IMAGE EVALUATION TEST TARGET (MT-3) V /. // A (/. Q.x. J- «?. i^. i/i 1.0 I.I 1.25 '"'" III™ 56 1IIII12 116 11^ |Z2 2.0 III™ 1.4 111.6 vQ <^ /a M ^.. '•? i? // / /a Photographic Sciences Corporation iV N^ \ \ % V 6^ "l? <^ "S ADI'ILAHJE STREET EAST MDCCCI.XXX. mmtmmnmmm* -:^QC h b 6 Entrrcd accorJing to Act of Parliament of the Dominion of Canada in the year of our Lord one tliousand eight hundred and eiglity, By At-FRicn Howf.i.l, in the office of the Mmister of Agriculture. r of our Lord >f the Minister (Tlii^ I'olmt IS (by permission), RESPECTFULLY INSCRIBED TO CHIEF JUSTICE OF OXTARIO, B\ THE AUTHOR. il- PEEFAOE. As to the necessity created by the erection of the Court of Probate in England for a book on Practice and Procedure, it was said, (a) tliat for the guidance of the practitioner, there was then (18,57) only the "Ecclesiastical Practice" of Mr. Coote, which was little more than a collection of forms, and the article "Prac- tice " in Burns' " Ecclesiastical Law." This remark might have been, with slight qualification, extended to this Province when the Surrogate Courts Act was passed, 1858, During the twenty-two years which have elapsed several works have been published in England upon the subject, but none directly applicable or adapted to the state of the law and practice in this Province. General Rules and Orders of the Surronjate Courts of Ontario were made by the Judges appointed under the 14th section of " The Surrogate Coui-ts Act, 1858," which have since continued to be the Rules regulating the procedure and practice in those courts in the matters to which they relate. But these rules are applicable to common form, business only, leaving the practice, forms, and procedure in contentious business unprovided for. The 32nd Section of the Act, liowever, enacts that unless otherwise provided for by this Act, or by the Rules or Orders respecting Surrogate Courts theretofore enforced or there- after to be made under the Act, the practice of the said several Surrogate Courts shall, so far as the circumstances of the case will admit, be according to the practice in Her Majesty's Court {a) D. & B. p. 1. ;i Tl PREFACE. of Probate in England, as it stood on the oth December, 1850 ; a similar general rule being provided in Sections 47 and 52 regarding matters there mentioned. Under these statutory provisions part of the practice of the English Court of Probate has, in the coui'so of years, become settled practice in the Surrogate Courts of this Province ; and in describing that of our own Courts, and the extent to which, it follows the former, constant reference is, in the present trea- tise, made to the English practice. For the purpose also of showing the correspondence between our own and the English practice and procedure as they existed at the date mentioned, reference is frequently made not only to the Reports, but to standai'd English works, in Avhich the similar practice of the English Court of Probate may be found described, amongst others, to the valuable treatises of Air. Coote on the Common Form Practice of the Court of Probate, and of Messrs. Coote and Tristram on the Practice in Contentious Business, in their several editions, the former being fully recognised as author- ity by the Englisli Court in matters of practice (a) ; and to the works of Messi's. Dodd and Brooks, Horsey, Browne, and other learned authors, relating to the subject in hand. Uniformity of practice in the several Surrogate Courts of the Province, it was thought, might safely be assumed ; and w^here Surrogate Court cases have been cited, they have been taken chiefly from the office in Toronto. Cases disposed of in the former Court of Probate (b) of Upper Canada have been taken from the records and papers at Osgoode Hall. The arrangement of subjects indicated in the first public i ; (a) Per Sir C. CJresswell, In the Goods of Watts, 1 Sw. & Tr. 258 (1860). (b) The writer, liaving served a considerable part of his articled clerkship under the late much esteemed Rejjistrar of this Court, and in connection with its busi- Dess, was enabled to avail himself of some experience so aaiuired. PREFACE. VU r, 1850 ; and 52 !e of the become ice; and :o which ent trea- 3 also of : English ;ntioned, :3, but to ce of the amongst Common ;i'S. Coote in their s author- id to the nd other •ts of the \i(\ where m taken )f in the |en taken it public Uhip under Ith its busi- noticc of this work has been somewhat changed. Instead of placing the matter relating to practice luider the various sections of the Act in the form of notes, it was found more convenient to place the greater part of it in chapters following the Act. The importance of this branch of practice would doubtless, ore long, have induced abler hands to undertake the task which is attempted in this volume. In view, however, of the lapse of time since the SuiTOgate Act was passed, the Revision of the Statutes recently issued, the passage of certain important Statutes, as :— " The Wills Act of 1873 ; " " The Act relating to estates of small value, 38 Vic. ch. 18 ; " " An Act respecting Administration by the Crown of Est.ates of Intestates dying without known relatives in Ontario," 40 Vic. oh. 4 ; — and of the further divergence of English practice from our own, it appeared that the proper time had arrived for compiling a Avork specially adapted to the law and practice of our own Courts. The Author desires to make acknowledgment of the aid and counsel he has received in his labours from many learned gentlemen : to Sir James Robinson, Bart., for free ac- cess to the archives of the former Court of Probate for Upper Canada ; to the Hon. Mr. Cay ley, and J. S. Cartwright, Esquire, Barrister-at-Law, of the Surrogate Office, Toronto, for a similar priAilego as to the papers and records of the Surrogate Court here, and for valuable information as to the actual practice ; the last named gentleman having kindly revised portions of the work as it passed through the press ; to W. Mortimer Clark, Esquire, W.S., Barrister-at-Law% for revising, and adding valuable matter to the pages regarding Scotch Grants ; to F. \V. Kingstono, Esquire, Barrister-at-Law (who has had much ex viii PREFACE. perienco ir. Surrogate Court Practice), for valuable aid in the parts regarding Contentious Business. A.H. Toronto, July 1st, 1880. II TABLE OF COJSTEi^TS. PAGE. Preface v Table of Cases cited xiii Table of Abbreviations xxi Errata xxiii Introduction 1 PART I. The Surrogate Courts Act, with notes and references 15 The Act respecting Guardians of Infants, with notes 65 PART II. Common Form Bu?i ir t 74 Rules and Orders with Forms as to I'robate, Administrations, and Guardiu::«hip, promulgated by the Judges appointed under Surrogate Courts Act, 1858, and table of Fees 74 PART III. CHAPTER I. Of the Necessity for Appointment of Personal Representatives 144 CHAPTER II. Compensation to Executors, Administrators, and Guardians 152 CHAPTER III. PROBATE OF WILLS. Section I.— Probate 155 " II.— Wills of Soldiers and Mariners 161 •' III.— Executors 169 " IV.— Proof in detail of WUls 176 " V. — Incorporation of papers by Reference , . . 198 \: X TABLE 0¥ CONTENTS. CHAPTER IV. ADMINISTRATION. PAGH Section I. — Administrations 202 " II. — Administiatiuus with will annexed 232 " III.— Joint Grants 23G ' ' IV. — Princiijles on which Court selects 238 CHAPTER V. limited grants. Section I. — Grants limited in duration 242 " II. — Grants for the use .ind benefit JHs /ifl/^en^mm 2r)3 '' III.— Administrations pernhndc Uti: 203 " IV. — Administration lul litem 200 " V. — Grants, save and except 208 " VI.— Grants atteronim 200 CHAPTER VI. Grants made under Sec. 54 S. C. Act (Special Circumstances) 270 CHAPTER VII. SEcmoN I. — Grants De. Bunis Non 27< ! " If. — Second or Supplemental Grants 283 " III. — Alterations in Grants 285 " IV. — Wills proved and Grants made according to Foreijjn Law 287 " V. — Revocation of Grants 2'J7 CHAPTER VIII. Section I. — Citations to accept or refuse Grants 300 " II.— Caveats 312 " III. — Rights of Priority among parties entitled to Grants . . 313 " IV. — Presumptive Proof of Death 315 " V. — Commorientes 317 " VI.— Renunciation 320 CHAPTER IX. Inventory and Account 325 TABLE OF CONTENTS. XI PART IV. CONTENTIOUS BUSINESS. CHAPTER I. PACK Section I. — Jurisdiction of Surrogate Courts in Contentious Business 329 " II.— Prob.te in Solemn Form 331 " III.— Parties 333 « IV.— Procedure 341 ** v.— Pleading 350 " VI. — Trial and other proceedings 355 *' VII, — Interest causes 350 " VIII. —Suits for the Revocation of Grants 3G2 " IX. — Suits for Inventory and Account 303 " X. — Suits I'especting the Guardianship of Infants 3G4 •' XL— Motions ...• 3G5 " XII.— Of Proceedings by Petition 3GG " XIII. — Costs in Contentious Business, and principles on which allowed . . 3G9 APPENDIX A. Rules and Instructions governing the Practice of the Court of Pro- bate in England, in furce December 5th, 1859 383 Forms in Contentious Business . 395 AJ'PENDIX B. Costs in Contentious Business 412 APPENDIX C. STATiyES. Proof of Wills in Actions and Suits 417 An Act respecting the Proof of Proceedings in Provincial aiul Colonial Courts 418 Foreign Judgments 419 Notarial Documents 419 Affidavits, etc. , made out of Ontario 41!» The Wills Act (excepting sections on construction) 421 An Act respecting the Administration by the Crown of the Estates of Intestates in certain cases 427 ■lHliilitIlli[Tl-3t.,-.-d-^..^,Y>'->-.:tiJa.a..-^t.^. ■■...,r.w..^...y-,-^,„ Xll TABLE OF CONTENTS. APPENDIX D. Practical Directions Additional Forms. APPENDIX E. PAGE 431 438 II / TABLE OF CASES CITED. Abbott V A 208, Ackerley v Parkinson Adams v Corcoran Adamson. . ^ Atkiu vFord 227, 443, Alford vA 210, 213, Allan V Dundas Allan V McPherson V Maddock V Parke 173, 175, V Dundas Allen V A iUlison V Dickenson Anderson 197, Andrews v Alurpliy Appleby v A Anon Arbery v Ashe Ash, Am Aspinall v The tjiieen's Proctor Astell Astor, William B Atkinson v Lady Ann ]5arnard 20."), Attorney- General v Brnnning V Koher V Bonwens V Diamond V Hope Austin Axford Ayres v A. AOE 283 344 IfiO iiiii 444 201 145 100 199 321 145 (57 25 239 311 255 71 379 199 221 275 201 233 359 63 220 (!3 (i3 t!3 104 198 180 Bacon, RM Bailenach 50, 322, Bailey v Bristowe Bailey, M V Stewart I'.akervli V Batt I'.aker, Be BalliugalJ V Robinson 172, liarber Bardeu, Jane P.arker 200, Barnes v Dm-hani vWard Barnsby v (iranthani Barr v Carter Barry \ IJai'ry vButlin. Bascombe v Harrison. 199 323 304 230 157 357 331 70 201 208 243 157 250 303 140 173 174 154 373 335 PACK Bateman 272 Battersby, Thos 201 Bawden, Edward 51 Bayard, Wni 175 Bayley v B 357 Bayne, Rachel 174, 284 Baynes v Harrison 220 Beal V Simpson 208 lieard v Kechnm 203 Beasley'a Trusts 317, 32t> Beattvv Haldan. . . .266, 320, 3^0, 330 Beckwith, Re 34, 203 Beer, R 174 Beetson, Wm 173 Beg^'ia 221, 297 Belbin v Skeats 45, .332, 334 Belcher v Maberley 225, 228 Bely;rave, A 218 Bell ;« Bell, Re,B vB 140 William ] 70 Jane 211, 2r.» V Armstrong 333, ;]34, 374 V Temiswood 2.'!9 Bellew V B 204 Bennett v Foster 37,s Ben bow .S34 BerL,'man, H C ._ 299, 30.3 Bessey v Bostwick 244 Betts V DouL'hty loo J?ewsher v Williams 4',» ] 'igg V Keen 233 W^^'er L'77 lUllinghurst v Vickers 201 I'inckes, Henry .SOa Biou 281 15irkett 187 Birkett v Vandercom 174, 248 Bisllnl) Mj Black V Hod^fson .'^44 Blake v Midland Railway Co'y 14t; Blakelock 205 Bonajjarte 21 Pxiiid V I?ond .'U4 Bund V Faikuey 17r> lionelli. 29t> Booth', .1 olm 15.5 Bouchier v Horngeld 221 Boulton, Hon. H J l<,t7 Bourget 177 lioyley v Stubbington 211, 209 Boyle 202, 32.{ Brackenbury 225 [IP ■aEssasBsi XIV TABLE OF CASES CITED. M. PAGE Bradley 191 BrainevB 381 Brandreth v B 337, 355 Bremor v Freeman 368 Brenchley V Still 158 Bremer v Freeman 3(i8 Breiichley v Still 158 — V Lynn 158, 211, 236 Briggs V Roope 448 Bristow V Saqueville 296 Bromley v B 372 Brooke v Kent 194, 376 Brotherton v Hillier. .255, 257, 337, 364 Brown 304 V B 212, 244 V Coate.s 344 V Thomas 354 V Wildman 226, 308, 309 Browning 238 Broughton v Knight 372 Bryce 186 Bul)ber8 v Harby 2^8 Bnchaimn, 11. S 294 Budd V Silver 206, 239 BuUar 261, 276 ]5ullock, R 315, 322, 323, 324 Burchmore 259, 273 Burges.s 272 Burgovne v Showier. .177, 178, 180, 377 Burls VB 243, 371 Burns, John 255 Burnett, B 291, 371 Burns V Cole 291 BurriU, IMary 260, 273 Burroughs v (xriftith 223 Bushell V Blenkhorn 28 Butlin V Barry 351 Butts 243 Cameron 241 — — V Betliune 153 Campbell, C J 296 Canby, B 330 Canterbury, The Archbishop of v Robertson 52 Canterbury v House 225 Cardale v Harvey 209 Carless v Thompson 379 Caroon's Case 207 Carpenter v Shelfi>rd 224, 244 Carr 240, 303, 314 Carswell, Re 63 Carter v Crawley 213 Casement v Fulton 184 Cassidy 40, 262 Ca.stle'v Torr 178 Cave v Roberts 221 Catlu-ell v Jelh-ee 340 Chambers v Bicknell 2(12 Chanter 267 Chajjman v Dalton 173 ChappellvO 211 Chaileton v Hindniarsh 265, 26 j PACK Chatham, F 295 Cheese v Lovejoy 159 Chester, Lady 159 Chittenden v Knight 205 CholwiU 260, 271, 272 Churchhill 164 Claringbull, W 199 Clark 188, 290 Clarkington, l^has 251 Clarkson v Waterhouse 379 Clear v C 352, 375 Clegg V Rowland. 328 Clements v Rhodes 339 Clingniann 296 (Jlosson v Post 53 Coke 206 ColevRea 227 CoUett vC • 310 Collins 163 Colvin v Fraser 227 V H M Proctor General 206, 227 320 Comber's Case 203 Conyers v Kitson 212 Coode 145 Cook v (hooper 322 Cooke, Harriet 241, 271 Coombs 307 v The (^u"en's Proc 210 Cooper V Bocket 192 vP A 246 V Green 308 V Moss 28, 3,55 vE L 274 Coi)pin V Dillon 205 Corby 164, 167 Cord'eux v Trasler 237, 241 Corser 223 ('osnahan - 275 Cotton 188 Councell 209 Coventry v Williams 178, 376 Vox v Allingham 145 (!rane v Rebello 227 (Jrause 211 Crawford v Boyd • 183, 425 Criiigan 171 Crispin v Doglione 336, 355, 380 Critchell v (! 372, 373, 374 Croke V Watt 229 ( !roker v Manpiis of Hertford 184 (!ross V Cross 372, 378 (^rump L 304 Crucifer v Reynolds 323 Cull V (^uillermey 235 ' !unniiffe v Cross 354 Cunningham v Ross 233 V Seymour 29 Curry 304 Curtis V C 196 Curtis V MacNabb 330 Custanc(! V Bradshaw 63 Cuthbert 291 TABLE OE CASES CITED. XV PACB .. 295 .. 159 .. 159 .. 205 n, 272 , .. Iti4 ... 199 88, 2'JG ... 251 . .. ;<79 52, 375 ... 328 ... :«9 ... 2% ... 53 ... 206 ... 227 ... 310 ... 163 .... 227 200, 227 320 .... 203 .... 212 . ... 145 .... 32U 241, 271 .... 307 355, 373, 1.372, 210 192 246 308 355 274 205 167 241 223 275 1H8 209 , 370 , 145 , 227 . 211 , 425 . 171 380 374 229 184 378 304 323 235 354 233 29 304 196 330 , 63 , 291 PAGE Dabbs V Chisman 3;3:i, 301 Dallas, re 139, 142 irAlton V D'A 60 l)airn)ier v Colson 205, 239 Darby, Etnina 1!'H Darke, E 171 Darlin-, Maj Gen Hy 291 I)avi(lsou, Thos 325 Davies 212 V Thft Queen's Proctor 206 Davis 189,321, 322 V Chanter 242, 267 V Mt^CliaflFrcy 06 V Van Noruiiiii 17 Dean v Davidson 317 V IJussell 374 De Boiineval v De B 289, 308 DeHarte v De H 17 De La Uomle 173, 321 DeluKitte V Tay'or 328 Denipsev v King 236 Dem:li V D n'O Denny v Montreal ^47 Deni.son v D 153 Del lit ^' Pelevingt. 226 De I'radel 247 1 )e ]{(isa V De Pinna 208 Deshai.s 290, 295 De Vignv 290, 291 Dew vClarlc 239 Dey V Dev 14(), 266 1 )ickens, 'rii()nia.s 198, 201 1 )icks()n, Sir J 178 i )id(lear v Faiicit 210 pinies V Cornwell 203, 223 Dobson V (.'racherode 240 Dfwlgson 207 Dodson, C. 2«0 l)oed. Ash V Calvert 150 V Mclitod 70 V Palmer 191 V Napean 31(i Dolphin V Kobins 2S!I Donaldson 104 IknMi-uel 252 Donovan 240 Dornioy, Ann 290 Downey ■■■i25 1 )ownward v Dickenson 225, 226 Doyle V lUake ;{21 1 )rake v The Atty. (Jen 63 1 )ress(.r v Itobinson 209 J >rinkwater '275 Drntinnniul 1.56 V Parish 161, 104 Dnane 101 Dutf, .lames Cordon I'.li* 1 )uneonilie v Mason 200 J )nndas 202 Dnnn 212 Durham, Countess of 199 Darken v .Johnstone 158 l^ye, K 172, 300 PAGR Dyke v Walford 220, 221 V Williams 360, 361 Earl 275 Eastwood V Melvenzie 207 Eccles, In re .34 Edt,'ar v Keynolds 221 Edwards v E 289 V I'ayiie 381 V Unwin , 58 Edinburgh Life v Allan 14() IClderton 262 Elgin, Earl of v Crosby 53 Elliott V (Jiirr 203, 209, 210 Ellis V Me(iill 323 V t^niith 186 Elnie V De Costa 223, 361 l-'ilwen V E 205 Endierly v Trevanion 338, 372 English 1()0 Enohin v Wylie 287 Entiehnap 243 ICrnest V Eustace 240 Eusten, 'J"he Earl of v Lord Henry Seymour 164, 167 Evans V Tyler 171 V liurrell 444 Evelyn v E 214, 216 Ewart 319 Ewing 255, 257, 258 E\'iirweatlier 223 Faniuhar 104, 165 Farler v Farler 3.50 Farrands 271, 273 F'arrell v Brownbill 275 F'awiett V Jones 161 Fawkener v Jordan 255, 257, 2.58 Fawtry v 1'' 104 F'enton, M 322 ]'\>rnaiulez 232 Ferraris, Countess of v Lord Hert- ford 199 FV-rrier 301 F'errey v King 327 F'ielder v Hanger 2' 1 Findlay 271, 274 Fi.sher v F 378 Filz-erald v F 178 Fleming v I'elham 211 Forrest, J 189 F'orse & Hambling's case 177 Foister v 1'' 33 F'raiico v 1'' 382 I'Vaser, Fnima 272 Frekc v Thomas 208 ]''ulton V Andrews IdO Fyson v Westhope 37 Jeffrey v J 381 Jessup v Simjjsim 14, 213, 289 John v Bradlniry 314 Johnson. Jackson v Johnson 330 Jones V Beytagh 223, 23;-. J(nies V G oderich 370 Jone.s V Howells . . •. 280 V J 308 Jones, W 256, 271 J(mes 186, 271,340 , Leon 255, 250 TABLE OF CASES CITED. XVll PAOE , 290 ! 199- . 170 . 380 I, M :, 23« . 301 . 178 1, 210 . 833 . 325 . (i7 . «7 . 19(> . 275 . 2(54 3, 194 . 321 . . 1()3 ,. 275 G, 317 . 252 . . 189 .. 275 .. 175 .. 235 .. 233 .. 307 (3, 1«7 .. 225 304 195 159 199 354 200 375 07 330 350 140 ,174 ^1. 171 330 3'22 195 191 250 301 18() 381 289 314 330 23;v . 37ti 280 308 B, 271 1, 340 5, 250 l^> Ix PAGE Jones, O'Kell 325 Jordan, Elizabeth 158 Kane v Maule 221 Kane v lleynokls 220 Keane, Mary 218 Keane, F 241, 249, 250, 270 Kearney v Whittiiker 224, 240 Keatings v Brooks 370 Kelly V Ardell 145 Kenny v Jackson 364 Ketchum, Jesse 247 King's Proctor v Daiues 100, 177 King, The v tireeniiill 00 King V (iaillard 378 Kingstoue, Duchess of 155 Kinney, lie 67 Kip[)ing V Ash 335 Kooystra v Buyskes, 233, 524 Lacroix 297 T^ainson v Naylor 308 Lait V Bailey 340 Lanibell v L 211 Lanenville v Anderson 2!I7 Langdon v Rooke 173 Langley 303 Landsilown, Marquis of 202 Latham 180 Lawrence v Maude 300 liay 104 Leak v Hurst 350, 302 liean v Viner 308 Ijedyard v Garland 247 Lue and Waterhouso, Re ;!4, 70 Lee V Bank B. N. A 152 Ijeach, Sarah 277 Leaman v George 375 Leaman v Bousall 380 Leggatt V L 205 Lennan, Hugh 250 Leese 158 Leeson. Josei>h 2til Leigh, Re 00 Lewis V L 211 I^inthwaite v ( Calloway 2:i3 Lisdale V Baloo 310 Llanwarne 274,322 Lock V Sir Atwell Lake 213, 214 Logan V Fairlie 287 Long V Symus 50 liopez V Hartley 304 'jopez V DtPiuna 322 Lovekin v I'^dwards 340 Lucas V (io(f I(i2 Tjiicas V L : 40 Ludlow V L 234 i .ushiugtoii V Ousluu- 191, 194 Lyman, W 2!U Maas V Shelfield 248 M acauley v I'liillips 208 , Ann Gee 291 b PAGE Macguire v Marshall 160 Maclean v Dawson 267 Alacmin v Coles 226 Madden, Ann Jane 294 Maddockv Allen 199 ^laidman v All Persons, &c . . 209, 227 Manfred! 21 Manuel 207 Marsh v Corry 340 Marsh v M 146, 190 Marshall 300 Marshall, Re, Fowler v M 14(5 Maskeline v Harrison 204 Mastennann v Maberly 160, 177 Matson V Swift 155 Maychell 21 McOabe 194 IVIcDonald v McD 289 McDonnell v Pendergast 323 McDowell, John 293 McCiill V C^ourtice 154 Hon Peter 294 IMcC-lashan 325 McKenzie, Sir Alex 294 McTvennan v Heward 154 McMillan v McM 153 McMurdo 160 McCJueen v McMillan 07 Men/.ies v Pulbrook 302, 3:!0 Mentrey V Petty 213 Mercer, Andrew 222 V Morland 205, 20(5 jNlerryweather v Turner 333 Michie V Allen 18 Middlelmrst v Johnstone 353 Middleton 227, 313 ^Miller v M 309 V Washington 227, 310 IMilligan 104, KiiS Milne 100 Mitchell V Gard 371 IMonk, Sir James 291 IMoore, W 299 V Barham 205, 229 V M (i Morgan v Tiiomas 203 Morlev V G. W. ]iy 147 Moraiit ;{23 Morrell v M 104, 107 Morris, Louisa 25(i, 299, 315 V Freeman 379 Morrison 324 Morritt v Douglas 188 IMortiiner v Paul 205 Miuiro V M 07, 289 Murray 318 Xapier, (Miarles J 299 Nash V Vellcly • 374 Natliau V Morse KiO, 201 Naylor F 204, 217 Nelson, Re McLennan v Wishart.. 100 Netter v Brett 155 Neville 104, 105, 1(57 i V m XVlll TABLE OF CASES CITED. Ii!i ':!Ml ■i|!l ■ HI >i'!' ilii PAaE Nevin vN 227 Newbold 2.{7 Newcomb v Beloe 225 Newell V Weeks 333, 370 Newstead, Mary 235 Newton 301 NichollH 317 NichoUs vN 177 V Binn 44, 373 Nicholson 21 Noble V Phelps 248, 270 Noble V Willcock 248 Neel, C 324 Noddings. R 50, 175 Norris 164. 166, 316, 317 Northey v Cock 264, 3(52 V F V 2!»1 Nuttall V N 30!t O'nyrae 246, 261 O'Dwyer v Geare 158 0!,'(luu 212 () re, a Solicitor .57, 75 O'liiiUKhlin, Re 22 Oliphant, T H .36, 170 t)rinond 2()2 Osborne 288 Oswald I'.t6 Oiichterlony 1!)!) Oiitram v vVyckoff 146 Ow.ston . . . . ._ r.)8 Owen V Davis .354 Paglar v Tongue 16K Pallison v Ord 246, 263 Palmer v Dent 173 V Mcljeau 357 Pauuhard v Weger 354 Parker Ann, TruHts of Will of . . . . 184 Parr v ^Montgomery 3 tO Pattfr.son v Kerr 24 V Hnnter 253 V Wm 222 Patton V Hickson 50 Pearn 185 Pechell V Jenkenson 1'.I5 Peck, Elisha 2'1, 275, 31(i Pegg V Clianiberlaiu 250 Penny, T N .261, 284, 324, .325 Pennington l'.)5 Perrinv P I'J, 13 Perry, J 173, YJ-i, .322 Peterson, Abraham 330 Pewtner Wm Frederick I'.W Phillips 300,301, .305 V Alcock 303 Phipps 164 Piercy v Wewtropp 160 Piatt V Routh 63 Plume V Reale 161 Pollock, Rfcv Alex 2!I4 Pool 178 Pontney 211 PAGE Powill v.P .351 Poyer 233 Prentice v P 205 Price V Dewhurst 287, .3.30 Probart 212 Prothero 249 Prudence 178 Pyatt V Fendall 300 Queen, The v Armstrong, 67 ( jueen's Proctor v Wallis 3.52 V Williiims 3,52 Quick vQ 27, 197 Radnall 228, 2.51 Radclitfe v Barnes ;i33 Rawliuson v Burnell 443 Rayson v Parton 377, 378 Reay v Cowcher 171, 351 Ree("l, T 261 Rtgan 188 Reg V Mellis 6 Reunie v Massie 371 Rex V Bettsworth 20.!, 211 V .Simpson 321 iJhoiides 249 270 Richards 238 V all persons &c 278 Rich V (Jhandjerlain 255, 257 Ricliiirdson 238, 275, 276, 324 Ripley. I I' 1;,', 245 Rind V Davies 379 Ritchie 163 V Rees 3()4 Roberts V R 178 Robertson v Smith 177 Robins V Dolphin 37() Roliiuson 178 Roger, Neil 294 Rogerson, David 297 Rook's case 48 Rosbotham v II 350, 3.54 Ross, Re 66, 286 ilowsell V Morris 146 liussell 21, 225 Gavin 208, 225 Ruddy 246 Rutherford v Mauley 220 V Maule 360 Rule, .John 295 Ryder AH 171 Salmon v Hayes 211 Sampson v lb-owning 163 Sauilers. WR 291 Samis, Sir George 204, 211 Satterthwaite v Powell 318 Saunders 164 Savage v lilythe 204 Sawtell 274 Scaniniell v Wilkinson 174, 248 Schriel)er, Rev Thos 291 Scotter V Field 303 TABLE OF CASES CITED. XIX l'A(iE Kcliwor.ltfo-nr '-'");{ Kfo.nl v(i WKy 1-17 Sc.', Joliii i-'7.'