of any cliild, by virtue of the Act passed in tlie twelfth year of tlie reij^n of Kinj,' C.'liarles the Second, entitled " An Ad for tdkiiip (iiiyiij tlip Court of Ward*, and lireru's diid tenures in I'ajiitc, nnd hy knitiht's Kcrvicc ). [,-, 10. It any i)or>(oii who attests the execution o! a will is, at tlw time (jf the execution thereof, or becomes at any time iifti;rw:irilH, iucoinpi^tent to he admitted a witiie.ss to prove the execution thereof. 8ui;li will siirtll not on that account be in%-alij. K. H. O. 1K77. c. lOi;. ^ |f;' 17. If imy j)ersoii attests the execution of any will to whom, or to whose wife or husl)and, any beneficial devise, legacy, estiite, interest. i^ift, or appointment of or af'tectint; any real or personal t'siate ((iUut than and (!xcei)t oliarj^es and direciKjns for the payment of any ilfi)t or debts) is thereby f^iven or made, such devise, le>.;acy, estate, interest, jiift, or a])pointment shall, so far only as concerns sncii person attcstin;; the execution of such will, or the wife or husband of such person, ur any person claimint" under such person or wife (jr husband, he lUterlv null and void, and such person so attesting,' shall ije admitted as a witness to prove the execution of such will, or to prove the validity or invitliditv tlareof, iiotwithstaiiditi'; such devise, lej^acy, estate, interest, yift, or appointment mciitionel in such will. 11. S. (.). 1877. c. U)li, s. 17. IW. In Ciis<> liy an\ will aiij' real or personal estate is chur^eil witli any t is so charjied attests the execution of such will, siicii creditor, notwithstaiulint^ such char^'e, shall be admitted a witness ti prove the execution of such will or to prove the validity or invalidilv thereof. K. S. O. 1877, c. lOli, s. 18. |f>. No person shall, on account of his bcin;{ an executor of 11 will, b" incompetent to be admitted a witness to prove the execution of snei; will, or a witness to prove tlie validity or invalidity thereof. H. S. c. 101), s. I'.t. 30. livery will shall be revoked by the marriage of the testiitor, ey.cept a will made in the exercise of a power of appointment wlune tl.- real (u- personal estate thereby appointed would not, in default of sm h appointment, ))ass to the testator's heir, executor or administrator, "r the person entitled as the testator's next of kin under Tlw Stiiluti' '» Dliirihutioti-i. R. S. O. 1877, c. 100, a. '20. See srctton 8 0/ thin Act. til. No will shall be revoked by any presumption of an intentioi; on the j^round of an alteration in circumstances. U. S. O. 1877, c W'. 8. '21. .S'cf" section 8 of thU .id. *22. No will or codicil, or any part thereof, shall be revokil otherwise than aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writinj^ declarint^an iiitention to revoke the same, and executed in the maimer in which a will i' hereinbefore retjuired to be executed, or by the burning,', teariii;,', or otherwise destroying; the same by the testator, or by some person in lii» presence and bv his direction, with tlie intention of revokiiif^ the saint. R. S O. 1877. c. 100, s. '22. Sre sertion 8 of tlii^ .ict. WII.I.S Ai of The WilU Art, viz : — .S'ccs-. vT to 39 inc. ri'iatr, for ' ' musf itart, to tin; eji'.'ct and coitfitriiction of Wills). R. S. O, 1887, CHAPTER V.l, SKCS. 1, -J, ;5, 4. .\i! .\et respecting,' the .-Vdministration by the CJrown of Estates of Intestates. 1. So often as the Lieutenant-Governor, by a warrant under his privy *il, is pleased to direct Her Majesty's Attorney-Cieneral for Ontario to l witliout liiavmfj any known relatives livinj,' within the Provini'e, av aiiv known relatives who can be reailily communicated witli, living; eisewliere, the Lieutenant-Ciovernor may {if lie thinks iit) by warrant under liis jjrivy seal direct the Attorney-General for Ontario to apply for andiibtaiii Letters of Administration, whether f^eneral or limited, of the estate luirj effects of such person ; and it shall be lawful for any comjietent Court, upon apj)lication in i)nrrfuance of the warrant, to ;^rant adminis! ration to the Attorney-General and his successors in the odice of Attormv General, for the use and benefit of Her ^lajesty or of such persons as niiiv ultimately api)ear to be entitled thereto. U. S. O. 1877, c. tJO, s. 2. Set Cap. lOS, sa. 4 (1), 10. !t. The administration so i^ranted, and the office of administrator under the t;rant, with all the estates, rij^hts, duties and liabilities of sulI; administrator, shall, upon the death, resignation, or removal of tin .\ttorney-General for Ontario for the time bein^', devolve upon and lioconif vested and continue in tlie succeediui^ Attorney-General, by virtue of his appointment, and so in perpetual succession, without any further t^rai;! of administration or any assignment or transfer of the estates nf thi- administrator; and all actions, and other proceedings whatever by or against the Attorney-General for the time being, as such administrutor at the time of his death, resignation, or removal, shall continue, and in:iy be proceeded with, by, in favour of, and against the succeeding .Mtoriicy- General, in like manner ; saving always, the effect of every limitation in duration or otherwise under the terms of the grant of such adininistni tion, and saving to every Court having jurisdiction in this behalf all such right and authority to revoke or repeal such administration as tiie Court would have had during the continiumce of a like administration ^.Tanted to a noininee of Her Majesty in case this Act had not been passfi. 11. S. O. 1877, c. (iO, s. :i 4. It shall not be necessary for the Attorney-General applying for or obtaining grants of administration to the use or benefit of Her Majesty, to enter into, or cause to be entered into, any bond to the .Jiidt'i- of the Surrogate Court; but the .\ttorney-< General shall, in relation to every such administration, be subj^ict to all the liabilities and diitit- imposed on an administrator by the condition of the bond prescribed by the rules and orders now in force or hereafter made under TIu: Surn^gau Courts Art. H. S. O. 1877, c. GO, s. 4. 53 VICT. CHAPTEIl -29. An Act to protect persons acting as Executors or Administrators. [Asiteutcd to 7th April i*!*!'- Her Majesty, by and with the advice and consent of the Lejiisl&tivf .Ai-sembly of the Province of Ontario, enacts as follows : ACT TO I'KOTKC'I' EXECUIOIJS OH A 1)M1N1STU.\T( >I',S. 557 1. Where any one luis been or is hereafter appointed by a Court Kiviiij; juriH- '•'*' m- til) Where a testator devised and bequeathed all his real and per- soinil estate to his excctutors and trustees for the purpose of prtviiitia nnmljerof pecuniary legacies, some to personal legatees, and otiu-rp t, eluiiitable associations, and provided that the ri'sidne of his vMa'a should be divided pro nitn among the Ifgatees, it was held that it was the duty of the executors to deduct the succession duly jjayiible i) respect to the i)ecuniary legacies before pnying the balance over to tli- higatees respectively, and they had no right to pay such succession diit\ out of the residue left after paving the legacies in full : Kcnneihi v. i'/'> ti'>itinit Oi-iJi ni^' lloiin; 14 ('. \j. T. 'J',)?: -."> O. K. 2;}') (18il4): see ale 'J'lii' Liiii'iiilriijii'iK' I list it II I ion, ")K I,. 'J', ".I4'.l. SrccESSIOX IH'TIES ACT. ^•'■>9 001 reli'^ionp.cliii'-'ituble <1. Save UK iiforosiiid, all proptTty sitiiiitc witliiii tliis Proviiici', will re the deceiist'il person ()\viiiii(4 or entitled tliereto whk dotniciled III Ontario iit tlie time of liiK deatli or had been so doMiicii(!d in Ontario witliiii liv(! years previous thereto - jjassin},' eitlier by will or intestacy. Ill- iuiy interest therein or ineonu' therefrom which shall be voluntarily triinsicrrcd by tleed, tyrant, or ;^ift made in contcnii)lation of the death of the t Geo. H, c. .V2, imposing,' le^iacy liiily, Cottenhani, L.{.'., said : — 'When the Act speaks of any will of any I'lrson and of lej^acies beinj^ payable out of the ))ersonal estate, it must, I tliink, be considered as speakinj^ of persons and wills and personal • ■^lates ill this country ; that l)einn the limit of the sphere of the enact- :iient ; and it was held that the p(>rsonal assets situate in India, of a testator who resided and dies in India, were ii.it subject to let^acy duty ill lin^iaiid. althout^h sucii assets were afterwtirds remitted to I'ln^iland iiiid ;uiiiiinistered under the Court of Chancery there": Aninldv.A., - Myl. ,V Or. 2rA'). As to the Laws of certain States of the Cnited States '11 Lej^acy and Succession Duty, parliciilariy the Ijaws of the State of New York with '•"rtain jjrovisions of whicli some of those of the Ontario .^ct are identical . See Dos Passos on Le^;acy and Succession Duty, and •asos there referred to. ('/) See At!y.-(U:ii., N.Il. v. .SV,//v, 14 C. L. T. 'id?. ^Mffi 560 A I'l'KN I )I X — STATUTES. (a) I'roviileil tlnit wlioro tlio wliole valiU! of iiiiy iiropiTty duvised beqUfiitlied or mHsiii^; to any one ix^rsuii undor u, will or iiituHtiitv ilotH not oxcoed $'2() * »hu suinu hIuiU bu exempt from piiymunt of tliu duty imposcl by this section. Si. An ex(!cnt()r or ailministrator applyin;^ for Letters I'rolintu or Ii(!tt('rH of AdmiMiHtraliun to tlie estate of a deceased person sluill, hcfure tiie issue of Li^tter;! I'robate or Administration to liini, make and tile witli the Surro^^iito He^^istrar a full, true and correct stateineiit under oatli showing; (a) full itemized invent(jry of all the property of iho doccivsfil person and the market value thereof. (/<) The several ^)ersons to wlnim the sime will pass nndiT the will or intestacy and the dtj^^ree of ri'liitioii ship, if any, in wliieli they stand t) the deceasiMl; and the exeeutoror administrator shall before the issue of Jjetters I'roljate or J^ftlci's of Administration deliver to tiie Surro<^ate Ue^^istrar a bond in a penal sum ecpial to ten per centum of the sworn value of the ))ri)pi'rly of the deceased porson liable to succession duty, executed by himself and two sureties, to be approved by t!ie Ue^^istrar, conditional for tlie diii' payment to Her ^lajesty of any duty to which tiio property coniiiii; to the lian is of such executor or administrator of the deceased may be found liable. ('2) I'lus section does not apfily to estates in respect of which no succeasion duty is payable. O. fn case the Treasurer of the Province is not satisfied with tho valu" so sworn to, the Surroj,'ato lle^^istrar of the county in wiiicJi any property subject to the payment of the said duty is situate shall, at tlie instance of the Provincial Treasurer, his solicitor or a^'eiit, direct in writiiifj that the sheriff of tlie county shall make a valnaliuii ami appraise the said property. ^. In such case the sheriff shall forthwith give due and siifficit'nt written notice to the executors and administrators and to such other persons as the Surroj^ate Rej^istrar may by order direct, of the time and place at which he will appraise such projierty ; and he shall appraisi' the same accordintily at its fair market value and make a rt))ort tlierenf in writini^ to the Surrojjate Rej^istrar, together with such other facta in relation thereto as the Surroj^ato Ref^istrar may by order reipiiro, and such report shall be filed in the oOice of the Surroj^ate Rej^istrar. The sheriff shall be entitled to receive the sum of ^'t per diem for services performed under this Act, and his actual and necessary travelliiif; expenses, and the same shall be paid to him by the Treasurer of the Province. S. The Surrof^ate Rooistrar shall, upon receivint; the rejjort of the aherilf, fort with assess and fix the then cash value of all estates, interests, annuities and life estates or terms of years <,'rowin^i out of such estate, and the duty to which the same is liable, and shall iiniiiedi- ately ;,'ive notice thereof by re^'istered letter to such jjarties as by the rules of the Hif^li Court would be entitled to notice in respect of like interests in an analof^ous proceeding, and the Surrof^ate Rej^'istrai nniy appoint for the purpose of this Act a muirdian for infants who have no •guardians, and the value of every future or continf^ent or limited estate, income or interest shall, for the purpose of this Act, be detcruiiiieil by SUCCESSION DUTY ACT. 561 ropi'rty (IovIhciI, If iiitcjHtiicy (locii lent uf tliu duty tiers I'roliivtc or :.s<)ii hIihII, bt'furo nxkv and tili^ witli luent iimlfr ontli of llii; (Itjci'ivsed pernoiis tn wliuiii (,'^ri'(j of rt'liitioii 1 tlu' exiMMitoror ite or Li'tlcrs of 1(1 ill II pt'iml Hiini ; jjroporly of iIil- liiiiiHt'lf ami two nod for the diU' •operty eoiniii;; to (lecuased iiiiiy be pect of wliicli , satisfied '.villi tlio luty ill which any tiiate sliall, !it tiie )r a^eiil, dirci't in ; a valualinu and the riilo, metliod and staiidardH of mortality and of value, which arc tinploycd hy the Provincial Inspector of InHiiranco in aHiiertainiiit; the Tdhu! of poiicit'B of life inHurancu and anntiitieH, for the dcterniination i,f tin' lialiilitii'H of life insurance conipanieH, 8a\(! that the rate of intt.Test to be assessed in coiriputint! tiio present value of all future interests and (•oiitiiit,'encies shall be five jier centum per annum ; and the Inspector of liiMiranco shall, on the appliealion of any Surrof,'ate l{ef,'istrar, iletLTiiiine the value of sueii future or continj,'eiit or limited estate, inco!neor interest, upon the facts contained in such report, and certify the same to the Surrot,'ate Uenistrar, and his certificate hIiiiII be conclusive as to the matters dealt with therein. 1). Any person dissatisfied with tlu^ appraisement or asseasir.ent niiiv appeal tlierefrom to the Kurrof^ate' .liulf^e of the projier county witliiii tiurty days after the n\akiii^ulationa dhiill bo laid boforo thu Lof^iaiativo Aasonibly forthwith, if tho Li-j^iala- ture ia in aoaaion at tiio date of audi r();,'ulationH. ,uid if tho Lo^ialaturo Id not in aoaaion Huoh re>,'ulalicna ahall bo 'md boforo tho Ilouao within the tlrat aovun daya of tho soaaion next uftur audi ro^ulationu are made. Pursuant to Order in Council the following Explanations and Refjulationa were iasuod : — Toronto, July 14th, 1892. SiK,— In tho diachartio of tho duties imposed on you by The .S'ltccco - lion DiUie.i Act, 18'J2, the foUowinfi aynopsis and oxplaimtion of the Act may bti useful, and I am directed by tho IIiMiourablo tho Treasurer to imi\ the aame to you with tho rej^ulations which havo been made by the Lieutenant-Govornor in Council, and the forma approved by tho Order. I. The words "agyref^ato value" occurrinf; in the Act are to be construed aa meanin>{ the a^^jrefjato value of tho property after payment of all debts and oxpenKes of administration, in the same manner as tlio word " value " is used in the Act. See sec. 3, aub-s. 1. 3. All euccesaion duties are to bo paid to the Treasurer of the Pro- vinco of Ontario for tho time being. 3. No duty ia co be payable in the following cases : — (a) Where the value of the property does not exceed ^10,000. (b) On property given, devised or bequeathed for religious, chari- table or educational purposes. (c) Property passing to parties mentioned in section 3, sub-s. 3, of the Act, where the value does not exceed $100,000. (d) Where bequest or devise does not exceed $200 although value of property exceeds |l0,000. 4. The succession duties payable are as follows ; — («) Where the property passes to or for tlie use of the parties named in section 4 of the Act, sub-ss. 1 and 2 ; If aggregate value exceeds $100,000, $2.50 on each $100 of the whole vslae ; If aggregate value exceeds $200,000, $5.00 on each $100 of the whole value. i: 1 friili;: K'v" i''r .11': 564 APPENDIX — STATUTES. {!)) Where the property passes to or for the benefit of the parties named in section 4, siib-s. 8 of the Act, and the aggregate value cxceedB »10,000, $5.00 on every 8100 of the whole value. (c) Where the property passes to or for the benefit of the parties named in section 4, sub-s. 4 of the Act, and the aggregate value exceeds $10,000, $10 on every $100 of the whole value. 5. Where the estate left by the deceased does not exceed $200,000, and the same passes in various amounts to parties named in section 4 Bub-ss. 1, 3 and 4 of the Act, tho succession duties payable on each amount respectively will be as in paragraph 4 hereof. Thus, if the aggregate value of the estate is $150,000, of which say $50,000 pas-n to parties named in sub-s. 1, there w'll be $2.50 duty payable in respect of each $100 of this $.''>0,000 ; and if the second $50,000 "passes to parties named in subs. 3, there will be $5 duty payable on each $100 of this $50,000; and if the third $50,000 passes to parties named in subs. 4, there will be $10 duty payable on each $100 of this $50,000; and soon according to the amounts passing to the various classes [of persons specified. In case the aggrej^ate value of the whole property left by the deceased exceeds §200,000, the duty payable by the parties named in sub-s. 1 will be S5 for every e same as those payable in contentious matters under The Sunogate Conrtu Act. li. The subjoined forms are to be followed as nearly as the circuni Btances of each case allow (a). I have the honour to be, Sir, Your obedient servant, D. E. CAMERON. Assistant Frovincial Treasurer. (n) For Forms rWe po«t. SURROGATE COURTS ACT. 565 SECTIONS OF THE SURROGATE COURTS ACT, AS AMEND- ED BY 53 VICT. C. 17, NOT SET FORTH IN KXTENSO IN PREVIOUS PAGES, VIZ :— Notice of Application. 41. In case of an application to a Surrogate Court for the grant of probato or administration, notice thereof shall, by the Registrar of the Court, by letter post-paid, be transmitted to the Surrogate Clerk by the next post after the application, and the notice shall specify the name and (iescription or addition, if any, of the testator or intestate, the time of bis death, and the place of his abode ut his decease, as stated in the iOidavit or affidavits made in support of the application, and the name of the person by whom the application has been made, and such other particulars as may be directed by the Rules or Orders in that behalf. Ah to traiiamis- sion of notice of applica- tions for grants of j>rol)atc, etc., to S\U'rt)gate Clerks by Registrars. I IN Council. 43. Unless upon special order or judgment of the Surrogate Court Proceed- no probate or administration shall be granted in pursuance of the appli- ings to be cation until the Registrar has received a certificate, under the hand of the cpr'fjfif... tp Surrogate Clerk, that no other application appears to have been made received ia respect of the goods of the same deceased peison, which certificate the '""oni Sur- rogate Surrogate Clerk shall forward as soon as may be to the Registrar, Clerk nearly as the circum 43« All notices in respect of application in the several Surrogate Surrogate Courts shall be tiled and kept by the Surrogate Clerk. Cleik to file notice. 44. The Surrogate Clerk shall with reference to every such notice, j),,^.. ,,f examine all notices of such applications received from the several other Surrogate Surrogate Court Registrars so far as appears to be'necessary to ascertain i \ '''' whether or no application for probate or administration in respect of the t(, notices. property ol the same deceased person has been made in more than one Surrogate Court, and he shall communicate with the Surrogate Court Kej^istrars as occasion may reijuire in relation to such applications. 45. In case it appears by the certificate of the Surrogate C'erk Proceed- that application for probate or administration has been mado to two or {"^'"l-'^''' more Surrogate Courts, the Judges of such Courts respectively shall stay has l)eeii proceedings therein, leaving the parties to apply to one of the Judges of ">ade to the High Court to give such direction in the matter as to him seems y,j,.v^„yj.|,. necessary. gateCourt. Mill ::t 566 APPENDIX — STATUTES. ,1 ' 1 1 ' ' 1 ; Judgment 46> On application made to such Judge of the High Court, he shall as to what inquire into the matter in a summary way, and adjudge and determine have juris- what Surrogate Court has jurisdiction and shall proceed in the matter, diction. Order as to 4'^» ^^^ Judge of the High Court may order costs to be paid by cuBtB. any of the applicants, and the order shall be enforced by the High Court. Judge's *8' "^^^ determination of the Judge shall be final and conclusive, decision to and so soon as may be after the determination has been made, the W final. Surrogate Clerk shall transmit a certified copy thereof to the Registrars of the several Surrogate Courts wherein such applications as aforesaid have been made. APPENDIX II. KURROGATE COURT RULES, 1892, AND FORMS. [Fm Rule 1270 of the Supreme Court of Judicature, approving the following }tulei>, inde ante, p. 7.] RULES. The Judj»e3 of the Supreme Court of Judicature for Ontario do, in pursuance of the powers conferred by the Revised Statutes of Ontarioi cup. 50, sec. 78, and 53 Vic, cap. 17, sec. 19, order and direct that the rules, orders and directions hereinafter set forth shall henceforth be the General Rules and Orders in non-ccntentious business and in contentious basincBS, respectively. For ref^ulating the procedure and practice of the Surrogate Courts. For regulating the duties of the Registrars of the several Surrogate Courts and the duties of the Surrogate Clerk ; and For fixing the fees to be taken by the Registrars and other Officers of the said Courts, and by Solicitors practising tlierein ; and also In relation to the provisions of the Surrogate Courts Act, and the Uevolution of Estates Act, All rules and orders heretofore passed and not included in these rti't s are rescinded, and these rules shall take effect on and after the firstday of April, 1892. All practice inconsistent therewith is superseded. Ah to matters not provided for in these rules, the practice is, as far as may be, to be regulated by analogy thereto. (See Rule 8, Con. Rules of Practice). In any matter not so provided for in which the practice can not be regulated by such analogy such practice shall be regulated by analo!,'y to the Consolidated Rules of Practice of the Supreme Court of Judicature for Ontario (a). (a) Analogy. — By Rule 3 of such Consolidated Rules of Practice it is provided that — " As to all matters not provided for in these rules, the practice is, as far as may be, to be regulated by analogy thereto." Where a case arir'es which is not provided for by any rule, but bears ft resemblance in its relations or some of its relations to the case which ie provided for by a rule, the eijuity of such rule will be applied in Former Rules re- scinded. Matters not pro- vided for. I'r.actice S. C. Jud. ;r , 'f : f*'if n'- if 568 APPENDIX. tluflp;t' to have jxjwcr to sit at any time. Subject to Rules of Court, the Judf»e of the Surrogate Court shall have power to sit and act at any time for the transaction of any part of the business of such Court, or for the dischar<;e of any duty which by any Statute or otherwise was formerly required to bo discharf^ed out of or during term. (See Uule 1255, Con. Rules of Practice). Noii-CDu- tmitious business. Applica- tion. PROCEDURE. 1. Non-contentious business shall include all common form buHinesii us defined by the Surrogate Courts Act, and the warning of caveats, 2. Ai)plication for probate or administration may be made by a solicitor or in person. So-oii days 3. No probate or letters of administration, with the will anuexed, from (l(!ath yjiail igsuo until after the lapse of seven days from the death of the or etc. deceased, unless under the direction of the Judge. Fourteen days be- fore ad- mission. Applica- tion to be by petit'n, — what {)etition shall show, — pro- {x-rty. 4. No administration shall issue until after the lapse of fourteen days from the death of the deceased, unless under the direction of tlie Judge. 5. Every application to a Surrogate Court for grant of probate or administration must be by petition prepared, signed and presented by the applicant or his solicitor. Such petition shall in every case show the value of the whole property of the deceased, and also the separate value of the persoiiil and real estate, and full particulars of an appraisement of the snil property shall be exhibited with such application and shall be verified upon oath. Searo will. for 6. Upon every application for grant of administration, it must be shown that search for will or testamentary paper has been made in nil places where the deceased usually kept his papers, and in his deiiositories. The afiidavit should be made by the applicant, but the proof may, with the Judge's consent, be made otherwise. It must also be shown that search has been made in the office of the Registrar of the proper in reg'y. Surrogate Court, and the certificate of such Registrar shall be sufllcieiit proof of such search having been made. — in de- {Kisitories disjjosing of the case so arising. The principle is well established as to statutes : Maxwell on Statutes, '2nd Ed. 47 ; Endlich (Am.) s. ;i27 ; The (^iieeu V. CommiaaionerH of Income Tax, 22 Q. B. D. 2y() at pp. Hllli. And the rule as to the equity of a statute is said co be especially applicable to statutes relating to practice and procedure. Ilaiiiiet v. Wallace, 28 N. J. L. 523. For instances of the application of Rule ^3, see Woltf V. Osjilvy, 12 P. R. (i45 ; Smith v. Hounton, 10 P. K. 18 ; and see Morse v. Lamb, 15 P. R. 9. SUUROGATE COURT RULES, 1892. 569 may be made by n 7. Unless the Judfje sliall otherwise order, the Re<^istrar shall with Admin 't'n the iipplication for grant of administration submit the bond (h) proposed "'" ■ to bo f,'iven, with the necessary aflidavits of justification {<•) and of execution, and in every case such bond shall be without material erasure or interlineation. 8. The necessary aiifidavits to lead j^rant, and the usual oath of W'hi-n atti- executors and administrators may be taken at the time the application •'•'^ '*■■' ^" for grant is 8i{«ned, or afterwards at any time before the application is nmy hi? uiibniitted to the Judge for his order and direction. The proofs to load takt-n. jrant may be embodied in one afiidavit. 9. If there should appear to be any material variance between the \'iiriiince. application and affidavits made in support thereof, the .Judge may direct such ajjplication to be amended according to the fact, and a new nolii^u Anicnd'nt. on such amended application to be sent to the Surrogate (Jlerk. 10. The due execution of the will or codicil shall be proved by one of I'-Xccution tlie witnesses, or the absence of the witnesses accounted for; in which" .V!''"" C(»ilic;il to last case such will or codicil, must be established by other proof, to the be proved satisfaction of the Judge. by witn'ss. 11. The oath of administrators, and of administrators with the will Oath of annexed, is to be so worded as to clear off all persons having a prior riglit '*■"»'">. tor. r n I M Prior ui to tlie grant. In these cases tlie grant should show on the face of it how tcnists to the prior interests have been cleared off. •«' cleared off. 12. The usual oath of administration is to be reduced to writing, and 0;itli to lie to bo subscribed and sworn to by the executors or administrators as an in writim;. iillidavit. 13. Under the Statute tlie several Surrogate Courts have power to special appoint an administrator other than the person who, prior to the Act, grants would have been entitled to the grant. (Sec. 50). Whenever tlu Judge r^j _^q'^y sees fit to exercise such a power, the fact should be made plainly to appear in the oath of the administrator, in the letters of administration, and in the administration bond. 14. Where limited administrations are applied for, it must be made r,ii„ite(l to appear that every person entitled in distribution to the property has adininis- oonsented, or renounced, or has been cited and failed to appear, except ''™''"'"'^- when the Judge sees fit otherwise specially to direct. {!)) Forms 18, 19. (i) Form 20 ; see Rule 32. iiiiiif .570 APPENDIX. — not to p«!rsnn entitlttl to Kfiicral grant, ex- cept, etc. RecitalH in oath, etc. 15. No person entitled to a grant of administration of the property of the deceased f^enerally shall be permitted to take a limited ^^rant, except grants for personal estate only, under section 58 of the Surrogate Courts Acts. 16. In administration of a special character the recitals in the oath and in the letters of administration must be framed in accordance with the facts of the case. (irants to 17. Grants of administration may be made to the guardians of giLT-nlians infants and minors, for the use and benefit of such infants and minors of infants. , . , . . -■ , . , . , ,, • , , during then minority ; and elections by minors of their next of kin, or Elections, next friend, as the case may be, to such guardianship, shall be required when the infant is fourteen years of age and over. (See Cap. 137, R. S- O., Sees. 4, 10, 18). Marking will by ex- ecutors, etc. 18. Every wUl or copy of a will, to which an executor or administra- tor with llio V.-"' ^nexed is sworn, should be marked by such executor or admiiJ ■t'*' c.r ' by the person before whom he is sworn. Executors and ad- minist'tors to exhibit inventory and render account. 19. (d) 1.x OL-i'.rs and administrators shall within a period of eighteen months after grant made, and sooner if the Judge shall so direct, exhiL't umler oa(h a true and perfect inventory of the property of the testator or iii jtaii ^us iho case may be), and render a just and full account of their executor. jiiip or administration. The Judge shall upon application made to him for that purpose have power to extend the said period of eighteen months. If the executor, or Except'ns. administrator with the will annexed, is the sole legatee or devisee of the property devolving, the Judge may direct that he shall be relieved from the operation of this rule, provided there are no creditors of the estate. Rules as to («) The general rules wliich govern in the Master's office of the auditing. Supreme Court of Judicature under a judgment, or order of reference. and the rules of practice and procedure thereof for the time being, so far as the same can be made to apply, shall be adopted in the case of the auditing an executor's and administrator's account by the Judge, sub- stituting the word " Judge " for the word " Master " and also for tlie word " Examiner" wherever it occurs in any such rule. (See Con. Rules of Practice, 57 et acq. to Rule No. 59 inclusive). (d) See Statute suspending this rule, ante. p. 542-1. While these pages were in press an Act was assented to, April 16, 1895, providing that : " Tlie 19th of the Surrogate Rules adopted by the judges of the Supreme Court of Judicature for Ontario is hereby limited to cases in which a party interested in an estate takes proceedings to obtain such inventory and accounting as therein mentioned, or in which infants are interested in such inventory and accounting." — The Law Coiirtu Act. 1895, sec. 30. SURROGATE COURT RULES, 1892- 671 in of the property 3 a limited tyrant, 18 of the S\irrogate ecitalB in the oath in accordance with the guardians of ufants and minors leir next of kin, or ), shall be required (See Cap. 137, U. S- jntor or administra- id by such executor is sworn. vithin a period of the Judge siiall so itory of the properly 1 render a just and . The Judge shall [no have power to If the executor, or egatee or devisee of he shall be relieved no creditors of the iaster's office of the order of reference, he time being, so far in the case of the . by the Judge, sub- and also for the word (See Con. Rules of 542-1. While these 1 16, 1895, providiui! by the judges of tlie y limited to cases ir idings to obtain such in which infants are lie Law Couru Act. 20. A will deposited for safe keeping in the office of the Registrar of the Surrogate Court shall not be removed therefrom, except by the testator in person, unless the order of the Judge permitting such removal ghall have been first obtained. 21. In all cases in which it has been heretofore necessary to issue a citation to accept or refuse probate of a will, or to accept or refuse letters of administration, or to issue a subpoena to bring in a testamentary paper, and in all similar cases, the Judge's order shall be made, and shall have tlie lilce effect as such citation or subpoena formerly had. (See Rules 1015 and 1098 Con. Rules of Practice and see new form 30). 22. The party entering a caveat must declare therein the nature of his interest in the property of the deceased, and state generally the grounds upon which he enters such caveat, and the same shall be signed by the party, or by his solicitor on his behalf, and the proper place mentioned as the address of the party or of his solicitor entering the caveat; and no caveat shall have any force or effect unless the require- ments of this rule be in substance complied with. Jtid{?eV order re- tjuirc'd for removal of will, ex- cept testa- ti)r. .fudfre's order. Caveats. Interest of caveator must ap- pear. 23. A caveat shall remain in force for the space of three months Duration only and then expire to be of no efTect ; but caveats may, subject to "^ caveat. the Judge's order, be renewed from time to time. (See Coote, 271 and 272). 24. In order to clear off a caveat when no appearance has been Proceed - entered to a warning duly served, an affidavit of the serN'-e of the •"!?'^ to warning, stating the manner of service, and an affidavit of search for i,a,vgat appearance and of non-appearance must be filed (e). 25. No caveat shall affect any grant made on the day on which the caveat is entered, unless notice of such caveat has been received prior to the nT&nt passing the seal. 26. A caveat shall be warned at the place mentioned in it as the »ddres8 of the person who entered it or of his solicitor. 27. It shall be sufficient for the warning of a caveat, that the Warning RejiiHtrar of the Court in which application for grant is made send by caveat, public post, prepaid and registered, a warning signed by himself - pl.ice. bearing the seal of the Court, and directed to the person who entered 7 I'y re- it, or to liis solicitor, if signed by a solicitor, at the address mentioned fj^^^*^'^"^ '^ ill it. post. 28. Any person intending to oppose a grant of probate or adminis- Oppcising tration, for which application has been made to a Surrogate Court, mu8tKr'i"t- within ten days after service appear, either personally or by a solicitor, [e) Same as E. C, P. rule C7. U' ': rS i 572 Entry of ap'ear'nw' Special din^ution of .1 iidge. Citations, servico. Advertise- ment of. Citations iimh^r see. 3«, Act. Form of Bond. Sureties. — if pro- perty under «200. — other cases. — V)onds, double amount of fund. Notice to Surroprate Clerk. APPENDIX. and enter an appearance in such Court in which appearance the address of the party, or of his solicitor, shall be given. This rule is to apply whether the person inteudinf» to oppose the (^rant has or has not been previously warned to a caveat, or served with a citation. (See Coofe 301, Rule 07, English Rules of 1802 (/). (.S'cf Rules in contention hminesn, ■pogt). 29. When a party iutendin^j to oppose a f^rant, has filed an appear- ance with the Registrar, no further steps in respect to such grant shall be taken, except under the special direction of the Judge. (See Rulei i;i contentious business, post). 30. Citations against all persons in general and other instrumeiita heretofore required to be served by affixing them in some public place, are in future to be served by the insertion of the same as advertisements in such newspapers, local, British, or foreign, as the Judge may, from time to time direct. Such citations can only be allowed to issue in cases where there is an affidavit to lead them and a Judge's order. (See Rule 21 ante). 31. Citations under the 38th section of the Act may be served by inserting the same as advertisements in such one of the Toronto mornint; papers, or such other papers, local, British, or foreign, as the Judge of the Court may, by special order, direct. 32. The bond to be given upon any grant of administration shall be according to the forms subjoined, or in a form as near thereto as the circumstances of the case admit. (See Sec. 55 of the Surrogate Courts Act, and 53 Vic, Cap. 17, Sec. 14.) 33. The sureties in such bond are required in all cases to justify. (See Sec. 05 of the Surrogate Courts Act). And such justification shall be to an amount or amounts which in the aggregate shall equal the amount of the penalty of the bond. No Surrogate Clerk or Registrar shall become surety to any administration bond. 34. In ordinary cases where property is bona fide under the value of two hundred dollars, one surety only may bo taken to the administration bond. 35. In all other cases, unless the Judge shall otherwise direct, two sureties are always to be required to the administration bond, and the bond is to be given in double the amount of the fund to bo dealt with under the administration. 36. Whenever any renunciation is filed subsequent to notice of application to the Surrogate Clerk, or any alteration is subsequently (/) This reference appears to be an error. The English Rule 67 is one that corresponds with Rule '24 of these Rules. SURROGATE COURT RULES, 1892- 573 Ihe English Rule 67 is made in the grant, notice of such renunciation or altersition is to be immediately forwarded by the Registrar of the Court to the Surroj^ato Clerk. 37. Every aft'ulavit Bhall bo drawn up in the first person, statinj^ tlie Attidavite. nuinc of the deponent at the oommencment in full, and his description y .. and true place of abode and shall be signed by him. (See Rule (lOo, Con ties, solidated Rules of Practice). 38. In every affidavit made by two or more deponents, the names of — several the several persons making it are to be written in the jurat. E.xcept dtJiiuiiDiiU. that if tlie aflidavit of all the deponents ia taken at one time by the same oflicer, it shall be sufficient to state that it was sworn by both (or all) of tiie " above-named" deponents. (See Rule GOG, Con. Rules of Practice). 39. There shall be appended to or indorsed upon every affidavit, a — note, ;iied by half it ia filed. (See Rule G08, Con. Rules of Practice) note sij^ned by the solicitor or the party in person, showing on whose be- whose behalf filed. 40. Where an affldavit is made by any person who is blind, or who, —by blind from Iiis or her signature, or otherwi.se, appears to be illiterate, the Rejjistrar or other officer before whom such aflidavit is made is to state in the jurat that the affidavit was read in his presence to the deponent, and that such deponent seemed perfectly to understand the same ; and iil.so that the said deponent made his or her mark, or wrote liis or her fijjnature, in the presence of the Rrgit-trar or other officer, before whom the same was taken. No such affidavit shall be used in evidence in the absence of this statement, unless the Court or a Judge is otherwis-e Katisficd that the affidavit was read over to and apparently perfectly understood by the deponent. (See latter clause of RuleG12, Consolidated lliileB of Practice). il No affidavit having in the jurat or body thereof any interlinea- tion, alteration, or erasure shall, without the leave of the Judge, be read or made use of in any matter pending in any Surrogate Court, unless the interlineation or alteration (otlier than by erasure) is anthcnticated by the init al" ot the officer taking the affidavit; nor in the case of an erasure, uniess the words or figures appearing at the time of taking the alidavit to be written on the erasure are re-written and signed or initialed in the margin of the affidavit by the officer taking it. (See Con. Jud. Rule 611). 