{ ShaniKin !!'<' ShavLT V Gray Wti, 'JS7 Hhiiw vMi.rsliiill :i77 Shennn.-in v Pike 104, Vu, 1f>8 Shel.louv'S 198,201, 287 Shciiliiinl V S '■> Shillin-. .laiTic'S ;^20 Slniter, Sarah 201 Sil.thorpe 202 Sillick V Booth ''ill Sino 274 Sk.'IHnt,'ton V White 204, 277, :m Sladileii V Smith 21 Shimbors .• 274 Siiiartt, Thomas 10!) Siiiitliiirst V Tomlin. 170 Smith 1«;.', 27o, 287, 290, JiKi V Fk'tcher 375 V Hoade 27 V H()i)kinH 378 V Husou 210 V Mills 145 V Meriam 100, 191, 192 V Ptose 140 V S 372 V Willby 233 Smithson 241 Smyth, r 325 Snaj.e v Webb 234 Soar V Dolman • 194 Somerset, Lady Catherine 281 SomervillevS 289 Sonthmead 227, 259, 280 Southward 210 Sjjark.s v Karrett 32 Sprigrrs V Banks 257, 310 Si)rnule 277 Stanley v Bernes 205, 205 Staines v Stewart 30S Stannard Infants, lie (i6 Steadman 233, 281 Steiiheuson 258 Stevens v "Bagwell 174, 248 Stewart 253, 297 Stewart v Lees 17, 178 St. George, L Q 295 Stiuson V S 321 Stockwell V Rutherdon 108 Stote V Tyndall 221 Stratton v Linton 205 Streaker 105 Stretch v Pynn 212, 230 Stump V Bradley 145 Siigden V Lord St Leonards 197,244, 380 Summerell v (Elements 372 Surrogate Court Co Wentworth v Kerr 04 Surtees H H 309 Suter V Christie 208 Sutherland 286 PAOK Sutton V 1 )ra.\ 370 V Saddler 177, 3.52 Swartwarj) v S 07 Sweetland vS 187 Swifen v S 37<> Switzer V MoMillan 00 Symes v Green 177 Symons v Tozer 370 Taploy V Kent 177 Taylor v Diplock 2;{3 — : — V D'Kgville 150 V Newton 320, .304 vT .382 Teague v Wh.arton 270 Teed, Thomas 240, .382 TenduccivT .309 Thomas 322 V Baker 175 V Maude 301 Jane 1 80 Thompson 188 ex p 102, l(i7 V I reeman 153 Thorold V T 1.58, 160 Thorne 107, 108 V Rooke 370, 373 Thornbeck • 277 Thorncroft v Lashmar 178, .372 Thorpe, ]{e 2.5, 145, 242. 287 Thrippleton 243 Tichborne v T 264, 205, 378 Tippett vT 372 Todd V Simpson 243 TophamvT 188 Topping, Sarah 333, 334 Towgood 285 Towuley v Watson 103 Travis v Gustin 321 'I'rimblestown v T 298, 303 Truro, The Barcjuess of 100 Tucker v Westgarth 205 V Smith 330 Turner v Maule 221 Tweedale 195 Underwood v Wing 318 Ilnwin V Mowat, Atty.-Gen, . .34, 222 Urquhart v Fricker ,34, 375 Utterton v Robins 201 Vanatto v Mitchell 321 Vanston v Thompson 154 Vemt v Duprez 203 Vie.sca v D'Arainburia 297 Vincent, W. Paris ._ 201 Vincenze, Frederici 233 Vinnicombe v Butler. 178, 493 Vynior's case 178 Wagner v Meara 380 Wainwright 320 Walker v Carlesa 212, 239 U i XX TABLE OF CASES CITED. TAOK Walker V Woolla«toii 2M V Edward '2:>r> Wiinkford v W I7.i Ward X>H Wiird V Day 210 Warden 18M Ware v Claxton 243, :!48, 'AW Warren 'H>'2 Warren v Harding Ki'J Warren, by his Guardian v Kelson. 2!l!l Wartnaby 161, I'M Warwick v Grev'lle. 48, 204, 205, 206, 2;«>, 240 Watson, Jenny 2;M, 2;« Watts 281 WebbvKirby 262 V Needham,20.5,211,212,22;5, 240 Webster, R 298 Weddall v Nixon loO Weir 258, 285 Wells, Frederick 154 Wellesley v Vere 177 Wenham v W 208 Wesley, John 277 West V Willby 224, 258, 322 vW. 353 Wheelwright 324 Whicker v Hume 17 White, Arthur 163 V W 34y, 353 V Cummings 154 V John, E 190 Whyte V Hepton 160 I'A(iK WiddiT, F 277 Widwr 258 Wilkinson, Johanna 300 V Adams 198 Williams 212, 261 J. V Ifenry 372 V Wilkins 204, 205 V Goude 370, 373 Willis V Lowe 186 Willinford, Francis 199 Wilson V W 13, 44, 330, 331, 372 V Proudfoot 153 V Bedard 186 Winchester's Case, The Marquis of 177 Windeatt v Shortland 274 Win-field vW 223 Witham 321 V Goodlake 199 vW 1<)0 Woolley V Green 309 Wright V Rutherford 137, 354 V Wakeford 186 Wychoff 251 York V Manlove 323 Younge 271 vSkelton 53 Young V Pierce 224 V Bro^vn 264 Zacharias v Collis 331 Zimmerman, S 325 'I n1 'I ABBEEYIATIONS. S. C. A SuiTogate Courts Act. S. C. R Surrogate Court RuleH. E. C. P En-lish Court of Probate. C. 15. or Con. B. . . Contentious Business. ^'•^^•Ji Common Form Business. ^- "^ ^ ^°''n U, A Ma ERRATA. l'a>,'e 2 - line T), ihk apostrophe after " Courts." Pajjo IG— lirst nide note, dele the words " to lie received in." Page ;W-lino 1, for " Foster" read "f<)M, where the same occurs. Page 1!)1— line 15, dele tlie words " Proof of Will»." Page 1!)1— line 10, " analaimis" should be " anatofioits." Page 1!)S— entitling of Sec. V, — for " of reference," read " bii reference." Pure 223-line 18, insert "M.S." after " lS5.i." Page 224— note (b), for " Wehy" read " Willbi/." P.age 2lK5-note (a), for " Carkc" read " Clarke." Page .S02-note (a), for ''Mulbrook" read " Pnlbrook." Page ;{03--note (e) for '"cotter" road " Scotter." I'lige 317— sec. V, line 9, for "ab intestate," read— "a?) intcstato." I'age 358-line 15, for section " lo" read " IS." Page .380- note (<;), instead of "mi/jra " read " 1 JTat/;i. 71." ,n' ! IS mmmmmmm til o- LNTRODUGTION. The practice und procedure of the Surrogate Courts of Ontario are govt.'rned by: — p^ivstly :— The Surrogate Courts Act, R. S. 0., I'ractice how •^ ^ governed. C. 4(j. Secondly: — The General Rules and Orders made by the Judges appointed under sec. 14, S. C. Act of 1858 (-(). Thirdly : — So far as the circumstances of the case will admit (and unless otherwise provided b}'- the Act or rules referred to), by the practice in Her ^lajesty's Court of Probate in England, as it stood 5th Dt'cember, 185!). (See S. C. Act, sec. 82.) Fourthly: — Except where so provided, then by the practice in Prerogative Court, (h) as it stood 25th August, 1857. (Sec, Eng. Court Prob. Act, 1857, sec. 2!).) The case of Re Jlllf.^ (1 Chy. Cham. Rep. SSG , Re Hilts. Mowat, Vice-Chancellor), M'as decided upon the prac- tice of the Prerogative Court ; the point under con- sideration not being provi(k'd for by our S. C. Act or Rules, or the English Court of Probate practice ; ami it was laid down in the case of Grant v. G. W. By., nrant v. a W, (c) Per Draper, C. J., that the law of England as to gi-anting probate or connnitting letters of administra- tion, was the law to be administered in the (.^ourts in Upper Canada, created by the Act of 17!>3, (), "completely overturneat(! or a(hninlstration hi'lon<^'tMl to th(! Probato Court only, and not toany Surn\i,'atc Court. And sec. 10 provided for an appeal from the Surro^'ate Courts to the Judge of the Court of I'ro- bato (a.) The Court .so constituted continued until the Act was ri'i»caledby 22Vic. c.}).S(/>), establisliing a (Surro- gate Court, in and for eaeh county, and providing tliat such'courts sliould have the same )»owers,and the gi-ants and orders of the said courts tht.' same effect throughout the Province, as tlie CVnirt of Probate and its grants and orders previously had. This Act, with some amendments, being the present R. S. O. c. 40, is set forth in the following ])ages. JuriBdiction of Section 14,as to the iurisdiction of Surro<'ate Courts Court of Cbau- . , ., . , , , •, • • , IS not, it IS enacted, to be construed as depriving the Court of Chancery of jurisdiction in such matters; that court hav ing "jurisdiction to try the validity of last wills and testaments whether the same respect real or personal estate, and whether probate of the will has been granted or not, and to pronounce such wills and testaments to be void for fraud and undue influence or otherwise." (Vide The Chancery Act, K S. O. c. 40, s. 41-42.) And also " in matters testa- mentary as provided in the 28th to the 3()th sec- tions, inclusive, of the Surrogate Courts Act. It was held in the case of Pcrrin v. Perrhi (c), that the Court of Chancery might exercise its juris- diction to try the validity of wills and to pronounce them void, notwithstanding probate may have been granted by the Surrogate Court ; and without wait- (o) Sec this Statute reviewed in Grant v. G. W, Bi/., supra. Per Draper, C. J. (6) AfiBented to, 16th Aug. , 1858. Fully in force, Ist Sept. , 1858. ((•) 19 Gr. 261. corv as to Wills. INTRODUCTION. 13 inf until siicli probata should l)0 revoked. This de- cision was followed in WUkoii, v. Wilson (a). In Pirrin v. Pcrriu, a bill inipeaeliin"; a will of whieli probate had been ;,'ianted to the plaintitt' by the Surro^^ate (.'ouit, stated, that after the probate liad been <,'ranti'd, the plaintill'lmd diseovered a sub- se(|uent will of the t<'stator, and that this subseciuent Avill was his last will. The wills W(M'e of both real and personal L'stat*'. On denmrrer, that the Court of CMiiinceiy liad no jurisdietion but the Hurro,t;at(> ('otirt only — it w;is heltl that Chancery had juris- dietion. Pi- till' (yhancudlor, " the (piestion is whe- ther if the })aji('i- admitted to probate was jn-oved in sohnnn form, {]\i' i'lw to be Registrar of any Surrogate Court, the Clerk of the ^'''^''^'"'^^ County Court shall he ex qttk'io Registrar of the Surrogate Court ; but this ]>rovision shall not apply to the Registrar of the Sun-ogate (^ourt of the County of Yoi'k, or to the Clerk of the County Court of the said County. The word " Registrar" includes liegistrars and their Depu- ties. K. S. 0. p, 5. (2) The Lieutenant-Govi'rnor shall appoint a Reg- County of istrar of the Surrogate Court of the said County of '"^ ' ^ oi'k, to hold otHce during pli'asui'e, and upon the death, resignation or rcnKnal of such Registrar, shall supply the vacancy. 10. Every Registrar of a Surrogate Court ap- Form of Keg- pointed after this Act takes etiect, shall, bcfoie }ie i^*'"'^'''' °ath. shall be entitled or qualifiod to act as Registrar undor tliis Act, take tlu' following oaih before tho Judge of the Court, or some other pers(jn authorized by. law to administer the same : " T, , do solenmly and sincerely promise 20 SURROGATE COURTS ACT. Kegistrar to have office, if "and swear that I will diligently and f-^ithfully " execute the office of Registrar of the Surrogate " Court of the County (or United Counties, as the " case may he) of , and that I will not know- " ingly permit or suffer any alteration, olditeration, " or destruction, to be made or c^ le by myself or " others on any wills or testamentary papers or other " documents or papers connnitted to my charge. So " help me God." 11. The Registrar of every Surrogate Court shall roomin Court ]iold his officc in tlie Court House of the County, House. . . "^ and a rooi ^ therein shall be provided for that pur- pose, aij' ^^e event of there being no room in the Court • e er}^ such Registrar shall, until such I'oom is provi 1 be u ueDO-iitory for all wills of living persons, given to suoii Registrar for safe keeping, and all persons may deposit tlu'ir wills in such de- pository upon payment of such fees and under such regulations as may from time to time be directed by rides or orders in that behalf, heretofore in force, or hereafter made under this Act. }VilJs of Lii'UKj Pci:w)is. — This provision is a great conveni- ence to persons going abroad, and others desiring to gnard against the will falling into the hands of any bvit the proper parties in case of the testator's death. Tlie aflidavit of exe- cution by subscribing witness may be made and deposited with the will. It shoukl be sealed up in an envelope properly endorsed, and the Registrar, upon its being deposited, will give a receipt which shoidd l)e produced to him if the will is recpiired to l)e taken out again for alteration or any other purpose. They are not allowed to be searched or inspected d\u'ing the lif« of the testator. DepoBitory f<*r wills of living person.' (E. C. P. Act, .si-c. 91.) KeRi.str.'vrR to 12. The Registrar of every Surrogate Court shall premTve tiHta- _, , n • • i" -ii i . . . mentaryin- file and prcserve all oiiginal wdls and te.stamentary i.ai'ers'ac instruments of which probate or letters of adminis- SURROGATE COURTS ACT. 21 tration with the will annexed is granted in such Sur- rogate 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 (K. (^ P Act, * A 1 SCO. oZ%) thereof, and the convenient inspection of the same. Deliver \i of Will out of Ecgistry.—The Court of Probate ■will rarely allow a testamentary paper, which has beenadmitted to probate, to be delivered out of the Registry (Hall deceased, 27 L.J. 38; Manfredi deceased, 1 Sw. & Tr. 135). But it has allowed the original document to be delivered out for the purpose of its being placed in proper custody, requiring au authenticated copy to be substituted for it (Nicltolso)!, de- 'Ceascd, 2 Add. 333 ; Russell deceased, 1 Hagg. 91 ; and Bona- parte deceased, 2 Rob. (500. Reijistrays to prod.uce ]f'ins, ((;c.,on Suhpanut. — An ex parte order, under U. 31, T. T. 1850, will bo granted in the first instance, for a siibpcena to issue to a Registrar of the Sur- rogate Court, for the production of an original will, upon artidavit that said will is necessary to estiiblish the case of the party applying, and that no notice has been given of his intention to use the probate or letters of adn.inistration cum test, annex, of same, and showing good reason for not having given, or for not giving such notice (Sladdcn v. Smith, 3 U. C. L. J., 1851), 233, C. L. Chambers, Hagarty, J.) Searches. — A person desiring to see the register, or to in- spect a will or other i)aper3 in the OfHco of the Registrar makes a search, for which u fee is payable under the tariff. "Wills proved in the former Court of Probate are to be found in the custody of the Surrogate Clerk in Chancery at Osgoode Hall (vide post sec 78) ; also, copies of all wills proved in any Surrogate Court since the Surrogate Courts Act (fide sec. 13). Wills of real estate only, are sometimes found in the Registry for deeds, heaving been recorded there, and not proved in a Surroi^ate Court. III. On the first Tuesday of every month, or Registrars t» oftener, if required by any rule or order respecting s^r'ro'gate'* Surrogate Courts in force at the time of the passintr ^'K'"'' ^"* °^ p,i-4, n i-A probatoB, etc oi this Act, or hcrcattcr made under this Act, every r r- J- j : .;' , h 22 sntROGATE COURTS ACT. Rt-Lfistrar of a SiuTooato Court sliall transmit by mail to the Surrogate^ Clerk, a list in siieli form and containing' siu-h particulars as may from time to time l)e rc(iuired liy such Rules and Orders, of thu grants of probate and administration made by such Surrogate Court up to^ the last preceding Satvu'day, <^- C. P. Act, j^uj l^^Jt included in anv previous return, and also a «ec, 51.) ' ^ ' copy certified b}' such Registrar to be a coiTcct copy of every will to which any snch probate or adminis- tration relates, and such Registrars shall in like manner nuike a return of every revocation of a pro- bate or adnnnistration. See post, B. 39. (E. C. r. Act, sec. 4.) TeBtamoiitary jurisdiction to be exerciHod by the Surro- gate Courta. (E. c. r. Act, HtM . 4.) Jurisdlciiini ci^Ji'^eriw o/fJie Surrogate Couiis. II. All juiisdiction and authority, voluntary ami contentious in relation to matters and causes testa- mentarv, and in relation to the ei'iinting or revok- ing probate of Avills and letters of administration of tlie elleets; of deceased persons having estates or cilects in Ontai'io, and all matters arising out of or connected ■with the grant or revocation of prol'ate or administration,lshall continue to be exercised in the name of Heri^Majesty, in the scvei-al Surrogate Courts ; but this provision shall not be construed as depriving the^Court of^ Chancery of jurisdiction in such matters. *' Yoliuitary," / .t. ,''iConniiiin fi)iui hnsiiioss ; see Intorprc- tatiou clause, .sec. '2, s-s. 4, (ttttv. It amy also incluue tlio pruviug of the will l>y the executor in solemn form of his- own motion. {Vide chapter on Contentions Business.) "Contentions;" matters and causes testamentarj\ (See an(c sec. 2, s-s. 3, and chapter/)n Contentious Business, ;»■>,'.) "EtVcets ; " this word in a uill comprises the entire jior- ,sonal estate of the testator, unless resiraiiied hy context ; but will not iiroprio liyon' comj)reliend land. (Jarman. I'-rd edition, 08'.), Tl.". ; and Ec O' Lo,ujl,!tn, L. R. 2 P. I't D. 102.) Sl'UUOGATE COURTS ACT. '23 tlio oi his- (-See d /-s,'.) Jm 1*1 Tlu> said Siirrou-ate ('oiirts rospeot ively shall rowers and . . ' . junsclictioii liav!' full ])Owor, jurisilii'tiou and authonty : «f Sun-otjate , , , , . !• 11 Courts. (Ij To issue process and liokl cognizance ot all matters relative to the ^'ranting of probates, and coninuttinf,' letters of afliainistration, and to grant probate of wills and eoiniuit letters of administra- tion of the goods of persons dying- intestate, liavini^ estate, goods, rights or credits in Ontario, and to revoke; such probate of wills and letters of admin- istration ; Tlie ^r;iiit, wliou in;ule, has cllcct over the jwrsoiiul estate of tlie dccuii.sed in iill parts of Ontario : sec sec. 10, sub- sec. 4, ami sec. 'S,'>. {'2) To hear and determine all (piestion.s, causes, •uul suits in relation to the matters albresaid, and to all matters and causes testamentary ; and (■) ) Subieet to the provisions herein contained, such '''" l>ave the Courts respectively shall also have tne same powers, as the fonner and the grants and order.s of tlie said Courts .shall buto iu'cf itaiu have the same etfect throughout all Ontario, and '"'^t''"'''*- in relation to the per.sonal estate of deceased per- sons, as the ft)rmer Court of Probate for Upper Canada, a,nd its grants and orders respectively, had in relation to those matters and U) i.-auses testamen- ti i'y within its jurisdiction, and to those eti'ects of deceased persons dying possessed of goods and chat- tels, over twenty dollars in value, in two or more Counties in Upjier Canada; and all duties ^vWn^h^^^onanoUiUlia. by statute or otherwise, Avere ini[)osed on or exer- c >• .1 bv the said Court of I'j-obate, or the -Fudge thereof in respect of probates, administrations, and matters ami causes testamentary, and the ai)])oint- mcnt of guardians and otherwise, shall l)e per- formed by the said several Surrogate Courts and the Judges thereof within their respective jurisdictions ; but no suits for legacies or suits for the distributiou 24 SURROGATE COURTS ACT. of residues shall be entertained by any of the said Surrogate Courts. As to signification of words " personal estate " and " chat- tels " : vide Pateraon v. Kerr, 25 Gr. 583. As to Court of Probate, its powers and duties : vide ante, Intro. As to proceedings for appointment of guardians : vide post. This last clause is the same provision as contained in sec. 23 E. C. P. Act. As to rights of legatee and next of kin to have estate administered, and distribution made under decree of the Court of Chancery: vide Taylor's Chy. Ord., 3rd ed. 338, et seq. 16. The grant of probate or letters of administra- ticular Courts tion shall belong to the Surrogate Court for the Profate or County in which the testator or intestate had, at (1) The caption "Effect of Domicile" in the correspond- ' sec. C. S. U. C, is omitted from the R. S. O. (E. C, 8. 46). P. Act, 4 i il I Fixed place of abode. — In the use of this phrase, our sta- tute appears to follow sec. 46 of the Imperial Statute, by which, as between different district registries, the right of a district registrar of the Court of Probate to grant probate or administration is made to depend upon the fact that the tes- tator or intestate had, at the time of his death, a fixed place of abode within the district in which the application is made. If deceased had a fixed place of abode out of England, appli- cation for a grant there must be made to the principal Registry. The phrase quoted is comprehended in the legal definition of the word domicile, as given by acknowledged high author- ity. (For such definition vide post, ," Wills proved and grants made according to foreign law, ") So that, if, in any case, it be proved that the deceased had ''his fixed place of abode " in any County in Ontario, the question of domi- cile is disposed of, so far as proceedings under this Act are concerned. Where, however, it is shown that he resided out of Ontario (thq case mentioned in the following sub-section), questions may arise depending upon the law of domicile. (See further as to grants made according to foreign law, post). r. i SURROOATE COURTS ACT. 25 Proper Court. — Letters of administration or letters probate must be granted by the proper Court, for if granted by an incompetent authority they are void (1 Salk. 32 ; 1 P, Wm. 44, 767 ; AlUion v. Dickenson, 1 Hardr. 210). Sed quart whether such grants would now be only voidable (vide sec. 16, sub-sec, 4 ; and ss. 34 & 35). Where application for the grant is made to more than one court, a Judge in Chancery will determine what Surrogate Court has the jurisdiction to make it (vide sees. 43 & 44 post). (2) If the testator or intestate had no fixed place of abode in, or resided out of Ontario at the time of his death, such grant may be made by the Surrogate Court for any county in whicli the testator or intes- tate had personal or real estate at the time of his death ; A mortgage held by deceased is personalty in the county Personalty, where the lands lie, so jis to give the Surrogate of that county jurisdiction {Re Thorpe, 15 Gr. 80). Upon the trans- mission of property in any registered ship or share therein by the will or intestacy of the owner, the declaration of owner- ship required for purposes of registration under the Mer- chants' Shipping Act is to be accompanied by Probate or letters of administration (vide sec. 59 of that Act). And it is probable that in analogy to the English law (Imp. Stat. 27 & 28 Vic. c. 56, 8. 4, as to stamp duties), a ship or a share in a ship would be held part of the personalty in the county in which is her port of registiy, notwithstanding at the time of the death of the owner such ship may be at sea, or elsewhere out of the Province. (3) In other cases the grant of probate or letters of administration shall belong to the Surrogate Court of any County ; This provision is introduced by 40 Vic. c. 7, as an amend- ment. The grant is not to be revoked on the ground that deceased had no fixed place of abode in any particular county (sec. 35 post). (4) Probate or letters of administration by what- Effect of Pro- ever court granted shall, unless revoked, have effect nSnistr»tio^* 26 ;:bs PowerB of C'oiii'ts to enforce their ordtTH and decrees to be similar t» tlioHe vested in County Court for like pur- poHes. (E. C. P. Act § § 2, 5 & uO). Courts may cause ((ues- tions of fact to bo triud by a jury at a County Court sitting, and in like manner as in County Coui'tH. SURROGATE COUUTH ACT. over the pcrsoiiiil ostute of the deceased in all parts of Ontario; Fonnoily it was tlio letters of the CoTirt of Probate (.>nlv that took etfoct over tho wholo Proviucu. Orders and Decrees, Hoiu Enforced. 17. Every Surrogate Court shall have the like powers, Jurisdiction and authority for enforcing the attendance! of persons required by it as aforesaid. anuch trial the Judge of the Surrogate Court shall have the same powers, jurisdiction and authority as belong t(j the Judge of a County Court sitting for the trial of issues of fact. An heir at law. wIid is a party to tlio cause, upon mak- Heir ut law nig apiihcation to the Court for that purpose, Jiaa a riglit : u all cases to have (jnestions of fact tried by a jnry (vide jwst). In other cases it is within the discretion of the Conrt to direct questions of fact to bo tried with or without a jury. Where the only isdiie raised is as to the due execution of tiio will, the Court invariably directs the cause to be tiied with- out a jnry. Where the issues raised are testamentary capa- city, undue influence, or fraud, it is the practice of the Court on apiilicationniade by either party to grant a jury. J3ut where the cause from the nature of the issues of tlie fact raised is a more proper one to be tried before the Court icself, than by a jury, it will on application of either party bo directed toba tried without a jnry ; unless such upi)licatiiin is opposed by the i.eir f\t law. Tims, where the [)laintill' pro[)onnded the contents oi a lost will, as universal legatee, and the defend- ants pleaded that the cinitents were not those alleged, the plaintitf's api)licatiiin for a jury was refused. (Quick v. (Juirk 3 Swab. iV: Tris. 4(]0. ) So also Avhere tlie main (piestion to be decided being one of mixed law and fact, the presump- tive revocation of a will, a jury'was refused. (Sviith v. lload. o Swab. A Tris. 4()2.) (a) For form of question for jury, sec Appendix, t , I- |i Imi 28 Power of Juiige diacre- tiunary. SURROGATE COURTS ACT. Under the E. C. P, Act when the Judge directs a question of fact to be tried by a jury, he may direct it to be tried by a common or special jury, either before the Court itself or by means of an issue directed to any of the Superior Courts of Common Law in the same manner as an issue may be direct- ed by the Court of Chancery. {Bushell v. Blenkhurn, 1 L. R. P. & D. 89.) The power of the Judge to direct an issue is discretionary and to be exercised only where it would be a discreet exercise of such powc* (Cooper and Sparks v. Moss and Muss, 1 Swab. & Tris. 143, Coote's Prac : Gth ed. 275). Terms pre- scribed. Contentious cases. In the County of York. Giving judg- ment after Term. Terms. • 20. In order thatcertain stated times may be fixed for hearing and determining matters and causes in contentious cases, and business of a contentious na- ture in the said Surrogate Courts respectively, there shall be four terms or times of sitting in each year for the purposes aforesaid, which (except in the County of York) shall severally commence on the first Monday in the months of January, April, July and October, and end on the Saturday of the same week : (2) The terms of the Surrogate Court of the County of York shall couuuence on the first Monday in Jan- uary and April, and on the .second Monday in June and October, in each year, and shall end on the Sa- turday of the same week ; (3) And the Judges of the several Courts may ap- point one or more days for the giving of judgment after Term, in the same way as is provided by law in respect to County Courts. Witnesses, Evidence, ike. w Power to re- «j| Every Surrogate Court may require the at- quire attend- •^ ° ^ ■./ n ance of parties tendance of any party in person, or of any person and to CI- ' whoui it may think fit to examine or cause to be Auiuo thezn. t SURROGATE COURTS ACT. 29 examined in any suit or other proceeding in respect of matters or causes testamentary and may examine, or cause to be examined upon oath or affirmation, as the case may require, parties and witnesses by (e. c. P. Act, word of mouth, and may either before or after, or*"^"*') witli or without such examination, cause tliem or any of them to be examined on interrogatories, or receive their or any of tlieir affidavits or solemn affirmations, as the case may be ; and each of tlie said Astopmluc- ^ , 1 • , p I 7 7 tion of (ieedu Courts may, by writ ot subpmna or subpcena duces and instru- teciim (as tlie case may be) require such attendance, ^^^^^' ^°- and order any deeds, evitk'nces or writings to be produced before itself or otherwise. 92. Whether any suit or other proceeding be or be not pending in the Court, with respect to any pro- bate or administration, every Suri-ogate Court may, on motion or petition, or otherwise in a suunnary way, order any ])erson to produce and bring l)efore the Registrar (>f the Couit or otlicrwise, as the Court may direct, any paper or writing, being or purporting to Ite testamentary, which may be shown to be in tlie possession or under the control of such I)ers()n. The application may bo made to the Judge, either by mo- tion or by summons when a suit is pending, or by motion upon athdavit when no suit is pcMiding. The costs of the appli- cation are in the discretion of the Court ; but it is laid down that wlicrever compulsory process is necessary for the purpose of getting a will lodged in the liegistry, tlie expense should f.illon tlie party who occasions it. {CnnniiKjIiam vs. Sciimvur, 2 Ph. 250.) If the Judge make the order, it may be enforced by the usual process of contempt. (D. it B. 7'J5, 797; and see liule 17, Form 28.) (2) if it 111' not shown that any such paper or writing is in the possession or under the control of such person, but if it ajipears that there are reason- able grounds for believing that he has kiiowledireof Orders and proceedings in respect to the production of instruments: l)uri)oi-tni^,' to lie testamen- tary. (E. O. P. Act. s. 2(i.) F.xaniination of persons touching' Buch instruQients. . .1 ■on .' \ SO Sl^RROGATE COURTS ACT. any such paper or wi-iting, tlie Court may direct such person to attend for the purpose of heing ex- auiined before the Registrar or in open Court, or upon inteiTogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and if so, ordered to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case default ^'n not at- tending, or in not answering such questions or inter- rogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit in the Court, and had made such default ; and the costs of any such motion, petition or other proceeding shall be in the discretion of the Court (o). <£d w '•#., Jiulges, Re^ns- crars and Com- missioners in Superior Courts to have l)ow(.T to ad- minister oathf". 93. The Judges and Registrars of the said Surro- gate Courts respectively shall have full power to administer oaths in matters and causes testamentary and in all othei" matters in any of the said Courts ; and Commissioners for taking aihdavits in any of the Siqierior Courts, shall also have full power res- pectively to administer oaths in all matters and causes testamentary, and in all other matters in the said Courts, to parties desirous of making aflitlavit or deposition before them respectively. III' t * i Penalty for for forjj:int; or counti'rfeitiuf,' Seal or si^iaa- ture of ottii'ers or tendering same in evi- dence. (E. O. P. Act, R. 28.) Section 10 of C. S. U. C. c. IG is as follows :— 10. 1/ any person forges the signuturc nf any Judqe or J\\'(jls(r(tr of a Surrogate Conrt, or of any Commissioner for taking affiitavits as aforesaid, or forges or connterfeits any Seal of a Surrogate Court, or knovinghj uses or conenrii in using any such forged ar cmndirjeit signature or seal, or tenders in eridenee any doeuvient tvith a false or counterfeit signature of such Judge, liegistrar, or Coinmisaiona\ or with a false or (a) As to costB, pee precedlnjf note. SURROGATE COURTS ACT 31 ,y direct )eing ex- !!!ourt, or and such stions or md bring set to the 1 not at- i or inter- writing, had been ade such , petition on of the id Surro- lower to imentary Courts ; any of Dwer ros- ters and rs in the affidavit 's : — Jndqe or init':rf(jits •oil curs ill or tenders siijiKiliirc a false or I coHiferfeit seal, knowing the same signature or seal to be false or counterfeit, such perwn shall be guilti/ of felony, and liable to be imprisoned in the Provincial J'enitentiury for any term not exceeding seven years. Evidence in Contentious Matters. 21. Subject to the regulations established l)y the the Rules and Orders heretofore in force respecting Sur^K^ate Courts, or hereafter to bo made under this Act, the witnesses, and, where necessary, the parties in all contentious matters where their atten- dance can bo had, shall be examined orally by or be- fore the Judge of the Surrogate Court in ojion court ; and subject to any such regulations as aforesaid, the parties may verify their respective cases by affidavit but the deponent in every such affidavit shall, on the application of the opposite party, be subject to bo cross-examined by or on behalf of the opposite jiarty orally in open court as aforesaid, and, after such cross-examination, may bo re-examinod orally in open court as afon'sairobiito or administration, or in which any dis- ^" ]'.^ '"''^"'■^'i ' . •'to Luaucery. puted ([ui'stion may be raised (as to law or facts) re- lating to matters and causes testamentary, shall bo removable l»y any party to such cause or [)roceo(ling into the Court of Chancery by order of a Judge of tile said Court, to be obtained on a summary ap[)lica- tion .sup])orte(l by affidavit, of which reasonable no- tice sliali be given to the other parties concerned. Oil iiidtion beforo the Court of Chancery to remove a can.se . from tlio Surrogiite Court of Lanark and Renfrew on tho t,'round that there was a contest and on account of delay, ((() And see Act respecting witnesBOs and evidence, II. S. 0. c. 02, C ■V;' 84 SQRROGATE COURTS ACT. Removal of cause to Chan- Cbry. Not every case of contest. !| ! i ) 1 i [ i ■ i « 1 I Terms as to costs. Certain cases not to be so re- moved. 92,000 penon< al eatate. it was held tliat riuses which may be removed to the Court of Chancery must be not only causes in which contention arises, but causes in which disputed questions of law or fact arise. In this case different parties having applied for admin- istration, there was a contest as to who was entitled to the grant. There being such contest, there must be a citation, and to decide it the matter should be argued in term, (before the Surrogate Judge). And as to the question of delay the Surrogate Court has power to appoint an administrator pending the litigation. Tlie Court did not think th.at the leg- islature intended every case of contest to be removed to this Court. Motion refused. (Per Blake, C. Spragge, V. C, con- curring. Ec Beckwith, 5 U. C. L. J., 1859, p. 250). There was a controversy as to the validity of a will, and upon a sworn allegation, which was not contradicted, that there was a large amount of property real and personal (over $2,000) and that " the questions to be tried and determined were of such importance and difficulty that the same could be more eflectually tried and disposed of in the Court of Chan- cery than in the Surrogate Court," — the matter was removed to Chancery. In re JEccIes, 1 Chan. Cham., 37(5, and Uiiw'di V. Moivnt, Atty.-Gen., by order of 17 Sep., 1875. Costa on Removal. — In cases which by the Surrogate Courts' Act are proper to be removed into the Court of Chancery, the Court will not as to the proceedings in Chancery restrict the party to Surrogate Court costs. {Ke Lee tfc Waterhouse, 5 U. C. L. J., (1859), p. 250, and Harris v. Harris, 24 Gr. 402). (2) The Judge making such order may impose .such terms as to payment or security for costs or otherwise as to him seems tit ; but no cause or proceeding shall he so removed unless it is of such a nature and of such importance as to render it proper that the same should be with- drawn from the jurisdiction of the Surrogate Court and disposed of by the Court of Chancery, nor unless the personal estate of the deceased exceeds two thousand dollars in value. The order is obtained on motion in Chambers upon notice. For a form of such an order, vide App. The Registrar of the Surrogate Court upon being served with the order will transmit the papers to the Registrar in Chancery. SURROGATE COURTS ACT. 35 30. Upon anv cause or proceedinf' l»oing so re- Powers of the ' 1 1 1 1- /.I 1 11 Uourt of Chan- ■moved as aforesaid, tlie (;ourt ot Chancery shall eery, have full power to determine the same, and may cause any question of fact arising tlierein to be tried hy a jury, and otherwise deal with the same, as with any cause or clain\ originally entered in the said Court of Clianoery and the final order or decree made by the said Court of Chancery in an}' cause or pro- ceeding removed as aforesaid, shall for the guidance and transmi.-*- of the said Surrogate Court, be transmitted ny the (.nWtoSurro- Surrogate Clerk to the Registrar of the Surrogate s'^^'^ ^''>''^^- Court from which such cause or proceeding was removed. Appeals to tlif. Court of Appeal. 31. Any person considering liimself aggrieved by any order, sentence, ju \ i v| ''t ill i Grant to attorney. the case the Court will exorcise the discrotion conferred upon it by this section iind s. 54. jtonl. In thu case of purHoiis resident out of Ontario, a grant will bo made to thuir attorney acting under power of attorney, duly atte.sted. The letter of attorney need not be under seal. \ general power of attorney may, under some cireuin- stance.s bo suflicient though made without reference to the grant of administration {Lucax v. Luciis, 2 Lee, 557). Where a person is authorized by a simple power of attor- ney to take out administration, tliu Court will decree to him such administration as it would have granted to the person who conferred the power, if he had applied for it himself. If administration be decreed in pursuance of a power, the grant must follow the terms of the pwwer ; and when the power is for a general grant, the U(nirt cannot make a special grant {Goldaboroiujh, deceased, 1 Sw. it Tr. 295) nor econvcrsK, D. it 13. . 441. The modern form of grant to an attcjrney is to for the use and bi'uejit of — — - — risident at and until he shall duly apply fur a)id obtain probate or adminis- tratiun (Cassidy, deceased, 4 Hagg. 300). Security to bo ^'^- Tlicadiiiinistrator .so appointed sliall ^dve such given. security as tlie Court directs («), and shall have all the rights and powers of a general administrator. and shall be subject to tlie innnediate control of the Couit. Not Ice of Ap2'>l Ications. As to transmission of notice of applications for grants of probates &c., to Surrofjato Clerk by Kegistrar (and see § 1.3). 39. In case of an ap])lication to any Sin-rogate Court for the grant of probate or administration, notice tliereof shall, by the Registrar- of the Court, by letter, post paid, be transmitted to the Surrogate Clerk by the next post after such application, and such notice shall specify the name and description or addition, if any, of the testator or intestate, the time of his death, and the place of his abode at hi^ decciase, as stated in the athdavit or affidavits made in support of such api)lic;.tion, and the name of the (a) See S. C. Rule 30. SURROGATE COURTS ACT. 41 person liy wlioiii the application lias boon made, and .sucli otlior particulars as niay bo directed by any Rules or Orders in that behalf. 40. Unless upon special order or decree of such rnHTc.linijs to Surrogate Court, no probate or adniinistraticjn shall uu cm i tic-ate bo granted in pursuance of .such iM'1'1''"^*^''''^ ""^^'^ SmTo^^^^^^ such Registiar has receivoil a coi'tilicato, under the ^'l^^rk. hand of tht! Surrogate Clerk, that no other ajiplica- tion appears to have been made in respect of the goods of the same decea.sed person, which certiticate the said Surrogate Clerk shall forward, as soon as may be, to such Registrar. 41. All notices in respect of apjilications in the Surrogate several Surrogate Courts, shall be tiled and kept by uoticea." the said Surrogate Clerk. 42. The Surrogate Clerk .shall, with reference to Ami examine , .. . ,1 ,. ,. , 1. all uotices &c. every such notice, examine all notices oi such appli- oation>. rcooivod fr(jm the several other Surrogate Court Registrai.s, so far as appears to be necessary, to ascertain, whether or no, ajiplication for proliate or administration in respect of the goods of the same deceased person has been made in more than one Surrog.'ite Court, and he shall communicate with the Surrogate Coui't Registrars, as occasion may retpiire, in relation to such ap]»lications. 43. Tn case it appears by the certiticate of the Proceedings if Surrogate Clerk that applicati(jn for probate or ad- h'a« Wn made i-stration has been made to two (jr more Surro- *"' "';"■*" *h'*" line Surrogate gate Courts, the Judges of .such Courts, respectively, Court. sha stay proceedings therein, leaving the parties to apply to one of the Judges of the Court of Chancery ,p^ ^^, . , , to give such direction in the matter, as to him seem.s >n Chancery. necessary. 'tl-:; 42 SUKROGATE COURTS ACT. I, ^^lii; Judgtiin 44. On ai)[»lic:ition iiindu to such JuJ<,^e of the •leteriuino Coiu't of Cliaiic*er\-, he slmll C'lKjuiic into the matter r(>vi(leil thiit (subject to any rules or urtk-rs niiule uiulir the Act) the pnicticu and itroce: dure under Caveats should as ntar as may be corresimnd with the practice and pruccduie then in use in tho Pren>gativo Court of Canterbury. (<() And also against the grant of letters of guardianship, see Q. R. 4. (b) See sec. 32 ante, and nc>te ; also clmiiter on Contentious Busi- ness, fjoM. SURROGATE COURTS ACT, 4>S 48. TmiiKHliately on a Caveat l)eing lodf,'e(l in any To be trana- Surrogato Court, the Registrar of such Court shall proper Surro- Bcnd a copy thereof to the Surrogate Clerk to Le «**** ^'""""t^- entered among the Caveats lodged Avith him, and upon notice of application l)y the Registiar of a SurrOj-ate Court under the thiity-ninth section Leing received, the Surrogate Clerk shall forward to such Registrar so soon as may he, notice of any Caveat that has been so lodged as aforesaid touching such application, and such notice sliall accompany or he embodied with the certificate mentioned in the for- tieth section. Proof of Wills in Solemn Form. 49. Where proceedings are taken under this Act for jiroving a will in solemn form (a), or for revok- ing the proliate of a will on the ground of the in- validity thereof, or where in any other contentious cause or matter under this Act the validity of a will is disputed, unless the will ."H'ects only personal es- tate, the heir or heirs at \i\.\y, devisees or other per- sons liaving or j)retending to have an}' interest in the real estate alfected by the will, may, subject to the provisions of this Act and to tl o Rules and Orders relating to Surrogate Courts J\eretofore in force, or hereafter to be made under this Act, be cited to see proceedings, or be otherwise summoned in like manner as the next of kin, or others having or [iretending interest in the personal estate (b) affected liy a will should be cited or summoned, and may be ])ermitted to become parties, subject to such Rules and Orders and to the discretion of the Court ; («) Proliate in Bolfinii fonii \» in tlie nature of a dfcree iiroiKumciMl in open otiit. Cuote, 4tli ed. L':>0, ami rkit cliaptiT on " Contentious buHinofn'' iDist. {Ii) VkU ante sec. 30 and note. Where a will affecting real estate iw pro vetT in solemn form or iH the sub- ject of conten- tious proceed- ingH, heirs, &c, may lie cited, but not neces- sarily so, save on order of court. (E. C. P. Act, 8. CI.) h fl 44 SURROGATE COURTS ACT. m but notliinfj herein contiiined sliall make it necessary to cite the heirs at hiw, or other person havinj,' or preteiiauic to be done. Tliis section, i-xcejit tlie l;ist five liue.s, currcspinuls with aection 01, E. C. I*. Act, as to wliich, an(\ two following,' scc- tiouH of tlio I'lobato Act, it is 8aid((() that "One of their great ohjecta is to prevent double trials ; and this object where the wills relate to realty as well as iiersonalty, can only be ell'ected l)y citin;^' the lieir at law or other pei'sons interested in such realty." 'J'he court, therefnre, upon apjdi- catiou made, will generally perniit the citation to insue, and the fact of a co-heir beiny an infant or child of the plaintiff, is no ;,'ro\nid for the court refusing to allow such co-heir to be cited (NichulU v. JMiinn. 1 JSwab. ct Tris., p. ID. Jan., A.D. 18.J8). Sec. i>'2 of the Englisli Act providos that wlu^ro a will is proved in soleuui form or its validity declared in a conten- tious cause, the ilecree of the court shall inure to the benetit of all persons interested in the re il estate, and that the probate shall be conclusive evidence of the validity and con- tents of such will in all suits or i)roceedings affecting real estate. The S. C. Act does not contain this provision. (See note to sec. 4 aiiff, and chapter on Contentious busi- ness — potif.) (h). As to sec. ()\ E. C. P. Act, Mr. Horsey say.s (p. 40) that, '' tliis provisi> henever the circumstan- ces attending the execution of the instrument are calculated to create suspicicm or inquiry, or when minors or persons of unsound min, N. (h), 13th ed. ) The expemses in an uncontested case .aro insignificant, f<>r the evitlenco of one of the attesting wit- nes.ses is sutlicient (Iklbin v. ISk(ai.-<, 1 Sw. tV Tr. 148), and that may bo given by allidavit (H. ('. Act, 21.) The costs of the defendants, if unsuccessfid, '.ill generally be borne by themselves, in special cases oniy will they be paid out of tlie estate" (D. A 1!. tl41, note-i)- In vnluntary proceedings to prove a will in solomti lorni, a citation will issue to parties interested. I'ole jumf — , ' Ci- tations. Copies of ll'/Vk tlO. An oflhial ((.py ofthe wlioU- or any part of a offu.ij^i popy will, or an oMicial cortlHcate of the orant of anv "^""■,^^'" ..V '^ •' part lit a will letters of administration, may Ik; olitained from the maybeolitain- Registrar of the Surro^'ate Court where the will has heen proved or the administration Ljranted, on pay- ment of such fees as may he fixed for tlie same hy the Rules and Orders heretofore in force or hereafter ('•'•,<'■ !'