42. No affidavit which has been sworn before the party on whose behalf the same is offered, or before his solicitor, or before the clerk, or partner of such solicitor is to be admitted, unless the Judge shall other- wise direct. or illit'rate person. AUerat'ns in atiid'vt. Not to be sworn be- fore party or so. tor. ' i.artj olici- iiii m APPENDIX. fv^" P;P»! IIkoihtkaks {(f). Rtfffistrar ; *3. Every Re^iHtrar of a Siirrofjato Court shall keep his office open offiei' on such days and during audi iiours as the oflico of the Clerk of the hoard. County Court in reqnirod to be kept open, and every Re^^istrar ahull keep his office at the county town (/(). BookH to 44. Every Kef,'i9trar of a Burrotjate Court shall keep books as nearly be kept. as may be in the manner shown m the forms. lie shall keep such bookii duly indexed from time to time and shall also keep an index of the named of testators or intestates and of executors and administrators, which shall be arranged alphabetically. The Non-contentious Business Hook shall contain columns for the entry of the sworn value of the personal property and of the real property. To en- 45. Every Registrar shall duly endorse and file all papers received dorse and jjy jiiju ^od enter a note thereof, and of every proceeding in the Court file papers. .,',.,,, in the books to be kept. ig) " The Registrar of every Surrogate Court shall tile and preserve all original wills and testamentary instruments of wiiich probate or letters of administration with the will annexed are granted in suoH Surrogate Court, and all other papers used in any matter in such Court, subject to such regulations as may from time to time be made by any Rules or Orders under this Act in relation to the due preservation thereof, and the convenient inspection of the same." S. C. A. s. 1.'}. " On the first Tuesday of every month, or oftener if required by any Rule or Order respecting Surrogate Courts in force at the time of the passing of this Act, or hereafter made under this Act, every Registrar of a Surrogate Court sliall transmit by mail to the Surrogate Clerk, a lint in such form and containing such particulars as may from time to time be required by such Rules and Orders, of the grants of probate and administration made by such Surrogate Court up to the last preceding Saturday, and not included in any previous return, and also a copy certified by such Registrar to be a correct copy of every will to which any audi probate or administration relates, and such Registrars shall in like manner make a return of every revocation of a probate or administration. ' S. C. A. 8. 14. " Neither the Surrogate Clerk nor any Registrar of the Surrogate Court shall for fee or reward draw or advise upon any will or other testa mentary paper, or upon any paper or document connected with the duties of his office for which a fee is not expressly allowed to him by the tariff in that behalf." S. C. A. s. 15. (h) " Every County Court Clerk shall keep his office open for the transaction of business on every day except on holidays and, except as hereinafter provided, from the hour of 10 in tlie forenoon to the hour of 3 in the afternoon. On and between the Ist day of July and the 3l8t day of August, and on and between the 24th day of December and the fitli day of January, every such clerk shall keep his office open for the tran- saction of business from 10 in the forenoon until noon ; and during the Statutory Sittingi, of the Court such Clerk shall keep his office open as aforesaid, on and between the said dates, until 4 in the afternoon." 121)1, C. R. Prac. SURUOOATE COURT RULES, 1892. 575 46. When it is so desired by any applicant for {{rant of probate or Priparii- iiilmiiii.'ii'pare the application and all other forms necessary in non-con- tentious business, without the intervention of a solicitor ; but in no other case shall ho prepare the papers for j^rant. And in no other case slmii any person other than the ai>plicant or liis solicitor, either ilirectly or inilntctly, prepare the application or otlier papers to be used in any application or matter in the Hurro^^ate Court, nor shall any person other tlian a solicitor be permitted to practice in the Surrogate Court. (See Sees. 1)7 and 15 of the Surrot,'ate Courts Act). 47. The Registrar shall properly number and indorse the date of Applica- recoipt of all applications for the grant of probate or administration • ".'I', !",""■ received by him in the order in which they are received, and an entry ,.n(l(,i.„.,| thereof shall be made in the book to be kept for that purpose, with a nimibtr prefixed to correspond with the number on the application. 48. Notices of applications to be transmitted to "The Surrogate >^',,(^jj,,.j^ Clerk ' tmderthe 41st Section of the Act, are to contain the Christian and surname, residence and addition of the deceased, the time of his dwith, Christian and surname, residence and addition of applicant, natiirt; of application, and Court in which made. [Forms are subjoined, to bo varied according to the circumstances. J 49. All papers and communications from Registrars to the Surrogate j'jip^.rH l)v Clerk .shall be transmitted through the post office, the letter or packet to rcgLsten-d be registered and prepaid. " " 50. Every Registrar, upon receipt of a certificate from the Surro- gate Clerk touching an application made to the Court of which he is Rej^istrar, shall forthwith enter a note thereof in the book to be kept for tl'at purpose ; and shall, as soon a,3 may be thereafter, lay such applica- tii 1, and all papers in relation to the same, before the Judge, for his order and direction thereupon. 51. Every order made by the Judge, upon or in reference to any application, shall be noted by the Registrar in the books to be kept for that purpose. K<'gi.strar to make entry of ccititicate received from Sur. clerk, and lay before Judge. .Fudge's order to Imj noted. 52. When the Judge makes an order for the grant of probate or Grant to administration, the Registrar shall record such grant in the " Register he record- Book," and in case of the grant of probate or letters of administration .< ]^,.gif,ter with the will annexed, an exact copy of the will, and codicil, if any, to Rook which such probate or administration relates, shall be underwritten. If ^] \ *'^**^'^ a (jraut be afterwards revoked, a note of such revocation shall be entered will. acro^iB the record of grant in the Register Book. • 57 'If f ' .il -ils'i.-'- (iTftflt to he. Ni^^ncd and Hcalinl. liinl to 1m' s(mt to Siirvoifiit^' cwu. Rf'tfistrar's (iiities ax to 0;lV(';ltH loil)^(i(l. AppoalH. 57f) AI'I'KNDIX. 83. TIh! arlrninistration bond and afHidavitfl of juHtiflcation aiui of exooution sliall bo recorded by tho Uc^^iHtrur in the proper roj^JHtry book. (See K. S. ()., Cap. i;J7, Hoc. ^.^ last clauHo). 54. All probatoH and lottorH of adininintration Hhall be siunnd hy tlie Ilc'j^istrar, and Hcalod with tho «oal of tlio (Joiirt from which tluy nri irtsued, and the copy of the will and codicil, if any, annexed to a probate or to lottorH of administration, shall bo anthenticatod by the Bi^nature of tho llcf,'iBtrar. 85. The list of urantH of probates and administration, and of revo ciition tliereof, required under tlio 11th Section of the Act, to he aenth\ Ro;iiHtrara to tho Surrogate C^Jork are to contain in ea-^li case tlie (Ilirjs tian and Hurnarno, roHiilcnco and addition of tho docoaHod, tho timp of luH death, date of tho f^rant, name, residence, and addition of executor or administrator, nature of ^{rant, and in what Surrogate (!ourt. 56. JO very Registrar of a Hurroijato (^ourt hIwiD number, endorHcami enter all caveats lodjjed with him, in tho same manner as provided ii respect to applications for grants ; and notice thereof (nee form, post) shall be sent to tho Surroj^ate Clerk by the next post after such caveat has bc(;n lodged.* Al'PKAIiS TO THE CotlUT Ol' A I'I'KAI. (/). 57. Appeals under tho 3:ird section of the Act shall bo subject to the foUowinj^ roKulations : In case any person desires to appeal from any order, sonteiice, jiidi; moiit or decree of a Hurrofiato Court, or from the determination of the Juiif^o thereof on any point of law — j^,,j„] 1. lie (or in case of his absence, some one on his behalf,) shall, with $2(>0. two sufficient sureties, exocuto a bond to tho respondent in the 8iim df two hundred dollars, to tho effect that the appellant will effectnally prosecute his appeal, and pay such costs, charges and expenses as shall be awarded in case the order, sentence, jud^jment, determination or decree (as the case may be) shall be atlirmed or in part affirmed. ■Return of *Notf,. — By the Act rei^pectinp PuhHcOlJicern, R. S. O. c. 1/5, s. 29, " Every fcfs. CJIcrk of a County Court and ovory Registrar of a Surroj;ate (Jourt ainl every (Merk of a Division Court for a division embracin<^ a city, or ])iirti)fi> city, shall keep a separate book, in which he shall enter from day to du} all fees, char>,'es and emoluments received by him by virtue of his oflicf. shewnii; the sums received by him for fees, charj^es and emolunH;iits(' all kinds whatsoever, and shall on the l.'Jth day of January in eauli year make up to and including; the 31st day of December of the previous year a return to the Lieutenant-Governor, under oath of such fees, cliar};e- and emoluments so received by him durinj^ tho said year." ((') By The Law Courtn Act, 189;"), section 11, (to go into effect on such day not before Ist Sept., 1805, as tho Lieutenant-Govermr in Council may by Order in Council appoint (s. 1),) it is provided tliiit:- " Subject to sec. (')8 of Thi' Jiidicatnie .^t7, an appeal shall Ho to a Uivi sional Court of the High Court, instead of as heretofore provided by any statute or rule of court," . . " sub. -s. (5) From Surrogate Courts era Surrogate Judge as provided iu The Surroyate Courts Act " <•]. .si'HiiocA'iK ooiin'i" uri.K.s, 1h:)2. 577 uHtifloatioi) und of •opor ro^iHtry boo!'. nil be siKtied by tlie )m which th( y mi nncxcil to 11 i>rohftti 1 by the ninnature «( ration, ami of revci le Act, to be sonl h\ each case the Chrin- Icciuised, tho tiiiio «( l post after such caveat . ('■)• diall be subject to tht order, Houleiice, jwls determination of tho is behalf,) shall, will' londent in the sum ( t cUant will el'fectually and expenses as shall ;nt, determination or part aftirmed. 0.c.ir),s.29,"Everv Purrotiate Court aiu. Lcin; wiiom Re},'istrar on business and proceedings in the Surrogate Courts, as well ''' as postage when necessary, shall be paid to the Registrars, in the first instance, by the party on whoso behalf such proceeding is to be had, on or before such proceeding. In case the Judge's fees are commuted the stamps in lieu thereof shall be produced by the Registrar to the Judge for cancellation. (See the Surrogate Courts Act, sec. 73, sub-sec. 2. 71. Solicitors and Counsel practising iu said Courts shall bo entitled Sulicitors to take fur the performance of business and services under the Act, the aiidcoun- fees set forth in the subjoined table. 72. The Registrar shall tax costs, subject to appeal to the Judge. Taxatiotr. (See R. S. O., cap. -17, sec. 8.) ((•) As to duties of Surrogate (!lerk in easos removed to and deter- mined by the High Court, see sec. iJ2 S. C. A. untr p. 512. i ^: ^1 uW' m » 580 P'orms. APPENDIX. FOUMS. 73. Tlio subjoined forms are to be adopted and followed in ttie several Siirroj^ate Courts as nearly as the circumstances of each case will allow. Limiti-d ■'^" '^^^^ ^^'^ application be limited to administration of personal adinini.s- estate the forms may be modified accordinj^ly. tration. Construe- ''*■ ^" *''*^ construction of these Rules the provisions contained in tion. tlio second section of the Act shall apply. NON-CONTENTIOUS BUSINESS. FouMS. 1. Application for Prohntv in common form Inj a Sole Executor, Unto tho Surro.i^ate Court of the County {or United Counties) of The petition of A. B., of the of , Esquiie, Humbly sheweth. That C. D., late of the of of , in the County in tlie County of dav of , surijcon, deceased, died on or about the A. D. 18 , at , in, etc., and that the said doceasod nt the time of his death, had his fixed place of abode at , in tlie sdid County of , [" or had no fixed place of abode in Ontario" (or "resided out of Ontario") " but had at such time property in tiiu said County of ."] That the said deceased in his life time duly made his last will and testament, bearin<{ date the day of , 18 , [and codicil {or codicils) bearinj; date the day of , A. D. 18 .j That your petitioner is thn cxoeutir named in the said will {or codicil). That the value of the whole proiierty of the said deceased, which h<; in any way died possessed of or eutitlwl to, and for and in respect to which a probate of the said will (ami codicil) is to be {granted, is under dollars. That the vuluo of the personal estate and effects is under dollars, and of the real estate is under dollars, and that full particulars and an appraisement of all said property are exhibited herewith and verified upon oath. \r\A followed in tlie iitances of cacli case 5tration of pursonal (Visions contained in SURROGATE COURT RULES, 1892 — FORMS. 581 Wherefore your petitioner prays that probate of the said will (and codicil i of the said deceased may bo granted to him by said Honourable Court. Dated the day of , 18 . A. B. Or if signed by a Solicitor of applicant, A. U. By his Solicitor, E. F. :ss. SloJe Kxflcutor. nited Counties) of , in the County , in the County of diiy of |e said deceased at the , in tlie Hnid ibode in Ontario" (nr property in tlie said [l in his life time duly day of date the '!»>■ loner is Iho executor of the whole iiroperty Issessed of or luititled ff the said will (and That the value of lollars, and of the real 1 particulars and n" lorowith an.l verified 2. Application for grant of admitmtration toith the Will annexed in common form, where no Executom appointed. Unto the Surrof|ate Court of the County (or United Counties) of The petition of A. B., of the of , in the County of , lOsquire, Humbly sheweth. That C. D., late of the of , in the County of , vpimter, deceased, died on or about the day of , A. D. 18'.) , at , in etc., and that the said deceased at the time of her death, had her li.xed place of abode at , in the said County of , [or " had no fixed place of abode in Ontario " {or " resided out of Ontario ") "but iiad at such time property in the said County of ,"]that the said deceased in her lifetime duly made her last will and testament, bearing date the day of , A. D. 18 , [and codicil (or codicils) bearing date the day of , A.D. 18 .] Tliat no executor is named in the said will (or codicil). That your petitioner is the residuary legatee (or an the cane may he) named in the said will (or codicil). That the value of the whole property of the said deceased, which she in any way died possessed of, or entitled to, ami for and in respect to which a probate of the said will (and codicil) is to be jjranted, is under dollars. That the value of the personal estate and effects is under dollars, and of the real estate is under dollars, and that full particulars and an appraisement of all said property are exhibited herewith and verified upon oath. Wherefore your petitioner prays that administration with the said will (and codicil) annexed, of the property of the said deceased may be granted and committed to him by this Honourable Court. Dated the day of , A. D. 18 . A. B. Or if signed by Solicitor of applicant, A. B By his Solicitor, E. F. W 582 APPENDIX. 3. Application for grant where Executor 1ms renounced Probate or Ri'siduary Legatee has renounced Administration with Will annexed. Unto the Surrogate Court of the County (or United Counties) of of The petition of A. B., of the , Esquire, of in the County \ Humbly slieweth, T)iat C. D., late of the of , surgeon, deceased, died on or about the , ill the Connty of , surgeon, deceased, died on or about the diiy of , A. D. 18 , at in, etc., and that the said deceased at the time of his death, had his fixed place of abode at , in the County of , for " had no fixed place of abode in Ontario," {or " resided out of Ontario ") " but had at such time property in tli(; said County of ."] That the said deceased in his lifetime duly made his last will and testament, hearing; date the day of , A. D., IH [and codicil {or codicils) bearing date the day of A. D. 18 .] That E. F., of , the executor (or residuary legatee, etc.,) named in the said will, has by deed hereunto annexed, duly renounced all right and title to the probate and execution of the said will (and codicil, (/ (ing) {or letters of administration to the personal estate and effects of deceased). That your petitioner is (state character in lohich upplicant dninu). That the value of the whole property devolving under the said will (and 'codicil) is under dollars, and that the value of the personal estate and effects of the said deceased, which }ic in any way died possessed of, or entitled to, is under dollars, and of tlu' real estate is under dollars, and tliat full particular.s and ai: appraisement of all said property are exhibited herewith and verified upon oath. Wherefore your petitioner prays that administration with the said will (and codicil) of the said deceased annexed, may be granted to hin by this Honourable Court. Dated the day of A. D. 18 A. P.. Or if signed by Solicitor or applicant, A. B. By his Solicitor, G. il. SURROGATE COURT RULES, 1892— FORMS. 583 4. Application for grant of Administrati'^ii. Unto the Surrogate Court of the County {or Unitad Counties) of The petition of A. B., of the of , in the County of , spinster, nuinhly aheweth, That C. D., late of the of in the County of , merchant, deceased, died on or about the day of A. D., 18 , at , in, etc., and that the Raid deceased at the time of his death, liad his fixed place of abode at , iu the said County of , [or " had no fixed place of abode in Ontario," {or " resided out of Ontario,") " but had at such time property in the said County of ."] Tliat the said deceased died a bachelor, without parent, brother or sister, uncle or aunt, nephew or niece {to be varied according to the circumstoncen of the rase), and without having left any will, codicil, or testamentary paper what- ever, and that your petitioner is the lawful cousin -german and next of kin of the said deceased {to be varied according to the circumstances of the case.) Tliat the value of the whole property of the said deceased, which he ;p. any way died possessed of or entitled to, is under dollars. That the value of the personal estate and effects is under dollars, and of the real estate is under dollars, and that full particulars and an appraisement of all said property are exhibited here- with and verified upon oath. Wherefore your petitioner prays that administration of the property (or of the personal estate and effects, (/s tlw ca^e may be), oi the said deceased may be granted and committed to her by this Honourable Court. Dated this day of ,18 , A. B. Or if signed by Solicitor of applicant, A. B. By her Solicitor, E. F. 5. Sntice to he transmitted by Registrar of a fiwrogate Court to the Surro- gate Clerk of application made to such Court for a Grant of Probate to Executor. In the Surrogate Court of the County of To the Surrogate Clerk : Take notice, that application has been made to the Surrogate Court oftlie County of , for a grant of probate of the will bearing li;-. • 111 i 111':!' Pi i \'Ti 'I .! 684 APPENDIX. date the day of , A.D. 18 , [and codicil {or codicils) bearing date the day of , A.D. 18 ,] of ].^l^, qj , in the County of , docoased, mnje.on, who liied on or about the day of , A.D. 18 , having at the time of hi» death, a fixed place of abode at , in tiie said Coiintv of , [or " no li.xed place of abode in Ontario," (or " resided out of Ontario,") " but having at such time property in the said County of ",1 by A. ]i., of , in the County of , the executor (or by J. P., the Solicitor of A. B., tin executor) named in the said will (or codicil). Application received the) day of , 18 . )" Registrar of Ifie said Court. This notice mailed the day of , 18 6". Notice to he transmitted by Registrar of a Surrogate Court to the Sunn- gate Clerk, for grant of adininislration with the Will annexed whert no Executor appointed. In the Surrof^ate Court of the County of To the Surrogate Clerk : Take notice, that application has been made to the Surrogate Court of the County of , for a grant of letters of administration with the will and codicil (or codicils) annexed, the said will bearing date the day of , A.D. 18 , [and the said codicil (or codicilB) bearing date the day of , A.D. 18 ,] of late of , in the County of , , decetised, who died on or about the day of , A.D. 18 , having at the time of liis death, a fixed place of abode at , in the said County of . [or " no fixed place of abode in Ontario," (or " re- sided out of Ontario,") " but having at such time property in the said County of ,"] by A. B., of the , of in the County of . , the residuary legatee (ar m the case may he) named in the said will (or codicil) (or by J. P., the Sohci- tor of A. B,, the residuary legatee named in the said will or codicil), no executor having been named in said will (or codicil). Application received this ) day of , 18 . )" This notice mailed the day of , 18 Registrar of said Court. SURROGATE COURT RULES, 1892 — FORMS. 585 ■ ihe said Cunrt. 7, Notice to be transmitted by Registrar of a Surrogate Court to the Surrogate Clerk, of application for grant wlfre Executor has renounced Probate or Residuary Legatee has renounced Administration with Will annexed. In the Surrogate Court of the County of To tlio Surrogate Clerk : ' Take notice that application has been made to the Surrogate Court of the County of , for a grant of letters of administration with the will and codicil {or codicils) annexed, the said will bearing date the day of , A.D. 18 , [and the said codicil {or codicils) bearing date the day of , A.D., 18 ,1 of , late of , in the County of , .deceased, who died on or about the day of , A.D. 18 , having at the time of his death a fixed place of abode at , in the said County of , [or "no fixed place of abode in Ontario," (or " resided out of Ontario,"') " but liaving at such time property in the said County of ,"] by A. B., of the of , in the County of ' , , the residuary legatee {or as Ihe case may be) named in the said will {or codicil) {or by J. P., the Solici- tor of A. B., the residuary legatee named in the will or codicil), E. F., of the , of , in the County of , , the executor {or residuary legatee, etc.,) named in the said will, luiving renounced all right to the probate and execution of the said will, and codicil (if any) or to letters of administration to the property of the said deceased. Application received the 1 day of ,18 , i Registrar of the said Court. This notice mailed the day of ,18 ■ar of said Court. 8. Notice of application for grant of Administration. In the Surrogate Court of the County of To the Surrogate Clerk : Take notice that application has been made to the Surrogate Court of the County of , for a grant of letters of administration of the property of , late of the of , in the County of , deceased, who died intestate on or about the day of , A.D. 18 , having at the time of his death & 'ixed place of abode at , in the said County of , [or " no fixed place of abode in Ontario,"] {or " resided out of Ontario,") but having at such time property in the said County of ?nw 586 APPENDIX. and who died unmarried, without child or parent, brother or sister, nephew or niece, uncle or aunt (to he varied according to circumstances of the cane), him surviving, by A.B., of the of , in tlie County of , , one of the lawful cousins-Kerman {or as the case may he) and next of kin of the deceased {or by J. P., the Solicitor of A.B.) Application received the) day of ,18 , f Registrar of the said Court. This notice mailed the day of , 18 9. Certificate by the Surrogate Clerk upon notice of application jor dront. Office of the Sduuooate Ci-ebk. In the estate of , deceased, named in a certain notice of application to the Surrogate Court of the County of for ;;raiitof probate {or administration, as the case may tie,) dated the of , 18 , and described therein as , late of , Ac. {copy from notice of application.) I, , the Surrof^ate Clerk, do hereby certify that no notice of application, in respect to the property of the said deceased, has been received by me from any of the Registrars of the Surrogate Courts in Ontario, save the above [or if another notice has been received add " and a certain other notice of application from the Registrar of the S arrogate Court of the County of ," dated the day of . etc., for a grant of the probate of the will bearing date, etc. {or as in the notice of application.)] And I furtlier certify that no caveat or copy of caveat against the grant of probate or administration in the property of the said deceased, has been lodged with or received by me [or if caveat or riotice of caveat has been lodged or received, instead of the above, say, " and I further certify that a caveat {or copy of a caveat) in the property of the said deceased, has been lodged with {or received by) me on the day of , etc., a copy of which is hereunto annexed.] Surrogate Clerk. Dated SURROGATE COURT RULES, 1892 — FORMS. 587 of the said Covrt. ppUcationjor ('.Pint. 10. A(fiiiSf) lime; wlioroupon tlie siiul E. F. and 1 did at tlio retinestof tlio said A. IV and ill '"■•' lii'oaonce uttunt and subsoribu tlio waid will (e). Hwoni before mo at tlio of , in the County of , • C. D, tho day of 18 .) Person dtithorizeit to administer ontlts under the Act. ess to a Will executed It. AJJhldvil of Kxeeution o,' ll'iU Inj Siil/.icrilnun ]i'it>iess to Will executed lief ire lat .hinunnj, 1874. In tlie Surro^^ato Court of tho County of 111 the estate of A. B., decoasod. I, C. 1)., , of the Township of , in the ("ounty of , make oath and say, that I knew A. B., late of (ieceiisod ; that on or about tlie day of , in tho year of our Lord one thousand eiijht linndred and , I was present and (lid see the said A. B., siyn and declare the paper writing hereunto annexed as, and for, tlio last will and testament of the said A. R. ; that I, deponent [and E. F., of etc., (if there bo a second subscribing witness),] did subscribe my name as witness {or our iiami's as witnesses) to the execution of the said will, at the request of the said tiistator, and in the presence of each other {or us the case mui/ he) ; and lustly, that tho name {or several names) subscribed as witnesses to tho execution of the said will are of the proper handwriting of this deponent (and the said E. F. respectively). Sworn before me at ,] in the County of ,}■ CD. this day of A.D. 18 .) Person authorized, to administer oaths under the Act. 15. Oath of K.reeutor. Ill the Surrogate Court of the County of In the estate of , deceased. I, , of the of , in the County of , , make oath and say, that I believe this paper writing (or (c) The subscribing witness deposes to tho mode of execution : Vide pp. 80, 81 ante). If the testator was a marksman the affidavit should state that the will was read and explained to him before execution, and that ho appeared fully to understand the same; so, if another signed for him by his direction. 590 APPENDIX. thene paper writingH) hereto annexinl to contain thotrue iiml original lask will and teataniciit [ami codicil (or codicils)] of , lati; of tlio of , in tlio County of , ; that I am the Bolo executor (or one of the cxecutorH) therein named (cr executor accord- infi to the tenor thereof —executor duniifj life —executrix duririj^ wLldw. hood ({))• UK the case may he), and that I will faithfully adniinihti r ih.. property of tlie said <(■.s■^;^l^, by payiuf^ liix just debts ami the Icj^ucics contained in ///m will {or will anil codicilH), ho fur hh the Hiinie will there- unto extend and the law bind rao, and by distributing the residue (if unvl of the e.stiite according to law ; and that I will exhibit uruK:r oath atrm and perfect inventory of all and siuf^ular the property of the trstntDr, an] render a just and full account of my executorship within eighteen months (/), or sooner, if thereunto required. Sworn at , in the County of , the day of , A.D. 18 , A. h before me Person authorized tn administer oathK 7tnder the Act, 16. Oath of Administrator ivith Will. In the Surrojjate Court of the County of In the estate of , deceased. 1, , of the of , in the County of , m:ike oath and say, that I believe this paper writing (or these paper writin-^'s) hereto annexed to contain the true and original lu.st will and testament [and codicil (or codicils)] of , late of the of , in the County of , , and that the extcutor therein named (is dead, not having taken out probate, or has renounced all right and title to the probate and execution of the said will, or nn the fact mav he), and that I am the residuary legatee in trust named tlioreiii (or an the fact may he), and tliat I will faithfully administer the property of the said deceased, according to the tenor of his will (or will and codicils) by paying hit just debts and the legacies contained in his will (or will ami codicils), so far as the same shall thereto extend and the law hind me, and distributing the residue (if any) of the estate according to law, and that I will exhibit under oath a true and perfect inventory of all and singular the property of the said testator, and render a just and trau account of my administration within eighteen months, or sooner, if there unto required. Sworn at , in the County of , ) the day of , A.D. 18 , A.P before me Person authorized to administer oaths under (J) See .")? V. c. 22, ante j). 541. SUUllOOATE COUUT HULLS, Ib'J'J — FOllMS. 591 I and original latii , late of tho ; that I am tho r executor accord- ix (Uirint! wi'lciw. ly ailnuiiihtir llie I and tlio li'i^aciex 10 Haiuo will tliere- ,ho ri;sidui) (if any) under oath a tnu- of the ti'ntatiir, aii'l J within ei;;liteeii A. IV tliK nniler the Act. 17. Oath for Adminktrator*. In tho Snrroj^ate Court of the (bounty of In the estate of , deceased. I. , of the of , in the County of , tnako oatli and say, that , late of tlie uf , in tho , , dt'CcaBod, died a bachelor, without leaving,' parent, brother or sister, uncle orainit, nephew ur niocc, (iM f/c '■<'•'"' »i'iy he), and intestate; that I am tho lawful cousin-nerinan and OIK! of the next of kin of the deceased (alter in acconlaiice with the circuinfttinci's of the rai^t') ; tiiat I will faithfully administer the property o( the (l(H:eased by payin{' hi» just debts and ilistributinjj tiie residue (if iny) of /(/■''• estate accordinf{ to law, and that I will exhibit under oath a true iuid perfect inventory of all and siiif^ular the property of the said decoascd, and render a just and true account of my administration within ei({hteen months, or sooner, if tliereunto required. Sworn at , in the Countv of , ) . A'.D. 18 , ) A. B. Person authorized to adininintcr oaths under the Act. the day of before me Jounty of er writing; (or thesis lid orif^inal last will , late of the |d that the exocutor I, or has renounced said will, ur n.'i the Irnat named tluTein nister the property [or will and codicils) his will (or will and the law bind me, Icordinf? to law, and iventory of all and ier a just and trnu I, or Boouer, if there- A.B loiUhs under 18. Administration Bond. Know all men by these presents : That we, A. B,, of the of , in tho County of , C. D., of tho etc., and E. F., of the i-tr:., are jointly and severally bound unto G. II., tho .Tud{^e of tho Surrogate (Jouri; of the County of , in the sum of dollars, to be paid to the said G. H,, or the Judse of the said Court for the time bein^ ; for which payment, well and truly to be made, we bind ourselves and of us for the whole, our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our Kcals. Dated the day of , in the year of our Lord, 18 Tho condition of this obli^jation is such, that, if the above named A, B., the administrator of the property {or as the case may be), of , late of the , in the Conn^^y of , deceased, (who died on or about the day of , 18 ,) do, when lawfully called on in that behalf, make or cause to be made a true and perfect inven- tor\ "f all and singular the property of the said deceased, which has or shall , iiji- into the hands, possession, or knowledge of the said A. B., or into the hands and possession of any other person or persons for him, and the me so made, do exhibit or cause to be exhibited into the 592 APl'ENDIX. Registry of the Surrogate Court of tlie County of , wlienever required by law so to do, and tlie same property, and all other the property of the said deceased at tlie time of /;/.s' death, which at any time after shall come into the hands or possession of the said A. B., or into the hands or possession of any other person or persons for }um, do wi;ll and truly administer according to law: (that is to say) do pay the dobts which the said deceased did owe at his decease, and further, do make, or cause to bo made, a true and just account of his said administration within eighteen months or sooner if thereunto required, and all the rest and residue of tlie said property do deliver and pay unto such parson or persons respectively, as shall be entitled thereto under the provisions of any Act of the Legislature now in force, or that may hereafter be in force in Ontario ; and if it shall hereafter appear that any last will or testament was made by the deceased, and the executor or executors therein named do exhibit the same unto the said Court, making request to have it allowed and approved accordingly, if the said A. B., being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said Court ; then this obligation to be void and of no effect, or else to remain in full force and virtue. [L.S.] Signed, sealed, and delivered in the presence of [L.8.] [L.S.] 19. Administration Bond for Administrators with }V%ll annexed. Know all men by these presents : That we, A. B., of the of , in the County of . , C. D., of the, etc., and K. F., of the, etc., are jointly and severally bound unto G. H., the Judge of the Surrogate Court of the County of , in the sum of dollars, to be paid to the said G. H., or the Judge of tho said Court for the time being, for which payment, well and truly to be made, we bind ourselves and of us for tho whole, our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our Seals, and dated the day of , in the year of our Lord 18 The condition of this obligation is such, that if the above named A.B., tho administrator of the property {or as the case may be) of , late of the of , in the County of , , deceased, who died on or about the day of , A.D. 18 , do, when lawfully called on in that behalf, make or cause to be made a true and perfect inventory of all and singular the property of the said dace SURROGATE COURT RULES, 1892— FORMS. 593 , whenever other the property at any time after A. B., or into tlie )r //.nil, do well and ) do pay the (IoUb urther, do make, or iiid adminislratioD, red, and all the rest nto such p'jrrfon or er the provisions of hereafter be in force ast will or testament utors therein named > request to have it B., being thereunto •8 of administration .d made) in tho said 3Ct, or else to remain [L.S,] [L.S.I [L.S.! which has or shall come into the hands, possession, or knowledge of the said A. B., or into the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited into the Registry of the Surrogate Court of the County of , whenever required by the law so to do, and the same property and all other the property of the said deceased at the time of his death, which at any time after shall come into the hands or possession of the said A. B., or into the hands or possession of any other person or persons for him, do well and truly administer according to law ; that is to say, do pay the debts which the said deceased did owe at his decease, and then the legacies contained in the said will annexed to the said letters of administration to the said A. B. committed, so far as such property will thereunto extend and the law bind him ; (a) and further do make, or cause to be made, a full, true, and just account of his said administration within eighteen months or sooner if thereunto required, and all the rest and residue of the property, shall deliver and pay nnto such person or persons as shall bs by law entitled thereto, then this obligation to be void and of no effect, or else to remain in full force and virtue. [L. S.] Signed, sealed, and delivered in the presence of | [L.S.] j [L.S.] th }V%ll annexed. B., of the of D., of the, etc., and lund unto G. H., the , in tho sum of the Judf3 of the Act. H.s.c — 3 ■ 594 APPENDIX. , and am worth property to the amount of dollars over and above all encumbranccB, and over and above what will pay my just debts and every other sum for which I am now bail or for which I am liable as surety or endorser or otherwise. The above named deponents, C. D. and E. F., were'; severally sworn before me the day of , I A.D. 189 , at the of , in the County '' of . ) Person authorized to admininter oiUhi under the Act. CD. E.F. 21. Vfohatf. Canada : i Province of Ontario, i In Her Majesty's Surrof^ate Court of the County of Be it known, that on the day of , A. D. 18 , the last will and testament (or the last will and testament with codicils) of late of the of in the County of , , ^v ho died on or about the day of , A. D. 18 , at , and who at the time of hia death had a fixed place of abode at , in the said County of [or "had no fixed place of abode in Ontario," {or "resided out of Ontario,") "but had at such time property in the said County of ,"] , was proved and registered in the said Surrogate Court, a true copy of which said last will and testament is hereunder written (or triit- oopies of which said last will and testament, and codicil, are hereunto annexed), and that the administration of all and singular the property of the said deceased, and any way concerning his will, was granted by the aforesaid Court to , of the of , in the County of , the sole executor [or as tlir case may tie) named in the said will (or codicil), he having been first sworn well and faithfully to administer tlie same by paying the jusi debts of the deceased, and the legacies contained in liis will (or will and codicils), so far as he is thereunto bound by law, and by distributing the residue (if any) of the property accordiuf^ to law, and to exhibit under oatn a true and perfect inventory of all and singular the said property, ana render a just and true account of hi-i executorship within eighteen months (b) or sooner if thereunto required. [L.S.J Iteijistrar of tlie Surrogate Court of tlie County of (h) See 57 V. c. 2'2, ante pp. 541-2, 570. SURROGATE COURT RULES, 1892 — FORMS. 