• Act made under this Act. Such m-tiCicates are reciuired by i'.auks in which the tes- off,, ial certifi- tator or intestate had niciiiey or shares, befure they will re- .'!/ V. Dnj, 2 C.r. 149. Ami vi,k pod ch. on "Ad- iniuistration pendente lite.'" Admin ifii ration vith vUl anvrxrd. i Adininiitra- •52. WIkm'C administration is granted with the tioii with the .,, , , i i ii / i •. • ^i will anncTed. ^vill annexed, a lioml shall (unless it is otherwise ])rovith'd by law) be given to the Judge of the Court as in other cases and with like effect, and unless other- wise provided for by this Act or the Rules or Orders relatintr to Surrogate Courts from time to time in force, the practice and jiroceclure in respect to such Practice M to, administrations and in respect to such bonds and the a.ssignment thereof shall, so far as the circumstances of the case will admit, be according to the j)racticc in such ca.ses in Her Majesty's Court of Probate iu 5th Dec.,l8,')9. England, on the fifth day of December, one thousand ciglit hundred and tifty-nine (a). (a) Vide sec. 32 ante. ■ ^ '■% :l t 'i 1 c r ._ t a ^• SURROGATE COURTS ACT. 47 n S9 I n cV'TV cr ase where any person api)lies to be Ai.i.licant f nppoi iulimiii«tra on ill aune nted an administrator with tlie will annexed, ti and a bond is \>y law re(|uinMl to he ;,dven, he shall in his M|iplication state, and in his affidavit of the value of the iii-Mitertv (h'vohin^' shall depose to the Ti>,l(i«m the ■xed. vah' or jiroba hie ^alu^' of all the i-eal estate over tliii of rtiil I state wlllcll. or n(l to ... . , iiu'liulc value SO Stated and di'jMtseil to : and tlie eondition ot the of ifaU-state. bond, in addition to the other provisions thereof, shall |)rovide that the athninisti'ator shall well and truly pay o\er and aecount for, to the [terscni or per- sons entitled to the same, all moneys anr. •II. Where a jkm-.soii has died wliolly intestate as General iiowor i 1 • I i. i 1 • • n u' i • ai< to aiM'oint- to his personal estate, or leavme; a will iinectuii,' „„,„t „/ '^,in,j. i)ersonal e-state, but without liavin'' auitointed an "''*"'.•'*'"• ""'^'''" ■ _ . _ r J I s|iti'i!ilcircuiu- exeeutor thiM'eof willing: and comiietent to take Htmuvw. , , , ,, '^^ , wi i- ,.ronate, or wliere tlie executor was at the tnnc^tt ». 73.) the death of such person resident out of Dntario, and it appears to the Court to be necessary or con- venient in any such case by reason of the insolvency ' 1 !"'::! 48 SURROGATE COURTS ACT. 11 if- \i I of the estate of the deceased, or otlier special circumstances, to appoint some person to be the administrator of the personal estate of the deceased or of any part of such personal estate otlier than the person who, if this Act had not been passed, would by law have been entitled to a grant of administra- tion to such personal estate, it shall not be obliga- tory upon the Court to grant administration of the personal estate of such deceased person to the person who, if this Act had not passed, would by law have DiHcretionary been entitled to a grant thereof, but tlie Court in its as to who shall discretion may appoint such person as the Court be appoiuted. ^|j|^^^ jj^^ ^^^J^^ j^j^ ^^j^.jj^^, ^^^^^i security (if any) as the Court directs, and every such administration may be as limited as the Court thinks fit. Special rircrimstitin'cs. — (((/ iK)wer to sue or prosecutt.' any suit, tloll, III I ptTKon _ ' ^ ^ ' to act :is or otlu'iwisc act as executor of the deceased as (K. «'. 1'. Act, to the personal estate comprised in or affected by "■ '''" such grant of administration until such administra- tion has been recalled or revoked. 1.1*: Bci'octi.fioi) of Tiinporcnj Gravfi^. Revocation of •"■^ ^'* ^"•^'-^' bt-foiv the revocation of any tempor- teiiii)or:irv .'idministration any proceedings at law or in grants of ml- • ' . iniiiistnitioii ('(luitv have bt-eii commenced bv or against any ad- ni't to projii- . , *■ . 1 1 ^( 1 • 1 • 1 dici-nctiniis miiiistiator SO appointed, the Lourt in wliicli such (E. V. V. Act, proceedings are )ifii(iiMg may ordt'r tliat a suggestion ■•^*^^- be made upon the record of the revocation of such I . SURROGATE COURTS ACT. 49 special be the leceascd than the I, would linistra- i obi i ga- ll of the e person aw have irt in its le Court ' any) as istration nistration. ito is not legal di*- y jiractico 1 a science, 1(1 private person ny suit, ■ased as •cted V»y inistra- tenipor- w or in any ai'ate t,'rant- ' . ' '■ _ eii, to he in- granted in respect of the estate of any deceased per- demnitied, &c. son under the authoritv of this Act, shall be indem- niticd and protected in so doing, notwithstanding E. C P. Act, any defect or circum.stance whatsoever aftecting the validity of such probate or letters of administrj lation. f 1 1 1 50 Right of ex- ecutor re- nouncing pro- bate to cease absolutt'ly. (E. C. V. Act, s. 79.) SURROGATE COURTS ACT. Executor Renouncing. S9. Where any person renounces probate of the will of wliich he is appointed executor (or one of the executors), the rights of such person in respect of the executorship shall wholly cea.se, and the represen- tation to the testator and the administration of his effects shall and may without any further renuncia- tion go, devolve and be committed in like numner as if such person had not been appointed executor. By the construction of the corresponding section E. C. P. Act, a renunciation of probate operates in the sense of ex- punging the name of tlie renouncing executor from tlie will. {Coute, 8th Ed., p. GO, cit ; li. Nuddinys, \) W. 11. 40). An executor renouncing his right to probate, and the bur- then of the execution of tlie will, thereby forfeits any be- (juest to him contained in the will {Paion v. Jlickson, 25 CJr. 102). An executor cannot renounce if he have inter- meddled (LiDig V. Sijmes, 3 Hagg, 771 ; Budenach deceased, 3Sw. it Tr. 405.) Parties named as executors proved the will, and upon a bill filed prayed inter alia to be relieved of the executorship. The Court uiider the circumstances refused to relieve them, they having delil)erately accepted the oflice {Uellcm v. Severs. 24 Gr. .'$20). See further as to Renunciation, jiost. i I :i(lministrivtor- Scniritiefi. Repeal of o.r- ^^' '^ojnuch of the Act passed in the tvventy- tainprovisiou.s |j . ^^f j^},, , Henry the Eighth, and chaptered sureties to tive ((/)) 'i^^'^ ^^ t''*-' Act passcd in the twenty -.second and twenty third years of King Charles the Second, 21 H. VIll, o. and chaptered ten (/>), and of the Act passed in the rT.'flto'/.^iis lirst year of King James the Second, and chaptered ll."e!'l7.' (a) "An Act «.■* to what fus oni/lit to be taken for prolMile." (Ij) ^' An Aft for'jthc better settliny of intestate estates, and diatribu* lion of BurpI usages." SURROGATE COUftTS ACT. 51 seventeen ('0, as requires any surety, bond, or other security to be taken from a person to wliom admin- istration may be connnitted, shall not extend to or be in force in Ontario. 61. Except wliere otherwise provided by law, (E. ('. P. Act, • • • • s 81 ) every person to whom any grant of administration is committed, shall give a bond to the Judge of the J';;^';;^ grant. Snrror'ati! Court from which such grant is made, to "f lulminwtra '-. tion to give enure for the benelit of the Judgi- ot such Court for boll.l^ &c. the time being (or in case of the separation of counties, to enure for the benefit of any Judge of a Surrogate Court, to l»e named by the Court of Chan- cery for that purpose\ with one or more surety or sureties as may be required by the Judge of such Surrogate Court, conditioned for the due collecting, getting in and ailmiiiistering the [lersonal estate of the deceased, and the bond shall lie in the form pre- .scribed by the Mules and Orders now in force or hereafter made under this .\ct, and in cases not provided for 1)y such Rules and Orders, such boml shall be in such form as the Judge of the Surroijate Court may b^- special order direct. As to the ni'-'iuiing of tlie words ''surety" and "security,'' nee Inteq)retati()n Act, R. S. (,). p. 5. Tlie form of bond prescribed by 23 Car. II., c 10 (A.D. 1070), is, with some iiioditicatioiiR, the form in use nt the present day, as will be seen on comparison of the two forma. For Forms of bonds cide Chttdwiek on Administration Bonds, 6^. Subject to the provisions of tho fifty-third ivnalty ia section of this Act, such bond shall b,. in a penalty !;;;;ii *'^. of double the amount under which the personal es- \»din^ liahiii tate and etiects of the deceased have been sworn, ^uretie-. unless the Judge in any case thinks tit to direct (as he may do) that the .same shall be reduced, and th" i''s2.; ^ (a) " All Act maktiii per/>ctual the l<.t.it nuntionfd Act.'^ Act. .||-- 52 SURROOATK COURTS ACT. Judge may also direct that more l)onds than one may V)e given, so as to limit the lial)ility of any surety to such amount as the Judge thinks rea- sonable. 'it i I ni Power of Siir- 63, The Judg(! of every Surrogate Court, on ap- roi»ate ('ourtH i-i- i i.* i-i- »H toaH.iign plication ma ; and 1 Croiiipton & Meeson, p. 690. An application for assignment of an administration bond should not be ex-parte ; the sureties should bo cited or served with notices. And it seems that the assignment is generally not ordered until after judgment at law or decree inequity is obtained against 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 pal before having recourse to the sureties {lie Hilts, 1 Chy. SURROGATE COURTS ACT. 53 Ch. 380 ; YoHU'r V. Skelfon,{\ Ilagi.h 780). In an action of debt on an ailiuiiiistJ.itioii boml, by which administrator was to rendir his iiccoiint by a cortiiin day ;— plea, th.it adminis- trator could not have rendered accn\int at tlie time mentioned, there liaving been no sitting then ; held Itad on demurrer, the breiK h bciiii,' confessed bnt not avoided (A'd// "/ Eljln V. Crosh,,, 10 V. C. Q. n. 'M). Hy '2'.i Vic. c. 10, s. , it was provided that " the Court of Chancery may order all bonds taken in the Court of Probate on the urant of adiuini.stralioii, and in force on the first of So)itfniiicr, (Jiie thousaml ei.^ht hundred and iifty-eight, to be assigned, and the same may bo enforced in the name of the assignee, \inderthe authority of the said Court of Chan- cery, in the same way as (irovided for in <- so of assignment of bonds in the Surro!,'ato Court." It was belli that the costs of an application under this provision for an assignnuait of a bond, in order to an action tlieroon at (Jommon Law, could not l)o taxed as costs in the action, but should bo recovered as damages con- sequent on the default. Letters of aduiinistration were granted by the Court of Probate, of the goods of C. Cas- well, deceaaeil, during the minority of his son, to tho defendant Post. 'I'lie usual bond was given l)y him and the oliur defendants. The Court of Ciuuicery, on breach of the condition of the bond, ordered it to be assigned to plaintitr, who brought an action and recovered verdict for [icnalty and the damages assessed. On taxation of costs, plaiiitiir included in his bill the costs of the application to the Court of ( 'hancery, which the Alaster disidi<)we(L On appeal from Master, Draper C. J. held, " that the costs of the ajiplioation to the Court of Chancery coidd not be taxed as costs in this cause; but that they might have been re- covered as damages conseipient on the default of defendant " {Clossoi, v. /•(.«<, G U. C. L. J., (1800), 141). HondM taken ill Court of I'rohate may be iissitftieii by order of tJiancei-y. Costs of as- ►ti;,'iuiifrit of Adiiiiiiistra- tiuii Boutt. Estafes of Small Valur. 61. Where the whole estate and eftects, real and ProctciingM in personal, of any testator or intestate do not exceed ('muTfor aJ- in value the .sum of two hundreil dollars, his widow "''"'''t'»'tion. or any one or more of his children or next of kin, or 1 his executors may apply to the Judge of the Surro- Ket^iftrar to prepare pa- pyri. 54 SURROQATR COURTS ACT. },'ate Court within the (.'ounty in wliicli tlio testator or intestate liad his fixed jdace of abode at the time of liis death, and the Registrar of the said Court shall fill uj) the usual jtapei-s recjuired hy the Surro- j,'ate ('ourt to load to a grant of prohate of tlu; will of such testatoi' or letters of alicant and attest the execu- tion of the administration hond according to the ])ractice of the said Court, and sliall then transmit a notice of the application by post to the Surrogate Clerk at Toronto ; and the said Registrar on ol)tain- ing the a])proval or order of the said Judge of the Surrogate Court, sliall in due course make out and seal the probate of the will of such testator, or letters of administration of the estate and effects of the said testator or intestate, to Ite delivered to the party so applying for the samei without the payment of any fee for the same, save as is provided by the sixty-sixth' section of this Act. Proof of rtltt- ^*^ '''^'*^^ •'^^i'^ Judge of the Surrogate Court may tion«}iii>. require sueh ]>roof as he may think snfHeient to establish the identity and relationship of the appli- cant; and if the said Judge has reason to believe that the whole estate and eflVcts of which the tes- tator or intestate died possessed exceed in value the Judt'etolv said sum t)f two hundred dollars, he shall refuse to the "value of*^ ]iroceed with the application under the last preced- ihe eHtate i.ks j^j, section until he is satisfied as to the real value than f200. » thereof Scale of feec. 66. Such fees as the Lieutenant-Governor in Council may think proper, stui'll be payable to the Judges and Registrars of the Surrogate Courts, on proceedings under the sixty-fourth and sixty-fifth sections, but the total amount for all jtroceedirgs anH SUIIUOC.ATE COURTS ACT. 55 uostator ha time I Court Q Surro- th»! will 1 t)f the titestato, a t'xecu- r to tho msiuit 11 urroellant was entitled to tax County Court costs only. The appellant was engaged by the respondent to conduct proceed- ings on his bi.'half in a contentinus matter in the Surrogate Court. The order made in the matter directed the costs to be paid out of the estate. Upon a reference to the Master to have the appellant's bill of co.sts taxed it was jiointed out that the tarill'of fees W!i8 ixprea-sed to be ajiplicable to non-conten- tious matters only, and it was argued that there being no fixed tariff for contentious matters the costs ought to bo allowed according to the table of fees in the Court of Probate in England. The Ma-ster, liowever, allowed only County C(Mirt costs. After argument of the appeal, before Proudfoot, V.C., tho attention of the learned ViceAChaneellor was called to tho fact th'it on the Itist August, 1H58, the Judges appointed to frame rules and forms had promulgated certain rules, amongst which was the following : — " 'i'hi' fees to be taken by attorne3'8 and barristers respec- tively practising in tlie Surrogate Courts in respect to busi- ness \uuler the saitl .Act, or under any .Act of the Parliament of I'pper Canada, or of this Province, giving powers or juris- lictii)n to the said Courts, or the Judges tl.'creof, shall bo tho same, as nearly as the case will allow, as are now payable in suits and proceedings in tho County Court. These, it is to bo understood, are oidy temporary provisions, until a full (r held that no full body of rules had been settled, iiiasnnich as no jirovision wiis sulmequently made for the fixing of the scale of oonts in contentious iiiatters ; and that the ruin above referred to is still in force ; and the apj)eal was dismissed with co.sts. It had j)reviouHly been held by Hlake, V.C, in He HarrU, Uarriji v. HnrrU, 24 ( Jr.45l), that wliere, in a contentiou'j cause renuivc'd from a Surrogate Court to tho Court of Chancery, the derree j^'avo co.sts of all proceediiigs, tho party to receive tho costs was entitled Ui have them taxed under tho Chancery tariff. On thu 20th November, IHoS, the Sum><;ato Court rules were settled, beiiU; tho only body of rules made under tho Act, except the rules as to guardians, of 20th Sep., 1858, and the temporanr rules above mentioned. Ci'sln (Hit iif H.'itiitf. — Where costs were directed to be paid out of tlio estate by tlio I'reruyative Court, the proper mode of taxation was by a more lil)eral test than between party and party, but still not to so wide an extent as between proctor and client {Edwards v. L'»iin»i, 2 Curt. (541) ((«). Kxihting rules and ordtTw continued. 22 V. r. !•:!. A'j//f'.s' or Onhrfi Rrf/uhitin;/ Vrocedarc. 7JI. Tlu' o^cncr.il Uulr.s aiitl Ordcis iiiatlo liy tho .Iii Stiii():,'ate Courts Att, 1S.')H, arc here- Itv c'otitinuril ; and until an aj)|)ointnniit is niaikt by tin- Licntonant-Ciovcrnor ninU'r the authority of tho next section, the said .Tudj^'cs .shall contiTuie and possess the same jxnvcrs as lu-fore this Act takes elfect, ami may, from time to time, repeal, amend, add to, or alter any existing,' (icneral Rides and Orders as to them seems fit, and may exerciser the powers in tho next succeeding' sectii>n, and in the Hcventy-tirst section of this Act nicntionetl. (n) See further as to costs in ContentiouH DuHinoHH, j>•l«^ h. tod for dis- ed book of Ite Judges, f rules had eiitly made vttors ; and ) ; and the He Ilarrii, til mi cauHu Chancery, ' to receive i Chancery onrt rules under the >ep. , 1858, to 1)0 paid opcr mode I'eu party lietweou \} (")• re. e l»v the III' licro- nadc Ity y <'t' tlio Ml*' iiml •t tnkt's ainond, It's a lit I ('isi> tin- in the SURROGATE COURTS ACT. 5d 74. Tht' Lu'uten}int-Gt)vt.'rnor, at any time after KnIeHMj.i tiriltTH fur ■ , - , orilfm fur this Act takes ftroct, may appoint tjne f tiie JuiI^m^s r.-KiilHtinK tif tlie Court ot Appeal, one ot the Jutlpvs <>t the „f ^j'^^,^.,,,,^^ Superior (oiirts td" Common Law, t)ne of the Juil;,'es tif the Court of Chaneery, and t»ne Cmmty Court Juil;^'e, in Ontaiio with power to the saitl Jiitlges, t)r Miiv twii of thtin, fitiiH time tt) time, to make nther Rules and ( )i'iler> : (1) For n „'u!atin<,' the procetlure ami practice of (lie sni'i Surroijate CiMM'ts, aiitl in r«datit)n tt) their iiL'tion aiitl prt)eeeilin;,'s unth-r this Act; (2) For re^^MiJatinj; the thities t»f the SuiTt)f(ate Clerk, tlie dut'-« of tlie several Snrropvte Ctiurt Rt>i,'istrars, and other otlieers of such Courts ; (3) Ft»r tleteiniiiiini,' what shall l»e tleenieil eon- tentiou , au<;' svliat non-eontentious l»usine.s.s ; (4) (Suhject to the express pntvisions of this Act) for re;,'ulatinj,' the manner of appealim,' from tlie tiecisions of the said Surro^'ate C(»urts ; ami (5) Generally for carryintj the jirovision.s of this Act into full anti heneficial eflect. 7tT Tht> powers ("Dnferrt^d l.y (he seventy-tliinl I'm-duro in and seventy-fourth sections of this Act shan'extentl ilfeS-S and appl\ to the m.Mkin-', from time to lime ,,f I" '"T'«"''^»'''' III 1 ^\ 1 r 1 ■ ' liv nili'H iiiaiU unit's ami tinlers ttu- remdatm;,', simplif) in;,' aiitl midertliiHAct expetlitin;,' proceetlin^r.s in ihe Surrt)yate Courts, ami fixin;; and n';,'uliitinfj the fees to i... taken as nfnre- saiJ, under the provisitms of this Aet t.r any other Act, pvin;,' pt)wers t.r juris.lietion to the .sairincipally to maCters and causi^s testamentary, de[)osited in the Court of Chancery, by the Judge of the Court of Probate, the Registrar thereof, and every other per- son who had the custody of books, documents and paj)ers, of or belonging to that Court, pursuant to the fifty-fifth section of the Surrogate Courts Act, 1858, shall remain so deposited, so as to be easy of SURROGATE COURTS ACT. Gl list ration no thou- [jrant.s of do legal, hey had reference under the control and direction of the Court. These papers are in the office of the Surrogate Clerk under the control of the Court of Chancery. See ante sec. 8. ■■■v.- tion ha^l ibei", one 1 the de- lada not 'ourt, Ity granted , lio grant, al appli- be made, p respect fonni'r .shall he rohates. Is, notes •ocisses, •y other tally to in tht; urt of ler per- il ts and to tlie ,n Act, L>asy of SCHEDULE A. (Section G8.) Fees payable to the Crown. ON PROCEKDINGS IN THE OFFICES OF REGISTRARS. 9 cts. On every ap|)lication for probate or administration or for guardianship, (including notice thereof to vSurrogate Clerk, but not postage) 50 On certificate of Surrogate Clerk upon such applica- tion (including transmission to Registrar, but not po.stago) 50 On every instrument or process with Seal of Court... 50 Entry and notification of Caveat (not including postage) 50 On every Grant of Probate or Administration, a.s fol- lows, viz: Where the property devolving is under 81,000 50 For every additional $1,000 50 On ever}^ final judgment in contentious or disputed cases 1 00 On deposit of wills for .safe custody, each 50 ON PROCKKDINGS IN THE OFFICE OF SURIIOGATE CLERK. On every search for grant of probate, administration guardianship, or other matter in clerk's office (other than searches on application of registrars) 50 T 02 SURUOQATE COURTS ACT. t i i 1 I ,K $ cts. On every certificate of search or extract 1 00 (If exceeding tliree folios, 10 cents per folio.) On every other certificate issued by the Surnjgat*' Clerk ")0 On every ordiM- niar purpos*; o f audit. 1 00 For every day's sittings in contentious ordispijted eases 2 00 On evidenct', if taken l)efor«' Judge (per folio) lio JWr* For tables cf fees to ho taken by llegistrarj, ShoritFa, ami ,4t tornoys, see tables A. and B. to S. V. Ilules poat. SURROGATE COURTS ACT. 6a $ cts. 1 00 r.o MO I 00 • ) • > 00 :)0 •) :»(» .> 0(» •1 •> 00 4 00 1 00 • » 00 II .'0 1 00 2 00 •20 Hiul At For the pnrjioHe of asoertainiii!,' the amount of foes or Probate fee*. atainp duty payal)lo to the Crown under sec. 68, tho scale given in the Scliedules to tho Act is njiplied to the amount of jfToperty (Uvolviinj, in respect of which probate or adminis- tration is to bof,'ruited, as deposed to in tlio atlidavit of value (Form 10 S. C. Rules), and the following general princiitles and decisions are taken into consideration : — 1. Tiio property, to be liable to probate duty, must, at the time of the owner's death, be capubleof being received or re- covered by his executor or administrator ••i)t}(tt officii, and inilependeiitly of any special direction. In other words it must either be in itself of ." personal character, as goods, I battels, or credits of the deceased, or it must have had that characttr absolutely impressed upon it by some act of the deceased in his life-time, (ilans'ju on Probate Duty 2nd ed» p. .'5 ; ami I>. iV 0. it(\i et M-tf.) The purchase money of real estate which the testator has contracted to sell is lial)le to pn>bate duty as soon jis it is received by his executors {Atfy- inti. V. /)'/uH/a/i;/, 8 II. L. cas. 'J4;5) ; and so are the proceeds of sale of any real estate, which form pJirt of tho assets of a partner8lii[> linn, although real estate acquired by jpartners tor the jiurposes of their business may be dealt with by them in such way as to prevent this result, as where, r. «//•. they procure it to be conveyed to them in equal undivided shares {('nxtdufr V. Hrndahaw, 4 Hare, yio). 2. I'robate duty is not payable in respect of j)roperty over which tho testator had a mere power of appointment {I'latt V. liiiuth, tt Mee. it '»V. 750, affinned in Drake v. Att\j-Ocn. 10 CI. it Kin. 257). ;{. The pro[)erty must bo locally situate, or capable of being • dealt with within this country {Attij-Octt. v. Dimond, I Or. & .lerv ;{;")(■>.) and therefore probate duty is not payable on stocks in the public funds of tho United States (Attij-0\n. v. Hofi,, CI. it V. 5;?0). l!ut it is payable on bonds of a foreign government, which pass by delivery, and are con.s -ijuently capable of being dealt with in this coimtry {Mtij-ihn. v. /.'(-Kir.u.s, 4 Alee, it W. I71j, and on Canadian ships (li./..- antf, p. 25). I'lirtiKislnp Effirl^i. — For the purpose of taking out probate and paying fees thereon, the representative of a deceased partner in a mercantile tirm must bo taken to be interested in tlie corp\i8 of the partnership ellects to tin- extent of the share of llie d» ceased, undiminished by the debts and liubili- li 64 SURROGATE COURTS ACT. ties of the firm (lie Surrogate C;i(l hi'twccn infaiitH luul mi- inf.mt., fti„l iKirs. An iiifjuit l)l•in^' ii cliiM \iiif iijfc, minora, iiiil fi'iiii sovfii to twiiityoiic ii inini>r. A iniiinr Ih ciititleil td ilict liis DWii L;iiariliiin, wliilo tlu; Kiianliftu of ini infiuit is ;il>itiiiiitiHl hy tho Court. Tho choieo of minors has no gnat (((I .See I'ri'!iinlil«' uf H (it'o. IV. c. (>, aw to ri'iismi uiul iiitciiliciii of tlie Act. Aiiil nee (inlr, p. '2',i, E 60 It ' 1 1 ill ♦ ^ 1* Pntlipr oiiti- tlcil to cus- tody, &c. Testdinciitary ^uanlianH. GUARDIANS OF INFANTS. weight, where Ihe eldest of them is not foiiitt'cn, if he were near that a<,'u it wouhl be otlierwisu. Tlio Court may judge ')f tliu titncHs of tliu person cliosen by a minor fur liia guardian, and may refuse tlio grant to an improper person. In the case of an infant, tlio Judge ex ojlficio elects the guardian ; the child has no voice in the matter (D. &, H. 443). The Surrogate Courts Act does not oxcludo the jurisdiction of the Court of (/hancery in respect to the apiiointment of guardians, /iV Stiiiiininl, 1 Cliy. Chamb. 15. At the same time that Court discourages applications to it in the tirst instance, which coulil be made to the Surrogate Court. The father is the natural guardian, and, by the Connuon Law, entitled to the custody of his lei^itimate children, oven to tlie exclusion of 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 church to which lie belongs, if ho desire it {Tin' Kiii'j v. GrenihiU, (> N. ifc M. 1*44; /iV Lei!ge of tlio S\irrogate Court of the County uf Sinicoe : (1) Tliat althougii the Court of Chan- eery has jurisdiction to appoint guardians to infants, not- withstamling the iiiactnient of the Surrogate Act, it will not do su nil an appeal like this ; (U) That the fact of the jiersoii nauud as guardian in the will of the deceased mother of the children, ln-ing a married woman, was itself suflicient to pre- vent tilt! Court ai)poiuting her (Itf Mcijiu'tii, McQiiein v. MeMilhti,, -J'.Uir. 11)1) (((). It is not the practice of the Court to give] weight to the objectinn that a person sought to be appointed guardian to an infant is tiie next of kin to whom the lands of the infant would tleseeiid (/'»). A guardian appointed by a Surrogate Court obtained an order of the Court of Cliancery for the delivery of the person uf the infant into her custody, lit Gillrie, 3 (Jr., '27[}{l>). a. Upon the written a|>|>Iic'atl(in (if any stuli in- W'hvn .ru.l-w fant, or the; IVii.'iid or tVionds of siu-li infant, rosi«lini,M\,ul\Tin:'!v within til..' jniis.liction of tlic Smn.-rato Court to ;)|:[;;i"'' y"'""'- which aniiliiation is niade, ami aftoi proof of twi-ntv „> , 1 , , ,. • ,. , ■ "'''lavs ulIko: days pulihc notici' ot thi' ajiplication and of notico tliureof to tlie niothcM- of sueh infant, or that swell infant has no mother livin;.j in Ontario, the («) Set- lilrto Holhi V. Chnmberlaiii, I Uedtield (N. Y.), ;{;{.{, and Swartwoitl v. Hwartwuut, 2 Kfdtield, r>'J. (/') Soe furtluT an to tlie custody of infant cliil.hvii : In AV h'iiiniii, Al'tn, liei/. v. Allin. .il l^ I?. ■iM & ", |'. R. 44;t ; and lUitnro v. Munro, 1.0 Cliy. 4;J1. And as to the ruHixln of illi,iiti- ■ mate vlii/Jnn. see HoUxhrd, .5 P. li. '_>.-)l ; and in lU the Qiitut v. ArmHruny, 1 P. ij. tj; and Lc'iiji, Ciiy. Piac. p. Hi?".. :(rv:- IMAGE EVALUATION TEST TARGET (MT-3) i 1.0 I.I '**!IIIM IIIIM '' itt \\\m 13^. 12.0 i.8 1.25 1.4 1.6 < 6" — ► I V] . ^. ^> ^ V' ^> Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 372-4503 &< '" ^ (/x (/. \ \ 6^ > If 68 GUARDIANS OF INFANTS. Grants for use and benefit of infants. Judge of such Court may appoint some suitable and discreet person or persons to be guardian or guar- dians of such infant. Where an infant is sole executor, administration with the will annexed is granted to his guardian, or to such person as the Court may think fit, until he attains the full age of twenty-one years. And if a person entitled to administra- tion be under age, administration during his minority may be granted in like manner, (vide post, ' Chapter on Grants for the use and benefit, jus habentium'). Mi l|^lllllK!h!!!!l! wm. Such guar- dians to give security by bond. Condition of bond. Account- Pay over bal- ance- Expenses of guardian- Bond to be recorded- 3. The Judge shall take from the guardian or guardians so appointed a bond in the name of the infant, in such pc d sum, and with such securities as the Judge direcuf: and approves, having regard to the circumstrinct',4 -)f the case, and such bond shall be conditioned that ... dd guardian or guardians will faithfully perfoii, .ho said trust; and that he or they, the said guardi.in or guardians, or his or their respective executors or administrators, will, when the said ward becomes of the full age of twenty-one j^ears, or whenever the said guardian- ship is determiued, or sooner if thereto required by the said Surrogate Court, render to his or their said ward, or to his or her execvitors or administrators, a true and just account of all goods, moneys, interest, rents, profits or property of such ward, which come into the hands of such guardian or guardians, and will thereupon, without delay, deliver and pay over to the said ward, or to his or her executors,or administrators, the property or the sum or balance of money which may be in the hands of the said guardian or guar- dians belonging to such ward, deducting therefrom and retaining a reasonable sum for the expenses and charges of the said guardian or guardians, and such bond shall be recorded by the Registrar of the Court in the books of his office. GUARDIANS OF INFANTS. t>9 Authority of Guardians. 4. Tlie guardian or guardians of any infant so Guardians au- appointed, during the continuance of his or their guardianship: — (I.) Shall have autliority to act for and in behalf To act f.^r of the said ward ; (2.) Jlay appear in any Court and prosecute or To appear in defend any action in his or her name ; fS.) Shall have the charge and management of his To manage „ . . real andper- or her estate, real and personal, and the care of his sonal estate, or her person and education ; (4.) And in case the infant is under the age of fouiieen years, may, with the approbation of two of Her Majesty's Justices of the Peace, and the con- sent oi such ward ; or in case the infant is not under the age of fourteen years, then with the consent of the ward only, may place and bind him or lier an To appren- apprentice to any law^ful trnde, profession or em- ,*, jn,"! "^ ployment ; such apprenticeship in case of males not extending beyond the age of twenty -one years, and Malea until 21. in case of females, not beyond the age of eighteen Ffmales until • PI 1 . 1 • 1 1'^' •"•mar- years, or the marriage or the ward within that age. riage The guardian of infants cannot give a lease of their estate ; Authority of such lease is void ah initio, unless the sanction of tlie Court K"ardians. of Chancery has been obtained thereto, i^irit-pr v. McMillan, 23 Gr. 538. By the Chancery Act, s. 70, that Court has jurisdiction to order a sale, lecise, or other disposition of real estate of an infant where nece.ss.ary for the maintenance or edu- cation of the infant, < r if the property is exposed to waste or dilapidation his interest requires or will be substantially pro- moted by such disposition, which is to be made under the di- rection of the Court or one of its otHcers, or by the guardian of the infant, or by any person appointed by the Court for the purpose, in such manner, and with such restrictions as to the Court may seem expedient, and may order the infant to con- h |ii ;:: '' III IHi 70 GUARDIANS OF INFANTS. vey the estate as the Court thinks proper (i?e Baker, 6 Prac. T?. 225). But no sale, lease or other disposition shall be made against the provisions of any Avill or conveyance by which the estate has been devised or granted to the infant, or for his use (sec. 77). Infant's ton- The application to the Court shall be in the name of the sent if 14 years infant by his next friend, or by his guardian, but shall not be made without the consent of the infant, if he is of the age of fourteen years or upwards (lb). A guardian appointed by a Surrogate Court may bring ejectment to try the infant's title (Robinson C. J,), Doe d Atkinson v. McLeod, 8 Q. B. 344. Apprenticing. — See II. S. O. , c. 135, respecting " Ap prentices and Minors" ; and for Form of Deed of Custc ,y of child in caaes of adoption. Vide App. of Forms. Remova I of Gva rd ia ns. How guard- S- Tlic SuiTOgatc Judge by whom any guardian emoved^ ^^ ^^' guardians have been appointed under this Act may, upon reasonable complaint made and sustained, or cause shown to his satisfaction, remove such guar- dian or guardians from his or their said guardianship, and if it be judged necessary, may appoint another guardian or guardians of the said infant. The Court of Chancery has, by 11. S. 0. c. 40, s. 84, power to remove testamentary guardians. Vide post. Powers and Practice of Surrogate Courts in matters of Guardianship. In matters of guardiansliip courts to have saniH powers for examina- tion of wit- nesses and in enforcing decrees, 4c., an in testa- mentary matters. 6. In all matters and applications touching or re- lating to the appointment, control or removal of guardians of any such infants, and the security to be given by such guardians, and otherwise, the seve- ral Surrogate Courts shall have the like powers, jurisdiction and authority for the examination of witnesses, the production of deeds and writings, and generally for th enforcing of all orders, decrees and GUARDIANS OF INFANTS. 71 llev. 46. Stat. jucliiments made or given by such Surrogate Courts, in respect to the appointment, control and removal of guardians as aforesaid, as are given to them by " The Surrogate Courts Act," in matters testament- ary ; and such orders, decrees and judgments may be appealed from to tlie Court of Appeal, or to a Judge ^pp^'"^^- thereof, in the manner provided in said Act for appeals to such Court or Judge in matters testamentary. 7. The practice and procetlure under the preced- Procedure ing sections of this Act shall, except where other- asunder Sur- wise provided for by Rules or Orders under " The ^^ate Courts Surrogate Courts Act," conform, as nearly as the jtev. Stat., c. • AC circumstances of the case will admit, to the practice and procedure prescribed by the said Act, and all the powers given by the several sections of that Act, to the Judges appointed or to be appointed, as contained in the seventy-third and seventy-fourth sections of said Act, may from time to time l)e exer- cised by thein, for the purpose of simjilifying and expediting the procee Gi\ G32. The disposition by will and testament of the custody and • I ■■■•; IP TT u-f 72 Power of Court of Chancery . Appointment of mother iis guardian to minor. notlnvithsUuid ing other appointment III father. Mainten.incf, GUARDIANS OF INFANTS. tuition of any child by virtue f)f 12 Car. II, c. 24, is within the provisions of the Wills Act, sec. 9. The Court of Chancery in Ontario iias the like jurisdic- tion and powers in all matters relating to infants and their estates, as were on 4th March, 1837, possessed by the Court of Chancery in England (R. S. O. c. 40, s. 34). It also has jurisdiction respecting tlie custody of infants, in the cases, and subject to the provisions mentioned in " The Act res- pecting the Custody of Infants" (s. 75). Ai'>pointriient of the Motlier as Guardian in certain cases. 9. Any of the Superior Courts of La^v or Equity, or any J udge of any of the said Courts, or a Judge of the Surrogate Court upon hearing the petition of the mother of a minor, \vhose father is dead, may appoint her to Le guardian of the person of tlie minor, notluvithstanding any testamentary provi- sion to tlie contrary by the father, or any ap- pointment of another person, as guardian, hy the lather, if such appointment of the mother aj)i>ears to the Court or Judge to be just and proper ; and such Court or Judge may also make an order for the maintenance of the minor, by })ayment out of any estate to which the minor is entitled, of such sum or sums of money, from time to time, as accord- ing to the value of the estate, such Court or Judge thinks just and reasonable (a). Vide Supra note to sec. 1 and sec. \0 post. Courts may 10. Any of the said Courts shall have power to testamentary give effect to a testamentary appointment of a guar- appomtmeiit jj^n of the person of her infant children, made by of a guardian t ' J by the motlier. the mother of such children, upon jjctition of the guardian so appointed, notwithstanding a previous testamentary appointment by the father of such (a) See In Re Eves, 15 Gr. 580. GUARDIANS OF INFANTS. 7a udge infants, wherever, owing to a change of circum- stances or other cause, it may seem to such Court advisable in the interests of such infants so to do, and the Court may make an order for the mainten- l»laintenanue, ance of the infants as in the last preceding section mentioned. II. The ('(jurt or Judge, as aforesaid, may enforce Court orJudge the attendance of any person hefore such Court or "Lse'raav com- Judire, to testify Oi oath respecting the matter of '•'^^ *''® '^"®"' such petition, by order or rule made for that pur- witnesses, pose, and on the service of a copy thereof, and the l)ayment of expenses as a witness, in the same manner as in a suit or action in the said Courts respectively, or may receive atiidavits respecting the matters in such p-^tition. 13. All orders made by the Court or a Judge by (3rdersenforce- virtue of this Act, shall be enforceable liy process ^^ t>l contmmt!^^ contempt by the Couit or Judge, by wliicn or by whom such order has been made. 13. Nothing herein contained shall be cumstrued Authority of , 1 ii 1 i 1 ,1 • (11,.! father, reliiji- to diange the law as to the authority or the latlier ous faith, in respect of the religious faith in which a child is to be educated. [See also sections 2, 3, 4, 5, G, IG, 17 anractice of Surroiiiite Courts ; For rc<,ailatini,' tlie duties of the several Surro- gate Court Re<,'istrars, and the duties of the Surrogate Clerk ; and For fixing the fees to be taken by the Registrars vidc sec. 73 k and other Ofiicers of tlie said Courts, and '^'^' ^- ^'- ^''^^ by Attorneys practising therein; and, also, In relation to the jjrovisions of the said Act. Procedure. 1. Non-contentioufi business shall include all com- Non-oontenti- nion f(jnn business as defined by the Act ((/), and ""^ ''"*""®'**'- the warning of caveats. 2. Application for probate or administration may Application be made through a solicitor or attorney (6), or in ^jjl-^it^o'j: ^^ person. " or to tlie .Turl|j;e.s thereof, shall be the same as nearly as the nature " of the case will allow, as are now payable on suits and proceedings " in the County Courts ; " (4) The practice on ai)peals from the Surrof,'ate Courts to the " Court of ('hancery shall be in accordance, mutatiK muUnidin, with " the practice hitherto ]>revailing upon appeals from the Surrogate " Courts to the Court of Probate. " These, it is to be understood, are only temporary provisions, until " a full body of rules and forms can be settled and printed for distri- "bution,'\(L. J. U. C, 1858, pp. 247, 249). Vuk re O , a Solicitor atilc. (a) See sec. 2, sub-sec. 4, Surrogate Court Act. (6) It would seem to be immaterial whether the practitioner be styled Solicitor, or Attorney. In tlie Prero),'ative (.'curt he was styled "Proctor;"' in the Surrogate Court Act, "Attorney;" and .see Bee. 70. Application by letter, or by an agent, is not permissible according to the practice of the Eng. Court of Probate, See D. & B. 1064. m liiii I ' 8 §. 76 7 days to elapxe after death before probate. 14 days before administration Application to be by petition. When affula- vita to U-ad Krant may l)e taken. Application may be amended. Execution of will to be sworn to. SURROGATE COURTS. 3. No prolate or letters of administration, with the will iiiincjxetl, shall issue until after the lapse of seven days from the death of the deceased, unless under the direction of the Judge. If [desired the will and aflidavits may be tiled, aUhou;^h the letters will not issue until seven days have elapsed. 4. No administration shall issue, until after the lapse of fourteen days from the death of the de- ceased, urdess under the direction of the Judge. •S. Every application to a SuiTogate Court for grant of ])robate or administration must he hy peti- tion, signed by the applicant or his attorney (a). The sul)joined forms, numbered 1, 2, 3, and 4, are to be followed as nearly as the circumstances of the case will admit. G. The necessary affidavits to lead grant, and the usual oath of executors and administrators may be taken at the time the application for grant is signed, oi' afterwards at any time before the application is submitted to the Juduje for his order and direction. 7. If there should appear to be any material vari- ance between the application and affidavits made in support thereof, the Judge may direct such applica- tion to be amended according to the fact, and a new notice on such amended application to be sent to the Surrogate Clerk. 8. Where there are one or more subscribing wit- nesses to a will 01' codicil, the due execution of such will or codicil shall be sworn to by any one of such witnesses, or the absence of such witnesses accounted for ; in which last case such will or codicil must be (a) A per-sonal representative can only be appointed on petition (Re Lee A- Waterhouse, 5 IT. C. L. J., 1859, 250). RULES AND ORDERS. 77 established by otlier proof, to the satisfaction of the Judge ((/). 9 The oath of adniinistrators, and of achninis- (^^^^^ "f , ailiuiiUHtrator. trators with tlie will annexed, is to be so worded as , ,, , . . • 1 , . ,1 Prior intert'st to clear of! all pei-sons havinjjr a prior rijL-ht to the to i)e cleared tyrant. In these cases thA, have power to apponit an adnunistrator other than s. C. Act. the person who, prior to the Act, would have been entitled to the grant (sec. 3M).* Whenever the Court *^Lc.ri4. sees fit to exercise such a power, the fact should be made plainly to appear in the oath of the adminis- trator, in the letters of administration, and in the administration bond. IS. Where limited administrations arc applied for, '''."i.ited .ad- . , ^ iiiiiiistratious. it must be made to appear that every person entitled in distribution to the per.sonal estate, has consented, or renounced, or has been cited ami failed to appear, exce])t when the Judge sees tit otherwise specially to direct. 13. No person entitled to a grant of administra- tion of the personal estate and etlects of the deceased generally, shall be [)erinitted to take a limited grant, 14. In administrations of a special character, the Redtal.s, ... , , -. „,.. spt'cial adiiun recitals in the oath and in the letters or administra- istratious. (a) Vide Will Act, sec. 12, and chapter on Proof of Wills, post. m till i iii iiii- ■ II 1 ll ; w''i!' ^ 1 ^ ■ 78 SURROGATE COURTS. tion, must be framed in accordance with the facts of the case. lii. Grants of administration may be made to tlio guardians of infants and minors, for the use and ben- efit of such infants and minors during their minority, and elections l)y minors of their next of kin, or next frienil, as the case may be, to such guardiansliip, shall be recjuired. Markinjr will 10. Every will, or copy of a will, to which an ex- sworn, ecutor or administrator with the will is sworn, should be marked by such executor or administrator, and by the person before whom he is sworn. Grants to (j^iarilians of infants. Elections. Citation to iasue on order of Juilfei'. 17. In all cases where it is necessary to issue a ci- %■' tation to accept or refuse prol)ate of a will, or to accept or refuse letters of administration, or where it is necessary to issue a sulipren.i to bring in a iestamentary paper, and in all similai cases, the' order of the Judge must be taken, and such citation, subpoena, or other instrument issued by the Reg- istrar, in acconhince with the direction of the Judge. Caveats. 