59; dollars over will pay my just • for which I am CD. E.F. e Act. of 18 , the last will codicils) of who died on or md who at the time said County of \or "resided out of Ihe said County of rogate Court, a true ider written (or true lodicil, are hereunto n^ular the property 1, was granted by the the County of fd in the said will l»r lly to administer the he legacies contained eunto bound by law, roperty accordintj ti inventory of all anJ a,nd true account of sooner if thereunt> t]u County ot 22. Letters of Administration with Will annexed. Canada : ) Province of Ontario. ) In Her Majesty's Surrogate Court of the County of Be it known, that , late of the of , in the County of , , deceased, who died on or about the (iay of , 18 , at , and who at the time of Iiis death had a fixed place of abode at the of , in the said County of , [or " had no fixed place of abode in Ontario, " {or "resided out of Ontario)," but had at such time property in the said County of ,"] made and duly executed his last will and testament (with codicils), and did therein name of the of , in, etc., , executor thereof [or named no executor therein] , a true copy of which said last will and testament is hereunder written (or true copies of which said last will and testament, and codicils, are hereunder written) ; and be it further known that oil the day of , A. D. 18 , letters of administration, with lue said will (and codicils) annexed, of all and singular the property, lor an the Cdsc mai/ be if tint nt limited) of the said deceased, were granted by Iler Majesty's Surrogate Court of the County of to of the of in the County of , {insert tlie character :h wliich the (/rant is taken, and if executor has renoutired, staff it), he the said having previously been sworn well and faHhfully to admin- ister the same according to the tenor of the said will, by paying the just debts of the deceased, and the legacies contained in his will (or will and codicil), so far as the same shall thereunto extend and the law bind hint, and by distribu'ting the residue (if any) of the property according to law, and to exhibit under oath a true and perfect inventory of all and siiigular tiie property of the said deceased, and to render a true and just account of his administration within eighteen months (c) or sooner if thereunto required. L.S.] Reijistrur uf the Surrogate Court of the Countij of 2'i. Letters of Administration. Canada : i iroviiice of Ontario, i In Ilcr Majesty's Surrogate Court of the County of Be it known, tliat on the day of ,A.D. l"< , Letters ■f administration of -all and singular the property io'- as the ••.use niay he I'l See ."iT N'. c. "J-, luito pp "ti-'l. olO. 596 APPENDIX. if grant limited) of , late of the of , in the County of , , who died on or about the day of , 18 , at , intestate, and had at the time of /(m death a fixed place of abode at the of , in the said County of [or •' laid no fixed place of abode in Ontario," (or, " resided out of Ontario,") but had at such time property in the County of ,"] were granted by Her Majesty's Surrogate Court of the County of , to , of the of , in the County of , the widow {or an the case viay be) of the said intestate, nhe having been first sworn faithfully to administer the same by paying Jun just debts, and distributing the residue (if any) of hi» property according to law, and to exhibit under oath a true and perfect inventory of all and singular the said property and to render a just and true account of lier administration within eighteen months ( the County of ,1*^ .at V fixed plftce of [or " had no ario,"^ but liad granted by Her , of the w {or (IS the caisc •Q faithfully to listributLn^ the 3 exhibit under le said property istration within and singular the property of the said deceased, and any way concerning his will, was granted to the said , he having been first duly sworn well and faithfully to administer the same by paying the just debts of the deceased and the legacies contained in his will, {or will and codicil) so far as he is thereunto bound by law, and by distributing the residue (if any) of the property according to law, and to exhibit under oath a true and perfect inventory of all and singular the said property and to render a just and true account of lii.< executorship within eighteen months (e) or sooner if thereunto required. [L.S.] Beuistrar of the Surroijatu Court of the County of y of Adiniuiitratiun iritlt Will the last will and of , late of died on or about at the time of his County of resided out of Jounty of ,''] rt, a true copy of to c^nnexed (or iicil are hereunto ular the property , was granted by in the County of will (or codicil) ; , of the ir executor named Be it therefore lie sa'.d will of the liiuistration of all ■Ij. K.teiiipUjicatioa of Probite nr L'tter.-< of annexed. Canada : ) Province of Ontario. I [u Her MajeHty's Surrogate Court of the C mnty of Be it known, that upon search being this day made in Her Majesty's Surrogate Court of the County of , it plainly appears that on the day of , A.D. 18 , the last will and testament (with codicils) of , late of the , of , in the County of , , deceased, who died at , on or about the day of , 18 , and had at the time of his death a fixed place of abode at the of , in the said County of {or as tin: case may be) was proved by of the of , in the County of , , the executor tl'.erein named [or that on the day of , A.D. 18 , letters of ahuinistration with the last will and testament (and codicils) annexed of the property of , late of, etc., were granted to of the of in the County of ] , and which said probate (or letters of administration) now remains of record ir. the said Surroj/ate Court. The true tenor of the said probate (or letters of admin- ifitration with tho will annexed) iti in the words following, to wit : (here let grant be recited verbatim.) In faith whereof these letters testimonial are issued. Given at the of , in the County of , this day of, etc iL.S.] Registrar of the Surrogate Court of the County of (e) See 57 V. c. 22, ante, pp. 541-2, 570. ( I 'LI 1 598 APPENDIX. 26. Exempli I'lcation of IiCtlers of Administration. Canada : ) Province of Ontario. ) In Her Majesty's Surrogate Court of the County of Be it known, that upon search beinjj this day made in ller Majesty's Surrogate (Jourt of the County of , it plainly appears tliat on the day of , A.D. 18 , letters of administration of all and singular the property of , late of the of , in the of , , who died at , on or about the day of 18 , and had at the time of his death a fixed place of abode at in the said County of , %vere granted to , of the of in the County of , and which said letters of administration now remain of record in the said Surrogate Court. The true tenor of said letters of administration is in the words following, to wit : [here tht letters of administr'iti,>n are to be recited verbatim.] In faith whereof these letters testimonial are issued. Given at the of , in the County of , this day of, etc. [L.S.] Eegi,ttrar of, ,(V. 27. Renunciation of Probate or of Administration with the Will annfred- In the Surrogate Court of the County of Whereas A. B., late of , in the County of , deceased, died on or about the day of , 18 , ana had at the time of /i(.s- death a fixed place of abode at , in the said County o^ , and whereas he made and duly executed his last will and testa- ment, bearing date the day of , 18 , and thereof appointed C. D., executor [or as the case may be] , as I am informed and believe, Now I, the said C. D., do hereby expressly renounce all my right and title to the Probate and execution of the said will 'and codicils i; any] of the said deceased. In witness whereof I have hereunto set my hand and seal, this day of , 18 . Signed, sealed, and delivered in the presence of E. H. C. D. ^Seal. NoTK. — The above form may be varied xchen the renunciation if hy th( vidoiv or other person entitled to administration itith the will annesed. In each case there must be an affidavit of e.recution. SURROGATE COURT RULKS, lft — FORMS. ').Q9 28. Ei'iuntciation of Administrdtion, In the Surros^ate Court of the County of Whereas A. B., late of the of , in the County of , deceased, died on or about the day of , IH , intestate {a icidoirer), and had at tlie time of hia death a fixed place of abode at the of , in the said County of , and wtitreas I.C.D., of the of , in the County of , am Inn lawful and liin only next of kin [to be laried iiccordhiji to tlw factx] Now I, tho said C D., do hereby expressly renounce all my rif^ht an:trar of, dr. the Will anufxed' and seal, this :J9. Kli'ctioii hij Miiitirs ni' ii ■ tlic case maij he.'] In witness whereof we have hereunto set our liands and seals tliis day of , A. D. 18 . Si).'iie(l, sealed, and delivered in the presence of Note. — An ii(Vuhrit if cweention re'juireil. ;l.s.] L.S. 600 APFEN'DIX. ) ■ 30. Judge's Order to bring in a Testamentary Paper. In the Surrogate Court of the County of Upon the application of A.B., of the of , in the County of , , and upon reading the affidavit of C. D., of the of , in the County of , , this day tiled in the said Court showing that a certain original paper or script, being or purportin'4 to be testamentary, (here describe the paper), is now in the possession or under the control of E. F., of the of , in the County of I do order that the said E. F. shall, within ten days {or the time prescribed by the Judge), after the service hereof on him bring into and leave in the office of the Registrar of the said Court, the said original paper now in ///.< possession or under /lu control ; or in case the said original paper be not in /(IS possession or under his control, that he t:!iall within days after the service hereof upon liim, tile in the said office an affidavit to that effect, and;thereiu set forth what knowledge, if any, lie has of and respecting the said original paper or script. Dated at the dav of 18 . Judge. 31. Affidavit of I'light and Condition and Finding. In the Surrogate Court of tlie County of In the estate of , deceased. I, A. B., etc., make oath and say, that I am the sole e.\ecutor named in the paper-writing now hereunto annexed, purporting to be and contain the last will and testament of C. D., late of, etc., deceased, who died on or about the day of , at , and had at the time of hii death a fixed place of abode at , in the said County (or a>i the canf )«(!// /*t;j, the said will bearing date tlie day of , beginning thus ending thus and being subscribed thus " C. D. ," and having viewed and perused tlie said will, and particularly observed that [here recite the finding of the said will and the cariou.f alteration.^, erasure.i and interlineations (if any), aiuity general plight and condition of the will, or any other matter requiriui] to h> accounted for, and clearly trace the will, from the po,i'ie in which order madei, and whereas the value of the goods and chattels affected by the said order {or an the cane may be) exceeds |200, and the said {tht appellant), desires to appeal therefrom to the Court of Appeal. Now the condition of this obligation is such that if the said (the appellant) shall effectually prosecute liin appeal and pay such costs, charges and expenses as shall be awarded in case the said order (or a.< the case may he) shall be alHrmed or in part affirmed, then this obligation to be void, otherwise to remain in full force. Signed and sealed in presence of 1 A.B., [L.S,] r.D.. L^.: E.F., LS. M SURROGATE COURT RULES, 18!»2 — FORMS. f)OS t, and lake notice recced to do such iHary to be done i!\ Registrar. Snrrogatf Court. lis day been lodged englh and verbatimi T: ^ T. "■* <§ r^ P I— « O ■*■»' o ac X H cq -%-* M X < ?3 P O x a 5 "~ H ?-» .^ < S£ «^ o 1^ > « so :a p CO '-i •-4 ',1 >iH ^4J a ::Q H X ^ ^^ ^ a: •H>|(K)q J.im<> Ul SOU^UO .»{) O) X.tOlI-t •pjj.wojd pu-Mi'lloO ,i c C '- * }< -i 1 "E'S <« sT"^ 8 » i • poa.ipjo 5 U 11 J jS j I ■>|oo(( l^uiuii oi .uu.u,»j,u ipi.tt .»3piii' .\'(| juoi^Drijip ao j>)pjo JO *ui4UU pu« .Hii([ CC 2! i 3 S . ! 141 11 •p.)lJll.I3n j'lil'Bui jo.iaiiH!;^ Noother applica tion— No caveat. No other applica- tion- No caveat. •p.»Al.(.MJ JO rni(oiJ!ia.)o u.t4A\ ni r-ii •pi)|11!IU ■jug o!) eopo^ "■•UAV Hi • uoi^uo -jlddy JO -uinvvj For I'ro- bate of will a.s .sole E.xecutor. For let- tei.=. of adminis- tration as next of kin. Name, Residence, and Addition of Applicant. •uonjpfiv 1 •nonopisvi}j •auitJK^ Town of Colling- wood, County of Simcoe. 1 3 -» 1^ ' •p.).\U)DtlJ uonBOjjddv uji{A\^ •ij^BaQ JO aunx Name, Residence, and Addition of Deceased. •uoi^ippY 1 •ooiwpissrf 'it l •3iiit;\^ i' a •UOl^BO jddV JO "ov^ *-H n 604 APPENDIX. a w o o -/5 (55 i 'J 1'^ ll II ?5 4 < k 1 i s ll "2 '7. a si J 11 « Date of Grant. X CI Time of Death. Name, Residence, and Addition of Deceased. 1 is < 1 1 5 r! ■f? < i 1 1 t ■^^ SURROGATE COURT RULES, 1892 — FORMS. 005 > H D •J •J < OQ 44 05 ii I 5 S rt'H. § 13 § I si 55 O S 5 T) -< g S JS o c o 33 -3 s e P'!''' ' ^ ( <' mV \' rl' \' ! 1 ?hi' ? 1 r 1 i"';' , -U! i ( 606 APPENDIX. «T! ■ H ^ i = <« ,2^ K - ^^^1 t-H 2 'S — ^^^B CS c3 > ^B 1 O ^ ' ■ ►5"- I 1 1, J! I- -5 M ■ X .S . jJ - '■ .— ■*-• 72 ^ ^ '^ Z ^* * ■'-; :« -r ... 1 ' "sic^ . ■o \ f\ k^l-si +J Jj* ?* "^-^ ^ -^ 1 1 < I Cbi 1 5 c ^. ,! O !"E Ci * • ~ rr" rM ^ >H -5 X H «< bj: *^ "^ / 2i '^ -r 1 -a U , P = i Cj O -« 1 " S t" o 1-^ o .I^' O 1 j flS«*; i. H '^i' 1 s 1 <^ « c^ eS ;< S H CO ; !^ "^ -< 1 1^ 13 — *3 fT-' ? cS J' ^1 1— < QQ 5^11 \ % .s '' a '^ « fl "5 TJ ^ 1 "O "^ fl < - 1 1 " 'S'S?< ^ 1 Ji 1 1 ilfi 11 Jq 1 HM^^ 1 1 ■^ ^1 t - ^ ! 1- 1 — 9 a 1 '^ ^H !L s : 1 I J^H ' X 1 ^ a i ' ". m r X O - V. SURROGATE COURT RULES, 18!)2- FORMS. (i07 «• . * ci p "C s ^>^>^ :^>tr O 608 O '^ O ^ 09 « U CO — C5 > — _ » c r *s^ K -.: O -^ so >^ Vt-t -• '-' j; io SW pi' ;^ tf j^ - « " .- " go*^ '^ o i^ ^ J' o o OS «^K* o aT 3 1 fc5 ;?; O c« OJ >^ " respectively are given as examples of statements of claim and of di'fcnic respectively. CONTENTIOUS BUSINESS. 611 CONTENTIOUS BUSINESS. Forms. 1. ST.-VTEMENT OF CLAIM. In the Surrogate Court of tbe County of In the estate of A. B., deceased, Between R. S., Plaintiff, and C. D., Defendant. The plaintiff is cousin-german and one of the next of kin of A. B., late of the of in the County of , , who died on or about the day of A U. 18 , a widower, without child, parent, brother or sister, uncle or lunt, nephew or niece. The plaintiff claims a grant to him of letters of administration of the property of the said deceased. Delivered this day of A. D. 18 , by E. F., of Plaintiff's solicitor. 2. Formal covimencement as above. The plaintiff is the e:;ecutor appointed under the will of A. B., deceased, late of the of in the County of , who died on or about the day of A.D. 18 . The said will bears date the day of A.D. 18 and a codicil thereto bears date the day of A.D. 18 . The plaintiff claims that the Court shall decree probate of the said will and codicil in solemn form of law. {Formal conclusion as above). 3. Formal commencement a.i above. The plaintiff claims to be executor, etc. (as before) and to have the probate of a pretended will of the said deceased, dated the day of , granted by this Court, revoked. R. L. Plaintijf's Soliriliir. 4. Formal commencement as above. Tlie plaintiff claims to be executor, etc., as befort. The plaintiff claims that the grant of letters of administration of the property of the said deceased, obtained by M. N., the Defendant, should be revoked and probate of the said will granted to him. 11. L. Plaintiff's SnUnlor. ;tfi; if^: 612 AF'PENDIX — SURROGATE RULES, 1892. 5. STATEMENT OF DEFENCE. 1. {Formal commencement as in statement of claim). The defendant ia nephew and next of kin of the deceased, being tiie Bon of W. B., the brother of the deceased, who died in his life- time. The defendant claims that the Court pronounce that he is the nep- hew and next of kin of the deceased and entitled to a grant of lettera vif administration of the property of the deceased. {Formal conclusion as in statement of claim above). 6. Formal cominencement as above. {a) The said alleged will and codicils of the deceased were not nor was either of them duly executed in accordance with the provisions of " The Wills Act of Ontario." {b) The deceased at the time of the said alleged will and codicil res- pectively purport to have been executed was not of sound mind, memory and understanding. (c) The execution of the said alleged will and codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant {or as the case may he)]. {d) The e.vecutiou of the said alleged will and codicil was obtained by the fraud of the plaintiff, such fraud, so far as is within the defen- dant's present knowledge being {here state the nature of the fraud). {e) The deceased at the time of the execution of the said alleged will and codicil did not know and approve of the contents thereof, or of tlig contents of the residuary clause of the said will {or as the case may ( /') The deceased made his true last will and testament dated the day of A.D. 18 , and thereby appointed the defendant sole executor thereof. {Here add any other groumU of defence). And the defendant cUims : 1. That the Court will pronounce against the said alleged will ami codicil propounded by the plaintifT. 2. That the Court will decree probate of the saia ' of the deceased dated the day of A.D. 18 {the will put forward by defendant in solemn form of law. (Formal conclusion as above). APPENDIX — SURROGATE COURT RULES, 1892. G13 THE SURROGATE COURTS, ONTARIO. GUARDIANS AND INFANTS. RcLE.s, Etc. The Judges of the Supreme Court of Judicature for Ontario do, in Rnlos for pursuance of the powers conferred upon them by the Revised Statutes (""y^'t'^'. ^ of Ontario, Chapter 137, Section 20, and Chapter 50, Section 78, order Acts, re- and direct that the rules, orders, and directions hereinafter set forth «l)i'etinpr shall bo the general rules for regulating the practice and procedure J^'JjJ^j'""^*',^,.^.^ under the several Acts of the Legislature of Ontario, in force of infanta, respecting the persons and estates of infanta and the appointment of guardians. 1. In all matters and applications touching or relating to the appointment, control or removal of guardians of infants, and the security to be given by such guardians, the custody or control of or right of access to infants, the maintenance of infants or otherwise, the practice and procudure in the Surrogate Courts shall conform as nearly as the circumstances of the case will admit to the practice and procedure of the said Courts, in respect to applications for, and grants of probate and ailniiiiistration, and the forms follov/ing, or forms to the like effect, sliall be used. — conform to practif!(^ ;w to ]ii'i)- l):it(' and iulniinis- tratiou. forms. 2. Upon application for guardianship there shall be furnished proof-- (iroof^ of the time of death, and place of a1)ode of the deceased parent or parents, "" i^PP'.' ' r- 1 1 cation 111 of the value of the whole property devohing, of the value of the personal j»iiardi:iii- property and of the real estate respectively, of the annual value of the^'^'P- same, of the names, ages, and the places of abode of the infants, of the relationship of the applicant to such infants, and such other proof as the Judf^e may require. All such proof may be included in one or several affidavits of the petitioner, or of some other person or persons having knowledge of the facts. 3. Unless under special order or decree of the .Tndge, letters of — certifi- guardianship shall not be granted until the Registrar shall have received *'?'^, ^>"''"- cilfirlc the certificate of the Surrogate Clerk touohing the same. 1% ■' w nil ■■'.,*! ... ' ?iH , ■ . 1 ■> ii; /m i 614 Ciiveat a^j^aiiiHt arrant. l-iiitui, .suretieH, justify pcnaltv. B(juk.s. Fens. Fees and stairipH. Solicitors, etc. Surrogate clerk's duties. Ari'EXDIX— SUllUOfiATK HULKS, 18!»2. 4. PartieH may lodtje a caveat against the f^rant of letters of guardianship in like manner as other caveats are lod>,'ed,and the [iraotic; in respect to the same shall conform as nearly as may be to the practice in the case of caveats against the grant of administration. 5. When the security given by guardians is a bond it shall be as pre- scribed in form 4, post. And the sureties in such bond arc required in all cases to justify to an amount or amounts, which in the aggregate .shall equal the amount of the penalty of the bond. 6. The several llegistrara and the Surrogate Clerk shall keep books in tabular form, and the same shall be duly indexed. 7. Registrars and officers of the Surrogate Courts shall, for the performance of duties and services in said guardianship matters, be entitled to take and receive to their own use the fees prescribed in the Tariff. 8. Before proceedings are taken, the fees payable to the Judges and to Registrars, and in stamps for the Fee Fund (and postage when necessary), shall be paid to the Registrar in the first instance by the party on whose behalf proceedings are to be taken. 9. Solicitors and counsel in the said Courts shall be entitled to take for tlie performance of duties and services in said guardianship matters the fees and costs prescribed in the Tariff. 10. The duties required of the Surrogate Clerk in respect to matters and causes testamentary, so far as maybe applicable, shall be performed by him in respect to applications for letters of guardianship, and in relation to guardianship business. FonMs IN GuAKDUXSHiP Matters. J. Application for Letters of (ruardianship by one of the next of kin of infant children of a deceased widower. Unto the Surrogate Court of the County of The petition of A. B., of the of , in the Coanty of Humbly sheweth, That C. F., late of the of , in the County of died on or about the day of A.D. 18 , at the of in the County of , and had at the time of his death his tixed place of abode at the of (iUAKDlANSHIP. 615 ;hall keep books in the County of . Tliat the said dcccaHeil died a widower, leftviiif^ E. F. and G. F., his natural and hiwfulchihlren. who both reside at the of in the County of . 'J'hat the said E. F. is an infant of years of a^e, and the said G. F. is an infant of years of age. Tliat the said C. F. died intestate (or ax the caxe may he) and without having appointed a guardian of the said infants. That the val.iie of the property of the said deceased, which he in any way died possessed of or entitled to, and to whicli the said infants are entitled, is about doUars and ixnder dollars ; that the value of the personal estate to which the said infants are so entitled is about dollars and under dollars, and of the real estate to which they are so entitled is about dollars and under dollars, and that the annual value of the said real estate is about dollars and iiiuler dollars, and that full particulars of both said personal estate and of said real estate and an apppraisement thereof are exhibited herewith and are verified upon oath. That due notice has been given of your petitioner's intention to ivppiy to be appointed guardian, and that the petitioner is the natural unch' and one of the next of kin of the said infants. Therefore your petitioner prays that he may be appointed guardian of the persona and estates of the said infants, E. F. and G. F., and that the letters of guardianship may be granted to him by this Honourable Court, pursuant to the Statute in thai behalf. Dated at, etc., the day of , A. D. 1^ A.B. (Or if signed by solicitor, A. B., by his solicitor, J. P). e.rf of kinofvifiiiii , in the County 'I Allidarit verifijing facts set forth in petition for letti'rs of (jiiardianxhip. la the Surrogate Court of the County of In the matter of the guardianship of the infant children of C. F. l.A. B., ofthe of , in the County of , , make oath and say : (1) That I am the petitioner named and described in the said petition. (2) That the various facts, matters and things in the said petition contained and set forth are true in substance and in fact to the best of If: 010 APPENDIX — SUKUOOATE HULES, 1H'J2. i my knowledt»o and belief and bo far aa I have been enabled to ascertain them. A.B. Sworn before me the day of , 18 ) at the of in the County of f Pernon authorized to adminixter oathn under the Art. NoTK, — lienides the foreijoing affidavit there muni he furnished the proof required by rule 2. 3, Oath for (iuardian. In tlie Surrof^ate Court of the County of In the matter of the ({uardianahip of the infant child (or children) of C. F., deceased. I, A. B., of the of , make oath and say : , in the County of That I am the person applying to be appointed the guardian of E,F. the infant child (or nn the case may be) of C. F., deceaHed, in his lifetime of the of , in the County of , who died on or about the day of i 18 ; that I will, if I am appointed such guardian, faithfully perform the trust of guardianship, and that I will, when my said ward becomes of the full age of twenty-one years, or whenever the said guardianship is determined, or sooner if thereto recjuired by the said Surrogate Court or by the Judfji' thereof, render to my said ward, or to his executors or administrators, u true and just account of all goods, moneys, interest, rents, profits, pro perty or other estate of my said v.-ard — which shaii have come into my hands, or possession or under my control, and will thereupon without delay deliver and pay over to my said ward — or to his executors or administrators — the estate or the sum or balance of money, which maybe in my liands or possession or under my control, belonging to my ward — deducting therefrom and retainmg such reasonable sum for my axpenses and charges as shall upon an audit of ray accounts be allowed by tlie Court or the Judge. Sworn before me at the in the County of of , 18!) of the day A.B. Person authorized to administer oaths under the AH. {See R. S. O., Gap, 137, Sec. 12). 9-2. bled t'j ancertain A.B. aths wider tin Art, irniiilieil the proof liild (or childrwi) of mty of he guardian of E.F. ised, in his lifetime 1 18 ; that I will, rform the trust of imesof thefullat^eof p is determined, or art or by the Jud^t' or administrators, ii ,, rents, profits, pro have come into my thereupon without to his executors or loney, which maybe onginRtomy ward- jum for my sxpenHea ts be allowed by the A.B. r oaths under the Ad. , and M. N., of the , are iiuld of in (JUAUDIANSmi'. 4. Iloml to he ijivtn by Guardian*. Know all men by tlieso proauntH, that wo, A. H., of tiiu of in the County of , , K. L., of the of in tlie County of , of in the County of Mid firmly bound unto E. F. and G. F,, of the the (;ounty of the infant children of C. F., late of the of in the County of , , deceased, and to each and every of them, in the sum of dollars, to be paid to the said E. F. and G. F., their and each of their executors, administrators and iiflsigns, for which payment to bo well and truly made, we do bind ourHflves and each and every of us, our and every of our executors and administrators firmly by these presents. Sealed with our seals, and dated tlio day of in the year of our Lord 18!) . Whereas, the said A. B., being appointed guardian of the persons and estate of the said infants by the Surrogate Court of the County of according to the Statute in that behalf, is required to give security for the performance of the said trust. Now the condition of this obligation is such.that if the above bounden K. B. shall faithfully peform the .-iaid trust, and that he or his executors or administrators will, wiien the said wards respectively become of the fall age of twenty-one years, or whenever the said guardianship shall be or is determined, or sooner if thereunto required by the said Surrogate Court, render to each of the said wards or to their respective executors or administrators a true and just account of all goods, moneys, interest, rents, profits, property or other estate of such wards, which shall have come into the hands or possession or under the control of the said A. B., and will thereupon exhibit under oath and render in to the said Court for audit and allowance, a just and full account of his guardianship, and will thereupon, without delay, deliver and pay over to each and every of the said wards, or to his or their executors or administrators, the estate or the sum or balance of money which may be in the hands or possession or under the control of him thu said A. B., belonging to the said ward or wards, deducting therefrom and retaining such reasonable sum for the expenses and charges of /urn, the said A. B., as such guardian as by the said Court or by the Judge thereof shall have been allowed, then this obligation to be void, or else to remain in full force and virtue. Signed, sealed and delivered i in the presence of I U17 A. B. ^L.S.] K. L. [L.S.] M.N. [L.S.] ■.%. % ^■ s ^\^.^% IMAGE EVALUATION TEST TARGET (MT-3) 4 A / •^ 1.0 I.I 1.25 "la iiiM m ,36 1.4 M 1.6

^^ ^ ^' '^' w '% //^l o / Photographic Sciences Corporation 23 WEST MAIN S'REET WEBSTER, NY 14S80 (716) 872-4503 V iV % V *^* \ \ 0^ ^- 6^ >? \ V % ^^ R?" ft^^ '*% L-?.- # 6^ (• 'l 'I : I i I ) 618 APPENDIX— SURROGATE RULES, 1892. 6. Affidavit of Juttification by Suretie*. In the Surrogate Court of the County of In the matter of the guardianship of the infant child {or children) of A. B., deceased. We, K. L., of the of in the County of and M. N., of the of in the County of severally make oath and say: that we are the proposed sureties on behalf of the intended guardian of the infant child (or children) of A. R.. deceased, in the within {or annexed) bond named, for the faitliful performance of the trust of guardianship to him to be committed ; aiirl I, the seid K. L., for myself, make oath and say : that I reside at in the (/j'.'.nty of , and am worth projierty to the amount of ■''oUars, over and above all encumbrances and over and above what will pay ray just debts and every other sum for which I am now b.ail or >or whirh I am liable as surety, or indorsei*, or otherwise ; and I, iMf Ha;d iV i. for Tiysclf, make oath and say : that I reside at in th» Cc- .. , and am worth property to the amount ot dollars, over and above all encumbrances and over and above what ."ill pay my just debts and every other sum for which I am now bail or for which I am liable as surety, or indorser, or other wise. The above named K. L. and M. N. were' R^vorally swore before me the K. L. day of , I8!» , at the ' M. N. of in the County of PevKon authorized to admini»ter oaths under the Act. it ! ■ . \ h ii .1 ': 0. Notict to he transmitted by the Registrar of a Sarrogate Court to the Sur rogate Clerk, of application for letters of Guardianship by one of the Mc.rt of kin of infant children of deceased widower, or as the case may he. In the Surrogate Court of the County of To the Surrogate Clerk : Take notice that application has been made to the Surrogate Court of the (.'ounty of , by A. B., of, etc., to bo appointed guardian to E. F. and G. F., who reside at the of , in the County of , infant children of C. F., late of, etc., wlio died a widower {or as the case may be) and without appointing any guanl tii' ^^p GUARDIANSHIP. 619 Id (or children) of ian of the said infants, the said A. B. being the maternal ancle (or a$ the (axe may he) of the said infante. Application received the day of , 18 This notice mailed the day ) of , 18 . ( Registrar of the taid Court . oaths under the Act. 7. Lettei:i of Guardianship. Canada : | Province of Ontario. ) In Her Majesty's Suriof»ate Court of the County of Whereas A.B., of, etc., by petition to the said Court, did set forth that C. F., late of, etc. (reciti; as in petition), and prayed that he might be appointed guardian of the persons and estates of the said infants, pur- suant to the Statute in that behalf, and that Letters of Guardianship mi^ht be granted to him by the said Court. Be it known that on the day of , A.D. 18 , the Raid A. B. was appointed guardian of the persons and estate of them, the Baid E. F. and G. F., and these Letters of Guardianship are accordingly tiranted by the said Court to the said A. B., with power and authority to liivi to do all such acts, matters and tilings us a guardian may or ought to do, under and by virtue of any Act of the Legislature of Ontario, re- lating to minors and their property, he, the said A. B., having been tirst bound as required by law to perform the said trust and having been duly sworn to faithfully perform the trust of guardianship, and that he will when his said wards respectively become of the full age of twenty- one years, or whenever the said guardianship is determined, or sooner i^ thereto required by the said Surrogate Court or by the .Tudge thereof, render to his said wards, or to their executors or administrators, a true and just account of all goods, moneys, interest, rents, profits, property or other estate of his said wards, which shall have come into his hands or possession or under his control, and will thereupon without delay deliver and pay over to his said wards or to their executors or administrators the estate or the sum or balance of money wliich may be in his possession or under his control belonging to hi$ wards, deducting therefrom and retaining such reasoiiabe sum for his expcnBesaiKl cltarges HH shall upon an audit of his accounts be allowed by the Court or the Judge. iL.S.l liegistrar. F>"° 620 APPENDIX — SURROGATE RULES, 1892. I* 'i'fi f Minors. Name of Father of Minors, and pla^ e of residence at the time of his decease. ' No. of appli- cation. 0UARDIAN8HIP. 621 s OQ o H H O P QD e s 04 ^Ir o u ■0.2 c 111 «9 S S5* Is . n E 5 £03 s « ? •^ O O c og3 * .* * a zi g ^^ r^ -tf 2 «« 622 APPENDIX — SUUROOATE lULES, lHy2. TABLK OF FEES. > |I i 1 « n ' ' 1 [The following are the "altered feeu" within the meaning, as it would seem, of sec. 75 S. C. A., quod vide.] I. ReoIKTRAR's FeKS — NoN-CoNTENTIOnS BCBINESS. The following nhall be the tariff of fees to be taken by the Ro^istrarfl of the Surrogate Court for duties and Horvicea in respect of nonconteu- kions business in the said Court : 1. For services rendered under Sections 67 and 68 of the Act (see Uule 40), where the value of the property does not exceed » 100 » I 50 '2. Receiving and examining papers and entering application 1 00 H. Every iieceasary notice to Surrogate Clerk 25 4. Receiving and entering certilicato J5 5. Recording every bond with aflidavits of justification and ex- ecution 1 00 6. (a) On every grant of letters probate or letters of administra- tion where the property devolving is under 91,000 1 00 (b) 91,000 and under $4,000 2 00 (r) 94,000 and under 910,000 3 00 {d) 910,000 and under 920,000 4 00 (e) 920,000 and upwards :> 00 7. Submitting papers with Registrar's report thereon to Judge to lead grant 50 8. Recording grant or other instruments under Rule 46, or letters of guurdiansliip, per folio 10 9. For preparing probate or letters of administration or of guard- ianship issued under Seal of the Court, each instru- ment 75 10. Ditto — If grant is special 1 00 1 1. Transcript of will, per folio 10 I'i. Certified copy of will in addition, per folio 10 l:<. Drawing special orders or other papers directed by Judge, per folio 10 14. Taking every affidavit or administering oath to a witness .... 20 15. Attending and entering every order or minute 50 16. Every summons or order, and every instrument or other pro- cess under seal, not otherwise provided for, if prepared by the Registrar, per folio, including fee for sealing '20 H*J2. TABLE OF FEES. G2:j inlng, as it would SINESS. 311 by the Ret^iatrars )ect of non-conten- f the Act (see !S not exceed »l W plication I 00 25 25 iition and ex- 100 f administra- 000 1 00 2 00 3 00 4 00 .-.00 n to Jud^e to 50 46, or letterH , 10 [n or of guard - each inatru- 75 100 10 10 y Judge, per 10 witness .... '■20 60 r other pro- if prepared ling 20 17. IH. lit. 20. '2"J. 2S. •it. •i.'i. •it). ♦7. •14. •J'J. (ni I. For looking up original will or instrument and inspection, or for general search into proceedings 90 30 Every other search 20 Every necessary certificate grunted by Registrar 50 Ex-implitication under seal 1 00 If e.xceeding 5 folios, per folio ou the excess. 10 For depositing every will of a living person for safe custody, including a deposit receipt •"lO Issuing every subpoena ')0 Writing every necessary letter '2'i Filing every necessary paper 10 Attending audit, including tiling necessary papers thereat. . . . 50 For taxing costs and granting certificate 50 Receiving, entering and tiling caveat 50 Warning to caveat and entering the same 30 Postage and stamps and all other necessary disburiseraents to be added in all cases. (No fee allowed for filing papers in non-contentious business before probate or letters granted), proof of Will in Solemn Form, and in proceedings fo: revoking probate, or letters of administration, or for the removal of a guar- dian. If the proceedings are disputed or oont.nntious the same fees may be charged by the Registrar »8 in contentious proceedings. If the proceedings are undisputed the P'vme charges may be made by him as in non-contentious proceedingg. n. Reoihtrak's Fees— Contentiods Bhsine.ss. 1. lieceiving, entering, and tiling caveat, and transmitting notice thereof to Surrogate Clerk 80 7f» 'i. Warning to caveat, and entering same 30 ■i. Receiving, entering and filing bond on appeal 25 4 Searching for, making up and transmitting papers to Court of Appeal or High Court of Justice 50 ■">. Every certificate for which no other fee is payable 50 '>. On every citation, summons or Judge's order 50 7. Search in Registrar's books or tiles 20 ^. Looking up original will or instrument, and inspection, ur for general search into proceedings 30 '.'. I'iling every necessary paper '. . 10 i-ji H'i 624 AI'I'ENIJIX — SURROGATE RULES, 1892. 10. FilinR and entering every paper required to be minuted fo lo 11. Entering; every record or inaue depoaitod for trial ,<->() 12. Every subpojna 50 13. AdrainiBterinf? oath or taking an aflidavit 20 14. Entering dccroe, or order in pursuance of judgment, if under five folios ftO 15. If over five folios, per folio )0 16. Entering every order or decree requiring to be entered in the Court book, not otherwise specitied, per folio lO 17. Issuing every Writ under Seal of the Court, except Bnbpwna .. U} 18. For every office copy or extract of a minute, order, decree, or other document filed or deposited in the office of the Regis- trar, per folio 10 19. For the seal, in addition to the fee, for the copy, and collating, if required '2!> 20. Every necessary letter '.'S 21. Taxing every bill of costs, and granting certificate 80 DIHRnitSEMKNTH. 22. All outlays for postage and stamps as disb'irsed to be added in all cases. 23. After contentious proceedings are closed and a decree for probate granted, or letters of administration have been decreed to eitlii^ party, the Registrar, in addition to the foregoing fees, shall he entitled to receive for business done the like fees as in non-con- tentious cases. On proof of Will in Solemn Form and in proceedings for revokinjj probate, or letters of administration, or for the removal of a guardian. 1. If the proceedings are disputed or contentious the same fees may be charged by tlie Registrar as in contentious proceedings. 2. If the proceedings are undisputed the same fees may be charged by him as in non-contentions proceedings. Fees and Costs to Solicitous and Cocnsel. The following shall be the tariff of fees and costs to be allowed ii» respect of proceedings in the Surrogate Courts, in non-contentious cases, to Solicitors and Counsel practising therein, viz : 1. Drawing all necessary papers and proofs to lead grant &nd obtaining order for probate, or letters of administration, in ordinary cases and taking out same •^m TABLE OF FEES. G26 (ri) When the vahieof the property devolving is ander 51,000. 96 00 I M 51,000 and uuder $4,000 8 00 (r) 54,000 and under 510,000 12 00 (./) 510,000 and under 520,000 20 00 I.) 520,000 and upwards 30 00 In cases of temporary administration, or administration grant- ed pending any suit touching the validity of a will, or for obtaining, recalling or revoking any probate or grant of administration 10 00 (May be increased, in discretion of Judge, in cases of a special or important nature, to a sum not exceeding 520.00). I. For obtaining letters of guardianship a fee of ten dollars (510.00) in addition to all necessary disbursements may be allowed, to be increased, in the discretion of the Judge, in caseb of a siMicial or important nature, to a sum not exceeding twenty dollars (520.00). ) be added in all !8 as in non-con- AUDIT AND PASSING ACCOUNTS OF EXECUTOR OB ADMINISTUATOR. Where the inventory and accounts are brought in voluntarily and tlie next of kin or legatees, or devisees, or creditors do not appear, or appearing, there are no contentious proceedings or dispute abuut accounts. i. Taking instructions 52 00 5. Preparing and bringing in accounts if less than ten folios .... 