18. The party entering a caveat must declare T 4- 4- C I %/ O caveator must therein the nature of his interest in the goods of the appear. deceased, and the grounds upon which he enters such caveat, and the same shall be signed by the party, or by his attorney or solicitor, on his behalf, and the place mentioned as the address of the party entering the caveat ; and no caveat shall have any force or effect unless the requirements of this rule be in substance complied with. Duration of J®- A cavcat shall remain in force for the space of ijionths! " *^ three months only, and then expire and be of no effect ; but caveats may be renewed from time to time as heretofore. lalf, larty any ebe RULES AND ORDERS. 7;,* 20. No caveat shall affect any grant made on the Notice, Ac, day on which the caveat is entered, unless notice of ''"'"^ '^ ^^""^ such caveat has been receivetl prior to the grant passing the seal. Ql. A caveat shall be warned at the place men- wiurc tioned in it as the address of the person w^o entered ^^'^'"^'' • it. SW. It shall be sufficient for the warninfj of a cav- Wmuin^' sent oat, that the Registrar of the Court in which appli- '" '""^ " cation for grant is made, send by public post a warning signed by himself, bearing the seal of the (.'curt, and directed to the person who entered it, or to his attorne}-, if signed by atloiiuy, at the address mentioned in it. 23. Any person intending to oppose a grant of Appearance, probate or administration, for which application has been made to a Surrogate Court, must appear, either personally or by attt^rney, and enter an a])- pearance in such Court, in which ai)pearance the ad- ilress of the party, or of his attorney, shall be given. This rule is to apply, whether the person intending to oppose the grant has, or has not, been previously warned to a caveat, or served with a citation. 94. When a party intending to oppose a gran*- After has filed an appearance with the Registrar, no lilrection'of further steps in respect of such grant shall be taken, 'T^Lige. except under the special direction of the Judge. iStT (Stations against all persons in general, and Citatum by other instruments heretofore required to bo served, by affixing tliem in some public place, are in future to be served by the insertion of the same as adver- tisements in such newspapers, local, British, or. foreign, as the Judge may from time to time direct 80 suRROGA-:. j; courts. U' !; Such citations can only be allowed to issue in cases where there is an nffidavit to lead them. And on Judge's order autp, Rule 17, as to publication of notices in Ontario Gazette (l^ee R. S. O. c. 18). As to cases in which service was formerly effected by affixing papers in public places , Vide chapter on citations post. \ewspaper.sin 26. Citations under the 27th* section of the Act inserted. may be served by in.serting the same as advertise- ments in such one of the Toronto morninrr papers, *S6p SO S C*» oil. ' Act.R.'s. b. and such other papers, local, British or foreign, as the Judge of the Court may by special order direct. Form of bond. S7. The bond to be given upon any grant of ad- ministration .shall be according to the forms IG and 17 subjoined, or in a form as near thereto as the cir- cumstances of the case admit. .Sureties tc justify. I'nder £50 una surety. 98. The sureties in such bond arc required in all cases to justify. 90. In ordinary cases, where property is bona fide under the value of fifty pounds, one surety only may be taken to the administration bond. l r : If \ j (■ li ;i ■! J ;t ' Sureties, 30. In all cases of limited or special adniinistra- istration'^'"'" tion, two sureties are always to be recpiired to the administration liond, and the bond is to be given in double the amount of the fund to be dealt with under the administration. In estates where the penalty of the bond would be large, the applicant sometimes tinds less dilliculty in procuring sureties if the obligation can be divided among a larger number ; and in practice the Court does not limit the num- ber to two, so that they justify in a sufficient amount. See sec. 38, Gl, 62 S. C. Act. Notices to Surrogate Clerk. StI. Whenever any renunciation is filedsubscqucnt to notice of application to the Surrogate Clerk, or RULES AND ORDERS. 81 f'* 'tf le large, l-ccuring larger J num- It. See :?quent L-k, or any alteration is subsequently made in the grant ; notice of such renunciation or alteration is to be immeiliiitely forwarded by the Registrar of the Court to the Surrogate Clerk. 3!3. The addition and true place of abode of every Addition and ■^ _ . "^ iUHide of person making an attidavit shall be inserted therein. de(>onuiit. 33. In every affidavit made by two or more per- Names in iurat sons, the names of the several persons making it are to be written in the jurat. 34. Where an affidavit is made by any person who Affidavit by . , ,. , t i' 1 • 1 • i. i.-u blind or illit- is blnul, or who, irom Jus or her signature, or other- erate person, wise, appears to be illiterate, the Registrar or Com- iniHsionor before whom such affidavit is made, is to state in the jurat that the affiilavit was read in the presence of the party making the same, and that such party seemed perfectly to understand the same; and alj>o that the said party made his or her mark, Of wrote his or her signature, in the presence of the Registiiir oi- Commissioner before whom the same was taken. 35. Noaftldavit should be admitted in any matter Tnterlinea- depi-nding in the Surrogate Court, in the jurat of '°°'*"'-'"'''^ • wliich there is any interlineation or erasure. 30. No affidavit is to be admitted which has been Affidavit not sworn before the party on whose behalf the same is byf^^ atto". offered, or before his attorney, or before the clerk or '"^^y- '''"'"■ partner of such attorney. Iic(jist)'ars. 37. Every Registrar of a Surrogate Court, being Registn ' al.so Clerk of the County Court, shall keep his offict open on such days and during such hours as the office of the Clerk of the County Court is required F :vr s office hour>» iim S2 SURROGATE COURXy. iSiife! I to be kept open ; and every Registrar who is not the Clerk of the County Court shall keep his office at the county town, and shall keep the same open during such hours as the Judge shall prescribe. To keep books. 38. Every "Registrar of a Surrogate Court shall keep books as nearly as may be in the manner shewn in the Forms, numbered 35, 36, 37, 38, and 39, set forth below. To endorse • and file papers May prepare application. Applications to be num- bered. 519. Every Registrar shall duly endorse and file, all papers received by him, and enter a note thereof, and of every proceeding in the Court in the books to be kept. 40. When it is desired by an applicant for grant of probate or administration, the Registrar of the Court in which application is to be made may pre- pare the form of ap[)lication, and all other forms necessary in non-contentious business, without the intervention of a solicitor or attorney. 4fl. All applications for the grant of probate or aduunistration received by a Registrar, shall be numbered in the order in which they are received, and be endorsed thus : — " Received and filed the day of , 18 — , , Registrar of said Court." And an entry thereof shall be made in the book to be kept for that pur- pose, with a number prefixed to correspond with the number on the application to which such entry relates. Notices to Snr. 43. Notices of applications to be transmitted to rogate Clerks. „ ^j^^ Subrogate Clerk," under the 28th* section of Act. '^ ^^^® ^^^' ^^^ ^^ contain the Christian and surname residence, and addition of the deceased, the time of his death, Christian and surname, residence and RULES AND ORDERS. 83 addition of applicant, nature of application, Court in which made. Forms 5, 0, 7, and 8, are subjoined, to be varied according to the circumstances. 43. All papers and communications from Regis- Papers, how trars to the Surrogate Clerk shall be transmitted t^Stlrrogate through the post office, the letter or packet to be ^'^'^^^' registered and prepaid, and addressed thus : i'li The Surrogate Clerk, TORONTO. From the Surrogate Court, Couuty of . with entry tted to tion of Irname bime of le and 44. Every Registrar, upon receipt of a certificate from the Surrogate Clerk touching an application made to the Court of which he is Registrar, shall foi'thwith enter a note thereof in the book to be k(;pt for that purpose ; and shall, jus soon as may be thereafter, lay such application, and all papers in relation to the same, before the Judge, for his order 4ind direction thereupon. 4»^. Kvery order made by Hie Judge upon or in reference to any application, shall be noted by the Registrar in the books to be ke[)t for that purpose. 40. When the Judge makes an order for the grant of probate or administration, the Registrar .shall record such grant in the " Register Book," and in case of the grant of probate or letters of adminis- tration with tiie will annexed, an exact copy of the will, and codicil, if any, to which such probate or administration relates, shall bo under-written. If a Registrar to make I'litry of certificate received fMin Surrogate ( 'lerk, and lay before Judge. .ruilge'.s oriler to hf noted by liegi.strar. Grants to be recorded in " Register Rooit,'" with exact copy of will. 1 ' (: i : ■; li ■ i IS - Ne if 1 ! 1 ! ■II Grants to be signed and gealed. 84 SURROGATE COURTS. grant be afterwards revoked, a note of such revoca- tion shall be entered across the record of grant in the " Register Book." 47. All probates and letters of administration shall be signed by the Registrar, and sealed with the seal of the Court from which they are issued, and the copy of will and codicil, if any, annexed to a probate or to letters of administration, shall be authenticated by the signature of the Registrar. List of grants 48, The list of grants of probates and administra- Sur'ro-ate " tion, and of revocation thereof, required under the Clerk. What thirtieth* section of the Act, to be sent by Registrars to contain. ' . . to the Surrogate Clerk, are to contain in each case * 13th section ^hg Christian and surname, residence and addition S. C Act. of the deceased, the time of his death, date of the grant, name, residence and addition of executor or administrator, nature of grant, and in what Surro- gate Court, Registrars' 49. Every Registrar of a Surrogate Court shall caveats lodged number, endorse, and enter all caveats lodged with him in the same manner as provided in respect to applications for grants ; and notice thereof, in the form No. 33, shall be sent to the Surrogate Clerk by the next post after such caveat has been lodged, Ai^peah to the Court of Chancery (a). * 31 at section S. C. Act. Hond in case of appeal- 50. Appeals under the twentieth* section of the Act shall be subject to the following i-egulations : In case any person desires to aj^peal from any order, sentence, judgment, or decree of a Surrogate Court, or from the determination of the Judge thereof on any point of law — (a) The Appeal is now to the Court of Appeal ; Vide See. 31, S. C. A. and note. RULES AND ORDERS. 85 I. He (or in case of his absence, some one on his behalf,) slmll, with two sufficient sureties, execute a bond to tlie respondent in the sum of two hundred dollars, to the cflect, that the appellant will effectu- ally prosecute his appeal, and jiay such costs, charges, and expenses as shall be awarded in case the order (or decree, «« the case may he) shall be affirmed or in part affirmed, II. The sureties to such bond shall make affidavit Sureties, as to their sufficiency. ITT. An affidavit of the execution of the said bond Atii■ !«ai !' 86 Papers ad- vanced to be transmitted on appeal. • Court of Appeal. SURROGATE COURTS. 53. Upon certificate from the Registrar of the Court of Chancery,* that the petition of appeal has been filed in his ofiice, the Judge of the Surrogate Court shall, upon the application of the appellant, order the Registrar of the Court forthwith to trans- mit (at the expense of the appellant) to the Regis- trar of the Court of Chancery* the documents, in- struments, affidavits, and papers, in the matter as appealed, deposited or filed in such Surrogate Court. r:llf And on re- moval to Chancery. * 29th. Removal of Causes. 53. When a cause or'proceeding is removed into the Court of Chancery, under the twenty-second* section of the Act, the Judge of the Surrogate Court shall, upon the application of the party who has obtained the order for removal, in like manner as mentioned in Rule 52, direct the papers in the mat- ter to be transmitted to the Registrar of the Court of Chancery. The Surrogate Clerh. 54. The Surrogate Clerk shall keep an ofiice at such place as the Judges of the Court of Chancery may direct, and such ofiice shall be kept open daily, except on the appointed holidays of the Court, for and during such hours as the Judges of the Court of Chancery shall prescribe. 55. Every ofiice day the Surrogate Clerk shall procure from the Toronto Post Ofiice such letters and communications as may have been mailed and addressed to him as the Surrogate Clerk. To keep books. *^^' The SuiTogate Clerk shall keep books as nearly as may be in the manner shewn in the forms. Office hours- SurroL'ate Clerk. Duties . il RULES AND ORDERS. 87 ice at mcery daily, lit, for Court Iks as forms. numbered 41, 43 and 43, set forth below, and which books he shall keep duly indexed from time to time. •57, All notices of api)lication to any Surrogate Numbering, ^ „, ,/• 1, !••,,• endorsing and Court for the grant or probate or administration re- entering no- ceived by the Surrogate Clerk, shall be numbered in cuveats. the order in which they are received, and be en- dorsed thus — "Received and filed the day of , 18 — , , Surrogate Clerk ;" and an entry thereof shall be made in the book to be kept for that purpose, with a number prefixed to corres- pond with the number on the notice of application to which such entry relates ; and all caveats and c pies of caveats lodged with and received by the huiTOcate Clerk, shall in like manner be numbered, endorsed, and the entry thereof be made in the book to be kept for that purpose. 5S. The Surrogate Clerk, upon receiving a notice Duties on of application for probate or administration, if seven Ji';,'i^ee"of days in case of testacy, and fourteen days in cases ai>i)hcation. of intestacy, have elapsed after the death of the deceased (as shown in the notice) shtall forthwith make the necessary search and examination in the books required to be kept by him, and amongst the original ])aners on file in his office ; and on the next oliicf>u", hi'.ev the receipt of such notice shall mail a ceif' ;=' ,i.s to such search, accoidinir to the form nnnii er ^ -M), or as near thereto as the circumstances of thee - AviU admit. If at the time of receiving a notice of application the periods aforesaid shall not have expired, the Surrogate Clerk shall not make such search and examination, nor shall such certi- ficate be sent until the eighth day after the death of the testator, and the fifteenth day after the death of the intestate, accordinir to the time of the de- 11 bS SURROGATE COURTS. cease, as shown in the notice of application for pro- bate or administration. 11 i; t:i and revocii- tious. * l.'Uh f When to 60. If it shall appear from the entries required to matte^s!^"^"'^ be kept by the Surrogate Clerk, or from inspection of the original papers on file in his oftice, that the name of the deceased person, as given in any appli- cation for prouate or administration, although not identical :n the mode of spelling, yet it is, or ap- pears to b;, idem sonans with the name of the tes- tator or intestate, as given in any other application, or in any lists of grants on file, or if on such ex- amination or inspection it shall for any cause appear doubtful whether another application or an actual grant has not been made in the goods of the same deceased person, the Surrogate Clerk shall certify the special matter as disclosed in such search and inspection by him. Communica- 01. All communications from the Surrogate Clerk re^8t'" and services under the Act, in non-contentious cases, the fees set forth in the subjoined table, marked B. . Forms. 66. The subjoined forms, numbered 1 to 39, in- Forma- (a) SecH. 73, 74, S. C. Act. II. S. 0. 90 SURROGATE COURTS. cluHive, are to be adopted and followed in the seve- lal Surrogate Courts, as nearly as the circumstances of <;ach case will allow, Oonwtniction. 67. In the construction of these Rules, the pro- visioiLs contained in the 07th section (a) of the Act shall apply. Robert E. Burns, J. J. G. Spragge, V.C. Jas. R. Gowan, Co. J. Toronto, 29th November, 1858. (a) i.e. the inUTpretation clause, sec. 2, S. C. Act,, R. S. 0. FORMS. I'l 1. Application for Probate in coinmon form by a Sole Executor. uinto the surrocjate court of the countt (or united Counties) of . The petition of A.B,, of the of , Esc^. HumWy slieweth : of -, in the County That C. D, late of the of of of , in the County surgeon, deceased, died on or about the day A.D. ]aS — , at , in, &c., and that the said deceased at the time of /i?.« death, had his fixed place of abode at, , in the said CJounty of \or " had no fixed place of abode in Ontario," (or " resided out of Ontario,") " but had at such time personal" {or "real") "estate in the said County of "]. That the said deceased in his life time duly made kin last will and testament, bearing date the day of , 18 — [and codicil {or codicils) bearing date the day of , A.D. 18 — ]. That your petitioner is the executor named in the said will {or codicil). That the value of the personal estate and eff'ects of the said de 3eased, which he in any way died possessed of or entitled to, and fui r.nd in respect to which a probate of the said will (and codicil) is to be granted, are of or about the value of dollars, to the best of your petitioner's knowledge and belief. Wherefore your petitioner «92 fiUUROQATE COURTS. prays that prol)ato of the said will (and codicil) of the said Counties of . The petition of A. B., of the County of , Esquire, Humbly sheweth. That C. D., late of the of -, in tho of- , in the County of , surgeon, deceased, died on or about tho • du}^ of, , A.D. 18 — , at , in kc, and that the said deceased at the time of his death, had his fixed place of abode at , in the County of , [or " had no fixed place of aljode in Ontario," (or " resided out of Ontario,") " but liad at such time personal" (or "real") "estate in the said County of ]." That the said deceased in his lifetime duly made his last will and testament, bearing date the day of , foi am t\ ' IH .i. m iJ' ^H m iH 4 jam 1 ii ii I^^K iHl {3j I'rp iW T"!| 1 i 1! S !•■ 94 SURROGATE COURTS. A. D. 18 — , [and codicil (or codicils) bearing date the day of , A.D. 18—]. That E. F., of -, the executor (or residuary legatee, &c.) 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, if any,) or letters of administration to th^ personal estate and effects of deceased]. That your petitioner is (state relationsitip to deceased.) That the value of the whole property devolving under the said will (and codicil) is under dollars, and that the personal estate and effects of the said deceased, which he in any way died possessed of or entitled to, and for and in respect to which a probate of the said will (and codicil) is to be granted, are of or about the value of dollars, to the best of your peti- tioner's knowledge, information and belief. Wherefore your petitioner prays that administration with the said will (and codicil) of the said deceased annexed may be granted to him by this honourable Court. Dated the day of -, A. D. 18—. A. B., Or if signed by Attorney of applicant, A. B., By his Attorney, G. H., one, &c. 4. Application for Grant of Administration. Unto the Surrogate Court of the County (or United Counties) of . The petition of A. B., of the of , spinster. bi -, in the County Humbly sheweth : f'rr-^ji FORMS. 95 That C. D., late of the — of , in the County -, merchant, deceased, died on or about the day -, A. D, 18 — , at , in, «Sz;c., and that the said of — of — deceased at the time of his death, had his 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 personal" {or "real") "estate in the said County of ." That the said deceased died a bachelor, without parent, brother, or sister, uncle or aunt, nephew or niece {io he varied according to the circumstances of the case), and without having left any will, codicil, or testamentary paper whatever, and that your petitioner is the lawful cousin-german and next of kin of the said deceased (to he varied according to the circumstances of the case). That the personal estate and effects of the said deceased, which he in any way died possessed of or entitled to, and for and in respect uo which letiers of administration are requested to be granted, are of or about the value of dollars, to the best of your petitioner's knowledge, information and belief. Wherefore your petitioner prays that administration of the personal estates and effects of the said deceased may be granted and committed to her by this hotiourable Court. Dated this day of -, 18-. A. B, Or if signed by Attorney of Applicant> A. B., By her Attorney, E. F., one, &c. Where the application is for administration under the 54th section of the Act, the special circumstances which bring the case within that -jcction should be set forth in the petition, and also upon oath (8. C. Rules 11, 14). 'i| '■H ■i < 4 ;hli ]'!§■ '^' !i n ': * 'I.I' 96 SURROGATE COURTS. 5. Notice to he transmitted hy Registrar of a Surrogate Court to the Surrogate Clerk, of application made to such Court for a Grant of Probate to Sole Executor. 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 probate of the will bearing date the day of , A. D. 18 — , [and codicil (or codicils) bearing date the day of , A.D. 18 — , of , late of , in the County of , deceased, surgeon, 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 having at such time personal " (or " real ") " estate in the said County of — "], by A. B. of , in the County of , , the executor (or by J. P., the Attorney of A. B., the executor) named in the said will (or codicil). Application received the of 18—. This notice mailed the of 18—. Registrai' of the said Court. I I 'i ' 1! If i' ^^' lAin f 'i! t 6. Notice to he transmitted 6'/ Registrar of a Surrogate Court to the Surrogate Clerk, of application for Grant of Administration ivith theWill annexed, where no Executor appointed. The Surrogate Court of the County of . To the Surrogate Clerk : Take notice, that application has been made to the Surrogate •11-! I FORMS. 97 Court of the County of , for a grant of letters of ad- ministration with the will annexed, the said will bearing date the day of , A.D. 18 — [and the said codicil (or codicils), bearing date the day of , 18 — ,] of , late of — -, in the County of , , deceased, who day of , A.D. 18 — , having at the time of his death, a fixed place of abode at , in died on or about the the said County of' [or " no fixed place of abode in Ontario" (or " resided out of Ontario"), " but having at such time personal" (or "real") "estate in the said County of "], by A. B., of the of , in the County of , , the residuary legatee (or as the case may he) named in the said will (or codicil,) (or by J. P., the Attorney ofA. B., the residuary legatee named in said will or codicil) — no executor having been named in the said will or codicil.. Applicatl ~n received the of , 18—. This notice mailed the ■ of , 18. Rcgiitrar of the said Court. 7. Notices to be transmitted by Registrar of a Surrogate Court to the Surrogate Clerk, of application for Grant where Executor or Residuary Legatee has renounced Probate or Administration with Will annexed. 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 admin- istration with the will 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 — ], of , late of in the County of , , deceased, who o 98 SURROGATE COURTS. 1^ ri' i mmM ■ii ' i died on or about the day , 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 Onta- rio," (or " resided out of Ontario," but having at such time per- sonal (or " real ") " estate in the said County of "], by A. B., of the of in the County of , , the residuary legatee (or cui the case may he) named in the said will (or codicil) (or by J. P., the Attorney of A.B., the residuary legatee named in the said will or codicil), E. F. of the of , in the County of , , the executor (or "residuary" legatee," &c.,) named in the said will, having renounced all right to the probate and executorship of the said will and codicil (if any) or to letters of administration to the personal estate and eti'ects of the said deceased. Application received the of , 18—. This notice mailed the of , 18—. day day I Registrar of the said Court. 1 '; I liilil m ' "' "! 8. Notice of Application for grant of Administration. The SuRiioGATE Court of the County of To the Surrogate Clerk : Take notice that application has been made to the Surrogate Couit of the County of , for a grant of letters of admin- istration of the personal estates and effects 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 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 having at such time personal" (or "real ") estate in the County of ,"] and who died without child or parent, brother or sister, uncle III FORMS. 99 or aunt, nephew or niece, him surviving, by A. B., of the of , in the County of , , one of the lawful cousins-german and next of kin of the deceased (or by J/P,, the Attorney of A, B., one of the, &c.). Application received the of , 18—. This notice mailed the of ,18—. I II t i lUgistrar of the said Court, 9. Affidavit of Time of Death, and 'place of abode of Testator cr Intestate. In the Surrogate Court, County of . In the goods of "W.A., deceased. I, A. B., of the of , in the County of , make oath and say, that I am [one of the executors (or the executor) named in the last will and testament {or codicil) of the said \V. A., deceased, (or the party applying for admin- istrotion of the will and codicil, (if any) annexed, or adminis- tration of the personal estate and effects of the said W. A., deceased]. That said deceased died on or about the day of , A. D, 18 — , at , and that the said deceased, at tlie time of his death, had his 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 personal " (or " real") estate, " in the said County of Sworn at the in the County of ~ day 01 18 — , before me, 3 County of ~\ ,r^_-_ A.D. [ A. B. Ptrson authorized to administer oaths xmder the Act, (a.) See as to modifying this form " in other caaes " provided for in the amendment,— Sec. 16, s. a. 3, S. C. Act. \\ 1 il \ I Bli i^^;:^i I'!' I :'!li! lii: 100 SURROGATE COURTS. 10. AJJidavits of Value of Property devolving, and of Personal Estate and Efects. In the Surrogate Court, County of . In the goods of W. A., deceased. I, A. B, of the of -, in the County of -, make oath and say, that I am [one of the executors {or the executor) named in the last will and testament (or codicil) of the said W. A., deceased {or the party applying for administration, with the will and codicil, if any), annexed, or administration of the personal estate and effects of the said W. A., deceased]. That the personal estate and effects of the said deceased, which he in any way died possessed of or entitled to, and for and in respect to which ("probate of the said will is," or "letters of administration are"), to be granted, are of or about the value of dollars. Sworn at in the County of , the day of , A 18 — , before me, ;■} A. B. {Person authorized to administer oaths wider the Act.) 11. Affidavit for search for Will. In the Surrogate Court, County of - In the goods of J. T., deceased. I, A. B., of the - makp ■ ,.•■■ 102 SURROGATE COURTS. mm\ m m Miiifl 13. Oath of Executor. IN THE SURROGATE COURT OF THE COUNTY OF In the goods of- I, -, of the deceased. of , in the County of • make oath and say, that I believe this paper-writing [or these paper- waitings] hereto prefixed, to contain the true and original last will and testament of , late of the of , in the County of , ; that I am the sole executor [or one of the executors] therein named [or executor according to the tenor thereof — executor during life — executrix during widow- hood, or as the case may be] and that I will faithfully administer the personal estate r A effects of the said testator, by paying his just debts and the legacies contained in his will [or will and codicils], so far as the same will thereunto extend and the law bind me ; and that I will exhibit a true and perfect inventory of all and singular the personal estate and effects, rights and credits of the testator, and render a just and full account of my executorship whenever required by law so to do. Sworn at ■ the- in the County of day of A. D. 18 — , before me, '} A.B. (Person authorized to administer oaths under the Act.) 14. Oath of Administrator with Will. IN THE SURROGATE COURT OF THE COUNTY OF - In the goods of , deceased. I, -, of the of- -, in the County of - make oath and say, that I believe this paper- writing [or these paper- writings] hereto prefixed, to contain the true and original FORMS. 103 last will and testament of in the County of- , late of the of , -, and that the executor 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 as the fact may he], and that I am the residuary legatee in trust named tlierein {or as the fact rtity he), and that I will faithfully administer the personal estate and effects of the said deceased, according to the tenor of his will {or will and codicils), by paying his just debts and the legacies contained in his will {or will and codicils), so far as the same shall thereto extend and the law bind me, and distributing the residue (if any) of the estate according to law, and that I will exhibit a true and per- fect inventory of all and singular the peisonal estate and effects, rights, and credits of tlic said testator, and render a just and true account of my administration whenever required by law so to do. Sworn at in the County of , the day of • A. D. 18 — , before me, ■ A.B. f ' fl S .'I {Person authorized to administer oaths under the Act.) 15, Oath for Admuiustrators. IN THE SURROGATE COl'RT OF THE COUNTY OF In the goods of ■ -, deceased. I, -, of the of , in the County of — , late of the of -, in make oath and say, that — the , . deceased, died a bachelor, without leaving parent, brother or sister, uncle or aunt, nephew or niece, and intestate ; that I am the lawful cousin-german and one of the next of kin of the deceased [alter in accordance with the cir- i I ^'^\ m tmm 1 i ill J f I '1 I'll- ^mf 11 ■:, i'f f'fl 1 1 1 1 ;r * if i f 104. SIJRROGATE COURTS. cumstances of the cafi({] : that I will faithfully administer the personal estate and effects of the deceased, by paying his just debts, and distributing the residue (if any) of his estate accord- ing to law, and that I will exhibit a true and perfect inventory of all and singular the personal estate and effects, rights and credits, of the said deceased, and render a just and true account of my administration whenever required by law so to do. Sworn at , in the County of , the day of A. D. 18 — , before me, } A. B. (Person authorized to administer oaths tinder the Act), 16. Administration Bond, Know all men by these presents : That we A. B., of the of , in the , , C. D., of the tc, and E. F., of the &;c., are jointly and scvei'ally bound unto G. H., the Judge of the Surrogate Court of the , in the sum of dollars, to be paid to the said G. H., or the Judge of the said Court for the time being ; for which payment, well and truly to be made, we bind ourselves and of us for the whole, our heirs, executors and administrators, firmly by these presents. Sealed with our seals. 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., the administrator of all the personal estate and effects, rights, and credits {or as the case may be), of , late of , in the , , deceased, (who died on the day of , 18 — ,"* do, when lawfully called on in that behalf, make or cause to be made a true and perfect inventory of all and singu- lar the personal estate and effects, rights and credits of the said deceased, which have or shall come into the hands, possession,' FORMS. 105 or knowledge of tlio sa!u A. B., or into the hands and posses- sion 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 , whenever required by law so to do, and the same j)ersonal estate and etlects, rights and credits, and all other the personal estate and efi'ects, rights, and credits 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 tiuly administer according to law : (that is to say) do pay the debts which the said deceased (lid owe at his decease, and further, do make, or cause to be made, a true and just account of Ills said administration, when- ever required by law so to do, and all the rest and residue of the said personal estate and effects, rights and credits, do de- liver and pay unto such person or persons respectively, as shall be entitled thereto under the provisions of any Act of Parlia- ment now in force, or that may hereafter be in force in Ontario ; and if it shall hereafter ap))ear that any last Avill or testament was made by the deceased, and the executor or executors (a) therein named do exhibit the same unto the said Court, mak- ing lequest 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 obliga- tion to be void and of no effect, or else to remain in full force and virtue. Signed, sealed, and delivered in presence of ^ I [L.S.] (Registrar, or person a\ithorized to administer oaths under the Act.) (a) " Or other persons," as in Coote's Forms : e. gr. in tho event of a will being found, in which no executor named, and a legatee should exhibit it. 1. 1, ti 1 lOG SUKROOATE COURTS. li . M h; \m %i m 1 1 if- %) ^' ii,4' t 111 ii.'i|: 17. Administration Bond for Administrators, with Will annexed. Know all men by these presents : That we, A. B., of the of , in the , , C. D., of the &c., and E. F., of the &c., are jointly and severally bound unto G. H., the Judge of the Surrogate Court of the , in the sum of dollars, to be paid to the said 0. H.,or the Judge of the said Court for the time being, for wliieli payment, well and truly to be made, we bind ourselves and of us for the whole, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. 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., the administrator of the personal estate and effects, rights and credits (or as the eas(') named in the said will (or codicil), he having been first sworn well and faithfully to administer the same by ])aying the just debts of the deceased, and the legacies contained in his will (or will and codicils), so far as he is thereunto bound by law, and to exhibit a true and perfect inventory of all and singidat the said estate and effects, rights and credits, and to render a just and true account of his executorship whenever recpiired .so to do. [L.S] Raji^strar of the Sunogatc Court of the County of- II wm. FORMS. 109 20. Letters of Administration with Will annexed. In Her Majesty's Surrogate Court of the County OF Bo it known that County of , — -, late of the of intl ic -, deceased, wlio died on or about the day of , 18 — , at , and who at the time of his death had a fixed place of abode at the of , in the said County of , [or " liad a fixed place of abode in Ontario," (or " resided out of Ontario,") " but had .at such time personal" (or "real") "estate in the said County of "], made and duly executed his last will and testament (witli codicil), and did therein name 'of , in (fcc, , executor thereof [or named no executor therein], a true co[)y of which said last will and testament is hereunder written (or true copies of wliich said last v/ill and testament, with codicils, are hereunder written) ; and be it further known that on the da}'' of , A.D. 18 — , letters of administration, with the said will (and codicils) an- nexed, of all and singular the personal estate and ettects, rights and credits of the said deceased, were granted by Her Majesty's Surrogate Court of the County of , to , of the of in the , (Insert tJie character in tvhlch the grant is taken, and if executor has re- nounced state it), he the said having previously been sworn well and faithfully to administer the same, accoi'ding to the tenor of the said will, to pay the just debts of the de- ceased, and the legacies contained in his will (or will and codi- cil), so far as he is thereunto bound by law, ami to exhibit a true and perfect inventory of ail and singular the personal es- tate and effects, rights and credits of the said deceased, and to render a true and just account thereof wiienever by law re- (juired so to do. LL.S.] Registrar of the. Snmxjate Covrt (»/ the County of — II 110 SURROGATE COURTS. 21. Letters of Administration. In Her Maje:sty's Surrogate Court of the County OF Be it known, that on the day of , A.D. 18- let- ters of administration of all and singular the personal estate and effects, rights and credits 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 his death , in the said County, a fixed j)lace of abode at the of of (or "had no fixed place of abode in Ontario,") or *' resided out of Ontario,") [" but had at such time personal or real estate in the County of "], were granted by Her Ma- jesty's Surrogate Court of the County of , to , of the of , ill the of , the widow (as the case may he) of the said intestate, she having been first sworn faithfully to administer the same by paying his just debts, and distributing the residue (if any) of his personal estate and effects according to law, and to exhibit a true and perfect in- ventor}' of all and singular the said personal estate and effects, rights and c-edits, and to render a just and true account thereof whenever rec^uired by law. [L.S.] liegistrar of the Surrogate Court of i\ 11 22. Double Probate. In IIkr Majesty's Surrogate Court of tue 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 , -, who died on or about the day of ., A.D .18— m FORMS. Ill at and who at the time of his 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 personal" (or "r al") "estate in the said County of /'] was proved and registered in the said Sur- rogate Court, a true copy of which said last will and testament is hereunder written, (or true copies of which said last will and testament with codicil are hereunder written,) and that the administration of all and singular the personal estate and effects, rights and credits of the said deceased, and any way concerning his will, was granted by the aforesaid Court to , of the of , in the of , , one of the executors named in the said will [o?' codicil], he having been first sworn 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 V)y law, and to exhibit a true and perfect inventory of all and sin- gular the said estate and effects, rights and credits, and to render a just and true account of his executorship whenever required by law so to do. Power being reserved of making the like grant to , of the of , in the of , , the other executor named in the said will, when he should apply for the same. And be it further known, that on the day of , A. D. 18 — , the said will of tlie said deceased was also proved, and that the like adminis- tration of all and singular the personal estate and effects, rights and credits of the said deceased, and any way concern- ing his will, was granted to the said , he having l)een 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 thereunto bound by and to exhibit a true and perfect inventory of all and law, .singular the said estate and effects, rights and cretlits, and to render a just and true account of his executorship whenever required ])y law so to do. 'I'-'iM -'.4 [L.H.] lieguitrar. 112 SURROGATE COURTS. «|# Ml 'fill hi if 23. Exemplification of Probate or Letters of Administration with Will Annexed. In IIer Majesty's Surrogate Court of the County OF . Be it known, that upon search being 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 , , deceased, who died at , on or about , and had at the time of his death a fixed place of abode at , in the said County of , {or as the case may he) was proved by , the executor therein named, \or that on the • day of , A.D. IS — , letters of administration, with the last will and testament (and codicils) annexed of the personal estate and effects, rights and credits of , late of, &c., were granted to of , as the ] and which said probate {or letters of administration) now remain of record in the said Surrogate Court. The true tenor of the said probate {or letters of administration with the will annexed) is in the words following, to wit: {Itere grant to be recited verbatim.) In faitii and testimony whereof these letters testimonial are issued. Given at -, in the County of ■ -, as to the time of the aforesaid search and the sealing of these presents, this day of, &c. [L.S.] Registrar. 24. L\cempllJication of Adminidration. In Her Majesty's Surrogate Court of the County OF . Be it known, that upon search being made in Her Majesty's Surrogate Court of the County of — , it plainly appears n m FORMS. 113 that on the day of , A.D. 18 — , letters of adininis- ti'ation of all and sinicular the personal estate and effects, rights and credits of , late of , in the of . who died at , on or aliont the day of , and liad at the time of his death, a fixed place of abode at in the said County of , were granted to , of tin; of , in the , the [or one of the ], of the said deceased, and which said letters of administi-ation noAV remain of record in the said Surrogate Court. The true tenor of the said letters of administration is in the words fol- lowing, to wit: [licre the letters of admbiid nition arc to he reviled vehatbn^ In faith and testimony whereof these letters testimonial are issued. Given at in the County of , at tlie time of the aforesaid search and the sealing of these presents, this day of, &c. [L.S.] lii'O'mtror of, itc. UNTY l^ajcsty's I appears i.'). Renunciation of Prohitte and AdmlnUtration with the Will annexed. In the Surrogate Court of the County of . -, in the County of Whereas A. B., latt; of m the day of , 18—, and had at the time of his death a fixed place of abode at , in the said County of ,and whereas he made and duly executed his last will and testament, bearing date the (lav of bS — , and thereof appointed C. D. executor and residuary It'iratee in trust [or as the case may he], as I am informed and believe. Now I, the said C. D., do hereby expressly renounce all my I 51! 11* 114 SURROGATE COURTS. I#i! fllll 1 1 ijiii : w- H>Hf right and title to the probate and execution of the said will [and codicils, if any], and to letters of administration, with the said will [and codicils, if any], annexed, of the personal estate and efi'ects of the said deceased. In witness whereof I have hereunto set my hand and seal, this day of , 18 — . Signed, sealed, and delivered ^ by said C. D., in presence |- of E. K. ) CD. 2G. Renunciation of Ad,miii?