3 00 ''. ^f exceeding ten folios, per folio above 10 1^0 7 E;ich necessary copy, per folio 10 '*. Aftidavit verifying same 1 00 '.1. Attending to get sworn to ''0 ll). Attending to file same, and petition 25 11. Petition and taking out appointment for consideration there- of 2 00 12. Each necessary copy of petition and of appointment, per folio 10' ll. Attending to serve such persons as the Ji'.dce shall direct, each 25 U. .\ffidavit of service, including attendance and paid commis- sioner 50 IJ. Attending the audit, and exhibiting accounts and vouchers, and numbering same T) 00 I*'). If engaged more than two hours, for each subsequent hour necessarily engaged 2 00 n.s.c. — 40 HI: m 626 APPENDIX — Sl'RROGATE RULES, 1802. 17. Drawing up order for allowance to executor or adminiHtrator, and order for the passing of tbe accounts and en^^rossint;, including copies )i oo 18. Bill of cost ' and copy ,-,o It). Attending taxation Thj Where the accounts are brought in by citation or .Judge's order, and the proceedings are compulsory, or contentiouH, or where there are disputed accounts. 20. For citation or order and serving same, and subsequent pr»coediiii;g taken thereupon by the solicitor and counsel, where coiiiiitel properly attend, the same fees may be charged and ullowed in taxation in all respects as in case of contentious proceedingH. 21. To the solicitor of the executor or administrator cited, and to Iuh counsel, where counsel properly attend, the same fees may be charged and allowed in taxation as in the case of contL-utiotm proceedings. 22. For preparing accounts aud bringing in the same and all HubHei|iieiit proceedings up to passing accounts and order granting allowance to executor or administrator (when taken or made), the same fi ch may be charged and allowed in taxation as the foregoing iteni'* 4 to 19 inclusive, respectively, when applicable. 23. For taking out subpoena, and making copies, and getting the Hame served (when necessary), the same fees may be char(.'e(l ami allowed at taxation as for similar services rendered in contentious proceedings. For proof of will in solemn form and attending the same on beiialf of those interested, or cited to appear ; in proceedings for revokinu probate, or letters of administration, or for the removal uf a guardian ; and for intervening on behalf of an heir-at-law ur other interested party. 24. If the proceedings are disputed, the same or similar fees and costs may be charged and allowed on taxation as in contentious cahC» according to their special importance. For allowance to sheriffs and witnesses and other disbursements, st^e J)0»t. IV. In Contentious Business. The following shall be the tariff of fees and costs to be allowed in respect of proceedings in the Surrogate Courts in contentious caseH t« Solicitors and Counsel practising therein, viz : TABLE OF FEES. 027 disburBements, B^e INSTKrCTIOXII. 1. For caveat, or warning of caveat, for rerokinij probate or letters of adtninistration, or for the removal of a i>iiar- dian Ja 00 2. I'or new letters of guardianship 1 00 3. For proof of will in solemn form 1 00 i. For statement of claim or other pleadini; 1 00 >. For citation, summons, or Judge'i> order 1 00 t>. For interrogatories 1 00 7. For special affidavits, in discretion of iudg/e 7'> S. Fur inventories, or bringing in account* 1 00 ',). To defend suit, or to appear on behalf of any intercHtod party 2 00 10. For brief, or case for hearing 1 00 DRAWINO INRTRCMENTS, tVTCkKOr.ilORIES, ETC. 11. Preparing caveat, or warning to caveat, and attending and entering either 1 00 1'.'. Interrogatories, per folio 20 \'y Uonunciation of probate ; attending and filing 75 U. Any instrument or necessarj paper, for which a fee is not otherwise allowed, per folio 20 1 >. Preparing every citation, summons or order, including prsDcipe and attendance, if drafted by solicitor 1 00 10. Preparing and entering appearance to citAtioa. or to the warn- ing of caveat 50 17. Other common appearance, and filing when necesMry 25 18. Drawing and engrossing statement of claim, or other pleading, 10 folios or under 2 00 19. If exceeding 10 folios, for every additimiaJ folio '20 ATTENI^AXCEE. 20. Every special attendance in Chambers in the course of a cause 1 00 (To be increased in the discretion of the Judge, not to exceed) 8 00 ■1. Common and necessary attendances when not included in some other provision or fee 25 NOTICES. fl. All necessary notices, if five folios or under, inclasive of copy.. 50 •3. If necessarily exceeding five folios, for every additional folio. . 10 f 1 '•I ii H if 11 if!!-'-!'' h J il.vl > 'iiijHl a I i*; I 'j;; 628 APPENDIX — SURROGATE RULES, 1892, DKCBEK, ETC. 21. Drawing decree or order for probate, or ^rant of letters of administration, or of gnardianship, or for recallint; or revok- ing probate, or ^rant of letters, or for removal of a guardian or other special decree or order, if prepared by the f !icitor, per folio 90 20 DRAWINO AFFIDAVITS, ETC. 25. Of service or other common affidavit, includin({ attendance and paid commissioner 7') 20. Necessary special affidavits, not exceeding five folios 1 00 27. If necessarily above five folioa, per folio i>0 28. For copy of caveat, warning, citation, statement o'. claim, or other pleading, or necessary paper or document, when not otherwise provided for, per folio 10 29. Fee on every subpoena V> 30. For every copy of subpoena 20 81. Drawing issue or copy of pleadings, if 10 folios or under .... 1 00 82. If exceeding 10 folios, per folio 10 83. For perusing testamentary papers, or other documents, in- cluding attendance when necessary, in the opinion of the Registrar, per folio 3 cts. (not to exceetl 91.00) C3 84. Fee on every decree, order or judgment signed by the Judge. . 50 COUNSEL FEES. 85. On motion of course, or motion for order nisi, or motion to make absolute, in matters not special 1 00 30. On special motion, and on special application io the Court or Judge (only one counsel fee to be taxed) >! 00 To be increased in the discretion of the Judge to a sum not to exceed •'. 00 87. On argument in supporting or opposing application to the Court or Judge, argument of demurrer, or special case o 00 To be increased in the discretion of the Judge to a sum not exceeding 10 00 88. Fee with brief at trial 10 00 To be increased by the Judge at his discretion in cases of a special or important nature, and on notice to the opposite party, to a sum not exceeding $25 (no charge to be made by either party in connection with such application). 39. Fee to counsel (when counsel attend) on argument or on ex- amination in Chambers, where, in the opinion of the Judge, the attendance of counsel is required '^ '^^ 1892, TAHT.E OF FEES. 629 of letterB of linK or revok- I of a guardian / the f 'icitor, JO 20 kttendftnce and 75 •oUob".*". l^-^ -20 nl oi" claim, or Dent, when not 10 "■") 1 or under 1 "*^ 10 dccumentB, in- opinion of the )0) ^^ by the Judge.. i)0 si, or motion to 1 00 to the Court or S 00 to a Bum not to t; 00 tion to the Court u 00 case e to a 9um not lU 00 WW....... 10 00 Ion in cases of a to the cpposite ie to be made by tion). ment or on ex- ion of the Judfte. ^ To be increased (in the discretion of the .Judge) to a sum not exceeding •• 91 00 10. On settling pleadings, interrogatories, Bpecial case or petition, or advising on evidence, in the discretion of the Judge, not exceeding ^ 00 JCDOMENTH OH I'RCREEH. 41. Drawing minute of judgment, order or decree, per folio, when prepared by solicitor under direction of the Judge 20 4'2. For every hour's attendance before Judge on settling minutes.. 1 00 LETTKns. ^^. (Common letters necessary in the course of the cause, including agency letters 2S BILL OF COSTS. , 44. Drawing bill of costr, for taxation, including engrosHing and copy for Registrar, per folio 20 MI8CELLAKE0C8. 4r At the close of contentions proceedings, and on decree for probate or grant, the fees to the solicitor for taking out probate, or letters of administration, or of guardianship, shall be the same as is provided for by the tariff for non-contentious business. 4tj. Where it has been proved to the satisfaction of the Judge that pro- ceedings have been taken by solicitors out of Court to expedite proceedings, save costs, or compromise actions or disputes, an aUowance is to be made therefor in the discretion of the Juuge, This shall apply whether the proceedings are contention'-, or non-contentious. (Uee item Uii of Tariff Con. Rules of Frac). DISBCnSEMENTS. 47. The fees paid to the Registrar or otlier officer of the Court, togetluT witli Court fees, stampa and postage to bo added to solicitors bill in all cases whether contentious or non-contentious. 45. lu cases in which the person to be cited or served cannot be served in Ontario, or in which he shall avoid service, or the service shall necessarily be effected beyond tlie jurisdiction, or by publication, such a sum is to be allowed for service as the Judge may consider reasonable under the circumstances, together with disbursments for publication of citation, etc., when necessary. piiv li 11 I'}' If il' ?0h fi 1- ■ I I ■ 630 APPENDIX — SURROGATE RULES, 1892. SHERIFFS. Sheriffs shall be entitled to receive the same fees as are allowed for like services iu the County Court. WITNESSES. There shall be allov?ed to witnesses the same fees and conduct rnonev or travelling expenses as are taxable in the County Courts. ^INote. — These tariffs are provided in lieu of. and not in addition to any previously existing tariff applicable to and heretofore allowed to solicitors and counsel, in respect of proceeding's in the said Surrogate Courts for contentious and non-contentious business.] Framed and approved under the Acts of the Legislature of Ontario, 53 Vict. chap. 17, sec. 19, and sec. 78 of the Surrogate Courts Act. Signed JOHN H. HAGARTY, C.J.O. J. A. BOYD, C. THOMAS GALT, C.J„ C.P.D. F. OSLER, J.A. JAMES MACLENNAN, J A. THOMAS FERGUSON, J. JOHN E. ROSE, J. THOMAS ROBERTSON, J. W. G. FALCONBRIDGE, J HUGH MACMAHON, J. ADDITIOXAL FORMS. (531 bs are allowed for APPENDIX III. KX,\MPLE OF PROCEEDINGS FOR PROOF IN SOLEMN FORM. Procedure in proving a will in Solemn Form since the Rules of 1H!I2, as shown by the records of the Surrogate Court of the (louuty of York; (a) a Judge's order taking the place of a citation under Rule 21. 1. Petition. (The petition iii in the form oj the application for probate in Common Formf ante, p. 580, with the addition of a prayer that the will may be proved in Solemn Form). Jcdge's Order. In the Surrogate Court of In the matter of the estate of J. B. M, deceased. Between H. M. plaintiff, and J. M., F. M. and E. M. defendants. Upon the application of H. M. (the executor) to prove the will of the said J. B. M., deceased, in Solemn Form, upon reading the petition ami the affidavits of the said H. M. and the affidavit of W. J. G. I do order : — 1. That a copy of this Order and of the said petition be served upon the said J. M., F. M. and E. M., the three other children and next cl kin of the said J. B. M., deceased. 2. And that in case none of the said parties dispute the validity of the said alleged will, the said H. M. be allowed to proceed to prove the said will in solemn form before me at my chambers at on the day of 189 , at o'clock in the noon. 'i. And that in case any of the said parties desire to dispute the validity of the said will that he or they do cause an appearance to be entered for him or them in the Surrogate Coui*. of the County of Yorki and that they do file and Lerve an answer to the said petition as in a 'lit instituted at the instance of the said H. M., p'aintiff, against the said ((() In the estate of John B. Milson, deceased, January 30th, 1804. J , a \ 1,0 i I h' '( : It . I; rn *-*i I WSM n¥^'' 1 1 ¥<•■< \ ; i • 1 ■ !■ If'' ! ■ ' ' 1 ! ! i 1 632 APPENDIX. J. M., F. M. and E. M. defendants, within ten days from service upon them of this order and said petition ; and that the said parties do attend before me on the day of 189 , at the place aforesaid, when further directions will be given as to the trial of the said issues (if any), and I also reserve the costs of this application and order until the said day of next. Dated at the day of 189 . Judge Surrogate Court. APPEAnANCE. In the Surrogate Court, etc. (Style). of the of Solicitors for the defendant J. M., who is the lawful child and one of the next of kin of the said deceased, who intends to oppose the grant of probate for which application has been made herein, apppar for him. Entered the of 189 Plea. In the Surrogate Court of (Style). J. M. by his solicitors, saith that the paper writing beaiinj; date the day of 189 , and alleged by the plaintiff to be the last will and testament of J. B. M., late of in the County of deceased, was noli executed according to the provisions of the Wills Act of Ontario, and is not the last will and testanieiit of the said deceased. The said J. M. hereby gives notice that he merely insists on the will being proved in solemn form, and only intends to cross-examine the witnesses produced in support of the will. Delivered by of the of solicitois for tl'd defendant J. M., the 19t)i January, 1894. Judge's Ordeu for Attendance of Witnesses. In the Surrogate Court of In the matter of the estate of J. B. M. deceased. Between H. M. plaintiff. and defendants. J. M., F. M. andE. IVl. Upon the application of the above named plaintiff and upon hearing read the Order herein dated the day of 18 , and the Plea of J. M., one of the defendants. ADDITIONAL FORMS — PLEADINGS. 633 I do order, that A. M.. H. M. and M. B. C. (6). of the of do attend before me at my chambers in the on the day of 18 , at the hour of o'clock in the forenoon to give evidence in this matter. Dated this day of 18 (Sgd.) Judge Surrogate Court. Judge's Order. In the Surrogate Court of the County of In the matter of the estate of J. B. M., deceased. Between H. M., plaintiff, and J. M., F. M. and E. E., defendants. The petition of the above named plaintiff that probate of the will of the late J. B. M. be granted in solemn form, cominj; on to be heard this day before me in the presence of counsel for the said plaintiff and for the defendants upon opening of the matter, and upon hearing read the said alleged will of the said J. B. M. and upon hearing the depositions of M. J. C, A. M. and H. M. and W. T. W. upon hearing what was alleged by counsel aforesaid, 1. I do find that the alleeed will of the said J. B. M., bearing date the ijth day of November, 1893, was properly executed and is the last will and testament of the said J. B. M., deceased, and do declare the same accordingly. 2. And I do further order that the said will filed in this matter be admitted to probate in solemn form and that letters probate of the said will be granted to H. M., the above named plaintiff. 3. And I do further order that the costs of the said plaintiff of the said petition, and of the proceedings and orders had thereunder, bo allowed to him out of the estate of the said J. B. M. as being proper expenditure by him in connection with the probate of the said will. Dated this oOth day of January, 1894. EXAMPLE OF PLEADING IN AN ACTION FOR "REVOCATIOI. OF PROBATE." lu the Surrogate Court of Between A. B., an infant (by C. B., her guardian), and D. B. and E. B. defendants. plaintiff ill) These were, in this case, the two witnesses to the will and the executor. i ii m )i\ 684 AF'PENDIX. Statement of Claim. 1. The plaintiff is the lawful uiece and one of the next of kin of F. B., late of who died on the day of 18 , a widow and intestate. , 2. The defendants are the executors of a pretended last will and testament with one codicil thereto, the said will and codicil both bearing; date the day 18 , and purporting to liave been duly executed by the said deceased. 8. The said defendants duly obtained probate in common form of tlie said pretended will and codicil at the Surrogate Court of Justice, on the day of 18 . 4. The plaintiff says that the said pretended last will and codicil were not duly executed by the said deceased in accordance with the provisions of the Wills Act of Ontario. o. That the said deceased at the time of the execution of the mii pretended last will and codicil did not know and approve of the contents thereof. G. That the said deceased at the time of the execution of the naid pretended last will and codicil was not of sound mind, memory and under- standing. 7. That the execution of the said pretended last will and codicil was obtained by the undue influence of E. B., of in the county of and M., his mother. The PiiAiNTiFF Claims — 1. That the Court will pronounce against the said pretended last will and codicil and revoke the grant of probate in common form made to the defendants as aforesaid and declare that the said deceased has died intestate. 2. That the Court will be pleased to grant administration of the personal estate of the said deceased to the plaintiff or to such other person an to the Court may seem meet H. That the plaintiff may have such other and further relief in the premises as to the Court may seem meet. Delivered this day of , 18 , by of , solicitorg for the plaintiff. In the Surrogate Court of Between A. B. an infant (by C. B , her guardian) plaintiff, and D. B. and E. B. defendants, and G. H, party cited. J. K. and S. (his wife) and N. K. and interveners. ADDITIONAL FORMS — PLEADINGS. 635 Statement of Defrnce and Counterclaim. 1. The defendants D. B. and E, B. deny that F.B., died intestate, and tliey deny the several allegations in parngiaphs 4, 5, 6 and 7 of the state- ment of claina. And by way of counterclaim the said D. B. and E. B. say as follow : — 2. The will and codicil referred to in the statement of claim were sillied by the said deceased F. B. in the presence of two witnesses present at the same time, that is to say O. P. and E. B., who subscribed the same in the presencu of the said described. 8. The deceased was at the time of the execution of the said will of sound mind, memory and understanding. 4. The said A. B., G. H , L. K. and N. K. are next of kin of the said deceased. The said defendants (plaintiffs in the counterclaim) claim as follow :— L That the Court will adjudge probate of the said will and codicil in solemn form of law. 2. That they may have such further or other relief as the nature of the case may require. Delivered by of this day of 18 , solicitors for the defendant. Reply. The plaintiff denies the allegations contained in the defendants' Btatement of defence and counterclaim and joins issue thereon. Reply delivered the day of , 18 , by of Bolicitors for the plaintiff. f^-rli \'i APPENDIX IV. PRACTICAL DIRECTIONS AND FORMS FOB DESCRIBINa TESTATOnS OR INTESTATES AND OTHEB MATTERS (a). Aa a generi' rule the signature of a testator is to be adopted ai hia uaiue altliougli it differ fruiu the name written in the beading of the will. In onse of a variation between the name of the testator in the heading of the will, and the name signed at the foot, or end of it. if the former is the more correct of the two, the testator should be descrilied by the name signed, the word " otherwise " followed hy the name given to him in the will being added. If the testator's name is wroiij^^ly spelt in the will, and the will is signed by his initials or by a mark, he should be lescribed by his eon'ct name, the word "otherwise" followed by lUe name written iu the will being added. If the testator is described in the will as " the elder," but has not so subscribed, such description is not to be inserted. If tlie testator is described in the will as "the property," but does not so subscribe, he should, notwithstanding, be described as " tl'i' jounger." or " heretofore the younger," as the case may be. The testator's pla :ou in the headiu« of f the testator in the foot, or end of it. if e testator should l»e erwise " followed by le will, and the will is 1 be lescribed by his by lUe name written " the elder," but hsis inserted, property," but does )e described as " tl'i' ease may be. the will or codicil, ■evious or subsequent jre than three places ily named in the will, >cutor " or " the sole they a.-:- p'A umales. ' i' •. ;■•? •-'•■'•' ill ar.,' ''t's-critx^il mis-spel". iU the will. led to his or her cor- ;he Probate Division, rf>;ranhew A., son of his brother B.," that execu- tor iimst designate himself such in the oath. Persons applying for administration are to be described in the iifiths as follows : — A wife "the lawful widow and relict." A husband as "the lawful husband." A father "the natural and lawful father and next of kin. A mother "then natural and lawful mother and only next of kin." A child "the natural and lawful and only child and only next of kin," or " one of the natural and lawful children and next of kin." A brother "the natural and lawful brother." A sister "the natural and lawful sister." If there are b*- no parents living, the brother o " ..r is further to be described as " one of the next of kin " or the " only next of kin." A nephew "the lawful nephew," and "one of the" or " only next of kin." A niece "the lawful niece," and "one of the" or " only next of kin." If a brotlier or sister be living, and the nephew or niece, being the child of a brother or sister of the intestate. wh(» died in his lifetime, apply for administration, he or she is to be described as " one of th(? persons entitled in distribution to the pro- perty of the deceased. '■ii Mr i ! ) . > i ' ' ^lJ.lL |! iir; .,'1 ' 1 ■!" it 1 ] J, !" I' ?i 638 Al'I'KNDIX. A graiuipnrciit, Kramlcliild, cousin, etc., is u> Ito (JcsirilKM] m, " Inwfui," and " oiio of tiic next of kin," yp " only next of kin." This partinilnrlty of (Icscription is not used in nil cast's, tlioiitfli the grantee be as near in kimlrcd as any of those hi'totc i|,.si[i nntod, f.//. an executor hein« the testator's great-grnndfatlier is ui)t required to he so descrilied in the oath. I'ersons further iimovefl i,, relationship than those mentioned, c.j/. cousins of any dcKrci'. nn- also not 80 deserihed. Letters delivered to Senior.]— When a uni./t is made to two pnr- ties in e((ual desree, rei)resented by distinct practitioners, tiie >;niiit Is extracted hy and delivered to the senior, as to admission, of tiip two. Deposit of Wills in the Kegistries for <'uHtr)dv.]— " The will or codicil to he deposited must be enclosed in a sealed envelope and delivered to the registrar of the court at ilie r"<^istiy, cithpr by the testator himself or by some person specially authorizeii hy him to deposit the same on his behalf. " In case the testator himself depo.sits his "ill or codicil, he will be required to sign his name, in the presence of the reuistrar, tu iin indorsement on the envelope in which the will or codicil is inclnseii, to the following effect : — " ' This sealed packet contains the last will and testnnioiir, {or codicil to the last will and testament, or last will ami testament and codicil thereto), bearing date respectivi-ly [here state the dates of all the papers enclosed], of A. R., of etc., whereof ('. D.. of etc., and E. F., of etc., arc appointed executors, anil the same are brought into tlip registry of this Surrogate Court of by me for nnfc custody, there to remain deposited until after my decoasp,' The residences of the testator and the executors should be set forth in this indorsement, and also the date uf signature. " In case the testator authorizes some other person to deposit his will or codicil for him, he will be required to subscribe his name, in presence of an attesting witness, to an indorsement on the envi'- lope in which the will or codicil is enclo.sed, to the following effect :- " ' This sealed packet contains the last will and testanicnt, (or codicil to the last will and testament, or last will and testament and codicil thereto), of me, A. B., of etc.. whereof C. D. and E. F., of etc., are appointed exorut- ors, and I authorize (J. H. to deposit the same for safe custody in registry of the Surrogate Court of , there ■^"■1 IM!.\ (li'SiTilit'li us k>xt of kill," ijr II ciisti'H, lh()ii>;li HP hoforu (k'niy- iiidfiitliiT is ni)t thiT rcinoviMJ ill liny (Icurt'c. mv in rciiistrar, to an •odicil is inclosed, 11 and tcstivnuMU, , or Inst will and date respectively closed], of A. B.. F., of etc.. iir.' broiinlit into the by lue for snfo ftor my dccoaso.' execnttirs shonld also tlie date uf person to deposit (bscribe his name, Lent on the envc- FoUowint,' effect :- 111 and testament, lent, or last will U, A. B.. of etc.. ippointed execut- Ihe same for safe Inrt of . there to remain deposited nntil after my ilecease.' (Si^ncdi A. H. Witness K. L.' Tiie residences of the testator iMid of the executors, and the ihite of slKiiiitiin'. should he set forth in this indorsement. "The packet coiitainin;; the will or codicil must be accomiianled hy II n aUithivit from tiie attestiiiu witness. t<» the effect that the jiu'iiiitnrc of the testator to the al)ove iiidorsemtMit, witnessed by the deponent, is in the proper iiandwritinn of such testiitor. and was liv liini signed in tin- dei>oiient's presence ttn the day niiMitioned In till' indorsement, and that the signature K. I., is in the projier hiiinlwritinir of the de.ionent." An aHidavit will also be required fruiii the person authorized to deposit the pii'ket. to the effect tlcit the seal'' 1 p.-icket produced for the purpose of liein;; d«>posited for packet contalninu the will or codicil is delivered. " .V minute ♦ ♦ will lie drawn up by the rt'^istrar. settinir fiirtli the production of the packet containinu the will or codicil. an<1 till' jilVidavits (if any), and when and by whom the same were pro- liuccd, and ♦ * ♦ that the same has been de|)osited in the regis- try for safe custoriy.'" <>>) Additional Forms, Adapted from Forms in Use in Prob.^te Division, Eno., and other Forms. No. I,] AFFID.i^VIT AS TO A TESTATOR's KNOWLEDGE OF THE CONTENTS OF HIS WILL, IN C.\8E8 OF BLIND OR OBVIOUSLY ILLITERATE OR IGNORANT TESTATORS. The following additional clause to be added to Affldavit of subscribing ttitness. ante, p: 588. .\iid I furth-r ni-ike oath, that previously to the execution of the <:iiil will by the said testator, the same was duly read over to him li.v me (or by IC. F. in my presence, or by himself in my presence), ill) As to removal of wills so deiiosited, see S. ( '. It. 20; and ;i.< to search for will in rejjistry see Uule 6. s52iisi?t!:i ■' Iff n; i^i M I' I • 1 1 w\ s 1, 1 'l I , it'' I 1 11 \ t f ' h i f fit f I 1 • 1 1 'i . L< I r: 640 APPENDIX. and hf> ihe Haiti deceaspd at Huch time Bt'ciiu-d thdroimhly t,, miti. r- stand the Bnnii' (or had full knowk'dp' of th»' . and E. F.. the other suliseribed witnesses thereto, both of us lieint: present at the same time, and we thereupon attested and suliseribed the said will in the presence of the said testator. 2. And I further make oath and say, that the said recited inter- lineation was written and made in the saitl will previously to the execution thereof. Sworn, etc. No. III.] AFFIDAVIT AS TO DEATH OF ATTESTIXO WITXESSLS. In the Surrogate Court of the County of We, C. D., of . widow, E. V. <.f , and II. .1. of , havin;.' severally with care and attention and insiiecttil tln^ last will and testament of the said A. H.. late of dect'ased, the said will liein.i; now Iiereiinto annexed. lie;riniiin>.' tlnis, " " ending chus " ," and beinj: thus suhscrihed, " A. H. " and h'lviiiK aLso observed the names and adilitions. K. L.. etc. and M. N., etc., set and suhsvi-ibed to the said will as witnesses attest- ing the due execution thereof, severally make oath and say as follows : — FORMS. 641 MARE iiT A srn- lid recited inter- rcviduslv to the 1. I, the Raid ('. D- for mynelf s«y. thnt 1 am the lawful ,vi(ln\v and relift ttf lli*- said 'Mitator, and the nolo oxi-ciitrix uiiiiud ill tlu' said will. ;;. I. the «nid ('. D.. further say. that I havi- made Inquiricit, and liavo paused inquiri*^ to be madf ronpottinK tho cxt'cutiou of till' said will, and hy uit^o of Burh inquirios, I have asecrtalnt'd that no person or iktukju* tran or wt-r*' prewnt at the execution of the will, save uud excf^it tb" said t»-!e hie uanx- to writings, and I have then'hy become well aequaiuteri()d of my itiquaintance with the tsaid K. I^. I frequently saw hhn write, and also subscribe his name to writings, whereby I have become well iirciualnted with his muiiner and character of handwriting and sub- ■iciiption ; and I further «ay. tbat I verily and in my conscience liiliev'' that the letter, name, fignrrs and words, K. L., etc., before n'(it(>(l. and now apix-aring m-t and subscribed to the said will, as "lie of the att<'Sting witije«s«« thereto, were and are of the proper handwriting and subK-ription of the said K. L. 6. I, the said H. J., for myself say. that I am a cousin of the said M. N., whose name apijiear» set and subscribed to the said will, :is the other witness thereto, and that the said M. N. died on or aliout the day of . IS . 7. And I, the said H. J., further say. that I have frequently well the said M. N. write and subscribe his name to writings. whereby I have become well af:«jaainted with his manner and char- acter of handwriting and r.ulm^ptinn ; and I further say, that I ill my conscience believe tbat the nanus and words M. N., etc., hefore recited, and now api^iaring set and subscribed to the said H.s c— 41 642 AIM'ENDIX. •Si' ,' will, as out' of the attcMtitiK witnf8n»'n tlicrcli), wtTc ami nrr of t||, lirupcr iiaiKJNvritiiih' and Hubacriptlun uf thv aaid M. N. Sworn l»y tlu' Haid O. H., E. l\, and II. .F.. 1 ('. I>, Ht'vt'rally (h), at , this day ;• E. P. of , 18 , Ijcforo mo. J n. .1. No. IV. AFKIIiAVtT AS TO AIl.HKXCE OP ATT'^STINO WITNK9SKH, HTC, In the Surrogate Court of the County of Wo, ('. D., of . in the county of . and K. V., of , in the county of , jointly and HcviPuDy inaki- oath and Bay as follows :— 1. Wo have with care and attention insi»ccted the last will and testament of the said A. K., late of , ii. the county uf . spinster, deceased, the Bald will being now licn-iinto annexed, lic^inniuK thus " " and ending thus " " ami being subscribed " A. B.." and have also observed the naiiu's ami additions ii. II. and I. K., set and subscribed to the said will as witnesses attesting the due execution thereof. 2. I, the said E. F., further say, that I knew and wiin wi'll ao(iuaint<'d with the said testatrix, who died on the diiy of , 18 , at , for many years before, and down to the time of her death, and that during that period I have freiiucntly seen her write and subscribe her name to writings, and I have thereby lu'come well ai'quainted with her manner and character of handwriting and subscription, and I spy that I verily and in my conscience believe the name A. H., subscribed to the said will ua aforesaid, to be the true and proper handwriting and subscription of tlie said A. B., deceased. 3. 1, the said C. D.. for myself say, that I am the sole executor named in the said will, and that I have made inquiries and have caused Inquiries to be made respecting the execution of the said will, and by means of such inquiries I have ascertained that iid person or i)ersons was or were present at the time of the execution of the said will, save and except the said testatrix, and the sai'i G. II. and I. K. 4. I, the said E, F., for myself say, that I am the uncle of the said 1. K.. whose name appears set and subscribed to the saiii will, as out' (^f the attesting witnesses thereto, and that the salrt I. K., in the month ot , 18 , left this country for some (0), See S. C. Rule, 38, ante. FORMS. C)V.\ ihI lUr ilf 111, E. F. 11. .1. S8MEU, KTC. imrt or |>ln<'i> aliroad unknown to thin (i(>pon)ntly Hct'ii tlio Haiti I. K. write antl •uliHcrib** hix naini' to writ- ink'x. wlit>r('l>y I linvo ht>coni<> w<-ll a<->|uaiiit<>il with IiIh inaiinrr nii nanw I. K. hffor*' n I itcci, and now appearing not and siihsfrihcd to the Haid will rh mil- of the attcHtinjc witneHHen thereto, were and are the true and piuper hundwritluK und Hultseriptiun of the naid I. K. (6 & 7. Itepi>at an to the other uttentinK wituesH.) Sworn, etc. \ CD. f K. l\ and wiis wi'll No, V.J AFFIDAVIT OF UOMICII.K. In the Surrogate Court of tiie County of I. (^ D., of , etc., malip oath and say, that I knew anil was acquainted witli the Haid A. B., lute of , in the State of , one of the I'nited States (or other foreign lountry, aa the case may he), who died on the tlay of It , And I further say tliat th«> said deceased was at the time of his death domiciled in the said State uf Sworn, etc., («). No. VI.1 AFFIDAVIT AS TO FORKIOK LAW. In the Surrof>ate Court of the County of 1, C. D., of , |an advocate or other person cctnversant with the laws of the country, or, in Scotland, a writer to the slguetj, make oath and say as follows :— 1. I iim conversant with the laws and constitution!! of the king- dom of 2. I have referred to the last will and testament of the said A. B., bearing date the day , 18 , and ni>w hereunto annexed, and I say that the said will is made in con- formity with and is valid by the aforesaid laws aud constitutions. Sworn, etc. (n If the deponent be also attesting witness to the will, he should also depose to the mode iu which the will or codicil was executed. '!':■; 644 APPENDIX. No. VII. ] AFFIDAVIT TO LEAD CITATION OR JUDQE'r ORDER TO ACCEl'T OB REFUSE ADMINIBTRATION. In the Surrogate Court of the County of I, C. D., of , make oath and say, tliat A. B., late of , deceased, died on the day of , 18 , at , intestate without child or parent, leaving E. F. his law- ful widow and relict him surviving : And I further make oath and suy, that the said E. P. has not taken upon her as yet the letters of administration of the property of the said deceased : An'! I further make oath and say, that I am the natural and lawful brother and one of the next of kin of the said d»'ccasfd, and am desirous of obtaining letters of administration of the rropcrty of the said deceased : And I further make oath and say, that the estate and effects left by the said deceased consist of (state the nature and amount of tiie property) (c). Sworn, etc. If the party to be cited reside abroad, insert a clause, showinjc that fact, as " The said E. F. now resides in the Island of Bar- badoes, and has no agent or attorney authorized to aci for hti' In this Province." No. VIII.] AFFIDAVIT OF DEBT TO LEAD CITATION OR JCDOE'h ORDER. In the Surrogate Court of the County of I. C. D., of , make oath and say, that the said A. B., late of , deceased, died on the day of 18 , at , intestate, a bachelor without parent. brotiuT or sister, uncle or aunt, ncijlicw or niece, cousin gernian or any other known relation whatever : And I further ma!.e oath and say, that the said deceased was at the time of his death justly and truly indebted to me in the buiu of . of liiwful money of Canada for work and labour douc, materials found and goods sold and delivered, between the day of , by me to the said deceased in my busiufss of a [or in any other way], and that no part of su'h sum has since been received by me oi >>y any person on my uehali. but that the whole thereof still r(>mains justly due and owing me, • (c) Briggg V. Koope, L. J. K. (N. S.), vol. 29, p. 96. FORMS. 645 En TO ACCEPT OB .t A. B.. lati' of ,18 , at J E. F. hia liiw- i E. F. has not of the? property the natural and id d<'C'cast'd, and of the iTopcrty ,nd effects left by amount of ihc clause, showintt ? Island of Biir- o aci for hii- in and I hold no security whatever for the same or any part thereof (6): And I further mal:e oath and say, that the property of the said dpceased consists of, etc. [state amount and particulars]. DOE H 0U1>EK. the said A. B.. ly of parent. brotluT gernian or any id deceased was mo in tlie buiu ind labour douf, en the in my busimis no part of su'h u on my uchaK. and owing me. ■). 96. No. IX.] AFFIDAVIT TO LEAD CITATION OR .IODOE'S OKDER TO EXHIBIT AN INVENTORY. In the Surrogate Court of the County of I, C. D. [wife of W. D.], make oath and say as loUows :— 1. The said A. B., late of , deceased, died on the day of , at , intestate, leaving him surviving M. H., hi." lawful widow and relict, and L. S. [wife of J. S.], me, this d(>ponent, and T. B., spinster, his natural and lawful and only children and only next of kin, respectively, the only persons entitled in distribution to his estate and effects. 2. On the day of , letters of administration of .ill and singular the property of the said deceased were granted by this (Niurt to the said M. B., the lawful widow and relict of the said deceased. :!. The said M. B. has .sworn the property of deceased under the sum of , but I verily believe the same to be consider- ahly less than the true amount and value thereof. 4. Part of the said estat insists of stock and growing crops wliidi should be forthwith valued and appraised before the same HH' removed or said in order that the true value thereof, as assets i"'li)n>,'ing to the said estate, nuiy be satisfactorily ascertained. "). Under the circumstances afori'said, and iipou other grounds, I ain desirous of obtaining from this Court a citation or order call- ini; npon the sail. M. B. to exhibit upon oath a true and perfect inventory of all and singular the estate and effects of the said lit'ceased. Sworn, etc. ('>) The date of debt must be shown ; Aitkin v. Ford, 3 Hagg. 194 ; and Rawlinson v. Burnell, 3 Sw. & Tr. p. 479. i'" P'lii ' 646 APPENDIX. pi" V' ' No. X.] AKFIDAVIT TO LEAD CITATION OU JUDGe's ORDER WHERE T}IK PARTY RESIDES AHROAU. In the Surrof^ate Court of the County of I, C. I)., of . makf oath and say as follows :— 1. The said A. li.. late , deceased, died on the day of , 18 , at aforesaid, intestate, withmit child or father, leaving E. F., his lawful widow and reliet. him surviving. 2. The said K. F. now resides in the Island of Barhadoes, and has no ajrent or attorney authorized to act for her in thig country (<). 3. The said E. F. has not taken upon her as yet the letters of administration of the property of the said d<'ceased. 4. I am the natural and lawful mother, and only next of kin of the said deceased. 5. The property of the said deceased consists of, etc. of, etc. Sworn, etc. (Signed) C. D. No. XL] AFFIDAVIT IN PROOF OF LUNACY. In the Surrogate Court of the County of We, C. D., of , surgeon, and E. F., of (nurse at a lunatic asylum), make oath and say respectively as fol- lows : — And I, the said C. D., for myself make oath, that for the space of years now last past. I have attended in my prufos- sional capai-ity E. B. (who is as I am informed and believe, the natural and lasvful father of the said A. B., late of , (ieceased), the said E. B, heing a patient under the care of my fellow deponent, the said TO. F., at the asylum or house for the reception f>f lunatics at , aforesaid, and that the wM E. B. hath been for many years, and is now a lunatic, ,'»nd totally incapable of man.tging himself or his affairs, or of doing any act whatever requiring thought, judgment or reflection, and is not likd; soon to recover the use of his mental faculties. And I. the said E. F., for myself, nuike oath, that I am a uurse at the said lunatic asylum or house for the reception of lunatus, (c)See Evans v. Burrell, 28 L. J. R., N. S., S."? ; Atkiii v. I'\ird, 3 Ilagg. 194, and in note. \ WIIF.KK T1!K Si FORMS. 647 wlioiv tlio said E. B. linth boon for years Inst past coii- tiiicd tliorcat, and has liccn uiidor my rare as a pcrsiui of unsouml mind, and that )io is a hinatic and totally incapahlo of managing liinisflf or his nfl'airs. Sworn, etc. Iiy the said ( '. I), and 10. V. licforc inc. (Sifrncd 1 C. D. K. P. t tho hitters of ily next of kin NO.'XII.] .\FFin.\VIT TO LEAD OUniCU FOU CUARDIAN OF INFANT TAKINO ADMIMSTUATION. hi tliu Surrogate Court of the County of 1. C. D.. of . nialio oath and say as follows :— The said A. li. of , tlicil at . aforesaid, on the (liiy of 18 , intestate, a widower, leaving K. F.. his natural and lawful and only child, wlio is now an infant of six years and upwards, liut under the a;;e of seven years, ami who, therefore, as 1 am advised, is by law ineapalde of acting in his own iiiiuu'. and of eleetinir a iruardian to art on his j)art and behalf. 2. I am the lawful .grandfather and the next of kin of the said infant, and I am read.\- and wilUn;; to undertake the Kuanlianshiy of file said infant f(»r the purpose of taking letters of adniinistra- tidii of the iiroperty of the said A. H., deceased, for the use and liciiefit of the said infant, uniil hi' shall iittain the age of twenty- iiiie years. Sworn, etc. No. XIII.] AFFIDAVIT TO LEAP ORDEn APPOINTINO GDARUIAN OF INFANT UEXOUNCINO. hi tlie Surrogate Court of the County of I. ('. I)., of , in the County of , make oath and Kiiy. that A. R.. late of , deceased, died on the day "f , 18 , a widower and estate, lejiving him surviving E. V. and (J. II., his natural and lawful and only children, and "Illy next of kin, who are now in their infancy to wit. the said R. F., of the age of years and ui>ward. find the said (J. II., of the age of years and upwards, but respectively under the age of seven years, anrl who, therefore, as I am advised, are hy law incapable of acting in their own names or of electing a I'liardian to a<'t on their part and behalf. 648 APPENDIX. And I further make oath and say, that T am the lawful [grand- mother and next of kin of ssiid infants, and am ready and willjim' to undertake the fiuardianship of the said Infants, for the purimsc of renouncinjj; on their part and behalf all their ri},'ht, titlf, and interest to and in the letters of administration of the property of the said A. B., defeased. Sworn, etc. No. XIV. AFFIDAVIT TO LEAD ALTERATION IN GRANT. In the Surrogate Court of the County of I. C. D.. of , make oath and say. that on the day of , 18 , letters of administration of the property of the said .Tohn Davies, late of , deceased, were granted hy the Court of , to me this deponent, the natural and lawful and next of Uin of the said deceased, but the siiid deceased's surname was in the same letters of administration erroneously written and spelt " Davis " instead of " Davies." That the true and proper stirname of the said deceased w;is " Davies " antl not " Davis," and the same was so as aforesniil written and spelt " Davis " entirely throu>rh error and hy mistake. That 1 am desirous that the said letters of administration may lie altered hy sul)stitutinj,' for the said surname " Davis " now appearing; therein, the suriiiime " Davies " as the true and proper surname of tiie said deceased. Sworn, etc. No. XV.] .HTDOE H OUDKR TO ACCEPT OR REFUSE LETTERS OF AnMINIS- TRATION. In the Surrogate Court of the County of (Formiil rommeiirement at in Xo. 30.) It is ordert'd tiijit within days after the serviee hereof on yoti. inclusive of the day of su<'h s(>rvice, you do cause an appearance to he enter(>d for you in the saitl Surrogate Clourt, and accci)t or refuse letters of administration of all and singular the property of the said deceased, or show cause why the same sinjuld not he Jiranted to the said -A. H.. a creditor of the said deceased. And in default of your so appearinjr and accepting and extractine the said letters of administration, such order will be nuide a.s to the Court nmy seem meet. thnv-l' FORMS. 649 TK.STAMENTAHY PAPER (a). [Formal Parts.) In tl.e Surrogate Court of the County of ' ■„ " ° • '"''^e oath and say as follows : 1. I lie said A. B., late of a day of ^ is \l^ ' tJeceased, died on the cveouted lii,s last will n..H LII . . ' ''"^'"ST made and duly of "i«t «iU and testament, bearing date the day -•'.tor and 'uJy.^^^^''' ''''''"'"'' '-' *'- "^^Po-nt, sole ti.e same or otherwise act as I may be rdled '""'' ^'■°''' And I further say that the said E. F. resides at ►jworn, etc. (Signed) q jy EKS OF ADMINIS- ^0- XVII.] CITATION TO ACCKPT OU UKKCSK AI.MIMSTHATIOM Wi. iM-eas it appears by tl... allidavits „f and , of till' (if but of th » died leavin./ ' ""*' '"tostat.-. of tlie (") S. C. R. 21. 1 If fi ii liii 650 AI'I'KNDIX. U.J :'''■> Now this is to cotiininnd yo>i that within days after tin- lirst |)uiili('ati(in hcrcdf yon do catisi! an ajjiicarancc to lie cntci'dl for you in our said Surrogate Cotirt of the coinity of .i,,,] accept or refuse letters of administration of tiie i)ro|)(.rty of tlie said , deceased. And take notice that in default nf yiiur so appeari;!^' and !ii.'ce|)tin;,' or ri'fiisin.i h'tters of administration of the property of tlie saire's order. , a creditor of the said deceased. Esquire. ,ludt;e of our siii.l , the ilay of , A.D. 18 Iti-jristrar Surrogate Court, U ■"■: « ! No, XVIII.] judge's onriER to accept oh refuse limited administration. {Formal Parts.) In the Surrogate C'ourt of the CJounty of It is ordered tliiit A. Ii. do within days after servi.c hereof on , inclusive of the «lay of such service, cause an Jippearancc t(» he entered for in the said registry of saiil Surrogate Court, and accept or refuse' letters of administration of all and sinj:uliir thi' iiroix-rt.v of the said (lece;ised. or siiow cause why letters of administration of the property of the said deceascil limited so far only as concerns all his ri^ht. title, and interest in and to the sum of dollars with interest due, and to heceiac line thert'on. secnre-i hy an indenture of mortpauc hearing date, ctr. (short d.scription of mortjrajie or other instrument), shoidd not hr granted liy tlu' authority of our said Surrogate Court to tlu' sitiii C. D.. the sole person entith'd to or henelicially interested in the siiid sum of dollars or to some person to be nanieil liv him on his part and hehalf. And in default of so appearing and accepting the grant of letters of administration of the property of the said deceased limited as aforesaid, or under sueli oth?r limitations as tn the .Judge aforesaitl shall seem meet, such order may he niade iu ahsenci' as to the Court may seem meet. Dated, etc. Registrar. FORMS, 651 fs after tin- ) 1)(' ciiteroii , niul ln'opiTty made in llenistiar. In the Surrogate Court of the County of Upon hearing It is ordered that the do, do within ten days after the service of this order, make discovery on oath of the documents which are or have been in possession or power relatinj.; to any matters in all further proceedinjrs be atnyod, and that the costs of this application be Dated the day of . 18 . h- ! a com- of for tb(> No. XXII.] ORDER FOR COMMISSION TO EXAMINE WITNESSES. In the Surrofjate Court of the County of Upon hearing and upon reading? the affidavit of filed the day of , 18 , and It is ordered as follows : 1. A commission may issue directed to of missioner named by and on behalf of the and to a commissioner named by and on behalf of the examination upon iuterrojratories and viva voce of witnesses on behalf of the said and respectively at aforesaid before the said commissioners. 2. days previously to the sending out of the said commis- sion, the solicitor of tho said shall give to the solicitor of tho said notice in writing of the mail or other conveyance by which the commission is to l)e sent out. 3. The costs of this order, and of the commission to he issued in pursuance hereof, and of the iuteri'ogatories, cross-interrogatories, and depositions to he taken thereunder, together witli any docu meut, copy, or extract and the ofhcial copies thereof, and all other costs incidental thereto, shall be Dated the day of , 18 No. XXIII.] OKDEK .Vl'POINTINd ADMINISTRATOR AD LITEM. (Formal Parts.) for tlu! purpose only " of attending supplying, substan- tiating, and conlirming the proceedings already had, or which here- after may be had in the action in the High Court of .Justice, or In any other cause or action wliich may be commenced in the same or in any other Court between the parties liereto. or any otlier parties, touching or concerning the subject matter of this action, and (bey and carry into execution all onlers and directions of the (Jo\irt relat- ing to the said subject matter and to this action until judgment FORMS. 658 leantinif all i application of shall be entered therein, and the same carried into execution, and the execution thereof fully completed, but no further or otherwise, or in otljer manner wlmtsoover. (If security dispensed with add ' And it is further ordered that the (.'ivinK of security by tlu' said administrator for the due fulfilment of his duties as such administrator be dispensed with.') (See instances of such orders on file in Surrofjate clerk's oflrtce in the cases of Confederation Life Association v. Caldcr, II. C. .1. Ch. Div. 12 .Tune, 1894 ; and Archer, a lunatic, by the Toronto (leneral Trusts Co., his Comniitt'je, v. OMiilley, (i April, IbUl; see also p. 2011, ante.) a com- of for the witnesses ou at B said commis- iolicitor of the er conveyance XXIV.] MOJION PAIEU. to be issuod nterrogatorics. ith any docu and all other lying, substan- ^^r whicli here- .Tustice, or in in the same or other parties, tion, and (.bey ic C^iurt relat- intil iud«ineiit lu Uie Surrogate Court, County of. Between A. B., phiintiff, and C. D., defendant. In the estate of E. F., deceased, K. F.. bite of , died on the day of , 18 , intestate, without child or parent, leaving the said C. D., his lawful widow and relict and the said A. B., his natural and lawful brother and only next of kin. The said C. D., having deferred taking upon her the administra- tion of the i)roperty of the said deceased, and the said A. B., on the day of , extracted a citation, under seal of this Court, against her, the said C. D., to accept or refuse letters of administration of the property of the said deceased, or show cause why the same should not be granted to him, the said A. B. This said citation was afterwards, viz., on the day of , 18 , personally served on the said C. D., and was on the day of , IS , returned into this honourable Court. No appearance has been given to the said citation. The above averments are proved by affidavits filed. The Court will be moved by counsel to decree letters of adminis- tration of all and singular the property of the said deceased to be !.'ranted to the said A. B. (Sif^ned) , Solicitor, etc. XXV.] OKDER ON MOTION FOK MODE OF TRI.Ui. In the Surrogate Court of the County of I'pon reading the notice herein to the defendant in person of the intention to apply to this Court for the mode of trial of this 654 APPENDIX, :lr . )■■■ 'kiiA~'i>. :ii cause, dated the tenth d'ly of Kt ptcniher last, tlic iitrKliv\it cf ser- vice thort'of mid the culnrKfincnt tlicn-oii •■iidorsi-d. and it imvine been furthcT eiihirjifd into this present term, and on the application of the plaintilT'H solicitor, an record to he entered therefor, and all proeeedinj^s herein to he iiad and taken for such trial at said time and place as may he requiHitc and necessary. And it is further ordered that the rpiestions to be siibinittod to and tried by the said jury, dischjsed in the pleadings in tins cause. are and shall be as follows : 1st. Was the pajx-r \\ riting alleged to be the last will and testa- ment of the late M. W., deeeuseil, and datei] the second day of , executed according to the provisions of the Wills Aot of Ontario. 2ud. Was the said M .W., deceased, at the time the said will bears date, to wit, on the second day of , of soiiml mind, memory and understanding. 3rd. Did the said M. W. execute the said will or paper writing last aforesaid not as of his own free will but contrary to his inten- tions and under a mistake, and under undue influence and collusion. On motion of Mr. , of counsel for the said plaintiff. Dated, etc. XXVI. CITATION. K . i . ! m>. '<- In the Surrogate Court in the County of Whereas it appears by an affidavit of (J. D., sworn on the day , and tiled in the registry of our said Surrogate Court of , that on the day of . 18 , letters of admin- istration of all and singular the personal estate and effects of K. ¥.. late of , deceased, were granted by our said Court to the said A. B., the lawful widow and relict of the said deceased : And whereas it further api)ears by the said affidavit that the said 0. D, is a creditor of the said deceased : Now this is to command yuii, the said A. B., that within days after service hereof on you, inclusive of the day of such service, that you do cause an appi'ar- ance to be entered for you in the registry of our said Court, ami by virtue of your oath, bring into and leave in the said reijistry upon oath a true and perfect inventory of all and singular the FORMS. (555 tstatc of the Kai ; unil l)y viitiit' of your liki- : No. XXVII,] NOTICE or ArrLIClTION fob LETTKISS ok OOARKIANSHtP. {Required by Section 11, Act Respecting Infants.) In the Surrogate Coart of the County of In the matter of Uiuer Gnanlianship of the Infant Children of C. I)., dcccaseefor successive issues of the Ontario Gazette, the tuidcrsii;ned will make application to the Surr'>iratf> Court of the C'ounty of . for a ^'rant of letters iir County of , lor a trrant of Li'tttTs of Administration of tlio property of , late of , deceased, wiio died at , on or al)out intestate, having at the time of his death no fixed place of uIkkIc in the I'rovince of Ontario, i>ut leaving jtropi-rty (or. as flic cam' may l)e) in the said County of , to be administered. Dated at , the day of , A.D. A. B. By C. D. Solicitor. No. XXX.] AFFIDAVIT OF SEAIIOH, AND NON APrKMtANCE. y.! Ill tlie Hvirrof^ate Court of the County of •Style, etc. I. (J. II., derli to I>. M.. of , solicitor for the above iiiuncd plaintiff, nmlie oatli and say as follows : — 1. On the day of , 18 , the said L. M. extracted a citation {or judge's onler, as the case may be.l in the aiiove named suit. 2. On the day of .18 ,1 duly and carefully searched in the registry of this Court to ascertain wliether or not any appearance to the said citation had lieen entered, either \>y or on beiiaJf of the above named defendant, and I say that no apiKur ance to tlie said citation has been entered either by or on behalf of the above named defendant. Sworn, etc. FORMS. 057 'on UETTiRK or So. XXXI. 'j AKFIDAVIT AS TO TIIK I.VSKIITION OF ADVKRTIHEMKNTH. In tlio KiirroRate Court of the County of Style, etc. 1, H. I''., (iT , aoliiiior, iimUc unili iiinl say, tintt ! nni soli( ilor of ( '. I)., tlic piirty iipiil.vlim lor Icitcrn nf ailiniiiistiMtinn of till' pntiicrty <>( the snitl A. H., liiti' nf . ili'i-caMcd : And I I'lirihir rnukc oiitli imd say, that. artiiiK on lu'lial/ ol' ilic siiiil < '. I)., 1 caused an advertisement requestiiiu the rehitives (if any) (jf the said deceasi'd to aiM'ly to nn-, to be inserted, onie in the Toronto inornin;; newspaper eaih'd tiie , to wit, on tile (lay of , and once in tlie Toronto inornin;; iii'wspnper ealled the , to wit, on , tile day (if (as i)y refereliee to tile said Iiewspilliers iiereiMlto annexed (/) marlied respeetl'ully No. 1, No. :i and No. ;;, will more fully appear), hut tliat no uiiplitioii wliati-ver lias Iteeis made to iiic this deponent in coiiseiiin'iice of or in answer to tlie said adver- lisi'iiieiil. nor have I lieen ahle to oKtain any infonnution respeetiiig the relatives (if any) of the said deceased. 'I'lie Atlidavit of insertion of ailvertisenwiit for recovery of lost will, may he framed from this, adding :— No api>lication lias lieeii made lo me this deponent in consi-- (lUiMiee of or in answer to the said advertisement, nor have I been Me to obtain any information respecting the ori^'inal will therein referred to. Sworn, etc. I.. M. cxtnictctl whether or imt ed, either by or that no upFiir- N'O. XXXII.] AFFID.WIT OF UELICT TO I.KAD A .TOINT GRANT. In the Sarrot,'ate Court of the County of Style, etc. I, ('. D., of , widow, make oath and say as follows, to wit : — 1. That the said A. B.. late of , (h>ceased. died on the day of , IS , at . intestate, leaving me, 'liis deponent, his lawful widow ami relict, and E. F., G. 11., and 1. K., his natural and lawful and only children. (f) The newsitapers themselves or the advertisement tis the •'uiliTe or Uejristrar m;iy reiiuire. H.s.c— 42 65.S APPENDIX. 2. That 1 have been advised that by law aiul the practid. ,if tliis Honourable Court, as the lawful widow and relict of the said deceased, I am entitled primarily and by preference to li;i<,_. the letters of administration of the property ot the said deceasiil jiranted to myself alone, but I am, notwithstandinu the saine. cdn- sentiii^ and desirous that the said E. F., who is the eldest son of myself and the said deceased, be joined with me in the letters of administration of the property of the said deceased. Sworn, etc. m i p: ; > ' 1 ■ . ■t f M' - ,1M ! I Hi No. XXXIII ] CONSENT OF THE OTHER NEXT OF KIN TO A GRANT BEI.NC. MADE JOINTF V TO RELICT AND ONE NEXT OV KIN. In the Surrogate Court of the County of Style, etc. Whereas A. B., late of , deceased, died on the day of . 18 , at , intestate, lenvini: ('. D. widow, his lawful relict, and E. F., G, H., and I. K.. his iiutuial and lawful and only children : And whereas the said C. D. is consenting and desiroiis tliat the letters of administration of all and singular the property of the said deceased be committed and granted to her jointly with tiie said E. F. : Now we the said G. H., of . and I. K.. uf , do hereby severally declare that we expressly consent that letters of administration of all and singular the property of the said deceased be jrranted and committed to the said (\ D. widow, and E. F. jointly. And we do hereby appoint L. M.. of , our solicitor, to file or cause to be filed this consent for us in the registry of this Court. Signed, sealed and delivered 1 by the said G. H. and (- I. K. in the presence of J Witness. a. H. I. K. (L.S.t No. XXXIV.] NOMINATION OF A PERSON TO TAKE ADMINISTRATION FOli ITR- POBE OF A SUIT IN CHANCERY. In the Surrogate Court ot the County of Style, etc. Whereas on the day of , 18 , I. tho undersigned A. B., of , instituted an aetiou i" FORMS. 659 SANT BEIXi. MADE the Hij:h Court of Justice of Ontario, npainst C. D. (sinco dooonsed) mill others, therein (amongst other thiiiKw) setting forth [state hriefly tlie averments of the bili|. and ehiim of relief in the piomises -s In tlie indorsements on the writ of summons in said aetion is set forth: And whereas divers i)roceedinKx have been hatl in the said suit, hut no further proceeding can he had therein until there is a legal personal representative of the saien the liefere- nieiitioned parties, or any other parties, touching and concerning tlie matters at issue in the said action, and until a final judgment sliall l)e had and made therein, and the said judgment carried into execution, and the execution thereof fully completed, to be granted to him as a person for that purpose named by me and on my jiart and behalf ; and I hereby appoint (J. II.. of . solicitor to til" or cause to be filed this nomination for me in the registry of the Surrogate Court of the County of In witness whereof I have hereunto set my hand and seal this day of , 18 . Signed, sealed and delivered 1 by the said C. D. in the I- (L.S.) presence of J Witness. ITRATION FOK PCR- No. XXXV.] CONSENT TO A LIMITEI) GKANT FOR rUUPOSKS OF AN ACTION IN Tni; HUiU COURT OF JUSTICE. Sty!' etc. Whereas on the day of . IS . \. IV. of instituted an action in the Ilgh Court of .fustice for Ontario, 660 APPEXDIX. against C. D., since doceaseJ, and others therein, (amonKst otlur things) setting forth (state briefly the averments), and elainiiu- relief in tlie premises, us iu the indorsement on the writ of wuin- mous in said aeti(jn set forth. And whereas divers proceedings have been had in tlic said action, but no further proceedings can be had therein until thort' is a legal personal representative of the said C. D. before tiie said Court : And whereas the said C. D., late of , deceased, died ou the day of , 18 , at . a bachelor and intestate, leaving me, the undersigned E. D., his natural and lawful father him surviving ; Now I, the said E. D., of , do hereby declare that I expressly consent that letters of administration of the property of the said deceased, limited to the purposes only (insert words of limitation as in preceding form), may be granted to F. G., of , as a person for that purpose named by and on behalf of the said A. B. And I do hereby appoint H. J., of , my solicitor, to file or cause to be filed this consent for me, in the registry of the proiier Surrogate Court in that behalf. In witness, etc. No. XXX VI. 1 BOND (BY CUEDITOR TAKING ADMIXISTIiATION) TO I'AV PRO IIATA, Know all men, etc. (as iu No. 18, ante). The condition of this obligation is such, that if the said (". 1».. a creditor, and administrator of the property of A. U.. ';•(, of , deceased, who died at . aforesaid, on the diiy of . IS , do out of the pi'opert.v of the said deceased, which shall come to and remain in his hands and possession, or in the hands or i)ossessiou of any otiiei- person or persons tor liiiii, and so far as the said itroperty shall thereto extend, iiay ami s.itisfy all and singular the just debts of the said deceased, iu a il'i.' course of .•idu\iaisti'ation. ratealdy and |)ri)i>ortionately, iwv' aiiord- ing to the priority retpiirnl by law. and not unduly preft'iiiu;; his own debt or the debts of any other of the er(>ditors of the said deceased, by reason of his being aduunistrator, as afiu'isaid. tin n this obligation to be void and of none etfi- -t, or else to remain in fiUl force and virtue. Signed, sealed and delivered by the i C. D. (i.. s.) said C. D.. E. F., and G. II., in ^ E. F. (r.. ^.) the presenpo cf ) G. IT. (r,. s.l (N.li.— As to the penalty and sureties se- S. C. Kules 32-;;5.) 1 * 1 FORMS. 661 No. XXXVIL] ArFID\>IT OF EXECOTION OF BOND. In the Surroj,'ate Court of the In the property of deceased. I, of the in the count of make oath and say : — That I was present and did see the within bond duly executed by tho parties named therein ; and that the name set and subscribed as a witness thereto, is of the proper handwriting of me, this deponent, and that tlie sama was executed at the in the count of Sworn before me at in the Count of this day of I A.D. 18!) I This aifidavit is filed on behalfjof For oath of justification, vide ante p. 593. 3 PAY PRO UATA. No. XXXVIII. 1 ADMINISTRATION ItONl) (otJTH SECTION OF S. C. A.). Know all nion by tlieso presents, t't<'. (as in Xo. IS, auto). (Ueoital requirod by S. (\ ItuU' 13.) The condition of tliis oblijratjon Is such, that if the above inunt'il A. K., the person appointcil l)y (J. II.. the .Tudfre of the Surrogate Cdurt aforcHaid, under and by virtue of the 56tli section of the " Surrojrate Courts Act," to be tlie administrator of all the \)ro- perty and effects of , late of , deceased, who (lied on tho djty of , 18 . do. when lawfully called on ill that behalf, make or cause to be made, etc. (I'roceed as in Xo. 18 or 19. diitc. sis the state ac(;ording to law, and to exhibit a true and perfect inv»'ntory of the said property so left unadministered. antl to render a just and true account thereof whenever retjuircd by law so to do. (Signe case of administration (Will) dt' bonis non ui)on dcMth of executors the aliove Form may be adai»ti d fidlowing the oiilii No, 107. so far as aijpiicable. No. XL I.] LETTERS OF AnMIXISTRATIOX TO ATTORNEY OF INTESTATE'S HOSBAND, THE LATTER BEINQ OUT OF THE JOUISDICTION (durante absentia). (Formal parts as in Forms 22 or 23. and recitals.) * * * intestate, leaving ('. D.. her lawful husband, her sur- viving, who resides at San Francisco, in etc. (or as tlie case inn.v FORMS. 6G3 lul, and had at tlie time of her (loath a fixed place of abode at , ill the said oonnty of , were frrauted liy thi' Surrogate Court of the to E. F.. tlie lawful attorney of the said C. D. for the use and benefit of the aaid C D.. and until he shall duly apply for and ol)tain letters of ndininistration of the property of the said deceased to be fxranti-d to him. he, the said K. V., having been first sworn faithfully to administer, etc. No. XLII.] LIMITED ADMiNisTnATiON- WITH WILL ANNEXED {durante mhiore (State.) (Formal Parts see Form No. 22. and recitals as required by S. C. U. 13.) And be it further known, that on the day of , letters of administration, with the said will annexed, of all and singular the property, of the said deceased, were granted by the Surrogate Court of the , County of . to E. F.. of the . of . in the County of . the natural and lawful nude and next of kin. und the guardian law- fully assigned (or as the case may be) to him the said C. D., for the use and benefit of him, the said C. D.. and until he shall attain the age of twenty-one years (;/), he. the said E. F.. having, etc. (TOuclude as in No. 20). No. XLIII.] POWER OF ATTORNEY TO TAKE AOMiNISTRATION. Whereas A. B., late , deceased, died on the day of , IS , at . intestate, leaving surviving hlin C. D.. his lawful widow and relict : Now I, the said ('. D.. the lawful widnw and relict of the said A. K., at present residing at . hereby nominate, constitute and appoint E. V. of , tn be my lawful attorney for the purpose of obtaining letters of administration of all and singular the property of the sjiid A. li., deceased, to be granted to him by tii(» proper Surrogate Court in the I'rovince of Ontario, for my use and benefit, ami until I shall duly apply for and obtain letters of ailniinistration of the jiroperty of the said deceased to be gi-anted ti> me; and I hereby promise to ratify and confirm whatever my (.'/) If more than one, until one of them shall attain the age of 21 years. %i 6C4 APPENDIX. siiid iittornoy slinll Inwfnll.v do or cjuiso to ho done in tin- jipc- lliist'8. In witnesa whereof I have hereunto set my hand and seal this day of in the year of our Lord 18 Sij:n«'d, scnlcd iind delivered | II^.S.] in tlie i)n'sence of J HM'ii No. XLIV.] I'OWEK OF ATTOHNEY TO TAKE ADMINISTBATION (WILL) (executors). Whereas A. B., Late of , deceased, died on tlie ■ ■ ->i , 18 , at , having made and duly • ^ , ^- d his last will and testaniont, bearing date the dm- tors : 18 and thereof appointed C. D. and E. F. exet \()w • *he said C D. and E. F., at present residing at do here; ,', n"in;ii .le. eonstitute and appoint <». H. of , to be our lawful aitorney for the purpose of obtaining letters of adminis- tration (with tlii; said will annexed) of all and singular the property of the said A. B., deceased, to be granted to him by the projier Sur- rogate Court in the said Province of Ontario, for our use and lieiic- lit and until we shall duly apply for and obtain probate of the said will be t,'raated to u-j, and we hereby promise {proceed an in hist Furm.) No. XLV.] POWER OF ATTORNEY TO TAKE ADMINISTRATION (wILL) (residuary legatee). Whereas A. P,., late of , deceased, died on the day of , at , having niadi." and duly exec\iti>ii his last will and testament with a codicil thereto, the said will liciir- ing date the day , 18 , and Mie said codicil bearini: date the day of , 18 , and in and by his said will nominated and aintoiiited ('. D. and E. F. executors : and whcnas the said ('. D. and E. F. respectively died in the lifetime of the said deceased : Now I, iJ. H., at present residing at , one of the residuary h'gatees named in the said will, do hereby nominate, ((in- stitute and api»oint I. K. of . my lawful attorney foi the purpose of obtaining letters of administration (with the said will and codicil annexed) of all and singular (i)rovird as in hint Form iinitat'hs iinttuiidi.i.} FOUMS. G(?5 ' in tile pri'- and seal this U.S.] (will) on the adi' and duly 10 diiy 1 E. F. exeoi- ding at , til be ■rs of adininis- ir the prdpcrty ;he proper Sur- 1 use and heiie- te of the said last Form.) )N (will) on the duly executed liiid will litiir- odicil hearini; his said will and whereas ifetirae of the one of the loininat*', coii- torney foi the the said will cd as in /«»f No. XLVI.J rowEU ok attorney to apply in enoland fou re-bealino op UISANT MADE IN ONTARIO. Whereas A. B.. late of in the and I'rovince of Ontario in the Dominion of Canada, , deceased, died on the day of 18 , intestate {or as tlu- ease may be) and entitled to personal estate within the said Province', iiiid also within that part of (4reat Britain called Kunland, and having at the time of death a fixed place of abode at , in the Province aforesaid and having domicile within the Province aforesaid. And whereas Letters of Administration of all and singular the property of the said intestate were on the day of , IS , by the Surrogate Court of the County of aforesaid, the same being a Court of probate within the meaning of the Colonial Probatea Act, 1892, {^rantetl and committed to of the Of . And whereas it is necessary that the said administrat should be authorised J)y the proper Court in that btdialf to adinin- inster the said personal estate of the intestate, which is in Eng- land. Now I, the said , hereby nominate, constitute and aiipoint of England, to be my lawful attorney to apply for and obtain for me the sealing by the jiropcr Court in that behalf in England under the Colonial Probates Act, 1892, of the said Letters of Administration granted to me by the Surrogate Court of the County of in the I'rovince of Ontario aforesaid, and I hereby promise to ratify and coutirm whatever my said attorney shall lawfully do or cause to be done in the premises. In witness whereof I have hereunto set my hand and seal this day of , etc. Signed, sealed and delivered in the presence of L.S. No. XL VII.] OATH FOR liOUllLE PRORATE. In the Surrof,'ate Court of the County of Style, etc. I. C. D., of , the son of the said deceased, make oath and siiy as follows : 1. A. B., late of , deceased, died on the day of , 18 , at . having made and duly executed his last will and testanu'ut, bearing date the day of , 18 , and thereof appointed E. V. and me the said C. D. executors. ml MM 666 APPENDIX. 2. On or about tlio diiy of . IS . tho siiid E. F., one of tho said executors, proved the snid will hi this llnn- ourable Court, power heing reserved of making the like grant of probate to nie the said C. D.. the other exeeutor, when I siiouM apply for the same (as by the acts and records thereof in tlie regis- try appears). 3. I believe the paper writing (f/) fproceed as in No. 15]. No. XLVIII.] OATH OF EXECUTOR, FORMER PROBATE HAVING BEEN REVOKED. In the Surro^'ate Court of tb.e County of Style, etc. 1. (See No. ). appointed his son. me this deponent, sojo executor . 2. Notwithstanding the premises i)robate of an earlier will of the said testator, to wit. dated the day of , 18 , was on or about the day of , 18 , granted l»y tiiis Honourable Court to E. V. the sole executor therein named. 3. The said probate has been since voluntarily brought In by or on the part and behalf of the said E. F., and has been duly revoked and declared null and void to all intents and purposes in the law. 4. I believe the i)aper, etc. (as in No. 15). No XLIX.] OATH ox PnOVIXG THE DRAFT OF A WILL. In the Surrogate Court of the County of Style, etc. 1. I, C. D., of . make oath and say, that the saiil A. H., late of , widow, deceased, died at , on the day of . having made and executed her last will and tcsni- ment. bearing date the day of , and thcrco' appointed her son. me the deponent, sole (>x(>cutor : 2. And I further s.ny. that since the death of the said deioiisiil the said will has been lost or so mislaid that it cannot now )"• found: {g) The letters probate may be used and marked by depoaoiit. FORMS. ()67 pouont, si)l(> 3. And I further say. that the saiil will was prepared from the draft thereof now remainiiiK' in the rejristry of this Court, and that tlicic is no authentic copy of the said will: 4. And I further say, that on the day , the Jnilp- of this Court pronounced for the force and validity of tiie siiil will as contained in the said draft, and decreed prolmte of the tiiiiii will to lie granted and conunitted to nie as the sole exi-eutor therein named, limited until the oriKinal will or an authentic copy tiiereof be brought into and left in the registry' of this Court: 5. And I further make oath, that I believe the said paper writing now hereunto amiexed and marked by me to contain the true and original draft of the said will of the said testatrix: That I am the sole executor therein named, and that I will well and faithfully administer the property of the said testatrix, limited until the said original will or an authentic copy thereof shall be Immght into and left in the registry of this Court. [Proceed as in Number 15 to end.] No. L.] OATH CM PROVISO A COPY OF A WILL, THE ORIGINAL BEING LOST. In the Surrof^ate Court of the County of Style, etc. I, C. D., of , make oatii and say, tliat A. B., late of licceased, died on the . (since deceased), and me the said C, D. executors. And I fui'ther make oath and s;iy, that at the time of tlie deatli of the said deceased, the said will was whole ami tinc.-iu- celh'd, and in the same state as when executed, but tiiat the said will has since lieen lost, or so mislaid that the same cannot lie now fiiuiid. And I further make oath and say, that sliortly after the dcatli of tile said (h'ceascd, a cop.v of the said will was made by of , solicitor, at tlie HMpiest of the said I). B.. widnw. tlie relict of the said deceased, and the same was by him exami.ied with the original and found tn agree therewith. And I further make oath and say, that I believe the said cuiiv iii'iiig the i»aper writing lu>reto aniiexetl and marked by me til contain a trii(> and faithful copy of the said true and original last will and testament of the said testator : that I am the sur- 668 AI'i'ENUIX. viviiip <>xo()itor nnniod in tli»- said will ami thiit I will wcjl uin' fiiitlifiilly iKliiiinisttT tin- pmixTty nf tin- sai'l totator. liiiiit'il until tlic said ori^rinal will or a inon- autlicntir cdiiy thereof sluill lie liroii^lit into and left in the registry of this Court. IProci-etl as in Xn. ir> to tin' cihI.! i-™!-. i. ,'lllll aiil :niil s:;i(l tlii'ii No. LI.] OATH o.v rnoviso the sub.stasce or contexts ok a will, In the Siirro;iate Court of the County of Style, etc. I, C. D., of . widow, niake oath and say, that the said A. B., late of . dee,'ase<|. died at . on tlie day of . havinj: made and duly executed his last wii testament, liearinj; date in or alioiit the niontii of thereof appointed his wife, me. this deponent, sole exeeulrix. And I further maki' oath anr writing or afiidavit hereto iinnexed and marked l.»- me to contiiin the substance of the said true and original last will and testanieiit of the said deceased. [Proceed as in Xnnilier 15. mutatis mutandis to the end.] Fr»RMS. 669 No. LII.] OATH ON ftsfjvnfi \ copy of a wn.i i uanhmiiti-p to ontakao, THE OKl'.KlI. BF.t.Nif IN KXISTKSCK I'.I.SKWIIKUK. In the Surrogate Cc'un ^>f she Ciiiirity of Style, ttc. 1. As iiarat:raj»li 1. \.>. &1. 2. Ami 1 fur\h"T inak>'- i»ath ami May, that tin' said will was t'.\t>cut«'(l hy the »*ai*tf»*jo' "f the said will was received hy n»e in due iciui'se of post from tini*- >»aid E. F. 4. And I funb^T maki> oath and say. that T verily believe there is not now in '"Ontario a more authentic coiiy thereof than tile aforesaid copy, aixl that it is essential to the interests of the fstate of the said df^ot-a*"*! that prohatt> thereof should he granted without waiting th*^ arriraS of the said original will or a more aiithenti(.' cojiy ther^xjif : 5. And I further maki" oath and say, that I believe the paper writing hereunto aujiext-nl and marked by ine to contain a true (Dpy of the said last wiBJ and testjiment of the said deceased, and tiiat I am the sole ifX^-rcnVrr therein named : [I'roct-^ a* lit Number 15 to the end.] liiging to 'liiii. ime cainie No LI II.] OATH rOK S-ZCiP.\TV. SAVE .VNL) EXCEPT. testator (lied Id that on the on niotidii <'f ami sworn t( into ami ?ve the piiiiiT |me to contiiin land testiiuient In the Surrogate Court of the County of Style, etc. I, C. D., of . make oath and say, that the said A. H., late of , deci***!.-*!. dii-fl at , on the day of , IS , havjug mzdvr and duly executed his last will and tt'sianient bearing date tfci»r day of , 38 , and tlierein name.l bis s<.iij- m»' thf de[ionent. executor, save and except as regards all freehold, lcr money and premises whatsoever vested in him upon or for tb*- tnuwt.* or purposes of the last will and testa- ment of E. F., late of . deceased. And I further mate njatli and say. that I believe the paiier writ- ;!!'-' hereto annex<-d auid marked l^y me to contain the Tnit> and ■'liu'inal last will and t'*itaaient of the si-.id A. B., deceased, and 670 APPENDIX. tliat f. mil tlif I'Xfciitur tlicrcin imiucd as aforesaid, ami thai 1 will I'aitiifully iidiiiiiiistiT tin- ipnipcrty i»f the said tcstutor, Have and t xi'i'pts so far as relates to all. (Repeat exception aH almve.) CuiitiiniL' us in No. 15 ante.) ■ ■"(',■ '■•■". ■■.■■;;■■;: ;1-: :a No. LI v.] 0.\TU FOll I'liOIlATK CKTEnOIlUM. In the Surro^^ate Court of the County of Style, etc. I. (.'. D., of , make oath an use 1111(1 licriclit until I should iittiiiii the iiK»* of twcnty-oni' yt>ar.s i;is hy the nets iinil records now ri'iiialnini,' in thr registry thi-ri'uf iiplH'iirs). And I fiirtln-r niakt' oath and say, that since tin- prciaiscs, to wit, on till' day of ,18 .1, this dciioiiciit, Innc attaiiu'd tiio am' of twcnly-oiio years, whereby the saiil letters of iidiiiiniHtratioii, with the said will annexed, have ceased and expired. And 1 further make ,'isrry thereof, ap- pears): And I further make o.ath. thai since the premises I have returned to and a.m now resident in Ontario. And I further make oath and say, that 1 tielieve the parchment (ir paiKT exhibit hereunto annexed, partly written and partly printed, and marked by me, to contain the true last will and testament of the said deceased ; that I am sole executor named in the said will, iiiiil I will well and faithfully administer, etc. (Proceed as in No. 15.) ;J' '..I IK 672 APPENDIX. No. LVII.] OATH OF ADMINISTRATOR PKNUENTE LITE. In the Sti)TO<,'iito Court of tlie CJ.jiiiity of Style. I. ('. D., of . iiiakf oiitli iind say. that the said A. It. day of day of , iiiakf lato of , widow, deceased, died im tile having as asserted made her will, l>eariii;; date the , hut did nut there(d" a|)|)oint any executor. And I fnrtlier say, tliat tlu re is now depeiKlinj; in judKnienl In the Court of , a certain action . institiitcil by E. v., the residuary h'uatee named in the s.-ime will, ajraiiist nii', the said C. D., one of the natural and lawful children, and one of the next of kin of the said deceased, touching and couceniiiit; tin. validity of the said will : And I further make oath, that the Judge of the Surrogate Oiurt of . did on the day of , after heariii^' counsel, uiton tlie consent of the other [larty to the said suit, onler letters of administration i)ejiding the said suit of all and sinKnI;ir the property of the said decea.sed, to be granted to me, this (lepini- ent. (or if the order has been made otherwise, state it as niailei: And 1 further make oath, that I will faithfully administer the property of the said deceased, pending the said action, save dlstrihat- ing the residue thereof, under the directions and control of this Court : that I will exhibit a true and perfect inventory, etc. (I'lo- ceed as in No. 17.) No. LVIIl]. 0.\TH FOR CESS.ATE ADIIINISTRATION TO XEXT OF ICIN ON AT- TAINING HIS MAJORITY, In the Surrogate Court of the County of Style. I, C. D.. of . make oath and say. that A. B., lat.> of , deceiiseil, died a widower and estate ; that in the nioiitli of , 18 , letters of administration of the propeity of the said deceased were granted by this Court tu K. !•'.. the lawful and next of kin, and curator or guardian lawftdly assigiuM of me this deponent (then an infant), the mitural and lawful Mini oidy child, ami only next of kin of the saltl deceased, for my usi' and benotit, and until I should attain the age of twenty-oiu' yi-ars : And 1 further make oath and say, that since the iiremises, t^ wit, on tlie day of ,18 ,1, the deponent. h;ivi' FORMS. 073 ■ Siiiil A. r.., iliiy i)t' (lay (if I jiidK'mciit in . iiistitiitcil 11, against nil', 11, ami tiiii' 111' 'oncci'iiiii;,' the irrogatc ("nirt , after hcarin;: aid suit, order 1 and siiif;iil;if nc, this dcpiiu- (• it as niiidi'); aduiiuistcr the savo (iistriliut- (•(jutrol of this torv, etc. (I'ro- OF KIS ON AT- A. li.. liitc "f .t in the niiintli [lie iiro|i('ity (if v.. the lawful iv fully assiu:ni(i liid lawful aii'l 1(1, for my >i'"' lity-oiic ycMi"'* ; |\c iin-niiscs. t'l lleiiiiiu'iit, hiivi' iittaiiK^d tho aK(^ of twptity-oiu' years, whereby the said letters of aduiiuistratiou have eeased and expired. And I further make- oath aud say, that I am the natural and lawful aud only ehild and only next of kin of the said deeeased; that I will faitlifuUy administer, etc. (Troeeed as in No. 17). No. LIX.] OATU I'OR ADMINISTRATION (WILL) TO LEGATEE. In the Surrogate Court of the County of Style. I C. D., of , make oath aud say, that I believe the paper writing hereto annexed aud marked by me, to contain the true and only last will and testament of A. li., late of , ihM.cased. that E. l'\, the sole executor and residuary le^^atee named ill the said will, has duly renounced the probate and executiou thereof, and also the letters of administration (with the said will annexed) of the projierty of the said deceased ; that I am a leRatee named in the said will ; that I will well and faithfully administer, etc. (Proceed as in No. 16.) No, LX.] OATH Of AN ATTORNEY- OF AN EXECUTOR (oN TAKINU ADMINISTRATION WITH will). In the Surrogate Court of the County of Style. I, C. I),, of , make oath aud say, that the said A. B., late of , deceased, died at , on the day of , IS , havirif; riiadt> and duly execute(l his last will and testanieiil, bearing date the day of . 18 , and thereof apiiointed his son, K. F., sole executor, who now resides at And I further make oath and say, that the said K. V. has, in and iiy a certain letter of imwer of attorney, under his hand and seal, duly appointed me, this deponent, to be his lawful altoniey, for th(> purpose of administering on his behalf the estate of the said deceased in Ontario, as in and liy the siiid power of attorney will appear : And I furth(>r make oath and say, that I iielieve the pap(>r writing hereunto annexed and marked by me, to contain the true and original last will and testament of the said deceased, ami that 1 will well and faithfully adiuiuister the proiierty of the said H.s.c.-i:s i 't ' I r t'itMjHpHpa mm I 674 APPENDIX. deceased, limited to such as is in the Province of Ontario, for the use and benefit of tho said E. F., and until he shall duly apply for and obtain probate of the said will to be granted to him, by paying the just debts of the said deceased, and the le^'aeics con- tsiined iu his last will, and distributing the rosiduc of his estate according to law. That I will exhibit a true and perfect inventory of the said property, limited as aforesaid, and render, etc, (As iu No. Hi). No. LXI.l OATH FOR ADMINISTRATION UE BONIS NON TO REPRKSENTATIVE OK intestate's only child, ETC. In the Surrogate Court of the County of Style. I, C D., of , make oath and say, that A. B., late of , deceased, died a widow (or a widower), and intestate, leaving E. F., iiis (or her) natural and lawful and only child and only next of kin, and the sole person entitled to the property of the said deceased, him (or her) surviving ; and in the month of 18 , letters of administration of the jiropcrty of the .said deceased were, by authority of this Court, granted to the said E. F.. who for smni' time intermeddled in the said property, and died on the diiy of , 18 , leaving part thereof unadministercd ; that I am one of the ext'cutt>rs of the will of the said E. F., (leccascd (I having duly proved the said will in this Court in the month of , 18 ); that I will faitlifuUy adiuitiister the property of tlie saiil A.I?., deofiised, left unatlniinistered as aforesaid, by paying, etc. (I'mccccl as in No. 17, (tiifc, using the words "left unadministered " in cou- nectlon with " fstate and effects.") 'i No. LXII.] oath for administration (will) de bonis non to residuary LEGATEE. In the Surrogate Court of the County of Style. I. C. D., of , make oath and say as follows ; — 1. The said A. II.. late of , deceased, died on the day of , 18 , at , having made and duly executed his last will and testament, bearing date the day of , 18 , and ther»'of appointed E. F. sole executor, who, i;i the mouth of , 18 , duly proved the said will iu tlii» FORMS. 675 tario, lor vily apply ) him, by iifii's eiin- his estate [ the said ENTATIVE OF Court (as by the rooords of the snid Court will app -ar), and for soino tiino iutcriueddlcd in the estate of the said deceased, and is since dead, to wit, on the day of , 18 , intestate, leaving part of the said estate unadministered. 2. I lielieve the paper writing, hereunto annexetl and marked by nie, to contain the true and original last will and testament of the said deceased, now remaining of record in the registry of , and of which probate was granted as aforesaid. 3. I am the son and the residuary legatee named in the said will of the said deceased, and I will well and faithfully administer, etc. (Proceed as in No. 16. using the words " left unadministered " in connection with estate, etc.) late of . .ng E. r., his kin, and the him (or her) 18 , letters M'd were, by vho for smne (hiy :,.red ; that I I., deceased (1 louth of » the said k3., |,.tc. (rroeecd |j.,.ed " in eou- No. LXIII.] OATH FOK ADMINISTRATION IN CASE OF PRESUMPTIVB UEATH. In the Surrogate Court of the County of Style. I, (\ D.. of . in the county of , widow, make oath and say as fidlows : — 1. The said A. B., lati of . in the county of deceased, died in or since the year IS . a bachelor, without father and intestate, but I am unable to depose as to tlu' place of his death. 2. On the day of , IS . the ilnd^e of this Court on motion of (ounsel ordered letters uf administration of all and' singular the property of tin- said A. li., deceaseil, to l)e granted to me, this deinment. as the natural and lawful mother and only next of kin of the said deceased, and permitted me to swear liuit the saiuving E. F. and G. H., his natural, lawful and only children and only next of kiu him snrvivin;; (who are both now in their minority, to wit, the said E. F. of the age of years and upwards, and the said G. II. of thi> a);e of and upwards, but severally under the afje of twenty-one years), (or, who are now in their infancy, the said E. F. of the age of years, and the said O. H. of the a^e of years, but respectively under the ajre of seven years), (or, that the sai(i E. F. has been for many years last past and is now a lunatir or person of unsound mind, and that by an order of the Ilifih Conrf of Justiee for Ontario made on the day of , 1, this deponent, was ai)point<'d committee of the estate of the said lunatic. or, that no committee has been appointed of the estate of the said E. F., the lunatic aforesaid): And I further make oath and say. that 1 am th(! lawful and next of kin of the said E. F. ami G. H. (and that they have by an instrument in writinj^ under their hands and seals, bearim; date the day of , 18 , elected or chosen ini'), (or, and I have been duly assigned), to be their curator or guardian. for the purpose of taking letters of administration of all and singu- lar the proi)erty of the said deceased for their use and benetit, and until one of them shall attain the aj^e of twenty-one years), (or, that .T. K., late of , deceased, the natural and lawful father of the said minors, by his will, dated the day of , 18 , appointed me, this dei>ouent, to b(> guardian of his children (as in and by the said will d>ily proved in the month oi' , 18 , and now renniining on record in the registry of this Court appears). And I further make oath and say, that 1 ;liu the guardian of the said minors didy appointed in and by the will of the said I. K., the natural and lawful father of the said nunors : or, that I am the lawful and one of the next of kin of the said E. li., the lunatic aforesaid, and that I will faithfully adininistoi' the property of the said deceased for the use and benefit of the said Vj. F. and G. 11., until one of them shall attain the iige of twenty- one years (or, during his lunacy), by paying the just debts of the .said deceased and distributing, etc. (Proceed us in No. 17, oiili.) r ■9: M No. IjXV'.] oath for ADMIMSTUATION To ATrOKN'KY OK ISTESTATK's Ills- HAN 1 1, WIDOW, KATrlKK, OK OTHKU I'KllSON KNTITI.Elt. In the Surrogate Court of tlie County of Style. I, (.'. D., of , make oath and say, that A. H., late of i"i I FORMS. 677 dec'«>iis<'(l, (lit'd intestate, loaving E. F., her lawful husband, who now rcsidfs at , in tlii' East Indies ; or. E. v., his lawl'id widow and relict, who is now residins; at , iu Australia ; that I am the lawful attorney of the said, etc.; or, died !i bachelor (or a spinster) and intestate, leaving surviving him (or her) E. F. his (or her) natural and lawful father and next of kin. who Is now residin,i: at , in the I'nited States of America ; or, died a bachelor (or a spinster) and intestate, without a father, leav- ing surviving him (or her) K. V., widow, his (or her) natural and lawful mother and only next of kin, who is now residing at , in the East Indies ; that I am, etc; f)r. died a widuw (or widowerl and intestate ; that I am the lawful attorney of E. !•'.. one of the natural and lawful children and one of the next of kin of the said deceased ; or, died a bachelor (or spinster) and int. "state, without a parent leaving surviving him (or her) E. F., his (or her) natural and lawful brother and only (or one of his) next of kin, who is now residing at , Australia ; or, dit'd a ba<'heIor (nr a spinster), without a parent, brother or sister, uncle or aunt, nephew or niece, and intestate, leaving surviving liim (or lier) K. F. his (or her) lawful cousin-german, and one of his (or her) next of kin. who is now residinj: in that part of (Jreat Itritain called England, and that I am the lawful attorney of the said E. F. appointed by Power of Attorney, now produced and shown to me and marked with the letter G. ; tlnit I will faithfully administer the property of the said deceased for the use and benefit of the said E. F. , and until he shall duly apply for and obtain letters of administration of the pro- perty of the said deceased to be granted to him, by paying, etc. (Proceed as in No. 111). No. LXVI.] OATH KOIi AliMINISTUATION I.OMTEll TO I'liOCKKDINCS IN THK l(l»iH COURT OK .lUSTlCK. Style, etc. I, E. F.. of , make oath and say. that on the day of , IS , (~i. II. instituted an action in the High Court 678 APPENDIX. of Jualioo aKnin8t I. K. and itthcrs, tlicrolii (nmoiiKst otliiT tliinj^si Dfttiii!,' fiirlh (state hrictly the claim), and tlainiinj,' tlic rclit'i' i[, tlic preniisi's as in tlie naid action set forth : And I ftirtiier make uatli and say, that divers prowediny;s h,-iv<> been liad in tiie said action, lint that no furtlicr proccedinus can In- had therein until there is a lejjal personal representative of ilic said A. H. before the said Court : Aud 1 further make oath and say, that the said A. T . late ut' , deceased, died on tlie day of , IS , intes- tate, a bachelor, leaving (J. I)., his natural and lawful futlier, wlm has renounced the letters of administration of all and singular tlie property of the said dect-ased : And I further make oath and say, that I am nominated and api)ointed by and on the part and behalf of the said (J. II. to appl.V for and obtain letters of administration of the i)roi)erty of the said (h'ceaseil, under the limitations hereinafter mentioned, to be committed aud j,'ranted to me as a person for that purpose naund by and on behalf of him the .said (!. II.: And I f\ii'ther make oath and say. that I will faithfidly admin- ister the i>roi»erty of the said deceased, limited to the i)ur|)ose onl.v (See words of Limitation). ■)■!■ fjj! that in , IS md l)y an . between . of the second No. LXV'II.] ().\TH KOlt ADMINISTHATIOX LrMITKP TO THt'ST I'KOI'KHTV (viZ., TO TKAXSKKKIUNC IT). In the Surrogate Court of tlie County of Style. I C D., of , nmke oath and say. indenture of settlement made the day of E. F. of , of the lirst part, (5. II. of part, and the said A. I?., deceased, tliei'ein described of , of the third i)art. after recitiu},' tlnit a marriajre was intended to be had an of the s.-iid mar- riage one child only, the said E. F., who has attained the age nf twenty-one years : And I ftirther make oath and sa.v, tiiat the said (!. II. dieil nn the day of , IS , in the lifetime of her husband, intestate, and without having appointed the said trust estate or any part thereof by d(>ed or otherwise : And I further make oath and say, that the said A. B., who was late of . deceased, died at , on the day of IS , having made and dul.v executed his last will and testament liearing date the day of , 18 , and thereliy appointed I. K. sole executor ami n^sidujiry legatee, and that the said I. K. hath renounced the jirobate and execution of the said will and letters of administration with the same annexed of .all and singular the personal estat(> and (>iT(>cts of the said deceased ; And I further make oath and say, that the said 10. V. under and by virtiu> of tlu> power vested in him in by the said iuilentiire of settlement as aforesiiid, hath in and by a certain deed of appoint- ment bearing . of to b(> trustees in the room of the said A. 1'.. deceased, for ail the purposes of the said indenture of settlement (as in and liy the said last-mentioned deed will more fully appearl: And I further m:ike (lath and sjiy, that the saiil L. M. and N. 0. have in and by an instrument under their liands and seals authoriz(>d me, this deponent, to iu'i>cure letters of administration of the personal estate anil (>ffects of the said A. !'>., deceast-il, to be granted to me as a person for that purpose named by them and on their i)art ami behalf, limited so far only as concerns all the right, title and interest of him, the said deceased, in and to the said 680 APPENDIX. sum of dollars, etc., and all dividends and interest dup and to become! due thereon and for transferrinjjr tlie same into the names of the said L. M. and N. O., for the purpose of earryjnK into effect the trusts of the said indenture of settlement of the day of , IS , but no further or otherwise : And I further make oath and say, that I will faithfully admin- ister the property of the said A. B., deceased, limited so far only as conceriia all the rif^ht, title and interest of him, the said decenKed, in and to the aforesaid sum of dollars, and all dividends and interest d\U' and to become due thereon, and for transferring the same into the names of the said L. M. and N. O., for the pur- pose of carryin>r into effect the trusts of the said indenture of the day of , 18 , but no further or otherwise acconl- iug to law ; that I will exhibit a true and perfect inventory. (As in No. 17, ante.) ,< I mi No. LXVIII.] OATH FOR ADMINISTRATION LLMnEI) TO A POLICY OF ASSUUANCK. In the Surrof^ate Court of the County of Style. I. C. D. of , make oath and say, that the said A. B., late of , deceased, died on the day of , 18 , at , intestate, a spinster without parent, brother or sister, leaving E. F., her lawful uncle and next of kin. who has duly renounced the right to letters of administration of all and singular the jtroperty of the said deceased : Thtt in the year 18 , I lent the said deceased various sums of money, and that by a certain policy of assurance bearing dtiti' the day of , numbered , and under the hand of three of the directors of the Life Assurance Com- pany, the sum of dollars was assured to be paid to the execu- tors, administrators or assigns of the said A. B., together with such further sum or sums as should have been appropriated as bonuses to the said policy after proof being given of her death as therein mentioned. That the said assurance was effected in the name of the said A. B., but the same was so effected at the instance of me, the said C. D.; that although the said policy was never legally assigned to me, the same was never in the possession of the said A. B., but was delivered to me as my own property and effects, and is now in my possession or held for my benefit, iil\ !; FORMS. 681 terost. (liic and »iiin(' into llic [ carryinfi iijto Df till- ithfuUy inhiiiii- eil so far only I said (lui.'caKed, (1 nil iliviilciids or transfcrrinii )., for tile p\ir- ideuturc (if tile lnM-\vist' ai-i'dvd- •fcc-t inventory. and the premiums thereon were from the month of , 18 , to the death of the said deeeased paid Ity me ; that I am the sole [lersfdi eqnitalily entitled to the said policy and to the money received thertdiy, hnt that I am unable to obtain payment thereof for want of a lefjiil [lerHoiial representative of the said deceased ; that I will faithfully administer the estate f)f the said deceased, limited so far only as concerns all the ri>.'ht, title and interest of lier the said deceased in and to the aforesaid policy of assurance inimbered , in the said Life Assurance Company, atid the said sum of dollars secured thereby, and all profits, bonuses aTid accumulation thereon, and all benefit and advantage to be had, received and taken therefrom, but no further or other- wise ; that I will exhibit, etc. (See Number 17). No. LXIX.] OATH FOR ADMIXISTRATION AR COLLIOENDA. [CY OF A88URANCB. the said A. B., ,18 , at ither or sister, who has duly all and singular various sums ice bearing date and under the Assurance Coni- lid to the execn- together with appropriated as i(f her death as effected in the ■ffected at the said policy was n the possession y own property for my benefit, I, J. W. C, of , make oath and say as follows : — That E. J. C, late of died at on intestate, a bachelor, without parent, leaving, as I believe, two natural and lawful sisters and only next of kin, whose names and addresses are unknown to nie. That as a member of the firm of who are creditors of t!ie said deceased {or, that on motion made in this matter on it was ordered by the Court that letters of administration of the personal estate of the said deceased be granted to me, the said J. W. C, under the H.-nitations hereinafter mentioned. That I will faithfully administer the property of the said deceased, limited for the purpose only of collecting and getting in and receiving the said property, as the case may be, and doing such acts as may be necessary for the preservation of the same during the absence of the person or persons entitled by law to the said property, and until they or one of them obtain letters of administration of the same, but no further or otherwise. That I will exliibit a true and perfect inventory of the said property, and render a just and true account thereof whenever required by law so to do (<(). and that the property of the said deceased amounts in value to the sum of and no more, to the best of my knowledge, information and belief, (Signed) J. W. C. Sworn at, etc. {<}) Vid>' Rule 19, p. ")70, ante, and note. 682 APPENDIX. No. LXX.] OATH FOn MMITEP ADMISISTUATIOS OSDEU THR 56th 8RCTI0N OF THE SUKROCIATE COURTS ACT. In the Surrof,'ate Court of In the estate of A. B., deceased. I, C. D., of , make oath and say as follows : — 1. E. F., of . is about to deliver his statement of claim in the High Court of Justice {or, as the C(ue mmj Iw) therein, amonj^st other things, setting forth (here state the averments brietly), and praying relief in the premises as in the said statement v, .11 be set forth. 2. No proceedings can be had in the said matter until there is a legal personal representatise of the said deceased. 3. The said A. B., late of , deceased, died on the day of , IH , at , a widower and intestate, leaving him surviving E. F., G. H., and I. K. , his natural and lawful and only children, and only next of kin, the only persons entitled in distribution to his estate. 4. The said E, F. and G. H. have respectively duly renounced all their right and title in and to the letters of administration of the estates of the said deceased. 5. The said I. K. left this country in the year 18 , and id now, if living, resident at 0. On the day of , 18 , the Surrogate Court of appointed me, this deponent, to be the administrator of the estate of the said deceased, under and by virtue of the 5(5th section of the Surrogate Courts Act, under the limitations hereinafter mentioned. 7. That I will faithfully administer the estate of the said deceased, limited to the purpose only to become and be made a party to the action about to be commenced by the said E. F. in the , and to attend, supply, substantiate and confirm the proceed- ngs which shall or may be had therein, or in any other action which may be commenced in the said or in any other etween the aforesaid parties or any other parties touching and concern- ing the matters at issue in the 'aid action, and until a final judgment shall be had and made therein, and the said decree carried into execu- tion, and the execution tliereof fully completed, but no further or otherwise ; I will exhibit a true and perfect inventory of the said estate. limited as aforesaid, and render a just and true account thereof wlieu- e\'er re(]uired by law so to do ; and the estate of the said deceaseii under the aforesaid limitations amounts in value to the sum uf dollars and no more, to the best of my knowledge, information and belief. Sworn at this day of 18 , before me, ] (Signed) CD. ; I K< )UMS. 6Hli iK 56x11 8KCTI0N until there is a N'.i. LXXr,] OKHEB r'*? \r.T«R.\TION rV a flUAVT. In the Surnifratp r-oo* of, ^tr. Ill tlic oMtate of A- B,. lati* of , tliM-oiisod. Upon tlie HI plicatiun «*! upon lieariiij,' mill upon readir ^ the iiffiJAvtt of , sworn on tlio flny n twith will) of the cstatcl of the tr U-itr-rH of ailiiiinisti-atioii (with will)] the lit-atli of the sai'l ilo^-a.**-"! w sratiMJ to liavc MiiTfd on the ii;iy of , \vhi-T<-4i« i(t in fair cMcurri'il un tlic tlay of [o/'(iny other crrorK u» fj^ #.f>rre.tp an infant i'ok thk I'Uui'ose or TAIWt; Ar)MINIsTUATI<)N. In the, etc., ii^tyle, etc.) On the day of IS , before Judj^e. In the estate of A. E., ifeteased. Upon, ^., s.vor;i the day of IH whereby it appeared tliat A, B., late of deceased, died on the day of 18 al a wi(i(jwer ] and intestate, leaving her surviving; W. T. iind .T. S., her natural and ' lawful and only children and only next of kin, who are both now m their infancy, to wit, the said W.T., of tlie a;^e of years and upwards I and the said J.S., of the age of years and upwards, but respectively i under the age of seven years, and who are therefore by law incapable of I acting iu their own names or of electing a guardian to act on tluir' behalf : And it further appeared by the said affidavit that the said CD. is the lawful paternal uncle and next of kin of the said infants, and is ready I and willing to accept the guardianship of the said infants for the purpose of taking letters of administration of the estate of the said I A. B,, deceased, for the use and benefit of the said infants, until oiie| of them shall attain the age of twenty-one years : And it further appeared by the said affidavit that the said C.D. is upwards of eighty years of age and in intirm health, and is conKentini; and desirous that J. K., of be joined with him in the letiersl of administration of the estate of the said deceased ; the undersif^ned.j by virtue of the office of judge, assigned the said C. D. and J. K. guardj ians to the said infants for the purpose aforesaid. (^'I^"ed) .^^ Si,.- i . : No. LXXIV.] oHDER as.si<;nin(; ouakuian to an i OK KENOVNC'ING. NT FOR TME nRPO>!J In the, etc.. In the estate of ,\.B.. deceased. Upon, etc. (see preceding Form), on reading the affidavit of C.D.J sworn on the day of 18 whereby it appeared that A. B.-latej m^^ ' KOlt.MS. (i«5 OK KIN ANIi STRANGERS) cf (lied at (V widower iiiul intestate, leiiviiit; behind liini K. 1'"., )ii!ini.tiirul and lawful and only ciiild and only next of kin; and that tiicHBiil E. F. i« now an infant, to wit, of tho aj,'eof years only, ail tlareforo by law incapable of actiiij^ in hia own name, or of electing i^uiintian to act on his part and behalf, and tliat the said C. 1). is the iiwfiil (grandfather and next of kin of tho said infant, and is ready and *'\\['mH to accept the miardiaiiship of tho said infant for the i)urpose of :eiiouncin>{ for him and on his part and behalf tho letters of administra- ;;(m of tho estate of the said deceased ; tho undersijined, by virtue of ;he ottice of judge, assigned the said C. D. guardian to the said infant for the purpose aforesaid. (Signed) Judge. N.LXXV.] OUDKK fOlt (IKA.Sr To liLAKDIAN Of I'AitTY flTKI). NT FOR TME l'l-RPOS| In the Surrogate (.'ourt of On the iiy (pf . la the estate of E. 1'".. late of . decfjiscd. A. li. against C. I). Upon, etc., (fee preceding Form), on reading the aflidavit of , [Tiieruby it appears that a citation for judge's order) has issued under •..•• -fal of tlir! Court, bearing date the at the instance of A.IJ., of , alleging himself to be a creditor of the said deceased, citing the said ''. !»., the residuary lejratee niinn d in the last will and testament ftiie said E. v., deceased, beariiii.' flute the day of , ;^ , to acft'itt or refuse the letters of administration, with the >;iiil will annexed, of the i)roperty of the said E. F., deceased. "r sliow cause why tl.:> said letters of nduunistration. with the said vill annexed, of the property of the said deceased, should not he "iiniitted and ;:ranted to the said . as creditor of the said ICRt st'd ; and it further appearing, by the said at'tidavit, tliat the II I C. D. is now an infant of the age of fiirs only, and that L. M. is the lawful y;randfather and next of Sai of tho said infant, and is i-eady ami wiliinu to acce[)t the cur.'i- I'i'Hi or guardiansliiii of the said infant, for the [jurpose of ap|)eai'- '.''■I" to the .said citation and acceptinu: the s;iid letters of adminls- pMtioii, with the said will aunex.'d, of the i)roperty of the s.-iid |E. 1"., deoe ■(!, as his curator or uuai-dian, and ohtainiiiK the said 'tli'is of administration, with the said will annexed, to be >j:raiited |!'i liiin :',s his curator or guardian for ids use and benefit until he I, I !'•; . 686 APPENDIX. sliall attain tho a>.'(' of twciitj-oiu' years ; . the Judge of the (.'ourt assifjued the said L. M. curator or tiuardiaii to the Kiiid infant for tho purpost'S aforesaid. Xo. LXXVI.] ORDEK von GKANT TO i'AHTY CITED. In the Surrotjate Court of On tilt' day of . IS . W. ajiiiinst ('. and H. In tlie estate of A. B., deceased. Upon, etc., of D. B., tiio defendant in this cause, and it appearing that bj' a citation (or judf,'e's order) isaued under seal of this Court on tlio dn\- of . If^ , he liad been duly cited to acwpt or refuse the letters of administration of all and sin;rnlar the pro- pei-ty of A. B., late of , deceased, the deceased in this cause, and that the said D. B. has entered an appearance to the said citation, and is willinj,' to tako upon liim the said letters of admin. istration : Wherefore the .Tud^re of , etc., on his aiiiilicii- tiou, ordered that the said letters of administration should issii. under seal of this f'onrt to the said D. B., if entitled thereto, not- witlistaiKliuy; the caveat entered in the estate of the said dccciisci!. by or on behall' of the plaintitf ou his taking out the said citiitimi. Xo. LXXVIL] OlillEK toil A (iUANT TO HE MADE TO WIDOW AND NEXT l)h KIN | JOINTLY. In, etc. TTpon, cti'., tlie afti'lavit of the said K.F., where she deposed that slu- was I'onsentinK and di-sirous that the said (J. II., the eldest sdiiofl herself and the above-named deceased, should be joined with her in the letters of a., who with the sni'i (!. II aie the natur.-il and lawful and only children and only iii\t| of kin of the said tieceasi'd. and in which instrument the said I. K.. L. M. and X. O. have c(Misented to letters of admiuistratiou of iiH and siuKular the iirojierty of the saiil deceased bein^r ;,;'rantril ; the said 10. F., wid(.)W of th<' said said order was duly served upon the solicitor of the said •Don the day of ,18 ; and that the said A. B., the plaintiff. ,s the sol(> executor named in the last will and testa- Mi.-nt. hearing date the day of . is , ..f (J. H , '■'f'" t>f , the deceased in this cause : "AVheroupon it is ordered that prohate of the said will he granted to the said A. B., the plaintiff in this cause, if entitled thereto. ORDER REVOKING TROB.ATE. VIDOW AND NEXT Oh KIN No. LXXIX.] In. etc. Upon the application of upon hearing and upon readinrr t).e afhdavit of filed the day of and the probate ot the will of the said A. B.. deceased, hearing date the day 1^ • granted to C. D, the sole executor therein named : And it appearing that the said deceased made and dulv executed ;i will of a, later date, to wit. bearing dat«. the day of IS , whereof he appointed E F. and G. H. execctors': And on tlie last mentioned day , Uie solicitor of the said CD., on behalf of the said C. D.. having voluntarily brought in tlie said probate : " It is ordered that the said probate be revoked, and declared null and \oi(l to all intents and purposes in law whatsoever. I* .' I 688 APPENDIX. No. l.XXX.] OKDER REVOKINfi I.KTTEKS OK ADMINISTRATION. In, etc. Upon, etc. («efl precediiifl Form), and it appearing that the said deceased died intestate, a widower, witliout cliild or parent, brotlier or sister, uncle or aunt, nephew or niece only, and not without cousin-f^ur- man, or cousin-german once removed, as erroneously stated in the said letters of administration : And on the last mentioned day, the said C. D., having voluntarily brought in the said letters of administration ; It is ordered that the said letters of administration be revoked and declared null and void to all intents and purposes in the law what- soever. No. LXXXL] PKTITION FOR PROHATK OK MII.ITAUV WILL, OR WILL OK A MARINER AT SKA. Unto the Surrojrato Court of of , in the County of , in said County of (lay of, etc. The petition of A. B., of the , merchant, Humbly sheweth, That C. D., who last dwelt in . ili(Ml iit , on tin; possessed of pxxls and estate reinuiniug to he administered, li'aviu;; a widow, and his only heirs at law ami next of kin the persons whose names, residenee, and r"lalionship to the deeeased are as fol- lows, viz., etc., etc.; tliat tiie said C D., at the time of his death, was a inariiiiT at i-ea, on !>oard the slii[) , in tin' course of a voyage from to (or. was a soldier in actual service in the rejrinient, etc.) ; That while on sneh a voyajje (or, in such actual service) said deeeased made a nuncupa- tive will, in the presence and hearing of K. F. and G. if., of, etc., wlu^'eby he disposed of his wa^'es and other personal estate in tlie manner followiiijj (or, as is fully set forth in the pai)er hereto annexed). Your petitioner therefore prays that said nuncupative will inny be proved and allowed, and letters probate, or letters of administra- tion, with the will annexed, may be granted to your petitioner as executor, or, etc. Foil MS. ()N9 ION. ing that the said parent, brother or ithout cousin-i^er- stated in the said aving voluntarily in be revoked and in the law what- ,, OK WILL OK A ill the County of I said County of ■ of, t'tC. inistered, leavius kin the persons •eased are as fol- )., at the time of , in till' Wiis a soldier in while on siieli a made a nunriipM- id G. II., of, etc., inal estate in tlie the iiaper hereto upative will may •rs of adniinistra- our i)etitioner as Ob MINOK AM) IN'f.WT. In, etc. Whereas A. U |.te of . deceased, died on th. dav of n., E F and 'c hi- ' "'"^'"'''■'' '""' ''it.'st.at., i.-avin^- C. ' xt 01 kin. and tiie only p.-r.sons entitled in distrileivion to hi'. .HTsonal estate and effects : and whereas the said , > - .H.V respecfvely in their minority, to wit, the sa.d r. i^/'t ^ years and upwards, hut respectively under the a ,i t vntv one years, and the said G. H is now in l.i ■ ! ^Aentj- tho age of years onlv- 7 , ''""■'' ^" '''"' '^^ K ],. ,, • ^ ^^^^ ' '^"'^ Whereas the said G I) „nfl i" inid to tlic U^n,.,: ,f , ■ . "'^'''' ^'^'t-' -"Kl inter. St • ■■-.-"--::':::::''::;;';:;:.:::,,:- "-- in witness, etc. (as in No. L'7, ante). N'.. LXXXIIL] UK^.;^e,Ar,o.o^■T„K amnr to lkttkks ok .,;auu,a.smm. (May he fra.n.nl from ]'\,rm Nos. L>7. '.'H, ,n,/...) iiii>. Itr.THACTATIoN. N" r.xxxiv.j hi. etc. Whereas, A. 15 , hUc of P«i"t< will and tostameni, hearing .lat.e the 1 0. D. executoi ry le-ateo • And whereaH 690 Al'l'ENDIX. I V.' ' the said C. D. duly renounced the prohate and execMition of the Kuid will, and I, the said E. F.. also duly renounced letters of iidministration, with the said will annexed, of the i)roi)erty i.f tlu' siiid deceased : And whereas letters of administration, with thi- said will annexed, of all and siuiruhir tlie property of tlic >-;\'h\ deceased, were on tlie day of siranted by this CiHirt to G. II., a creditor of the said deceased : And when-as, the fii'u] G. II., for some time internu'ddled in the estate of the saii] deceased, but is since dead, to wit, on the day of 18 , leaving part thereof unadniinistered and not fully disposed of: Now I. the said K. F., do hereby declare, ihit I rctr.i:t tlic renunciation of the letters of administration, with the s;iiil will annexed, of all and singular the estate and property oi tlie haid deceased, so as afosesaid by me heretoforf! made, and I hereby nominate and apiwint M. N., of , my solicitor, to tile or ■'! No. LXXXV.] (iKI)Kli UEMOVIMJ CAUSE FilO.M SURKOC.ATK COI'HT TO IIICH COUUT OF JUHTICK. In the High Court of .Tustice. Division. In the estate of li., deceased : and Between, etc. (Style of Cause). Tpon the application of the defendants, and upon roadiui; the iillidavit and papers filed, and upon hearing what was alleg'd by counsel for all parties, and it appearing that a disputed quctidii may aii>u' as to wlietlier the will propounded for proof in the Sur- rogate Court of the County of by the plaintiffs is in fact the will of the said B., deceased. And it appearing that the property of the said deceased exceeds two thousand ddllars in valie. .■!inl that the said cause or proceeding is uf such a nature and 'if siK'ii importance as to render it proper that the same should bo wiili- (irawn from the jurisdiction of the sjiid Surrogate Court, to be dispo.ied of by this Court. It is ordM'ed that the said cause or proceeding testa iuentM,"y be withdrawn from the .iurisdiction of the said Surrogate Court iind rem()ve(l into this Ccnrt : And that the same be he.ard, tried and ii I execution of the jiirued Ictti'i-s of ; l)roi)ei'ty ol" the ^.ration, witli tlu» erty of the ^ni(i tc'.l by this ('(lurt jvhereas, the t-aid it(; of the said day of fully disposed of; flit I retrift th(> ith the sjiid will [lerty of the said le, and I hereby )r, to file or caiise R Court aforesaid, iiiid and sea! this )f ilATK COliKT TO HICH upon readinv: t1n» at was alles"'! by disputed nue-^tiou • proof in the Sur- itiffs is in fact the that the iropcrty hirs in valie, :ind lature ai'd of siidi le should bo Willi- fjate Court, to !»■ If,' tostiHiient;i."y he iTOi^ate Court nml ic heiifd. tried and FORMS. QQj .H.po.ed of hv this Court, and that the pleading's aud proceediuKs tlicrein do stand in the san.e pli^iit i.nd condition as the sau,e are now m said Surrogate Court ; and that the docun.ent,. in.t.u- nients. alhdavits, an retiuired to send by post prei)aid or Id deliver to , solicitor for the administrator (or executor, as the case may be), on or before the day of 18 , their names, addresses, and descriptions and a full statenicin of i)articiilars of their claims and the nature of the security (if any) held by them duly certified, and that after the said day the admin- istrator will pro(.'eed to distribute the assets of the deceased amonj,' the piirties cntithHl thereto, having regard only to the claims uf which they shall then have notice. Dated this day of , A.D. 18 . C. D., Solicitor lor, etc. Note. — Publication of an advertisement for creditors f,'iven in pursuance of U. S. <>, cli. 110, s. 8t), in order to release execniors from lliability for payments made by them is not necessarily m:ui,t in the Ontario Gazette. 7^; Cameron, Mason v. Cameruii, 15 P. li. 27i! (1H'J3). No. LXXX\I1I.] INVENTOUY. Where an inventory is tiled in Common Form Business upon taking a Grant of Probate Administration or Guardianship, the following will be found a convenient form unless a more detailed 8tatem«>nt should be ordered by the Judge : — In the Surrogate Court of the County of In the estate of , deceased. Price of Stocks . Actuiil Vahio. »'■;•/ Cash in the house and at the bankers. Household goods, linen, wearing apparel, books, plate, jewels, carriages, horses, etc., valued at Stocks or funds of Canada transferable in On- tario, viz: — Dividends thert-on $ cts. $ cts n TO OUKUITOlm. KOIIMS. Leasehold [jropcrty : — Vahio per iiiinum and other ^ccuiitirs Interest tliereon 'Jook dehts Bonds and hills Notes Interest thereon Real estate contracted to he sold Personal estate and effects left by the will under some authority enahlin>; the deccii.sed to dis- pose of the same as he or she mif,'ht think tit (t>) Stock in trade, fannint? stock .-ind implements of husbandry, valued at Other personal property not comprised under the foregoing heads, viz. :— No. LXXXIX.) KXAMPI.E OK KXKCCTOK's Oli .SDMIMSTn.ATOH's AC(!(ji;nt. In the Surrogate Court of In the goods of . deceased. This account marked A. was pro.Iuced and shown to A. R.. (h) This was only to be inserted where the testator died after Imp. Stat. 23. Vic. c. 15 : 8 .Tur. N. S. P. II. p. 207. umm 694 APPENDIX. ■Fi ,y 1 i ",' t" C. D. and K. V. (or ns tin? case may be), and i8 thf acpDiiiii rffcrrk-d to ill tlioir ullidavit sworn this diiy of Before luc ((•tlic(>r Ix't'on' wlioiii sworn). RECiaPTS. o 11 1.8- Njimes of pcTHoiiH from whom received. Cash Thelmp.Bk. On what account received. Found in house . . DISBURSEMENTS. O O 1- # ^s •S c. Jno. Jonei And. Mercer Ja.s. Taylor.. Balance at bankers . . . Half-year's dividend on §2,(;()0,(J i)er cent. Donn- nion stock duo i Half-year's ! rent of fiee-i hold due. . . ' Bond debt of i SliOOand in' terest from to .1 Half-year's rent of lease-' hold house due Proceeds of real estate ' contracted ' to be Ht)ld. I '/--< a 18— Names of persons to whom paid or allowed. 4' Jas. Stone. Ed. Coke. For what 5. -J purpose paid, t:..; or allowed. ^"3 \±_ '$ 0. Undeitak'r's bill for fu-j neral | j Solioitor's i bill for ))ro- bate (or ad- I ndnistr't'n) Dr. Adam.s. A debt due to him for medical at- tendance. . , Tas. Burns. I5ond debt of .?l,()0() and .■:<-!:") for in- terest there- on from — to .... .Tno. IJpper.lLepacy nn- Publisher of newa- dcr will (or distril)utivo shanO paper i Ad vi'rtising I notice to I (!reditors I to send in I claims, . . . Note. — Two sep.'iriiti^ schedules iire made showinjjr Re- ceipts and Disbursements. A third schedule is a sninrnary show- ing total Receipts and total Disbursements smd lunouiit remiiiniug in tlie Imnds of executors, or administrator or guardian. Otner or additional schedules are used as occasion may require. KOHMS 005 ooiiiit. ri'fciTk'd HPKOrKIO I.EiiAOIK.S I.KKT ItV nil.: TKMTAToli. 1. To l.is widow Jiu... . nil his l,nns,.| j fMrnitiirc (toIlowiiiK tho words ol" the will). 2. To his soil John . ti... t..statoi--s i;nld wntch. Hiid horses jiiid ciin-iiiKo (f..llovviii^' the words of tli,. will). Noto.-Piirtlnihirs or Kxphuii.tiens of any it.-in n.My l.o «iveij ia Ki'panito sheets annexed, and referred tu in the aeciMint. KouMs i.\ i:hk i.\ .MDrri.Ni; amj r'Assi.vo accoints No. XC] Petition to I'dKn Acaiinit!<, ,'tc. In tho Surro^at.! Court of the Counly of In the estate of , deceased. To , rOsqnii'e, JndKe of the Surrogate Court of the I'lip petition of . shewetli : , ><{ tiie ,,!' , i„ tin, . departed this life on or ahout . in the y(>ar of our Lord 18 . on the dav of 1. Th.it ('omit of ft"' day of 2. That your petitionei ■ A.r>. IS , duly api.ointed „f the d, ceased, as shown by the records of this llonourahle ('(inrl. 3. That yonr petitioner lia administered the said estat.. an personal proi>erty, Mionoy and effects, and real estate and lu-o.- Is thereof, whi.'li Ini '■<"no into hands ..s such , ,,nd also a full and correct a.-connt of all red anv com- i!;' ' 096 API'KXmX. pensatinn for the Hcrviccs in tlie lust i)r(Tc into my hands or into the hands of my co- or of any other person or persons on hehalf, so far as 1 know, and also the names of the parties from whom the s;une have been received, and the dates at which tlic same were received, to the best of my knowlcdue and belief. 3. That the account marked "B." now also shown to rae, sets forth a true and correct account of all the disbursements and i)ny- ments made by me or by my co- or any other person for or on account of the said essate, to the best of my knowlod^^e and belief. 'I. That save and except what ap})ears in the said accounts marked "A," I have not nor ha my co- or any one on behalf, so far as I know, ever received or got in any part of the said deceased's personal estate or effects, or the real estate, or the i)roceeds thereof dtirini: fiur adniiidstraticm of the said I state. KOIIMS. (m iiph ri'ff'irc^d !(nirt, except ration of tlir iws: il, cxcoiti the osliitc of the estate of to bf viilid, tlie estate of )y your peti- aiid tli:it the w'lUH naniely: . A. I). 1 iK'tiiioner. in til'' irt. A," seta forth Ind efl'ccts, and (•stale, wliich [lalf. so far as Ihoni the same were received, lu to me, sets lieuts and jiay- 1- other person I my knowledj^e said accounts or any one lor got in any Its, or the real Ion of the said m 6. That iL*: i-A.lahle assets of the said estate still undisposed of anfl in the hau'3» frf myatdf and my eo- , or of any per- son or iMTKiiii* J'f excciit as hereinafter mentioned are cor- rectly set lortii m r.lrif aicoiint marked "(',," now shown to nn-. 6. That tix-irv- u* not to my knowledge or helief. any personal nr real estate "!iiit.*nandin_' and mircallzed in this matter save and except — 7. That 1 liai«i^ not received nor heeii awarded or ad.jndired liy this (.'ourt any nsation whatever for the care, pains and irouhle exjieiid'xi hj mt- in anil aliont the said estate. Sworn before lu*- at the of in the (V.iuutj «)f this day of . ju itSiiK' y^-ar i,f our I^ord, ISl) . A ComniiKsi.'i.'-ir fi^ir rakini: Allidavifs in the Connty of This Afhdiivjl 6* tilftl j.v Solicitor for the aliove-named Aypmn/iri'nt ta I'dsn Arcduiits, ctr. No. XCII. In, oto. Deceased. Upon rca said !ind the i)etitioiW:T Suai^inj? broiiKhl in and deposited with the Regis- trar of IhiB Oiiami the accounts of receipts ami expenditures 5u rir-^n/tt-.t of the said estate. 1 appoint the day ■of , A. D. 189 , at o'clock in the DooiL 111 nay Chambers in the Court House in as the time and jAjik;* for the purpose of examining, aiiditinj; and And to fix tli*- i';i'irm[)<-nsation to be allowed t(t if any. for ear*". jjiaiiiiD!* and trouble and tim(> expended in and about the said estate and In administering, disposing of and arranjriiiK ami-'I Sf'-trlint? the same. And I do ord<-r nfcat all persons who are or may be interesteil in the estate of xb*- *d.tii , deceased, attend at the said time and jihw-*:'. And 1 do ord^T tlia.t a copy of this order and ap|>ointment at least ■daj* Bn-t'ore the (la.v above appointed be served on Dated at this day of , A.D. IS'.t . .!>!-,;«(>. This apiKuntmeut i>- ti.fcfn luit by iKoticiti'T fur the above named Note. — The afx-f.^tGisj.* ,f).f the said may be exM\nined liy the parties inU^T'-ftti^ff therein or their Solicitors at the olilce of the Ue^istrar of ttlai* dVmrt at m ■ it' V\ ' 6ii8 Al'l'KNDlX. No. X Niiiil t'stiitc iiiid the iilliiliivits iiiiil tic'coiint* lirnuKlit iu niul tili'il witli ilu> UrKisliiir ul" tliis <"i)urt, I, KHquiiT. .IuiIkc of tlif Siirrotfiitt! (-'i)urt of the Coutity of , iti'(| in the cstntc of llic sniil (icccnsi'd shdiihl utli'iid nt my rimmlpcr.s in tlic ("o\irt IloM.xo in , on tlic iliiy of .\.l). )S:t , n1 wliirh tini.^ ami pinro I wonlil proceed to nndit nnd puss the siiid nccouiits, uini niso to tix the eompciisatiou to he jillowed to the sttid for eare. imiiis nnd tronlde nnd time expended in or alueii the said estate. .And iiavim^ on the day of \.\). is;) , pio ceeded to take andit and piiss the said aeeoniits, |)ursnant to tlir said order, in pre.sMnie of I find and de<'lare that the total amount of the personal estate and effects of the said dee.^nsed, which (.-ame into the hands of the saiil amount to ij! , and that the proceeds of the real estate of the said deceased, wlilcli eaiue into the jiamls of the said iimount to ■'^ . and I tind and declan- tliut the said ha i)ro])orly paid out and dishursed in the course of iidministr.UioH llie said estate of the sum of And I do hi rel)y in i)ursu.ance of the prayer of tlie said petition of th(> said order and allow the sum of .'* as a fair nnd reasonable iillowance for euro, pains and trouble and time e.Npended in and about the adiniii- Istorinj; and arramxin;; and settlins tlu^ affair.s of the said estate ti> the present time. And T do order llmt the costs of tnUiiiLC, nuditiuir and passJML' the said accounts, and (ixini,' the said ci>mi)eiisation amomitini: t^i $ ;is taxeil l)y the Uejiistrar of the (^ouit. be alloweii to the said , and liavinji deducted the amounts sn (lisliursed and expended ai\d the compens.'itioii and costs from flif amount in the hands of the said 1 tind tliat there remains in the hands of the said the sum of -S Dated at this day of A.D. 189 .luiJiie. This order is t;iken out by Solicitor for the above-nnmed petitioner. I'OUMS. ♦1!)1» N<>. XCIV.J liKl'I.AUATIilN OK TIIANSM ISSli )N INHKll "TIIK DANK M'-V " OK ('ANAi>A, ri;( vKT. c. ill. ss. ;.'.» II. r)cicMS'i|. W" of the siiiij mi tili'd with till- mk- .Imluc III' till- K my ordtM' of Wl^ IH'.t , l'ri|uil'c' •(•(•ilSi'il sllnlll'l m , nil K'' il whiili tiiin' m^ ilCl'llUlltS, Mini ■H ill 81 I'll in or iiliDMt n 1). IHII , 1110 irHimiit to tlif i^E^.f porsonal I'stntf (• ilMlllls of till' till- ri'iil cslMti' ' till' Hiiiil ul (li'dai'o tliiu (1 (lisliursi'il in Ihc stliii of iic siiiil pi'litioii th.' llliri' fol' lout tlif iiihuin- s:\iil ostiitf to |ii: juiil iPiiHsiiis: Miiiouiitinir to lilt, 1"' illlownl lio innoiiiits sii liiists from till' llio siiiil A.D. 189 .hiilK'v lod petitioner. I, A. l\. lor wc» Of Do lifcliirc tlitit oMi' . intc of till- , (lc>i'i'iis"il, wlu) (l this lif(< on or alioiil tin- day of intcMt.-ilc (if so) WHS nt tlit* time of his di-atli cntilloil to (■.•rt.iiii siiarcN in (ho <;i|iii:il sloil; of llic Hanl\ of , staml- Inu in his n;imi' on tlio hooks of said hank, and ii'ltcrs of adminis- iiaclioii III' all and siii'-'uiar tin- proporty (o/', and h'ltiTs prohatu of till' will) of Iht' said .V. .M,. ih-rciiscd, havinj; hecn mi liic day of , ;,'ranl('d to mo liy iho Siirrotratc t'oiirl id" tin- ('onnty of , tho ri;:ht to said .sharos and to .'ill inlcrcsi niid ilivi(K'iids thci'i'on. has hy virtiio of said lotti-rs of admii.istriition lor, hy virtiio . \ at the of in tiio \^ I ounty of tliis day of j A. 15. A.D. 18 . J5i fore me, ) fL.S.l Notary i)ui)lic, or otlier person aiitliorized, sin; Sec. .'iO of tliu Act. .■\.s to declaration rei|nireil for certain S:iv':i;rs lianks in me, hy th(> said and the Christian and snrnanirs of riicli ile|ionent) at on the day of A.D. IS . If the deponent he a marksman, or is hliiid or illilerati': — Sworn hi'fore me at liie said at on the day of A.D. 18 , the same haviiij^ bi'i-n (irst read ovim' hy me (0/- in my prese^iT to the d 'p^eicntl. who semii'd perfectly to mi('i-r.^t;l!id 'In- sriiie, and i.i.-nh' his mark lo*' :is ihi- case nuiv' i'e), tliiTelo ill m\' nresiij -o. 700 Al'l'FA'DIX. I'l' -: If flic (Icpoiipiu he iiriiicniaiiitcil witli llic l>>ii}.rlisli hmtriiagc:— Sworn liy tlic snid nf (in the day of A.I>. IS , li.v intcriirctation into tlu' l!iii;;n!iK'' I>.t (.'. I), of . wlio liiid pri'vionsly sworn that he was w.ll aciinaintcd \v\\\\ tioth liinu'uajrcs, and faithfully to intcrjin t, (Till! intrrprctcr sliould siirn liis name on the ailidavit for the I)uri)f)8(> of idcntilicaliipn.) N'.B. — In all lascs of allirination the cxart words [jrcwrrihcd liy tlio statute ai)|)li<'al)lc to llic ])arlic\ilar case must lie used, and none other will he i'e>'eived. The person perniitteil to allii'ni hy It. S. (). 1887, c. 6, s. 12, must first make iIk- follii\vin>: declai'atiori and aliirmation: — " I. A. 11.. di> solemnly, sincendy and truly declare and afiirm thai I am oik- of the Society called Quakers, Menonisf.s, TunkiM-s, or I'nitas I'ratiMim. nv .Moravians" (as the case may he), which may he written at the lu.L;iiinin^' of the aliirmation ; and the allirmatiun will eommouce : — " I (.v. 1?.), do solenuily. sincendy. and truly allirm .and deilare." etc.- ,\iid the jurat mii^t correspond. No. XC\'1.J iiO.MlNIcN i.O\ I'.ll.NME.NT S.VVJN(;s liANK - MlnM.W, I'ASS-IiOOK OK A l)K('i;ASi;t) DKI'OSITOH — DKCLAHATIoN <)[■■ HXKC'JTOIiH, AD.MINIS- THATOttS, KTC. I (or wcl .\. II. of , do herehy scdeninly deelarc that hav(> hecn appointed of the (>state of the late or' : that helieve was a depositor in tile (JoNernmeiit Sa\inf:s Rank at and hereby declare t'eit after due and diliLicnt search the pass-hordi issued hy the of the said hank eaunot he IVnind (here stat(> facts, if any, relalint,' to the loss oT hook), therefore as siudi , do herehy surrendi-r all ( laitu to a.iy hahince r(>corded in the said pass-hook, and dcclari' that the estate has no further claim in resiiect thereof e\ci>pt as '.■> the amount recoi'dcd in the hooks of the said branch, and hereby testify consent that any balance in the said savinj^s bank sluill be ni;tua.i:ed in accordance with the statute in that htdialf. and the rcfrulations of the bank established in iiecordanee therewith. And I make this solemn dleclaration, conscientiously helievinji it to be true, and knowinfr that it is of the same force and effect as if made under oath and by virtue of The Canada lOvideuce Act. 18;>'l. Sol(>miily declared before imc afj {I'fr.soii dicla, iiiij to >i\fopt as '■) ml horoliy savinj:s haiili that lii'half. !IC1' tlu'vcwitii. i|y holiovin.ii it nd ofTcct as if lU'O Act. IP..'".. tiijn Iieri'.) N.B. — Ahnvi' declaration, to he ina<]e lielOrc any Indtre, .lusliee of the I'eaco, Notary Ihiblic. or other functionary authorized by law to aihuiiiister an oath. No. XGVIL] ADOl'THIX o|- I.VIANTS illi .MINOKS - KnliM ill- INIUCNTIKK. This Indentnre, made and entered into this day of. etc. Botvveoii A. P»., of (residence and addition), of the l''irst I'art, and (). D., of, etc., of tlio Second Tart. Wh.ereas. the party of the 1st jtart is tin' mother oir f:ither or f;!iardiini duly ai)pointed I)y, etc.. or a charitahle smiety. etc. isei- Stat.), as the case may he), of the child hei-einafter inentiiiiu'd. the sainc! heiiiK female (or male) infant chiM, named and of the a,','e of . havinir been born on the day of U , at the of And whereas, tin? father of the said I'hild hath departed this life, and th« said party of the 2nd part in the iiinde of the said child (or as the case may he), ami the said ;iarty of the 1st part, hoint; satisfied tliat the said party of the jad part is a respectable .and trustworthy person, is desirous that the said (diild slninld be adopted liy him, the s.-iid party of the 2iid part, into his family, to be hence- forth umler his fiuardianstiip. care, custody, ami iimtrnl, .and for that purpose hath delivered said child to tin- said i)arty of the 2nd part. And whereas, the said party of the 2nd part is willin.: to iido|)t the s;iid child iiiti> his family, and assume towards !ier the duties of a parent ; Now this indentur(> witiusseth that, in cotisidcM-ation of the pre inises, and of the care ami guardianship to he bestowed upon siiid child, ami of the covenants, [iromises, ami atrreemiMits liercina ftei- lontaiiu'd by and on the i)art of the said jiarty of the 2nd part, he, the said party of the 1st part doth hereby constitute and appidnt the said party of tin; 2nd part to be sole >,'iiardian of said chiM, and doth hereby transfer to him all his ri;;hts and power over or coii- lerninsi said child, \vhether by statute, common hiw or otlierwis^, and doth grant to him, the said party of the 2iid part, full cusloily !>( the person of the said child, for nurture, ,u:overnm( iit. tnainten- auce and education, during its minority, and for him, the s.aid party of the 2nd i)art to have, possess, and e.\er<'ise the same guiirdi.iii- -liip, care and !iiithr;rity nver the saiil child as he wioild oi ild have wore it his own child, iiid without any interference tlierein hy or on the part of him, the said party n( the U.t p;irt. .\nd the said party of the 2nd part, in ivinsideratiiui of the jue- ii'.lses, and of the deliv(>ry to iiim of tl!<> said child as aforesaid, ai;d 'Tmm 702 APPENDIX. of tb** lovo, !ilTecti(»ii iitid duty to lu' rercivcd by him fi'oin said cliild, niul of the eovt'iiants hcrc.'iiiaftcr coiitaiiicd on the [jart of the said party sai i)oss(>ssion. custody, contnd or uuardiiui- ship of the said child, or in any way wliatsoever interftM'e therein with the said party of the -ud part : And that he will at any time hereafter, at the re(|uest and ehar.i;es of tho jiarty of the 2nd part, execute such further instrn nients ur assurances .as may be necessar.v for more (dfectually trans- ferring: and assurinvr to the party (d' the 2nd part tlie sole custody, control, and ^^uard'anshiii of the said r charge of any minors, may. with the minor's consent, if a male nut under 14 years, or a female not under 12 years, and without sniii consent if under sucli age. constitute by indenture, to he gnardiini of the (ddld. an.\ respectable trustworthy persiui. who is willing to I K<)1{MS, 703 nil said (.'liilil. •t i)f the K.iid and tak(' her irciit towanlH a};r ■(• to and nil the (hitiis it' it were liii lu<'at(> it, prn- , and ill cn--f T ui'tcssarics, spiritual cal- I in till' t.sx'ii liis m,,,iilii ,, jii uf the jirc- rt, and forover (iii'(>. cMistoiiy, ■il to tlu; s:iiil -t iiart licrcliy 1 party of t!ii' nil' or attcni)ii 1 or linardiiui- ti'rf(>rc therein r('st iiiid further inslru cctiially tran-i- ■ s(de custody, consent niidfi' ler execnte ilie into set tlieii- (l.s.) of Clias. 11. 1 c I.I i:. S. (>. rsoiu:, or any iU' the care er if a male nut without s\u'li to he ),'uardiaii o is willing; to assume and. iiy iinli ire or otln'r instrument in writin;:, does assume tiie duty id' a parent towards tlie child : such ^ruardian to possess the Banie authority over t!ic cliild as he or she would have were the ward his or her own child, and liouiid to perform th(> duties of a parent towards such \\ard. Iiy the laws . I{. ;i8( me itesta'or's name, residence and (|ualit\ I. 1 devise and hiciucath all the reil .•iiid per- soiuil estate to which I >!iall lie entitled .at the time of my (leceasc unto (dovisee's name, residence and (piality) ahsidutcly. (\'innec(imhe \\ I'.utler. ante ]>. ITS. and \ide ante. lT;i). IMihlication. — .MthoUixh " puhlication " is aholished. the testator should- not us a mattci' of alisnhile Iccitl neci:s>ity. hut as a proper [treoaution — also explain to the witiii'sses the nature of the instru- ment they are i'e(|uircd to siirn. and the idiject with whirh their nnnies are to he written, (i'lood on Wills, .'UTi. .\iid 1 appidnt the said (lamei sole execuior of this my nill, hereby revokim;- all other tcsiamentary writiiij:s. In witness whercid' I lia\(' hereunder st't ni.\- hand this day of , A.U. 18 (Sijznedt iTestator's si^'nature.) tf^ ■ u 11 ^ 704 Al'l'ENOIX. .Signed by tho .said (iiiiiue) testator as and for liis last will and testament, in tlie presenile of us, botli present at the same time, wlio at his reqiiest, in his presence, and in tlie presence of (.;i,.|| other, have herennto sui)scril)od our names as attestinjr witnesaes Two or more witnesses. No. XCL\.! EXAMPLK8 OF Bir.LS OF COSTS PAYA15LE IN THE llEGISTRY IN COMMON FORM lUJSINESS. PRORATE. I''Er.s ov In Kk(1. .Jni). SrMi'fi r,8 Applica.tion "i .. Receivin<; and examiniiij^ pajKira, and enterin^^ applica- tion 100 Notice to Snrriinute Clefk '2'> Certilicate of Hurro^iite (>lcrk lleceiving and cntcriuj^ Certilicate '25 Subinittinj^ papers witli lie<.;istnir'a Report tliereon to J udjio 50 Grant— Value of ju'oijerty under §1,000, say 9700 1 00 -2 00 For prepariuL! prol)ate under seal of the ('ourt 75 Recordiuf,' t^'rant, H folios, will, 5 folios 80 Transcript of Will ") folio.'i .50 Certified copy of Will for Surrogate Clerk 50 Certificate 50 Attending' and entering,' order or minute 50 50 Special attendan(;e 1 00 Po8ta<,'e — No f,'re;iter sum than '25 cts. should hi; charged unleiis Will extra heavy 50 50 50 2)0 -)i 50 '2 00 »:! 28 1 75 I.e., Fee Fund $'2.00, Jndf,'o ^1.75, Registrar j!3. '28 = 1^7.0.3. Fkes op In Rr.o. JuD. Stmps .. 50 PROBATPJ Application S Receiving and examining p;i|)iTS, and entering applica- tion I 00 Notice to Surrogate ("lerk '25 Certificate of Surrogate (Mcrk Receiving and entering C'ertilicate '25 Submitting papers with Registrar's Report thereon to Judge 50 Crant— Value of property under S'2,000 (say »1, 300) .. '2 00 2 00 1 00 For i)re])aring Probate issued under seal of the Court. . 75 . . 50 Recording grant, i{ folios, will (.■^.ay 5 folios) Transcript of Will 5 folios 10 cents per folio Certified copy of Will for Surrogate Clerk Certificate Attending and entering order or minute Special attenilance Note. — .SVe also pp. :J24, 5;?8. 80 • * 50 . . 50 50 • * • ■ 50 50 . . •• 1 00 .. $7 r,- 8 50 2 50 = \\i 55 lii-^ last will the same tiiac, ■Sl'lirc ()[ (.;(,. li iiK witnesses witnesses. s rAYAr.r.h: IJSINEHS. Pees ov In . . r,e 00 •>."■ ")0 . . 00 -2 00 50 75 .. 50 80 50 .. 50 . . 50 50 50 .. 1 00 55 ii 50 2 00 28 1 75 ^03. ''kes op In a. .TuD. Htmps 50 00 . . 'J5 50 '25 50 00 2 00 1 00 75 . . 50 80 • ■ 50 . . 50 . . 50 50 50 . . •• 1 00 .. r 55 8 50 2 60 = i;{ 55 FORMS. 705 1\l-.OBATE. Feks or In Application \^^"- '^^'''- ^^mi's Hecemn«an!Ceivin;4iiinl ('utri'in^ ('eililicati,' -j.', Recorfliiif^ bi)iui witli attiiLuit of justification and ex- ecution 1 ()() Subniittin<,' papers with Re;;istrar'si report tliprcon to Judj^e .")() Grant— Value of property under 1^1,200, say ^I.IOO.. .. 2 00 2 dO .',(1 For prepariiif^ Letters of Administration issued uniler seal of tlio Court 7.') , . .-,) Rccordin)4 j^rant, 3 folios ;',o Certified copy of Will for Surroj^ato Clerk , . . . . ' '.' . Attcndiiifj and cnterinj,' order or minute ,"0 ;"0 S|)ecial attendance ] ()0 l'"iat on bond ,',0 ^~ .'!." 1 00 2 .',1) I.e., Fee Fund, '?2.0(); .Tudj,'o, '-•l.OO ; KoL.'it'trar, ^T-'ij :^*13.ir,, ADMINISTRATION. Fkes oi- in Reg. Jen. Stmis Application , S .. .. ;"() Receiving and examining papers, and entering applica- tion 1 00 Notice to Surrof^ate Clerk 2o Certificate of Sun-oj^ato Clerk .'.(I Keceivinj^ and entering Certificate 2-'5 Recording bond witb ,iftidavits of justification and ex- ecution 1 Go Submiltin;^ papers with Registrar's Report thereon to Judge oO Grant— Value of property under 'S!),000, say ?8,"i00 3 00 '.t 00 4 ."0 For jircparing Letters of Administration issued under seal of the Court 7-') . . 'tl Recording grant, 3 folios 30 Certificate and search for Will ■ '.,. Attending and entering order or minute 50 50 Writing neoi^ssary letters, each 25 cents Special attondance 1 00 Fiat on Iwnd 50 S8 85 1 1 00 C, 00 I.e., Fee Funcl, &«.00 ; Judge, *',).00 ; Registrar, ^8.35 ; Gov., 52.00 ^ *25.35. ADMIN ISTR.VnON WITH WILL ANNEXED. F'-e« «'' I^ Ri:«i. Juii. Si mis Application 5' . . . • •'" Receiving and examining papers, and entering applica- tion r 100 Notice to Surrogate Clerk 25 Certificate of Surrogate Clerk ■'') Receiving and entering Certificate 25 W£i I* !. k W' Ja'^ KKS or Is fe' (.. Jr I-. f VIMPS fe , , .. r.o p" •),- W*^' '■ ft 00 •• ^ .')() F 00 -2 00 .'-(1 I'l .".0 'v. ■M) , , :-iO in no 1 r,o .vO 1 ., 1 Oi) 1 • • ."jO 1 ■ ii') 4 00 '2 .'.0 5=:«13.1'>. 'kks or In G. Jl'!>. SlMi'S . . r,o 00 •_'.) 50 •25 •• 00 50 1 00 W 1 00 4 50 7-') 50 8(» 1 -M) , , ] 50 50 5ii L 00 50 •• =t 35 1 1 00 C. 00 ; ; Gov., S-2.00 = I'ORMS. i^QY ADMINlSTKATIOxN Wnil WILL ANX':;XED. .^''■''•^ "^' ^-^ K3(!ordint^ bond with allulavits of ju.stifiLMtion aii'l ex- ( cution fij QQ Huhmittiii^; papers with Rf-';;istrar's Report thi luuii to' '^ud«e r,0 (Jraiit— Vahie of property niuler ?2,000, ^av ?I,500 2 00 ;i (ii) 1 00 For preparint; Letters of Administration (Will) is^ned under seal of the Court -_-, -q Recording- j^rant, ;5 folios, Will 5 folios .'..!!!!!! s() Transeript of Will, 5 folios ' . ' :,,) ('ertifi.'dcopy of Will for Surroj^ate Clerk :,{) '* Attending and enterin<4 order or minuie .-,o hi) Special attendance > ...I Fiat on bond ' ' -,, ■ • ■}') ••jS 05 5 00 •_» 50 I.e., Fee fund, f?-2.50; Judge, S5.00; Itej^'istrar, ■?.S.05 = «.15.55. GUAKDIANSIIIP. ^'"''^-^ "i" In lii:<;. ,Jn>. Ht>U's xVpplieation c -„ Ilecoivint,' and examining papers, and enteringappiiVa'.' t'O'i 1 00 Notice to Surrogate Clerk .>- Certificate of Surrogate Clerk "' " -n Receiving and entering Certilicate ' . . ' ''5 Recorduig boud with artidavits of justiiicatioiV and ex- ecution , , .(I Submitting papei.s with Registrar's Report' tiiercon' to • • ■ • •Tiitlge -Q Grant— Appointment of Guardian; property fl'oOO and under ?4,000 .../...'..'. o oo For preparing Letters of Guardianship issued ui'ider seal of the Court -- -„ Recording grant, 5 folios ,^,() " "* Certificate Attending and entering order or minute ...".'.". . ". '. '. " *. ' " ,50 '-,[) Special attendance and fiat on bond ' .' ' ' j q,) SI 75 3 50 1 50 -.= '.) 75 Note.- If affidavits sworn before liegistrar add 20 cents for each. .Set' also pp. 3'20, 32o, 038. Fees of In ■a;. Jui). Si'Mi'S . . •'0 1 00 '25 f 708 API'EXniX. SUCCESSION DUTY FOKMS (a). FORM 1. Bond dy Exix'utoks ok Admimhtiutous. (Section '>). The Siicirs.''., deceaaeJ. Know all men by these presents that we, C. J>., of the of , in the County of , I'J. F., of the of , in the County of , a. II., of the of , in the County of , are jointly and severally bound unto Her Majesty the Queen in the sum of % to be paid to the Treasurer of the Province of Ontario for tlie time bein^;, for which payment well and truly to be made we bind ourselves and each of uh for the whole and our and each of our heirs, executors and administrators firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord, 18 Tlie condition of this obligation is such that if the above niinK., the administrator of all the property (or (inthe cane iikh/ he} of .1. 7)'., late of the of , in the County of , deceased, who died on or about the day of , .\.D. 18 , do well and truly pay or cause to be paid to tlie said Treasurer of the Province of Ontario for the time beinj.', representing; Her ^lajesty the Queen in that behalf, any and all duty to which the property, estate and effects of the said .1. H. cominj^ into the hands of the said (.'. /). may be found liable under the provisions of The Siiccesnidn l)tilij Act, IiSOii, within eij^hteen months from the dale of the death of tlie said A. li., or such further time as may be given for payment thereof under section 13 of The Siicces.fioii Duty Act, 1892, then tliis obli^,'ation slial! be void and of no effect, otherwise the same to remain in full force and virtue. Signed, sealed and delivered in) the presence of . / (ii) For the Act and regulations in council, see 558, 5G3 ante. Seal. Skai.. StAL. SUCCEHSrOX IJUTY lOltMs. 70[) Affidavit of .IfsTiFirAiioN. The Succesgion Duty Act, IS'J^i. In the Surrogate Court of tlie county of In the estate of dc'ceu'ie'.] of thi^ ^^'°' severaliy make oath and say That wo are the proposed sureties on behalf of property of deceaRed, in tlie annexed bond named ; and l' tlie """"^ ^""^ '"yself make oath and say that I reside at . ,, '""'f , county of and am uorth property to the amount oi dollars, over and above all encumbrances, and over and and above what will pay my just debts, and every other sum for which I am liable as surety or endorser or otherwise. ' And I, the said for myself make oath and sav, that I reside at i„ the Count of \u,d an, worth property to the an.ount of dollars, over and above ail encumbrances, and over and above what will pay n>y just debts, and every other sum for which I am now bail, or for which I am liablo a. surety, or endorser or otherwise. The above named and were severally sworn before ine the ^^y o^ A.D. 18'J in the County of This affidavit is filed on beha'.f of tlie at {For Afflhn-it of Kicaition of Bond, rid, ant.-, ,>. GOl.) Sv'icito] . roKM ■_>. AFFI1..VVIT OF Value a.m. KKLA-noNSHii'. (Section o). Tin; SttcCi'Siiion Duty Art, 1S92. Ca\.\i,\, ) PrtOVINCK OF ONT.vnio. ,' In TIIIC SuiiHOOATK CorUT OF Till'; In the matter of the estate of A. I'.., deceased. ^' , •°^^'"'" of .intheCountvof , make oath and say : — of tbt" T"' ' "'" ?' ^"'■''' '^'^''-■''^- ^•'' '^"^'•■^ t« ^''° estate ot tlie above named A. 11. 7X0 AI'l'EXniX. '2. Tlmt I have caused to be tiletl in the office of tlie Uoj^istrar of the aboM- uaiiieii Court a pi-tition pravini; tliat letters be nriiiiti(l by Kai 1 court to me of tlie estate of the saiil .1. /.'. H. That I made dilictiit enquiry an of , in the County I of , this j day of , A. I). H .j A commissioner, etc. # FORM 3. Direction to Smehikf ti Make Vau-ation. (Section (!.) 'J i,e Sii-rc.-.-ion Ihit-i Act, l'i9:i. In the Surro;^ate Court of the In the matter of the estate of A. B., deceased. To the sheriff of the count of At the request of the Treasurer of the Province of Ontario, I hereby direct that you do make a valuation and appraisement of all property of the deceased and report to me tiie result of such valuation and appmise- ment forthwith after making the same. Dated at , this day of A. D. 18 . i. srccEssi'iN nri'v FMiiMs. 7ii FORM 4. N'oTTfE i;\ SuKkii'i'. (S.ctidii 7.) The Sii'-<;'.isiiiii hutij Act, Iyj:j. In the HuiToc»te Court of tlie In tlie raiiin*<-flf the estate of A. U , (Icceased. To Take noUof «iia! by an onltr nnule by the Re-'istrar of tlio Siirro. «ivte Court of tiw on tlso .lay of .18 ,1 have beeu dir*.ttel l!o make a viilmition iin.l appraibCMiciil of the pro. perty wliicL tl>e fanii^i A. B. rlie.l seised or poBsesHctl of or entitled to, (iii.l further take uortk* Shtit piu-snant to the Kaid order I will, on the sia order made in this matter and dated the day of , A,I».. I* . directing me to made a valuation and appraise- ment of the profwniy which the above name.l deceased died possessed or seised of or ernaJk-.i so. having duly notified all parties (or as the cix, may he) entitled tber^,o,. I proceeded in the pre&ence of " to make an appraJwicifrnt and valuation of said property at its fair market value, and do v.aIlniKr an.i appraise the same at the sum of S as aiij)ear^ fr^'m tla* j^rErsdnle hen-mto annexed. Dated at , this (lav of A.D. IS C. D., h'heriif oi IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I IIIIIM IIIM 136 2.0 1.8 1.25 1.4 1.6 1 ^ 6" ». Photographic Sciences Corporation ^^ \ «V :\ \ % c^ % ^^^ ^^ 23 'VEST MAIN STREET WEBSTER, NY )4SB0 (7)61 873-4503 f/i C^ ■'*.'% 712 AIM'EN'DIX. FORM 6. Ceuvificatk ok Inspector ok Inslranck. (Section S.) The Siu-cemon Duty Act, 1892. In the Surrogate Court of III the matter of the estate of A. B., deceased. To the Surrogate Registrar of the above Surrogate Court : I, .of , Provincial Inspector of Insurance, having been applied to by the Surrogate Registrar of this Court, to determine the value of , and having determined such value, in accordance with the provisions of section 8 of t'-e above Act, hereby certify to the said Registrar the said values as follows : — Dated at , this day of , A.D. 18 J. D., Provincial Inspector of Insurance. FORM 7. The Succesnion Duty Act, IH92. Orkku ok .Ti'UdK. (Sfction 18.) In the Surrogate Court of In the matter of the estate of A. B., deceased. It appearing to me that there is duty unpaid accruing under 't'lie Succession Duty Act, 18'.):i, in respect of the property of the above deceased, and that the same has not been paid, I do hereby order and direct that do appear before this Court at , on tlie day of , is , at of the clock in the noon, to show cause why he should not forthwith pay to the Treasurer of the Province of Ontario the sum of , being duty payable to said Treasurer in respect of tlie property of the above deceased unner the said The SucccKsion Dnttj Act, 1H!)L', and why such payment shouM not bo enforced according to the practice in or upon the enforcement of a judgment of the High Court. FORM 8. The Succession Duty Act, 1892. Uo.M) IJV Rk.(ji.ituar. (Stction 21.) Know all men by these probents Unit we mo held and firmly bound unt; our Sovereign Lady Queen Victoria, hor SUCCESSION' DL'TV FOItMS. 7i:{ r of Insurance. lioira and successors, in manner and in sums followint,', that is to say, tho said in the siuu of dollars of lawful money of Canada, the said in the sum of dollars of lawful money ; and the said in the sum of dollars of lawful money, to be paid to our Sovereit»ii Lady the Queen, her heirs and successors ; for which payments, to be well and faithfully made, wo severally, and not each for the other, bind ourselves, our heirs, executors and administrators, and each of us binds himscK, his heirs, executors and administrators, firmly by these pre3«iats. Sealed with our seals and dated this day of in the year of our liord one thousand eight hundred and Whereas the above bounden as Registrar of the Surrogate Court of tho Count of has been required, pursuant to Thfi Sncce^Kloa Dutij Act, 1S9>, to give security for the due and punctual performance of duties imposed upon him by the said Act, and that he will not receive any duty payable under the said Act. Now tiie condition of this obligation is such, that if the said shall duly and punctually perforin the duties imposed upon him by The Sue- cenKUni Duty Act, J,S9^, and shall not receive any duty payable under tho said Act, then this obligation to be null and void ; otherwise to remain in full force, virtue and effect. Signed, sealed and delivered i in the presence of / An Act to Maki: FintriiKH Puovisiox kok thk Pavmkxt of Sulces.sio.n DcTiEs IN Ckktain Casks, .58 ViiT. c. 7 (IB'JS). 1. Section t of The Snri:f!<.iii)n Duty Art, 1S92, is amendetl by striking out the words in the first four lines thereof, and substituting the follow- ing therefor : " Save as aforesaid, all property situate within this province, whetlicr the deceased person owning or entitled thereto was domiciled in Oiit'irio at the time of his death or was domiciled elsewhere." 2. The said section is further amended by adding thereto the foil jw ing sub-section : (*i) Provided that any portion of the estate of any deoca^-ed person, whether at the time of liis death such person was domiciled in thf l)r()vince of Ontario or was domiciled elsewhere, which is brought int'i the province by the executors <:)r ailmiiiistratovs of the estate to be administered or distributed in this province, shall be liable to the duty hereinbefore imposed ; but if any succession or legacy duty or tax has been paid upon pucli pro])orty elsewhere tliun iti Ontirio, and such duty 14 APPENDIX. or tax is equal to or f,'reater than the duty payable on property in tl.is province, no duty shall be payable thereon in tliis proviiu e ; and if tlie duty or tax ao paid elsewhere is less than the duty payable on property in tljis province, then the property upon whicli such duty or tux Ims been paid elsewhere shall be subject to the payment of such portion (mly of the succession duty provided for in tlio preceding sub-sections of this section as will equal the difference between the duties [)ayable uiuler this Act with respect to property in the province of Ontario ami the duty or tax su paid elsewhere. T)iK Intkstaiks' EsTArns Act, IW)'). (58 Vict. c. 21, adoptint! sections 1, 2 and 1 of the Act 5:5 & .'i Vjtt. Imp. c. 2it). 1. This Act may be cited as The liitestutin' KnUitea Act, ISO't. '1. Tiio real and personal estate of every man who shall die intost;Uu after the lirst day of .Inly, 18'.(.'», leaving a widow but no issue, sliall, in all cases where the net value of such real and personal estate sluvll not e.\ceed $1,000, belong to his widow absolutely and exclusively. H. Where the net value of the real and personal estate of any person who shall die intestate as in the precedii'.g section mentioned shall exceed the sum of 91,(KM», the widow of such intestate shall after payment of debts, funeral and testatncntary expenses and expenses of administiation, be entitled to f 1,(MK), part thereof absolutely and exclusively, and shall have a charge upon the whole of such real and personal estate, after payment as aforesaid, for such ^l.OOit, with interest thereon from the date of the death of the intestate at 4 per cent, per annum until payment. 4. The provision for the widow intended to be made by this .\ct shall be in addition and without prejudice to her interest and ahart- in the residue of the real and personal estate of the intestate remainini; after payment of the sum of ftl.OOU and interest as aforesaid, in the same way as if such residue had been the whole of the intestate's real and personal estate, and this \vt had not been passed. INDEX OF FORMS Viz:— I. FOllMS \CTHORIZi:i) HY RCLKS OF 1S|)2. 2. ADDITIONAI. F on MS. uiS: r>i Vic't. Administration V, ni.\ for Aihninistrators with Will iiniuxeil AflJiavit of .JiiBtiliciitioii l)y Sureties (Administnitors) (Guardianship') time of death, and place of Abode of Testator and Intestate value of property devolving t;earcli for will execiilion of will by aubscriuin^; witness to a will executed after .'Ust December, li<7;5 execution of will by subscribint; witness to will executed before 1st Jfuuiary, l.S7i plitjht and condition and findin;; verifyiu-^ facts set forth in pstition for letters of f,'uardi'-.ii- ^' P Application for Probate in common form by a sole executor Hnxnt of administration with will annexed in common form, where no Kxecutors appointed ^,'rant where Executor has renounced probate or residuary lej^atee Las renounced ad- ministration with will annexed (Irant of Administration Letters of Ciuardianship by one of the next of kin of infant children of a deceased widow Books to be kept by tiie Re,L;istrars oi the Hu-Toi^ate Courts Non-co!itt:nti(MH Business li lok Grant Book Process Book Caveat Book Guardian Book by Surroi,'ate Clerk Application Bodk Caveat Book C! rant Book Guardian Book • • i'AOK. .-.It I J CIS ■)S7 r,HH .jS!) (;oo ci.-, r,K7 M2 t;ii tiiii (;(».'. (;iif'> t;'j(» Cu? {■,'21 710 IN'DEX. I'A'.K. Bouil, Adininist.nitors .-,;)] for Adiiiiiiistrtitorrt, witli will iviinexoil .v.cj on appeal to Court of Appoiil co'i to be niveii by Gtmrdiaiia t;i7 Caveat t;oi Certificate by Surto^'ate Clerk upon notice of application for «rant r)8tl Double Probate iV,)i; Election by minora of Uiiardiau .V.i;) Kxcniplitication of Probate or Letters of Administration with will annexed .',',17 Letters of administration .V.is Judtje's order to brin;; in testamentary paper liOti Letters of Administration with will annexed ")'.(") ■)'.).') Guardianship t;i'.) Notice to be transmitted by Registrar of a Surro^jate Court to the Surrogate Clerk of application made to such Court for a Grant of Probate to Kxecut- ^ o-^it of Caveat bein>4 lodged w' Ilefjistrar of the Surrogate Court ilOJ to be transmitted by Reuistrar of a Surrogate Court to the Surrogate Clerk, for grant of administration with the will annexed where no executor appointed "SI to be transmitted by Registrar of a Surrogate Court to the Surrogate Clerk, of ajjplication for grant where executor has renounced probate or residuary legatee has renounced administration with will annexed 'J-<'i of application for grant of administration ■i^) to be transmitted by the Registrar of a Surrogate Court to the Surrogate Clerk, of application for letters of Guardian- ship by one of the next of kin of infant children of deceased widow, or as the case may be lils Oath of administrators li'l i administrator with will •'i'.tO Executor '>H'.i for Guardian tiUi Order of Judge to bring in ti'stainentary paper t'uKi Pleadings 'ill Probate :'',! 1 Renunciation of probate or of administration with the will annexed iV.is iidininistration ■">'••'■• Statement of Claim till Defence ti 12 Warninf} to Caveat tiiH FOUMS. 717 i. AliniTMNAI. FOIIMS. Accounts of Expontor, etc Petition to pass aftidavit verifyin>^ iippointmeiit order on pu8sin{4 Adminietration bond (.lOth section of H. C. Act) i"''> linistratioii •i'"t'i [ intostalo'n 074 le^iatee . . >ui I'.To |g (pKO Court .... I'm" , to trans- r,78 (W2 and, widow, titled 'H'l ()7H (182 ttainin^ his (172 liirf majority I'uO I as proved. . 'i71 FnKMS. 71!) I'AiiK. Oath for double probate (it)") probate r2 a grant to be made to widow and next of kin jointly .... tlSil alteration in a urant <1S:5 5^rant on a suit being discontinued (187 to guardian of party tl^-l to party cited tlSIl removing cause from Surrogate Court to High Court of Justice tl'.O revoking Letters of Administration (188 revoking Probate ti87 to accept or refuse Administration t'l8 Petition for Probate of military will, or will of a m;iriner at sea . . tl88 Power of Attorney to apply in England for ro-sealing of grant made in Ontario 'iili Power of Attoruoy to take .-idrainistration . to. 34i). IH-rsons .•nfitl.'d to projionnd wills. 349. who shoulil he defendants. 350. .353. removal to Hi^'h C„„,.t. 509. 577. -^'^r^'*'"''*^'"^ "f IKirt.v or soliritor. 372. "ADMIMSTKATIOX," Statutory Interpretation, llo. ADAIIXISTUATIOX, Letters of. not to issue until 14 da.vs. 568. to whom >;rnnted. no, 124, 150. where deceased resided in Ontario. 1.;. out of Ontario. 12. to show prior interests el.ared off, 111. M9, order in which granted. 115. 129. ]5;t. relation hack to time of death. 27. li:j. to wrong part.v, 36. henelicial interest, 138, 155. majority of interests, lis. 136 151. ad colligendum, 143. 144. 185. t with will annexed, 149, 315. teniimrary, 150. li.e.c, -4(i 722 (JENEUAL INDEX. AUMIN ISTRATION— C'oHtiHM^d. IH'iulontc litf, 203. lui litem, 209. 32!). ra'tiTonim, 214. (U> boniH 111)11. 226, 328. dividt'd, lla. Hole, 114. 8|teciiil cinMiiiistniicfS. 117. 216, 232, 316, 56!>. by the Oowii, 555. bond, 162. 233, 569. limited, 179, 232. 580. practice n» to. 160. 114. 314, 568. rules of 1S&2 UH to. 568. HtntutcH of, lie. ADMIMSTUATuK. who may he, ill, 113. 149. 174, 226. widow, 112, 115. buHhuud, 112. next of kin, 112. 118, 125, 129, 230. relatives, IN. «'reditor, 136. 140. attorney, 150. cestui que trust, 152. joint. 131, 172. guiirdinn of infant. 315. companies, 140. 224. resident preferred, 117. official assignee of deceased bankrupt, 139. the Attorney-CJeneral for Crown, 133, 135. 330. 553. nominee of judge, 143, 569. not to person buying up debt. 140. to co-partner, co-trustee or joint assignee, 141. patron. 160. minor, 119. 156. ' married woman without husband joining in bond, 167. feme coverte, 120. alien, 119. insolvent, 119. receiver. 140. syndic of corporation. 140. sole, 114. trustees. 12.5, 18.3, 1H4 / and executors, etc., Act for protection of, 556. spes succesaionis, 131. ' principles on which Court selects. 128. 174. daiiea of, and allowance to, ail «raiit, 312. 569. concliLsiv.' for »>.\.M(isiiiK' jnrisdi.fiuii, Itio. wbt'ii tak.'ii. 307, 465. 569. 577. as .'Vitlouw at trial. 465. fil«'. under .Suc.ession Duty Act. 560. iieKativini,' .•xecntioni of will. 93. fonnalltieN, 573. jurat. .'iOS. .'57.3. AFFIHMATIOX. i„.st,.„,i „f „„t,, g^; Aiil'] of person, bow conipiited, 422. AL^,f)^rA & Thunder Kay, Surrogate Courts of. 1. ALIKX. e.\eeutor. 60. will of. 69. adminLstrator. 69. ALLOWANCES, just, to executor, etc., 300 302 ALTKRATIOXS in wills. 94. 96. 99. .m veritication of. 79. 94. 96. enffros.sinir, 100. presumption of law against, 96. iu grants. 236. 2:57. in affidavits. 305. 573. AMEXDMKXT of applioation. 313. 357. 569. of pleading.s. 357. 379. 380. 386. AXALOGV. practice regulated by. when. 567. AXriLLARY grants. 243. statutes, nilos and form as to. 542. et sea. 72a 71i GENERAL INDEX. It MS ,1 nil AITKALS ill matttiK uf jnuirdianship, 514, 577. buiKi. 516. 517. KUiii of iiKtiicy JM Vuw nf ttuii"!. 517. notice of. 510, 577. imiicrs trnnsinitted, 517. rules Jis to. 576. AITKAUANCE. 77. in action, 357. 370. to warning of caveat. 366. 571. to citation or .Tudg. ".-( order. 370. of persons intervening. 373. 490. entry of, 571. 572. to set forth interest, 478. of iiersons intending to opj^ise grant. 571. «lefault of. 357. 374. 490. no further steps after except on direction of .Tudge. 572. APPK-NDIX. 541. 542. Al'I'LICATION for jindiate or jidniinistration, 369. 668. to two Surrogate Courts. 565. to he hy petition. 370. 568. for guardiansiiip, 4'J6. 506. 613. notice to Surrogate (Merk. 575, 613. nuuihored. 575. to .Tudge for direction as to course to he pursu(>d, 610. ArPfUNTMENT liy will in exercise of a pov.er. 553. ArrUAISKMKNT of property, .560. 568. hy sheriff. rCO. APrRKXTirESIIir of infants and minors, 502. ASSETS, in foreign country. 23. ASSIGNEE, grant to, 226. ATTACHMENT, for (ontempt, 332. neglecting to ohey order or jiulgment, 33, 333. 461. 466. ATTAINDER. 118. ATTESTATION. 89. ATTORNEY of person entitled to grant, 150, 201. 203. ATT(»RNEY— -tee Solicitors. attorney-(;enerae. administration to, 133. 230. 480. liahility of. 134. 165. OEXEHAL IXDEX. ATTORNEY GE^EBAL— Continued. may apply to Ilisli Court, 136, 509. citoil. 118, 142. AUDIT of iU't'ouiits of fXfcutors, vtc, 297, ?,2o. 570. BANK ACT OF CANADA. 30. BLIND or illitcrato pcrsoius, atHdavits, 54, 69, ;;05. BONA notabilia, 11, 577. BOND, administration, 138, 162, 550. suhmittcd with applit-atioii. 569. form of, 564, 572. with will annt'.xod, 161. juatifyiug sfcurity, 572. one .suri'ty, when pmporty under !<200, 572. dividing lialdlitios of sun-ties, 162, 330. 572 two sureties, 572. double amount of funds. r,72. unlimited or special administrations, 13'i, 569. on appeal, 576. inereasing amount of estate, 166. sureties to justify. 164, 166. 16S, 572, 577. dispensed with, le,'). by non-residents, 533. of gu;irantee company, 165. not re(iuiring from Attorney-! ;cneral. Iu5. guardianship. 162. 166, 4'.V1. recorded. 500, 576. assignment on <'ondition liroken. 169, 338. under Succession Duty .\ct, 560. sureties, 561. BOOKS, to be kept by registrtir. 574. by Surnigate Clerk, 607, 608, 609, BriI.Dl.VC societies, 33. fm Ca:TERORITM Rranls, -ili. CAPACITY, testamentary, 70. 407. CAVIO.VTS. p;irty enterinL' nnisi dcrbire miture of lii< int.'r.>>-t, 571. practice Jis to, 265. 27S. 366. 532. entering, 277, 367. address to be given in, 366, 571. 726 71. against guardianship, 507. subducting, 571. rules of 1892, as to, 276, 571. CEHTIFICATE of grants, 565. of Surrogate Clerk, 565, 566. of Registrar of Surrogate Court, 323. CIIANCEUY— See High Court of .lustj.-e. CHATTELS-S«'e Property. CHAIN of transmission of executorship, 65, G7. how lirokeii. 228. CITATION to ac.ept or refuse grant. 266, 273. against all persons in general, 142, 266, 273, 572. examination of ticrsons, 268. alfidavit to lead. 266, 269, 272. to next of kin, 266. 269. to heir at law, 360. to exhibit inventory and account, 2ft.'5, C)')4. service of. 142. 270. 367. 572. by advertisement. 142, 266, 270, 273, 572. abstract of, 270. creditor, 141, 274. caveat entered on issuing. 270. on issue of, 142, 273. .Tudge's order substituted for in certain cases, 206, 299.571. CI.ABI, statement of, in interest action, .''.90. in testamentiiry action, 267, 391. See T'lendings. ('(►niClLS. 38. 46, 108. execution of, 569. proved witli will, 46. 78. discovered snliseiiueiiily to pi'idiate, 65, 181. probate of limite<1. 46. interlineiMioii contirmed by, 101. CnKIJClON of testator, 427. ' Ai:< -iEXEHAL INDEX. 727 COLLKlENDrM, AD, prant, 143, 144. 185. COLONIES, i-xt'inplificiitioii of j.'nuits from, 251. I)roof of procc((liii>:s in Colonial Court, i;54. wills iiuiilc in British possossions, 255. '• COLONIAL riiOKATES ACT," 544. rules (Irnp.> under 547. C0M7\IiSSlON for exaniination of witnesses, 469, 472. ex parte, 471. COMMISSIONER for fakinj; a»i(!avifs. 471. COMMITTEE of Lunatie, grants to, 156, 165. 198, 200. ■•COM.MON FORM HrsiNESS." Iiit.riiretalion elanse, S. C. Aet. 35. COMMON I-'OHM RISINESS, :54, 70, 338. Hul.'s (jf 1892 as to, 36, 568. Not affected liy .Tudieature Aet or Rules, 35. COMMORIENTES, 285. C0MPENS.\T10N to executors, trustees and administratorg, ;i01. commission, or ^ro.^B sum, HQHa. k't;acy in lieti of, SO'tid. provision of Succession Duty Act as to, 561. COMPROMISE OF ACTION, 446. CONSANCITNITY. talde of, 126, 128. CONSTRICTION n{ wills, 13. of rules, 580. CONTEMPT, pro.'css of, 332. "CONTENTlors lUSINESS" .lefin. d. 342, CIO. CONTE.NTlorS Inisin.'ss. 337. 341, 342. 344. 610. I)ro\isions of Surrogate Court .Ait, 10, 3rj7. provisions of Suri'oLMtc Court Rules, 341. practice and lU'occdurc, 350, 365, 010. liuw coniiuenccd, 342, 344, 367. 610. former Court of ri.,;;.it. . 342. referred to High Court hy citnsent, 509. removal to High Court, 510. 511. rules of 1892. 610. Forms— .Sec Index of I'orms. CO.W.'MJSIOX. >.Mi:t:ilile. ^0. "28 GENKRAL IXDKX. ii' ti-iii-ii COI'V of (l.-fil proved, 108. ■■'■• will proved. 65. 106. ISO. 328. ollii'iiil olitiiiiu'd from Itejristrar. 474. of pn)(H'('. of coniiinlsor.v proceeding's to j;rt will lodyod in Uejiistry, proviiif; will in solemn form. 527. .security for, 520, 534. 553, 554. of citation. 528. removal to ("liancery. 537. out of estate. 25. 51(t, 527. 537. 531. as juht allowance to trustee, etc., 801. general rules, 518. 527. in cases in wliicli Crown inteivsted. examples of liills of, 704. tariff, power of judfjes to frame, (J. Se(> Fee.s. "COI'NTKK CI. .MM." i.arti.'s interest. 'd in cited 3'.)2. See rieadinu;s. COrXSKI.. addresses of. 490. COUN'i'V COUUTS, powers as to e.xaniuuitioijs, etc. , a[>pliLal)lc to, Ml. COrUTS. Surrojtjite. constitution of, 1. trials by Jury. 488. COrUT OF rU( H?.VTi:. ri)per Canada. 11. in Kni-'l.and. ll\\U> of Practice. 309. 342. COrUT— See Surrogate. s( e Iliv'li Court. Ecclesiastical. 11. .343. rrero.irative. 470. COrSI.X. aiicr;iI. DATE of Will or Codicil supplied. 02. "~ DKAF ;iiid Dmnl> iind Blind tt'st.itor, (>:•. DL'ATM. i)roof of. part of proof to lead ^n-.-nit. G0,\ date of. jiivcii ill tlu' oath. 2S:!. pr«'siim|»tivc 1 roof of, 2S2, 3;;4. date of in'csuiucd, 2.s:!. con pi'Msafion for. 26. DKHTS, to rank pari i)assii. 139. lUO BOMS NOX, Administration. 226. DKCLAKATIOX l.y testator. 95. post-tcstanicntary, 475. DI'X'HKK. how t'lifi.rccd. 3.'',1. n.!2. Sec Order. DEKI), nnirriai,'!' articles, etc. 46. prodnetion of. refused. 461. referred to in a will. 79. nEI'\-\ri/l' of .Mppearance. 4:tO. default of plaintiff or defendant. Glo. in deliveriii),' defence. 610. ill piiyineut. 46S. DEFKXDAXTS. who may l,o in suit for pn.vin- a will i:i solemn form, .•;49. DKFK.N'CK. stiitement of. :;77. .".It2. 61(>. and counter claim, 393. 4:'i". DEFK-VCK to Actiim. Statement of. :;7-. :;ii2. I'orm of, .392. will not duly eXerUted. .'liM. incapacity, 406. 446. uiiilin' iutiuence. 423. I'niud. 428. testator did not know and appro\e coiitei'ts, 42). rcvoc.-itioii liy mariiaire. 437. suhsequi'iit testaineiit;ir\ paper. 437. I'urniny:. 441. tejirlnt:. 442. otherwise destroyin;.'. 44!. 780 GENERAL INDEX. /'I ni, It .11 ;('-•, !''^ III DEFENCE— Co«ffn7«'r/. tfstator iocrcod, 427. minority, 446. estopjM'l, 446. DELAY in procot-ilinKS, 336, 357, 610. DELUSIONS— Soe Incapacity. DEMURRER to questions, 455. DEPOSITION of witm^ss proved as a will, 1S2. evidence. 472. DEPOSITORY, office of the Registrar, for wills of livin;,' persons, 18, 571. DEPOSITS in Savinjrs Banks, 28. DERIVATIVE INTERESTS, persons having, 131, 353. DEVISEE, sole, 114. DEVOLUTION OF ESTATES ACT, 19, 20, 144. 14:,. DISCOVERY, in probate action, 457. and inspection, 461. particulars, 436, 458. DIRECTIONS for describing testator and others. 636. of .Judge, where case not witJiin rules, etc., 610. DISCRETION of Court, 143, 117, 334. DISTRIBUTION of Intestate's Estates. 120, 144, 1(0. 714. Aildeiidm persons entitled in, to con.sent, renounce, or be cited, 569. table of, 147. of residue, 11, 296. statute of 112, 144. DIVORCED WOMAN, oath for proving will of, 56. DIGNITY or Blood, 115. DOCUMENTS, notice to admit, 460. effect of stated, 385. See Production. ;--- W. H i- i J: ^ : DOMICILE of Testator or Intestate. 12. ':3y, ' .; inferrible from description, 239, 240, 241. may be disproved. 254. fixi. GENEKAL INDEX. DONATIO mortis causa, 298. DOl'BLE ruOBATE, 65, Ufa Forms. DKAFT WILL, I'rol.ati', of. 181. DUPLICATE rrobatr, or Aduiiuistratioii, 320. DUPLICATE WILL, 42. Dl'KAXTE AliSEXTIA, Administration, 178, 1S7, 203. DUTY, amount of, 539. DUTY, probate, amount of, 538, 540. in England, 64. property lialile to. 540. remission «»f, 318, 323. succession, 558. EFFECTS-See Property. ELECTION of Ouardian, 570. ENIJUOSS.MENT of Wills on i.roof, 318. EQUITABLE CONVEUSION, 40. EUASUHES— See Alterations, 94. l)ond to be without interlineations, 164. restorintr words erased, 97. ESTATE-S(... Property. of intestates vested in .Tud^e, 19. of small value. 16, 17. IS, 32, 41. costs aIlow<'d out of, 529, 530. ESTOPPEL, 446 EVIDENCE, 450. on which probate jri-niited, 73. 75, 309, 568. of testator's handwritinj,'. 76, 78. intention, 46. examination of parties for discoveiy, 452. burden of proof, 407, 411. 414. 430, 433. letters i)robate and administration received in, 23. rules of, statutory provisions, 450. presumptions, 74, 2S2, 440. of death, 282. in support of, 7S, 94. of contents of will. 475. 476. parol, of the ori^rinal words, 107. in suits, 450, 468. 731 782 (JEN'EUAI- INDKX. EVIDENCE— Co»ifi/iHf(/. bunlcii of i»raraiicts. 7. dehors, 45. to identify papers referred to in will. 106. on trials and references, 464. deeinrations of testator. 95. post testanientar.v. 475, 106. exliil)ils at trial. 31. 454. See Proof. EXAMINATION of witnesses, coniiuission for, 331, 463. of parties for discover.v. 452. party benefited, 455. nipointment of. 61. potioi-c jure. 57. will proved by. 64. 349. marked l>y, wlien sworn, 229, 570. power reserved to. 64. when not reserved, 04. lunatie or iinltecile not Joined in tlu' probate, 63. remuneration by, l.'Jl, 150, 28H, ;5.5H. ronnnrintion by, ."7, 'iH'.t, 290. for life, does not transmit executorship, 67. J;.' I ! ,i J mi ♦iENERAL INDEX. EXECVTOIifi— Continued. iippoiiitcd until a siu-cifU'd ovont, 67. identity i)rovod, 61. no person to act ns, after ^rant of administration, 257. infant, 58, 193. bankrupt, insolvent, or a felon, 63. of unbound mind, 63, 198. Bubstituted. 67. 255. to exhibit inventory and render aeeount, 294, 570. de son tort, 58. 141. 353. feme eovert, 55. 59, 66. I r-.tection of. 298. 350. 556. removal of by Hi>;h Court, 67. put on, proof of will, 350, 352. (.•ompensation or aliowime to, ')(»2, .'SC.l. let,'!u.y in lieu of Mid. KXECFTOR'S OATH, 229, 570. P:XK(:UT0RSIII1», Clmln of transmission. 65, 67. 228. KXECrTItlX. feme eovert taking probate, 58. F^XEMrLIFICATIOX of grant. 320. of foreign grant proved, 244, 249. EXHIBITS. 491. FATHI']K. entitled in ilistrilmtion. 130, 147. rights of as to minor children. 497. grant to administration to, 129. 130. may he appointed guardian, 496. guardian appointed by, 194. testamentary guardian, 498. FEES, memorandum of, 322, 324. , schedules to S. ('. Aet, 538. Rules, 622. in guardianship. 507. Judges, 17. 321, 538. 562, 579. ^ commutation of fees. 321. Registrars, 17. 324. 562. 579. 623. and Addenda. Surrogate Clerk. 538. in non-contentions business, 538. 542. 622. oontejitious, 623. 626. by whom paid. 579. solicitors and counsel, 322. 579, 624. ofKcers. 322. 579. sheriffs. 630. witnesses. 630. payable to Crown, 539, 540. 733 734 OENEUAL INDEX. i«a FEES— Continu,;,l. Mtuuips. 321', 323, 579. tulilo ut', 622. annual returns of, 576, .^(/(i«?/l(/(^ iMidiT Su!' t'tTccts ol', 123. FEME COVEUT, will of. 120. aduiinistrution to. 121. 202. FIAT of .ludKc uik'aiust Kfiint, 320. FILINiJ ph'iUiiiijjM, 377. tinuf for, 377. delivery include.s, 384. may !»• cxteudod, 378. of aflidavits, 465. notiees Ity Surmjiate Clerk, 565. FIXED place of al)odp. 12. 239. wheiv test.itor, etc., had no, 239, 256. FOUEIGX (JUAXT. not effectual in Ontario. 24. 239. recognized, 242. •'xemplifioation, 320. FOKEKJX LAW. proof of, 242. jud^^inents, 24. grants according to. 254. FOREKIX WILLS, how proved. 242. 320. translation of. 254. FOREI<;XERS. ndniini.stration of estates of. 239. assets transmitted from abroad, 243. FOU(!EUY of will, .351, 395. FOUMA PArPEUIS, suits in, 364. FORMS— See Index of Forms. FRAFD. execution of will procured l>y. 428. 4i35. FRAFDS. Statute of. 49. GAZETTE, Ontario, notice in. 310, 692. GRAXDCHILD. 129. GRAXT of probate, administration, or guardianship, to which be- longs to Surrogate Court, 12. proofs to lead, 117. 569. decree for, on motion. 327. to be recorded in Register Book, 319, 575. effect of. all parts of Ontario, 2. .iii^:i' GENKRAL LVDKX. 735 ^, to whieli be- GRk^T—ContinueJ. list of, wliut to contain, 576. jus habi>atium, 192, to Kiiunliann of infants, 570. joint, 171, 195, 319. save jind cxcfyt, :;12. 215, o(eterorum, 214. d<' lionis non, 226, 227, 231, ^28. Bpoond or Kupplonicntj'I, 23-1. alterations in, 236. (See MtiTations.) revoration of, 226, 319, 330, >81, 483, Mub.sidiary, 264. ■void and voidaltle, 131. ?G5. uccordiiij,' U> for.'i);n law, 246, 247. ancillary, 117, 243, 543. under Sec. 56, 216. KcntT.-il. 178, 316. ' limited. 18. n-latioii l)ack to tinio of death, 27. without property, 26. on termination of suit, 512. See Administration, Trobate. GrAUAXTEH (JOMI'AXY. surety on b.md, 165. 16S. GUARDIANS OF INFANTS, 192, 315, 358, 492, 506. practice and proceilure, 315. 355, 358. 362. 358, 362. appointuKMit, control, and removal of. 4:5. 194, 4:)^. on ai)plication. proof requ- cd. rm. testamentary, 195, 498. 502. appointe wlicii will afTrsts. 529. r«'iuvseiitativfs of, 355. IIKJII COrUT OF .irSTICK. practice and proccMurc, how far In be followed in Surrofjate Courts, 9, 5(17, (HO. jMjwer. of, as to cases removed to, 512. jtirisdiction as to wills, 509, 511. removal of cases to, 509. powers of removal, 509. final order or decree transmitted to Ke^'istrar of Surrogate Court. 512. if api)licatiun to more than one Surrogate Co\irt. 565. claimants of estate administered by the Attorney-CJeueral may apply to, 136. administration a<-tion in, HOLO(JUArH will or codicil, 401. HUSBAND, administration to estate of, 122. IDEM SONANS, rule as to names, 579, 637. IDENTITY of executor. 61. ai»plicant, proof of, 17. ILLEGITIMATE persons, 187, 135. IMrOLNDIXCl a former grant, 264. INCOUrOKATED papers proved with will, 104, 109, 313. INCAPACITY, testamentary — unsound mind, 406. , delusions. 409, 414. 416. 3tS will affoctH re, how fur to f of Surrogate t. 565. y-(ipnernl may , 313. OENEHAL INDEX. l>;irfiiil iiisiuiit.v, 41fi. li'Hf. 417. t'ccfiifririticH, 41S. from (liscjisi-, 4i|t, 422. ill <'Xtn'iiiis, 4Jij, old auf. 4-'l. 422. iiii|iaiic.| iiiciiiory, 421. liii<]. (iciif. !in(] diiinh, 423. untliic iiifjiicijce, 423. coercion, 427. iiiiiiority. 446. (Icfcrico of. 406. may Im- r«i)]i(.(|, 447, IXCOHI'OKATIOX of pnp.rs. hy v.f.n.u:. 104. 109. <1«T(I, 104. 105. 108. tlic will (,f anofluT person. 105. revek.'.l will (,f anotl,,.,- person, lor., former will of the testator, 105. papers invalid. 108. copy filed. 109. INCREASED amount estates re-sworu in. 236. IXITIAL.K, alterations. 95. INFANT, guardianship of. 496. rijrhts of father. 492. 497. mother. 492. maintenanoe of, 492. ape. 497. <"sto(ly of when not Riven to mother, 496. how sue or defend. 355. Co-rt^will not make an order binding to terms of compromis See Guardians. INTEREST, causes. 477. inferior or superior. 56. 279, 281. on Sueeession Duty. 561. INTERIM arroniitp and audit, WHn, .W3r. INTERPRETER, examination through. 471. i!.B.'. - 47 r37 ise. WH t (if ^ 738 fiKN'KRAL IN'OKX. INTERLINEATIONS, altoratinns, ;niiuired. wlicii. 1'.)."), oTO. voluntarily tiled, •J'.l7. action for, 484, 485. when barred, 485. Rulos 1802, a.s to. 570. Statute 1S95, as to. ."70. ISSl'E in action, s.-ttlcd by .Iinl^c. \vlic!i. 3.S6. of law ami fact. 488. JOINT (iUANTS. 171. 319. limited to three i)ers()iis. 172. survivorshii). 173. to widow, and next of kin. 172. JUDCiE of County Court, ex otiicio .Iudy:e of Siiri'oijatc Court, Juiljre sulistitutcd for word " .Master." 570. sununoiis. 337. tiat of. 320. of Ilifjh Ci>urt, deternrmation of in tcrtaui (;jises, 5t)5. .Tudjre of Snrrojiate Coui'ts. 2. (J. junior. 2. 3. oatli of otlice. 2. power to sit .at any tinu', 568. ord(ir of. on niotiou, 327, 330. discretion under seetion 5(5, S. C. A. 14:!. 2U), 334. as to eitini; !ieir-at-la\\ . etc.. 3>46. api)licati(in to. lor directions as to coni'se to be pursued, 610. appoint days for biduMi. uit, 5. directi'Mi as to mode of heariny: cause. 375. .ICDCMENT. allidavits, 305. 573. 328. ill. iti' (Vmrt, 2. ,, Gijf). imrsiicd, 328. OKXERAL INDEX. 7:}() JURISDICTION and iiowors of Snrrojjjiti' Cuiirts. 10. Ml, exorcised in tbi> ii:uiu> u{ Her Majesty, 10. stilijei't matter, 14. in Cominou Funu Kusirieas, 14. 20, 34. ('ontentious Kusine.ss, 10, 11, ,"541. causes testanit>iitary, 10, 11. iuveiitories and accounts, 32.5. same as former Court of I'roliat'^ for Cnper (\inada, 11. Chancery and I'rohate in Hnjiiand, :m:',. to pronounce wiietJier an instrunient is entitled to probate. 344 how far cun<'urrent with tliat of Hi«;ii Court, i::, 14, 342, :i4;!. as to will i)iirportin« to execute a power, 13. as to infants and tiieir estates, 492, 496, 506. under yiiceession Duty Act, 5~iH. none in actions for ie^ticies or distribution of residues, 13, of IIii.'h (^ourt. 14. .')65, 566. JURY. i)owers of Court to try i)y, 4S8, 512. common or special, 48S. tiiidin« of. entered on the Reconl, 401. rijrht to. 488. JUSTIFICATION by Sun-tics. 14.', 572. JUS IIARFNTICM ({RANTS. 192. durins,' minority, lunacy, imbecility, bodily incapacity, etc., i;i2, KIN— See .Next of Kin. LAW, questions of, how dftennined, 3S2. LEGACY TO EXECUTOR, ;{03,/, lf:(;acy di i'y. r..^.s, 714, LEGACY struck out of will, reUoratiau of, 32',). LEGATEE, administration (will) to, '^26. 231. uiuversal, 62. 1")."., See Resi'lu.'iry I.ei;';ttet>. LE'I'TI^RS of Aiiininistr.itioii. lio, 5;),'., «n!irrlianslii[). 4S3, 4:)7, Cll). LETTERS rROI'..\i!;. 34. 5'tl. See Grants, LIFE ASSUR.\N( E. 2S, I'l, 2S4. money ptiid to personal rei)re.sentatives, 28, limited ^n-anl as to, 101. 740 (iENERAL INDEX. Wt ■ .;■ MMITED <;i{ANTS, ITS. rul.'S of 1892. as to. o09. f.70. lirnit(-(l tu personal cstato. 179. in diiratic.ii, 180. 186, 192. to iiarticular prorK-rty. 186. 1^8. 212. trust prni>trty, ISM. 18.',. 208. ;;29. will made in cxeciilinn <>f iii.wcr, 189. foriii of limitation. 178, 184. 186, 198. 329. tu finardians. 192. ?A^). coinnuttce of Innatii'. 187. ii1torn(y of cxci'i'tors. 11)0. 201. :i creditor, 190. attorney of residuary legatee. 202. pendente lite. 182, 208. ad litem, 211. .•?29. save and except. 212. as limited as Court thinks fit. 178. cteteroimn, 'Jl (. special circumsfiiiKi s, 177. 191. r.?,0. persons entitled to geijeral. not permitted to take, 31C. ".29. (luritifT widowhood, 180, 186. to next of kin, till will be found, 187. of proiierty not dealt with in will, 187. to life insurance. 191. LIST OF (JKANTS sent to Surrogate Clerk, &76. entries made from. r)78. LUNACY proved by aflidavit. 199. LC.NATICS. grants for use and lienefit of. 12.",. 198. LOST "Wn/, 6r, MASTKR-^,,..,..,,;., „„„„„„ „,,„,„„^;^.; „,,„„,„.„„ ^^„^ Ml\n. phnis.. •■sMUiHl iiiiii,!," 4]:! •^■•^n.o of „,.,.n.l p....... „....,,ss.ry ,0 „u.k.. n-iii. 407. n. •Iisposin^' niiml. 42(i. MINORITY, i,lea.], .!,.-{,;. MIXOKS. Kimr.Iiiinship ,,f. 437. 4^9 inr-apal.lo of inakin.i,' will. 44fi. .^s^. l>i'inK- fidmiriistrator. 11!). ^,'raiils for „s.> an,J n-Ht of, 1!)2. 57a." ronoiiiii'iiiu:, li)3, 4:)-i. •"itt^il. 195. passfd ovor. 1%. Ht'ftiiisr thoir 11,. xt of kill, l!)6. Court nof roi„.l,,,i,>,l In- .'hoi,..'. of. m may rofuso to ,>!:..'t noxf of kiii, IT.' MOlHKlf. a.i.ni:,i.stratioi, to. 12s, 121 rnsuvly or .uuaniia.islnp of infant rhil,lr,-n. 4J2. 497. MOTIONS, application for ^.rant 01,, ;5l'7, .•{■28. practice rcj?u!atod by arialoffy, 327. Mr-SKOKA. .«<„rro^^■,t,. Courts of,']. XKI'IIKW. .•iilministratioii to r>i m NKWS].A].|.:iis. ,.,]. UriHsl,. ,„. i.-.,:„i,,, ,„.,. ,-,, •lircctioii of .JiidKo a.s to, ISO. 298. Oiit.irio (uizcttc, 092. NEXT FRIEND, infants may ol.ct lO'. NEXT OF KIN. to I if.,,,. ,,|,„„_ „- ,^,, acliiiini.siratioii to. li.j. 124, 121), 214 at time of (],.atli. IV]. a'-conIi„« to Statute of Distribution, n;! bu.sbaiiij of. 121, 12,'i. 742 OENEIIAL IXDEX. 4 NEXT OF KIN — r,i)///;i?W. It'Kiil rf|ircs('iitntiv(' of, 130. joined with widow, 124. S51. prt'fcrriicf (if, inter se, 12.'). ndministnition to. until a will lie found. 187. aliKohite jrnint to. wlirre widow ;i lunatic. 125. of infants, entitled to tlieir >;uardiausliip. 197. may renounce, 196. of lunatic. Krauts to, 123, 200. parties to action, 209, .^54. NIRC'E. administration to, 132, 305. NOMINEE of majority of interests, administration to, 116. of next of kin, 225, V'liHrdian, 190. Crown. 135. Judge, 143. NOTARY rrBLiC. decliiration before. 30, 305. affidavit sworn liefore out of Ontario, 305, copy of will fi'om office of, 543n. NOTICE of ApplicMtion for grants scut tu .Surrogate Clerk, 565. renunciation or alteration, 2.38. 572. of application for letters of guardianship. 315. to Attorney-iieneraJ. NOTICE of entry of iip[ieiiraiice, 373, of non-i>roduction of witnesses, 465. to admit documents. 460. of setting down cause for trial, 369, 487. of Appeal, 677. to creditors to send in claims, HOH/", (J02. commission to adverse party, 470. NUNCUPATIVE WILL, 49. effect of Wills Act. 49, 50. See Soldier, Mariner. OATIiS of e.Ntcutors and administrators in writing, 569. of adniinistratdr. so worded as to clciir off prior interests. IIS, 569. to lead grant, win n taken, 569. recitals, in. 569. of .ludge. 2. of registrar, 4. OK.IECTION to proposed administrator, grounds of, 297, to grant. 328, 329. ';exehal index. 743 itcrcsts. lis. OBMTKiiATlONS. 94. S«'«' Alterations. OFFICIAL CTAItPIAX of Infants, service ,„i. 362. ORDERS and Decrees, how enforced. ;■,:;!. KG. 461. noted hy Registrar, 575. ORDERS, jreneral rules and. 368. 567. See Rules. ORDER of .TiHU'e. substituted for citation in certain cas. s, 571. what ca.'-cs necessar.v in. 330. PARTI CULAR.S may be ordered, 38(1. of papers propounded, 4.S. 4"). in action to establish will, 436. PASSI.\(; AC'COI-XTS. 297. I'AY.ME.NTS under revoked grants. 265. indeniin'ty to per.sons niakiiiK. 265. into Court as security on Appeal. 517. default in, liow proved. 4(;8. PA ROE eviden - •(> show the original words, 107. tiyures of an erased or obliterated legacy, 1)7. in identification of paiK-r referred to in will, 106. evidence of contents, 103. PARTIES to an action. 353. 356. who may put exeetitor on proof of will, 351. PARRY SOUND. Surrogate Courts of. 1. PENALTY, IN Bond-See Bond. , of eontempt of Court. 455. PEDKiREE. in intt-rest cause. 478. ' PENCIL writing, on will, 376. PENDENTE LITE. Administration, 205. 207. " PERSONAL ESTATE," interpretation. Wills Act, 552. of intestates vested in the .Judge. 19. ' distribution of : (See Distribution!, devolving.. 20. 144. PERSONAL Reiu-esentation of estates. 1!>, 24. 355. expenses of probate. 25. PETITION, applichtion for grant to be by, ■'5CS. particulars to be shown in, 568. fur audit of accounts, etc . M)V,t'. PLAINTIFFS, who may be, in proving a will in sol.n;n foi'm 349, 353, 356. ^ 7-14 m. ■ :i OEVEHAF. IN'DRX. TLEA, filiii;; aii<1 il.>livt«ry of, 44:). rLRAr>IN ('mirt .Itil... 9, SJ7. in (•r)ntontious liusincss, 341, 344. ".of). in proving' oxci'itio-i of wills. ;;0'». rules of 1892. .5*57. PH.\rTITrONKi;S in the fMU-r..i,-.re Ciu L-, - See Solicitors. rKKFKUKXCE of n-xt of kin, inter s.-. 128. r.'siiltiary lefjati'es, 153. ereditors, 138. ffiianiiatis. 194. PUESI-MPTIOX. omnia rite a.ta. 74. of law a.trainst ;ilteratioiis. 96. favour of alterations tvfore Wilis Act. 7'.), 04. favour of vaiiility of m.-irriaai-, 122. favour of sanity, 406. by flestnu'tion of will codicil revokeil, 440. PRESl'MPTIVK proof of death, 282, 334. PRIMOCEMTT'RE. in administration, 1.^.. PRIOR Rights, oaths, etc., so ^(jrded as to clear olT, 569. GENERAL IXOEX. 74; PRIOR PETK.WS, (jraut to. 118, 177. PRIORITY, rishts of. iimoii« cl.-uinaiitM fur «riiiil, IIG, 27. t. PRORATE, ill <'()mni()ii form, 38, 348. effect of, 39, 40, 58. not to issii(> until .seven dayH after death, UCii juipers entitled to. -J'i, l.i, Kl. to all the executors, 63. gen(>ral, 38. to one exeeiitor on tiie renuneiatiou of the otiier. 63. to an executrix (iurins life or widowhood, 64, ISO, 186. double, 64. of an earlier will, 6."). a fodlei! separate, 46, 47, 65. of an .)ri,!?inal will, 235. authentie copy of a will. 65. copy of a lost will or cixlicij, 63, 73, 476. sul..-. re(niisites for olitaininj.'. 348. Uen. rally irrevocable, 347, 349. fUOCEEDINGS, stay of, 517. i rUCK'EDrUE in an acticm, 486. non-oontentions business. 568. application as to course to be j)ursued, CIO. I'KODrCTlOX of papers. 77. 331. 458. ori^'inals. 108. of testamentary |)apers, liow enforced. 571. PROHIBITION order for, 15. 267.458.517. PROOF, adiiiin.culiir, of a will, 7:5, :«1, 411. of will in solemn form. 345, 349. 631. when applicant not n( \t of kin. CC. in detail of wills. 68. PROOFS, to lead firant. 66. 68. " PROPP]RTY " substituted for words " personal estate, p)ods,"' etc., 14, 19. PRC^PERTY devolving. 14.=i. value of. to be shown in petition, 57. 568. full i)articulars and apjiraisenient of. 57. 568. bond for double amount of real and personal. 162. devolvinj,', iiflidavit of. .■)7, 'MU. M2, :iC>>*. not excecdinu ?JOO. ICi. 17. S(parate value of personal and real, 568. value of real estate deposed to by applicant for admin, (will), 161 sworn, undi'r Suicession Duty .\ct. 560. of iiersons dying itinere.. 134. artidavit of, on appeal. 577. dead body of testator n<)t property in hands of executor. 21. trust. 21. transmission to forei^rn executor. 24. shares ::i ship, 20. value re-sworn. 57. perishabl(>. 217. See Real Estate. w fa' I (;i:ni:ral ini>kx. rKOrorM)IN(J a will, ir,6. 343. 353, 359. Kfiiiit Id iiarty, 156. See I'roliato ill Siilcniii I'c.rin. PKOVIN(! a will. St'., riol.ato. QTEKKC. t'Xciiiiiliticatinns fnnii. 249. REAL K.STATE, f,M-aiif hy SiiiT..;.'at.' Conrt of coniity in wliidi (Lccascl uill Jiff. ■••till}:, heirs, ftc. !iiay he citc.I. IM6. value t(i hf swi.rii. li;i. V\'l. 560, 568. vahi.' of. to he iiicliidid in hoiul. when. ICl. 508. only, will of. 156. Se.' I'rojKTty. KECEIVEKS. 33. UECITALS in ojitlis. iriaiits. etc.. 21C. 317. 570. KEfOIiD. Siirro.cat.' ri.nrt a <"MUit of. 1. in contentions hnsin. ss. 487. passing. 4S7. sn>;;;estion on, i;G5. REFERENCE or ReinovaJ of canso to High Oonrt. 509. RE(JISTERI\(; will nii.!cr li.jrjstry Act, 23. RE(JI.STRAR of Surrogate (/onrls, 4. 574. to give hon.i. 562. .lath of oliicc. 4. ihiti.s of, 574. 575. 576. otlice hours, 574. nndcr Sucees.sion Duty Act. 5C0. estates, small value. 16. IS. 575. liooks to he kept hy. ,574. to suhniit hoiid to .In(ij:<'. 575. to indnrse and file ihiii.ts. 18. 574. to record grjint in " liegister P.ook." 575. of county of York. 3. lo ent.T note of proceedings and orders. 574, 575. otfice, place of, 4, 574. office a depository of wills of living pers.ms. IS. .575. f«'t>s to, 17. 324. 574. dishurs.'iiients ..f. 574. <'oinniunications to from Surrogate iu liH')\vii, 17. UKI.ATlONSinr. I.I f ..f, 17. UKMnVAL of laiis.^ to Hi-li Coiirr. .''.0!). r.77, M\). Kuariliaii, GOt. UE.MWCIATIO.X. Iiy .■x.-riiti.rs nml oiIi.ts. :i8S, 2iil. ;J53. t'xt'cutor forfeits luMiut'st hy. :;s!). prior to liiuitcil ailtiiinistratioii, ::.). by iioii-aiipi'ar:iiic>' to a ritation, liSll. notice of eo Siirroyato Ciork, 23S. 1572 . I)y {Ciianlian of ininor or infant. (i.Slt. RKI'LICATION. tiiiii- .-iii'l rutors, trust(>es, for next (;f kin, ITiS, 301. UESIDI'AKY I.euMtee. >,MMnf to, 150, 157, 218, 232. dcfiuitioM of, l.'l, 157. prefereii'-e of. int-r >e, 1,'32, 155. attorney of. :;is. pprsonal representative of, 1'):!, If).'). assignee of, 158. fur life, G:;. ■:7.). S«>o also Adniinistfiitien (Wilh, (de honis noiil, 229. Limited .Adiniiiis'ratiMii i\\'i!i), 232. may {)ropon!iil a will. ;'»;. RETRACTION of r.-n-!i.ei;.tion. 289. 291. not reiiuir»>d from a part.y (/ited. 293. wh»»n not permitted. .'■)'■). illlowed before ;xrant pMsset*. 2^2. REVEN[-E Fund. 320. REVn'AL of r.'VoUed \vi';, 4:'., 44, 80, 448. provision of Wills Ar{, 555. intention to revive, 448. REV(.)('ATI(»N of -rants. 226. 257, 259, 481. of temi)orary grants, 2(5'). on application for, i)rucoeding adjudged contentious, 610. actions for, 481. • • • : If \ h^ fJP^N'EKAl. IXI)i:X. HEV0C:ATI0N — rv,n/(in/r7i. ii(it(<| \,y Siiirojralc ('li-rk, 575. iictioii f(pr. 481. Iiow tfi lie noted ti.v i:c;;istrar. 575. i)t IcttiTs nC (.'uiiriliiiiisliiii. 4S3. (if iiruliittc. i;57, 481. (if inliiiiiiistnitidii. l.'r.7. 481. grounds of. 45. 79. 97. 258, 330. 428. siilisidiiiry jrraiits made. 2t!4. ])a.viiifiif iiiidcp rcvcikcd L'raiits valid. 265. (d* wills or .odicil. 44, 4;18, 440, 7. ;",H. ■,<» : •J'u. 25S: 362 261-264 (inehisive): ,S63 271: .'^68. 277-287: 371. 372. ;;oo. HOI : ;«;',. 302, 307 to 309 un<-lusive): 254. HIO. Hll. Hl-2: .'JH, 'iOit, nr,r,. 313-316. 317. 318. 320: 355. 321-327: 356, 357. 333, 335. 336: 357. 337-340: 358. 369. 371. 372. S81. 383: 378. 371: 392. 373: 393. 485: 378. 368-383: 382. 384-391: 382. 385-387: 382-383. 3<.)'2, 440 : 3'J 487:452. 711) 750 GENERAL INDEX. liVLV.i^-Ciiituiih-il. ■IHS.')!)!', : W>.\. ».".7. r>07-r.24: 4r);), 4hi. r<.'4-()19: W2. 474. 6J(), r,-d\ : 474. ■ 660-667; 487. 672-6S4: 4'.tO 4!)1. 11:70 : 7. l-'74; .•.!s. . 1.109 :;it)S. , loS:: :!82. 1 ;!!.■>: uw,. ti-t llilVi" I'tT.-.l (if Act of Lc;;i.sl;lfllfc, 9. SANITY, imrtiiil. 416. S.\VI\(!S HANKS Sf,' Hunks. SCANDALOUS nnitter e.xpun«K(l, ;{,S(;. SCOTCH Kr.iiits, 24'). vSCUirTS. atti.iavit uf. 182, 375. SKALIN<; (Irlcrtivr, s:l. Letters I'rnl.atc, 2:!0, :M5. Ki'inits, nili', ^ilH. SI'^.^L (if Surroi,'iite Court, 1, oTi't. SEAMKN, |>r()l)at.' df will— Sc'(> Miii-ii;. rs. ,'')48. SPL\HC11 for will mi aiiplii alicni lor ailiiiiiiistratioii. 568, 6U3. SHAUCIilOS. by SuiT..,i.Mt" cl.'rks, 563. SKAUCII I'l.r l(.sr will, 5()S. SECriUTlKS from ailinitii.straturs ix-mlriiti' lite. 208. SHCrUITV— S.'i' I',uu(l. for costs. 5:;:'>, 5:!4, 541. Act rcs| tin;; lappcnilixl, 5U. SKLKCTION. |)rin<'i|)lcs on which Court selects, 174. of administrator hy tin Court, e plurilius, 174, 204. SEQCKSTUATIO.V. 5;;(i. SEUVICIO of citation. 142. nti7, 572. Judge's nrder. :!6S, 142. i;(17. of iiftid:ivit8, :-:;M. of infant or lunatic with .iudy;nn'nt, 358. ou otiicial ;:uardian. :;(!2. oi:t of jurisiliclion, 36S. A\ fiKNEHAL INIJLX. SIIIF'S. p.'rsiiiKil piMpot'ty, 20. SnoUT-IlAM*. CAiiiiiliiatioii ill, 4.-,t5. WKi.VATriJK III" ti'Stiitoi-. [lositioii of, SI, S4, HH, ar'kll(i\vlrcli;(.||ii'llt nf, S^, '.)1. may lii. n. ,.k rr .stamp. S!. .T.>6. scrati'liirii. . i|f, |);». seal III it u'li'i'l ."IS ii. S.j'. Sf.. Will. SITTI\(JS i)t' Siirn.;:;itc •'uiirfs, 2. r>. BfiS. SOI.DIKIfS Will.,. p",.|,iif.' ..r. .-.0. 51, .-SJ. SOLK.MX FniJM. pr.mf n( wills in, stntiitory pn.visi.nis :!4.-, '""■'>' "I '^i"*"' "i!'.v «iv>- iiotir- that lu' rc(iiiirf.s will lUMVCcI ill, (Jio. procticiliia's ill, ;;4;. ;;4i. if will aft'iwts r.'al cstat.-. Ii.'irs, (>tc., :t4(i. Voluntary prii(cv(iiiii;s in, :;47 proiiat.' in. tr'-iicrally ir'vvoi-il.j,.. ;;i;). SOLICITOUS. ;;7.'. oUS. 570. 614. " SOrXI) .MIXO,- ,,liiM.s,.. 41:?. SI'KCIAL C.is.'. 4«J. SI'KCIAL circumstaiiiivs, i;r;iut mikIiT. SI'KS SrccKSSlMMS. liMW shnwa, IIJI. STAMI'S. t'rrs p.'.i.i ill, ;;jl>. NTATITHS I.\ KXTKXSO IX AIM'KNDiX,- Scciirity in Siirio-atc Cuiiris. .'jil. To Aiiii'ihI the Siirru;.';iti> ("onrts Ad, 541. Uospcetin.u' Anrill.iry Prdh.-it.'s. .■4J. "("uluiiia! I'roliati's Ait." 544. Wills Act of ((iii.irio. 551. Administr.-itii.ii l.y th- <'r(,\vi! ot' K.-tit.'.-, vi.-.. 55.;. To Protect I'cr.sons Acting' as lv\,..iiti,rs. etc.. 55;;. Succession Onties Ai-t. 5."<. Act to msike t'lirtli. r Provision for the Payment of. Succession Duties in certain 10 9 ., 11 4 12 14 . 4, 18 .574 13 674, 576 15.. .. 574 IG . ](», 13, 14, 149 17 10, 11 18 . 12. 13, 35, 109 !9 268 20 .486 21 1 ' ■><> . 5 23 450. 304 24 .267-8 25 26 .451 27 451 28 .451 29 450 3ii 509 31 509. 511 32 .512 33 16, 513 ;!4 36 .309 .310 309 37 ::io 38 40 .266 .163. 163 3'l ... . 163 178 41.... 565, 575 42 44 .565 . 565 43 . .. . 565 J5 . ,. 46 ..'66 47 566 48 .566 49 275 50 52 54 56 .275 .320, 346 .160 .178 51 345 346 ( ■"04 ''07 15. 161 .57 257 58 60 . i;;. 113. 179. 191 . 265 59 265 61 ... . 265 r 62 64 .288 . 15. 162 63 163 65 ... . 15. 162 237. 572 66 .169 67 ... . 16. 17 68 .312 69.... 320. 325 70 .320 71.. .. ."21 72 74 .321 .322 73 3^1 S'*'' 75.. .. 622 7i\ . •"( . 7. S . 6. 7, 8, 506 77 . . . 302 78 s< hcdiilc A 538 S( •hcdulo B 53S A ts to Ainoml Th. Surropate Courts Alt :- 53 Vi<-t. V. 17.. ....7, 14. 16. 69. 572 57 Viit. I'. 22.. 18, 325. 541 I ? <"iEXEi;AL INDEX. •7 ,~o 53S I I ti .496 ..499 H. S. (). c. 110, An Act ri'spccting Tnistt'oH. Kxcfutoro. otc. 299. U. S. 0. c. i;i7 iliilatits). s. 1 4H2 2 10 497 11 STATT'Ti:S .it,,(l. 1{. S. O. <■. 1, y. 19; 307. 20 (Act Kcapt'ctiiiK rrovincial Revenue), 318. 323. 45 (Juilicature Act of Ontario), s. 105: 9. 46 (Local Courts Act), s. 57:2. 61: 307. 62: 307. 91 (Unoffranizeil Territory, 1. 108 (DcvuIiUioii of I'lHtates Act), 1.5. 1(1, Mi, .",11. 136: 166. 153: 307. 169 (Building Societies), 33. 49 Vic. c. 22, 145. no V. c. 7. 191. 51 V. c. 40. 506. "i(! V. c. !:",, rm. 56 V. c. 32. 506. Act Kesiiecting Law Stamps, 320, 321. Succession Diit.v Act (isn2). 15. 65, 555. 563. 1{. S. (). c. 132, Married Women's Proiierty .Vet, 59, 120, 167, I'iy. The Law Courts Act. 1S05. Addenda \- p. 576. The Intestate Estates Act (1995). 714. n. S. (). c. 109 (The Wills Act of Ontarir.), 96, 448. Act HesiM'cting I'uhlic Odicers (I{. S. O. c. 15. s. 20), 563. 570. R. S. C. c. 119 (Canada .foint Stock Companies Act), 32. Canada Evidence Act (1S93), ."OS. 54 iV: 56 Vic. c. 145. STAY of proceedings, 311. 565. till certificate received from Surrogate Clerk, 565. on appeal. .577. S[TBP()K.\A. 268. 463. to hring in Script, 571. SrcCKSSIO.X to Intestate Estates, 19. to otlice of adtiiinistrator. liv Attorney-Ceneral. srcCESSIO.X Duti.'s in Oiaariu. 558. on property l.nou'ht into Ontario. 71:',. SrcJGESTION on record. 265. tel'IT— See Action. failing to prosecute, 610. n.s.c— l."^ 754 riENERAL INDEX. SUMMONS in Chambi.Ts, 336. aftiT aiiiioaniiico, CIO. (li'fiiult of plfiiding, CIO. to show canst' why ;;riiiit should not be uiadt'. 336. SUMMONS, nil.'s as to, 33G, 610. SUPPLEMENTAL grants, 234. SUPREME Court of Judieatuic, — practicf of Suit. Cts. n-guhiti'd l)y analogy to ruk's of, when, 9, 567. SURETIES— Sfc Ronds. SURRO(iATE Cleik. an (jffKxT of till" High Court. 3. 579. duties of. 3, 508, 5C5. 577, 578, 579, C07. to number, indorse and enter notices, 311, 57S. notices of application to be sent tf», 575. to send certilicate to registrars, 565. list of grants, 6. notice to, 238, 575. office hours, 578. coniniunication from to Registrar to be entered, 578. SURROGATE Courts, - in each county, 1. in unorganized territories, 1. .Indge, '2. Registrar, 3, 574. jurisdiction and i)owers. 6, 10. 14. 15. 17. 20, LUC. 341. 354. 392. seal, 2 57C. sittings, 2, 5. to which, grant belongs, 12. in what sense coni'ts of construction, 13. grants of to have effect in all parts of Ontario, 12. 16. rules and orders, common form, 7, 8. 5G7. contentious business, 341, 354. rules. 1892. 567. SURVIVORSITir of joint grantees, 173. SYNDIC, Grant to— See Corporation. « TAXATION of Coats, 302, 570. TABLE of fees, 622. TEMPORARY (Jrant in absence of next of kin revocation of, 178. 178. B-; OEXERAL INDEX. ■5o TERMS ,4 roiirt, 5. in I'oiinty of York. 5. TESTA MKN'r.VHV (Jiianliau— See (Jnaidian. TESTA MEXTAUV papers. 45. |iri/(liictioii of, IT), K), ')7l. TES'I'AMK.NTAUY Capacity. 6S. 70, 406. TESTATOR'S kno\vle(lj,'c of conteiitu of his wij], 4.^3. •leclaration. 05. TESTATOR'S Doinieiie. .-iO!) See Doiiiicil.-. TIME, fnrtiier tf( declare or plead, 378. rules take eflfeet. 567. when proliate may issue, 568. administration with will, 56<:. letters of administration, 56S. sittinRS of .IndKe, 5, 568. office to be kejit open, 574. trial. 373. TRAXSLATIOX of Forcipn will. 254. TRANSMISSION- „r Exccutor.ship. 22S. See r'haiu of. of notice of iii)plication for grants uf prolinte. papers to Refiistrar on ai)peal, 577 TRIAL of action, 486. directions as to, ,379, 488. notice, 487. entry, 487. time for, .373. new trial. 380. 486. See .Tury. amendments at, 380. TRI'ST fund, administration limited to, 183, 232. corporations. 225. TRrSTl.JCS, compensation to, :i0'2. just, allnwaticps to. ri(Mi. discharge of. .'103/, ileceased. property held by. 21. TRI'STEES, rompensati. 40. nppoiiitiii^r j,'iiardian only, 42. of realty, 40. of living: persons de])osited in re>risfry. 18. removal from. 571. forced. 351. 352. who callable of makintr, 47, 55, 406. 407, 552. decree of mental power necessary, 4i>7. aeknowiedfrment by testator of his si.Lni.'iture, 86, 88. 308. widiess not siillicieiit. 402, produced at funeral, 475. GEXERAL INDEX. 757 ^^yUJj — Continued. intention of tostafor. whon Court looks at, 4f!. , 4J. tnc siniilo of. 94. siMit filiroiid for t'Xiiniinatioii of witiiossc.-, 47. (Oflicils proved with, 46. provKl without litiKati fl coilicil, 46. l)rov(d wlicn codicil lost, 182. fuithciitic copy proved, 63, HIS. of lilind or illiterate persons. 5t, 6n. niiitnal or joint, 72. marked when sworn. 220. ?,ir,. alterations, how engrossed. 76, 79. evidf>nce of, 94. omitting olans(> from Probate. 102. other papers incorporated by, 77. eopy of will proved, 73. 230. lost, 103, 474. contents proved. 73, 476. draft proved. 73. 434, 345. date .supplied. 92. oflRcinl copy may lie (ditained. 320. to he recorded in Re.cister Book, 57.'i. without date, or incorrectly dated, 92. 'o.st, proimnndinp, 474. two or more. 42. power to dispose . 437, 554. not by presumption of inientiun by alternti.m in ciicnnist 71. .554. how reviv(>d. 44. SO. 44S. speaks from death, 555. conditional will, 45, 72. of married woman. 56. 77. 555. divorced woman, 55, 56, 77. search for, 110, 568. am-es. fm .GEXEHAL INDEX. WUJj—CoiltillUrd. construction of Wi„, ,.,. p,,,^,, ^. wo also Probate. ' aliens. 6!1. •'xecutod abroad. 69. proved abroad, 244. f-arty proi,ouneution, 71, 80. what is not a jroud exeeution, 7.';. '•"I'tiiined in two or more papers, 77 24S made by British subjects abroad, requirements of 24" when not revoked by subsequent marriage, 4.38. ' WILL. Af'TIOX TO ESTABLISH. propounding in statement of elaim, .377. defence, not duly executed, 394. testamentary incapacity, 407. undue influence. 423. fraud. 428. did not know and approve contents. 429. another will, 437. -''■'•'lit. 13. bsoriijuif^ (JENEKAL I.VDEX. 759 Imf oxfcnt. 13. lie siibsoriuuu I-. 7fi, .?:^0, WILL, Action to Khiaiu.ish Cuntiimeil. revoked, 437. uiiiority, 446. set* also liR'Ui)ii('ity. WITNESS, iittciiduin',' ol'. 466, 469. allowiiiR'f to. 630. > to will, iiiiist subsorilje, 400. sultscriiitioii of noii-attostiii>r, 93. iiofe'ative exeuutioii, 9',, 40D. iiitorostetl, 79. put out of Court, 490. WITNESSES aud Evid.MKv, 403. 409. e.Kamiued orally in open Court, 490. conjuiissiou for cxainiiiatiou of, 466. 469, ':';■'), to will, to .swear to I'.xeeution, 569. ackiiowlfdtrnicnt liy, 91. may be luarksuiaii, 84, 89, 402. absence of to be accounted for, r.G9. see Evidence. WORDS, oi-igiiml, (.'(uirt will ascertain, 98. attrocions, offensive, or Mb.-llous, excluded from probate. 47 or iifiiires restored, 97, 99. WUITS, attaclnnent. 331. 334, 461. luaudanias, 16. prohibition. 1.'). sequestration, 536. subpceua. 268, 463, 571. York C(juiity Surrogate Court, 5. 242. i