^^ation. In the Surrogate Court of the County of ■ [L.S.] if Whereas A. B., late of — , deceased, died on the -, in the County of -, 18 — , intestate, — day of and a widower, and had at the time of his death a fixed place of abode at , in the said County of , and whereas I, C. D., of , in the , , am his lawful child and his only next of kin [to he varied according to the facts]. Now I, the said C. D., do hereby expressly renounce all my right and title to letters of administration of the personal estate and effects of the said deceased. If ill t i \ In witness whereof I have hereunto set my hand and seal, this day of , 18 — . , Signed, sealed, and delivered by ^ the said C. D., in the presence >- of E. H. J C.I). [L.S.] FORMS 115 1-1 27. Election hy Minors of a Guardian. In the Surrogate Court of the Count — of- \Miereas A. B., late of , in the County of , , deceased, died on or about the day of , IS — , at , in, &:c., intestate, a widower, leaving C, D., E. F., and G. H., his lawful children, and only next of kin, the said C. D. being a minor of the age of twenty years only, and the said E. F. being also a minor of the age of nineteen years only, and the said G. H. being an infant of the age of six years only : Now we, the said C. D. and E. F., do hereby make choice of and elect K. L., of the , in the County of , , our lawful maternal inicle, and one of our next of kin, to be our curator or guardian, for the purpose of his obtaining letters of administration of the personal estate and efiects of the said A. B., deceased, to be grantea to him until one of us attain the age ul twenty-one years, [or for tlie purpose of renouncing for us, and on our behalf, all right, title, and interest to and in the letters of administration, &c., as the case 'iiKnj be.] In witness whei'eof we have hereunto set oiir hands and seals this day of , A. D. IS—. [L.S.] i^igned, sealed, and delivered, in ] * the presence of , j 28. Suhpa'na in proceeding in common form to bring in Scripts Victoria, by the Grace of God, of the United Kitigdom of Great Britain and Ireland, Queen, defender of the faith. To of the of in tlie County of AVhereas it appears by a certain affidavit, filed in our Surrogate i!'l! ll'> SURROGATE COURTS, fill Court of the County of is — , juitl niadt' by — , bearing date the day of — -, -, of the, &c., that a certain ori;,final paper or .scri[)t being, or purporting to be, testamentary, [hcfc describe tlie papei-] bearing date the day of , 18 — , is now in yoiu' possession, or under your control : Now this is to command you that within ten days (or at tlie time prescribed by the judge) after the service liereof on you, you do l)ring into and leave in the office of the Registrar of our said Court, the said original paper now in possession of you, the said , or under your control, or in case the saM original jiaper be not in your possession or under your contrtd that you within days after the service hereof upon you, do tdc in the said office an affidavit to that effect, and therein set forth wliat know- ledge, if any, you have of and i-especting the said original paper or script ; and this you are in no wise to omit under the penalty of four hundred dollars. Witness, [Insert flic nnmi' of the Juilijc\ Judge of oui- said Court, at , the day of , 18 — . lU'fji.sfrc.r Ciii'Htij tif- ■f :; i 21). Affidavit of Hondirritiu'j. In the Surrogate Court of the County of In the goods of, kc. I, A. B., of the of in the County of , make oath [or solemnly affirm] that I knew and was well acquainted with C. D., late of in the County , deceased, who died on the day of , 18 — , at , and had at the time of his death a fixed place of abode at , in the said County of ,, for many years before, and down to the time of his death, and that during such FORMS. 117 poriod I have fi'tMpK'iitly seen liini urito, and also subscrilic liis name to writings, (or as the case riia// he), whoroliy I have hcconie Well ac(|Uiiinte(l M'ith liis manner and character of liiind-writing and .subscription, and iuavin;.^ now with care and attention perused and inspected the pajicr-writing hereunto annexed, purporting t(> he and contain the last will and testa- ment of the said deceased, Iteyinnin^ thus emlin,!:; thus and licing suhscrihed thus " ( ^ D." I further make oath that I verily and in my conscience believe the whole boily, series, antl contents of tlie said will, (or co^ the case may he,) together with the name " ('. D." subscribed thereto, as aforesaid, to ))e of the true and proper liand-writing and subscription of the said '' C. D.," deceased. Sworn at , in the County of \ this dav of ^ 1' Act.) oO. A^ilavit of Plight and ComJitlon and Findiar/. In the Surrogate Court of the County of T, A. B., of, (S:c. wnK,' oath (or .^oKnmly affirm) that I am the sole executoi named in tlu- pajx-r-writing now hereunto annexed, purporting to be and contain the last will and testa- nT»'nt of E. F., late of, &c., (h^ceased (who died on the day of at ). and hail at the time of his death a fixed place of abode at , in the saij)i:al to Court of Ajipcal^{a). Know all Mex uy tiilsk Pkksents: That \vc, A. ]]., of (.'. I)., of, kc, and E. F., of kc, are jointly and severally held and linuly bound unto G. H., of ttc, in the pen.il Sinn of dollars, for which payment to be well anrder .shall bealhrmed, or in part affirmed, then this obligation to be void otherwise to I'emain in full force. Signed and sealed in presence ^ of A. B., [L.S.] CD., [L.S.] E. F., [L.S.] (a) The Court of "Appeal " substituted for " Chancery." v:? FORMS. 121 v5 H mtam uj O o U2 t- < o • c ^ IX 3 aiS >— ' o o vi' v; ^ « J- O CO r.. >^ H '^•^ Eh 15 V3 ??; ^l* t) < o f- Q ^ V^' H o P5 H O H ;^ O y^ **a^ O b-i W o >-< E-' 1^5 <5 O O ?5 c-* o P3 P5 •^ ^ M 5 J ^, '■ " '^ ;=«- i, E -^ - c « T > r P 5 S ? i! 'i: 5. 5" i| Js^SM^i^ji « p^ S-" ^ i^ =; s - >- i) i/-'j r= ■:? ->^ Ui: = ^ /J 0^^ *i^ic-^i ' ^- "3 CI ci S ■-■ - u i ■=•=>< = S'S^S : i i ?. j: ^ 3 . =■■;: '-^-,-55- "•3 § ^ -3 5 ■< 9 Ji (S ■a « ;:; ii «. 9 r-? § o*; ^ ? .= I = ». g •3 r^ 5 2 a « 3 IS e;5*u w *u K ' .»« » u 1' ^ ;« !«; 1-9 as hen ion eivfd c^2 2l =^^2 -** rH = '-' ,• _■ O A i» yj '^ /) aj ..-' " T* — -o ^ & 11 t-H ■a 3 2f •3 < 11 1 < 3 1 c 3 CJ *l-l t*- 3 '^3 -J- = i ^ ;9 s a 1 c5 ^ s ^ ^ a S2; >5 c '^ ■-s •U011K3 »-* to 9 iiT S i! e ^ , ts •^ i4 Cl o l|i 'u o £ S - . »,^ St; u a .V M c g o 3 2 -/J y s CO lo = 3 P4 iS2 tn o 4^ c 05 S- P4 •"5 s "S ^ 1- i » « ;^ a> -J 3 3 0) •a 8 p ■< r" *^ o a .2 ? '5 V y ^ S = a c T3 Z 3 r3 1 «r o O s 2 93 a> :S i o j^. •-9 ' *' i ■■' I'l ^;' -, . f# II I'll [II ill i'; 124 SURROGATE COURTS. 38. REGISTER BOOK. (In this book every grant is to be entered at length, loith a transcript of will and codicil, if any, subjoined, in case of probate or administration with the will annexed.) linii ■'■ ') ■ ■ ' 1 ■1 ■ '■^ 1 , i If' ■ if ' If ■ 3£ vi Plij L w FORMS. 125 o i>2 iS4 O O o O c Pi 02 o o r- M >?; « ♦^ — 1 I ^ If Caveat wanicil, when. 5 » CI O •••a 1 i b' 2 i i r, < c •3 . <: ^ '5 **- = >> ll as < Ij k. 1 City of Toronto. V 5 ^ I ~ 3 I •e— ■ •9 a: Si s O ll.Idvjo ON i' Ill j:; . ■ fi i. :>5 11 ' :^ii 12G SURROGATE COURTS. 40. Certificate by the Surrogate Clerk upon notice of applica- tion for Grant. Office of the Surrogate Clerk. -, deceased, named in a certain notice of In the goods of — application for grant of probate {or administration, as the case may he,) dated the of , 18 — , as , late of I, -, (fee, (copy from notice of application.) ; the Surrogate Clerk, do hereby certify that no notice of application, in respect to the goods of the said deceased , lias been received by me from any of the Registrars of the Sur- rogate Courts in Ontario, save the above [or if another notice has been received, add " and a certain other notice of applica- tion from the Registrar of the Surrogate Court of the Countv of ," (dated the day of , &c.,) for a grant (of the probate of the will bearing date, &c., as in the notice of application.)] And I further certify that no caveat or copy of caveat against the grant of probate or administration in the goods of the said deceased, has been lodged with or deceived by me [or if caveat or notice 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 goods of the said deceased, has been lodged witli (or received by) nie on the day of , a copy of which is hereunto annexed.] Surrogate Clerk. Dated FORMS. 127 :m o o o M O Cm W o O o p:5 m w W H O w Q o Note of matter certified. ill When Certificate of Surro- gate Clerk mailed. Court into which Applica- tion made. If Nature of Applica- tion. a •3 l< '^ z '•J "^ a A c 1 < c i 1 i _ Notice Received. J 'a-rj • X 3 -3 < II •A c < c « 1 c 3 B V u 3 it 3 •U0U1 ■(I'ldyj so ) •osj f-4 fl i I'll: "! ■ .; I \j = ':1 128 i4 « W ►J o • M K O O O P2 c « H tf .5 w _; 3mi ;: = ii rt« ?= ^' =1 ^^ b V Q *^ o ■*-» i k- < V jr~ ' c ^ o c3 ^ c ^ ^> O lii^ ■^ o s >» ^ ; iit; OJ O 1; ^ f c:i«tr _ -' £ T Q 5 ■^ CI* Sr, s ■A ^ < ■^ . -^ xl fll.l -i -5 = .= s -' 3 «M - Spf ^H -•Si - i^ k. . ^ — " ^ - c ^ . « ,^ c~rj (/'■^ J= "^ > ,CJ O ii g 7J . U - 1 5 .2 .' - " ^ 'C C ■3 L. •O < rt < :-> «1 ^ ^ •* 3 c 3 si 1 J F X c • i •-J 1 S5 K ■^ ( f *^ •1«0AB0 JO -ON - 25 ,m FORMS. 129 )4 O o cq H 'A w o H H o w W H 3 O B •a a a o ir. t? ■< u Q Q o « a ° 5 •a c oT ='^ c S OQ J3 •-5 o w o •3 •3 .b I •a B S a s c § 'A B i < '■'.! II vM 'Hi ■■'ill APrOINTMExNT OF GUARDIANS. SURROGATE COURT RULES AS TO M' GUi\EDIAN8.(") (1) 73 A 74th The Judges appointed under the 14th(^) section of R S. 6. ^ the Surrogate Courts Act, 1858, do in pursuance of (2) R S O c ^'^® powers confei-red upon them by the r)4th(2) sec- 132, B. 7. lion of the said Act, order and direct tliat the rules, orders, and directions hereinafter set forth shall be the general rules and orders : — For regidating the practice and procedure under the Act of Upper Canada passed the eighth year of King Ceorge IV.,c. 0, intituled, " A a Act respect I h i, i'ja k • Hi RULES AND ORDERS. 131 cations for grants of letters of administration and {jrants thereof 2. Applications for the appointment of guardians FormofappU may be according to the form 1, or to the like ett'ect. cation. 3. The notice of such application, to be sent by Form of tlie Registrar to the Surrogate Clerk, may be in the form 2, or as near thereto as circumstances admit ; and, as in application for grant of probate or admin- istration, unless under special order or decree of the Judge, letters of guardianship shall not be granted until the Registrar shall have received the certificate of the Surr(>gate Clerk touching the same. 4. Parties may lodge a caveat against the grant of Caveat, letters of guardianship in like manner as other caveats are lodged, and the practice in respect to the same shall conform as nearly as may be to the practice in the case of caveats against the grant of adminis- tration. «S. The security to be given by guardians shall be Security, by bond in the form 4, or as near thereto as circum- stances will admit. 6. Letters of guardianship may be in the form 3, Form of let- or to the like effect. ters. ' !l 7. The several Registrars shall keep books as BooIcr to be nearly as may be in the form 6, and the Surrogate '''^" Clerk shall keep a book as nearly as may be in the form 8. Registrars and officers of the Surrogate Courts Fees of filial!, for the performance of duties and services ^'^" under the said Act of King George the Fourth, touching or relating to the appointment, control, or M !, ■i .1 i I If, ff 132 APPOINTMENT OF GUARDIANS. J I' t I; IS >■ By wlioin payable. Attorneys fees. removal of guardians, be entitled to take and receive to their own n.se the .same fee.s, as nearly a.s tlie cir- cumstances of the ca,se will admit, as they may bo entitled to take and receive in contentious or non- contentious })U.sinesH, as the ca.se may be, in the .said (Courts. 9. The t'eivs payable to the fee fund, and Regis- trars, on such business and proceedings in the Sur- rogate (?oui'ts (and postage, when neces.sary), shall be paid to the Registrar in the Hrst instance by the party on wdiose behalf such proceeding is tobehaj,pgp^ j.,^ inatters and causes testamentary, so far a.s mcay be applicable, he shall perform in respect to ap- plications for letters of guardianship, and in relation to guardianship business. Robert E. Burns, J. J. G. Sfragge, V. C. Jas. R. Gowan, Co. J. Toronto, 2Qth September, 1858. GUARDIANSIIIF FORMS. 1. Afrplication for Lcttern: of Guardianship by one of the next of kin of lit f ant children of deceased widower. 1 « Unto thk Suurooate Court of the County of Tlic petition of A. B., of tlio of of , Esquiri', Humbly sliowoth, -, in the County Tliat (!. D., late of., &e., died on or about the day of , 18—, a widower, leaving; E. F. and G. H., his natural and lawful children, the said E. F. being an infant of the age of Mine, years, and the said G. H. being an infant of the age of six years, and that both the said E. F. and G. H. reside at in the said County of . That the said (A 1). died intestjite (or as the case mai/ he), and without appointing any curator or guardian of the said infant*; That due notice has been given of the pc^titioner's intention to apply to be appointed guardian, and that the petitioner is the natural uncle, and one of the next of kin of the said infanttr'. Wherefore your petitioner prays that he may be ap- pointed guardian of the said infants, E. F. and G. H., and that the letters of guardianship may be granted to him by \v lilpfii I ' HIH !'" W ill' I I'' J I '! iii«i it) if ; . ; ) i i ■'•. t .:l I .: f i ' : ■ 1 i 1 {a . m ■ n •■■ 'M ' Vi :| .:m i > jl 1: ■ i'l \ ':.■: ■J! ■ ?"• 134 APl'OIN'TMKNT OF (JUAUUIANS. this HonoiirahK^ Couit, piii.suant to tho Statute ii» that b(4ialf. A. B., (Or if signetl by Attorney, A.B., hy his Attorney, J. P., ono, &c.) Dated, &e. 2. Notice to he transmitted />// the Jieifistrnr of a Surrogate Court to the Surrogate Clerk, of application for Letters of Oaardianship hi/ one of the next of kin of infant children of deceased v/idoiver. The Suruogatk (vOURT of the County of To tlie Sui-ron^ate Clerk : Take notice that application has been made to the Surrogate Court of the County of *-, by A. B., of, &c., to be appointed guardian to E. F. and G. H. (who reside at the of . in the said County) infant children of C. I)., late of, &c., who died a widower intestate (or as the case may he), and without appointing any curator or guardian of the said infants, the saiil A. B, beinjr the maternal uncle of the said infants. Application received the day of 18- This notice mailed the of , 18—. lay) iVc j Registrar of the said Court. 3. Letters of Guardianship. Tn Her Majesty's Surrogate Court of the County OF Whereas A. B., of, &c., by petition to the said Court, did set forth that C. D., late of, &c., (;recife as in j)etition), and prayed FORMS. 1.35 that he ini^lit ho appointoil /ifuardiaii of the said infants, ptir- suant to the Statute in that hi-half, and tliat Letters of Guar- dianship nu^'ht he {^ant(!d to liini hy tlie said Court. Be it known that on the day of , A. 1). 18 — , the said A. B. was appointed guardian of th(>in the said K. F. and U. H., and these Letters of Guaidiansliip are accordingly granted hy the said Court to the said A. B., with power ami authority to him to do all such acts, matters, and things as a guardian may or ought to (h), under and hy virtue of any Act of the Parliament of Ontario, or of this Dominion, relatinir to minors and their property, cliaptered six, he the said A. B. having heen tirst hound as required hy law to perform the Haid trust. [LS.] Registrar. N(>TK.— Tho words " chaptered six " apparently atirplusage. As to authority of Ifuardian, vide ante "Act respecting Apiwintinent of Guardians." 4. Bond to be (j'lven by Cuardian. Know all men by the.se presents : That we, A. B., of, &c.. C. D., of, kc, and E. F., of, &c„ are held and firmly bound unto 0. H. and J. H., of, tfcc, the infant children of 0. H., of, &c., decea.sed, in the following penal sums, that is to say, the said A. B. in the sum of dollars, the said C. D. in the .sum of dollars, and K. F. in the sum of dollars : For which payment, to be well and truly made unto the said (i. H. and J. II., we bind oursehes and each of us by : our and every of our exeoMtors uiiti administrators firndy by these presents: Sea1i"i , our seals, dated this day of — , in the yet jur Lord, l^ -. Whereas the said A. B., being appointed guardian of tho said infants by the Surro- gate Court of the County of — , according to the Statute in that behalf, is required to give security to perform the said trust. ■'I ^s . : 136 APPOINTMENT OF GUARDIANS. I I '3b' f. Now tho condition of this obligation is such, that if the above bounden A. B., guardian to the infant chihh'cn of the said late O. H., shall faithfully perform tho said trust, and that tho said guardian, or executors or adininihtrators will, when the said wards respectively become of the full age of twenty- one years, or whenever the said guardianship shall be deter- mined, or sooner if thereunto required by the Judge of the said Surrogate Court, render to said wards, or to thoir ex- ecutors or administrators, a true and just accoimt of all goods, moneys, interests, rents, profits, or property of such wards which shall have come into the hands of the said A. B., and will thereupon, without delay, deliver and pay over to the said wards, or to or their executors or administrators, the property or the sum or balance of money which may be in the hands of tho said guardian belonging to such ward or wards, deducting therefrom and retaining a reasonable sum for the expenses of the said guardian, then this obligation to be void or else to remain in full force and virtue. Signed Sealed, and Delivered in presence of } A. B. [L.S.] C. D. [L.S.] E. F. [L.S] [Note.— The Affidavit of Death, Vahio of Pifijierty, and search for Will, if de. cea«ed died interttatc, same as in caBes of Adu)ini8tration, vide mite ; and for Notice of Application vidt Apj>. A full Inventory is also required. Tho allegations oon- taioed in the petition are verified by atiiduvit] 1! S FORMS. 137 . 1 ,.- I. g. 3 = h a o i-C"©^ ==itii »^js -'• <» o IM ^ £ fcl l^|i ■■r< H 5 o i ■ " •-■=«> 8 §1^1 When cate fr Surr< recei Ec4 1 O S?; S^ O <«) §c^ ^ I— 1 2 = s Q III tf O ««J 1 .X C 1 A " c; O 1 u When pplication received. 1 1 H kO o P5 1 < t^ P5 11 t) "ii 0} 1 5:2.2 1 = •"•S .: = =■ c S t. v~ «f 0) a " s -art.^ t^-g8.a ^ S C£ C V ._ e£-2o nn !^a -^ uon«o •llddy JO OK H^ If 6;i r !? (■■ ■>;■« >. ■ * 138 APPOINTMENT OF GUARDIANS. |fi|i| V 1 i , i i !■ ■'' eS^ atn mat rtifi «t5 -•S 3Sl cca'a fli ^^U ^■& « • ■«« c q * 3 r3< ui 11 o 11 o n < J?5 lit: < ag| hH £5^ B %'t < O o » 1 Nanips and Places of Resi- , dence of Minors. | her of Minors, ' nee at time Decease, ;i^. of F of hi 11 'A TABLE OF FEES. 139 NoTX.— For Hchedules of feen payable to the Crown, and fees allowed to the Judge, ijee Schvduleu A and 13, tu S. C. Act, aitte. I. TABLE OF FEE{5. To be taken by Registrars and Officers of the Surrogate Court /or duties and services under the Act, m respect to non-contentious busincxs : BY UEOISTllARS (a). Receiving and entering applieat ion for probate or adinini.s- tration, and transinittinj; notice thereof to tlie SurroLrate Clerk (exclusive of postage) , $ 50 Receiving and entering certificate of Surrogate Cleik 10 Preparing all the necessary affidavits in a matter of pio- bate or administration 1.00 Every bond on administration or otherwise, with aifidavit of sufficiency 1.00 Preparing iastrument of renunciation with affidavit of ex- ecution 1 .00 On every grant of probate or administration, and entering the sanie in Register Book, as follows : When property devolving is under $1 200 1 .00 from 81200 to S4000... 1.75 « « from g?-tO()0 to $8000... 2.50 • !h « " " « above S'SOOO 4.00 Recording will, in addition, per folio 10 For probate or administration issued under the seal of Court, each instrument 50 (If special, may be charged at 10 cents per folio on order of the Judge.) Transcript of will, in addition, per folio 10 Notice of grant to Surrogate (Cleric 2 '> Certified copy of will, in addition, per folio 10 (a) See Re Dallat, pott p. 142. " H :^*l MHH !' - ill I 140 SURROGATE COURTS. Drawing special ordei-s or other instruments directed by the Judge, per folio $ 10 Taking every affidavit 20 Attending and entering every order made, or proceeding had, on a special attendance, or attendance for audit by Judge 50 Every summons, citation, or other process issued under seal of the Court 50 If over three folios, in addition, per folio 10 Filing caveat, and transmitting notice thereof to Surro- gate Clerk, excl usi ve of postage 50 Warning to u caveat (exclusive of postage), and noting same 50 Receiving and entering bond on appeal 25 Receiving and entering order or direction from the Court of Chancery 25 For search by a party in the Registnar's books 10 For looking up original will or instrument, and inspection 30 Every certificate of search or extract 50 If over three folios, in addition, per folio 10 Exemplification under seal of Court 1 .00 If exceeding five folios, per folio 10 For depositing every will of a living person for safe cus- tody, including a deposit receipt 50 For taxing costs, and granting certificate 50 [No fee lillowed for filing papers in non-contentious business.] BY SHERIFFS (OR BY APPARITORS WHERE SUCH OFFICERS HAVE BEKN APPOINTED.) Serving process or other instruments or paper S 50 Every arrest under process, or by order of the Court 1.00 Necessary mileage to serve process or to arrest party, per mile actually travelled (a) 10 (a) Where process actnally served or party arrested, mileage in travelling onl «ne way allowed. TABLE OF FEES. 141 Mileage conveying party to gaol, per mile (to cover all disbursements) $ 20 Making returns to process, instruments or paper 20 [Allowance for other services to be specially fixed by Judge, taking the County Court Tariff of Fees n.s a guide.] ft « B. TABLE OF FEES, 7'o be taken by Allwneys in resj)ect to Ihtslnefs and (Services under the Act in non-contentious cases. Oonsulting fee *I.()0 Preparing all necessary papers and i)roofs, and passing Probate or Administration through a Surrogate Court in ordinary cases, as follows : Where property devolving is under $] ,200 2.00 from SI 200 to ^4000... 3.00 from S4000 toi?8000... 4.00 over S8000 G.OO [In case of limited or other special grant, an adilitional sum not exceeding $4.00 may be allowed on order of the Judge.] For every necessary attendance before Judge when mat- ter special 1.00 [No allowance for ordinary attendance in connaon form business.] Affidavits to lead citation and atHdavit.s other than those to lead grant — each oO If over three folios, per folio additional 10 Kee on subpoena to bring in script, and on citation or or other instrument under seal of Court 50 Preparing caveat and entering same 1.00 Attending and giving written instructions ior waining caveator. 50 142 SURROGATE COURTS. Preparing bond on appeal, with affidavit of execution, and affidavit of justiHcation $3.00 Notice of appeal, coi)y and service 1.00 Bill of costs 50 H i h f. hWi III '' 1 '' : ii 1 '■ '1 i J i » . ii . •' i : ft f ■ 1, : ''1 1 I II By Order in Council of 27th of February, 1875, it was or- Small ebtaten. derecl — " that the following fees be pjvyable to the Judges and Registrars of the Surrogate Courts respectively upon pro- ceedings had in the said courts, for grant of letters of admin- istration in cases where the whole personal estate and effects <)f the deceased do not exceed $200. The said fees to be re- tained by the said officers for tlieir own use, and to be in lieu of the fees prior to 38 Vic, c. 18, payable in such cases to the said ofhcers, or to the Crown. To be Received by the Rcgistnir : — On every application for administration (including notice thereof to Surrogate Clerk, but not postage) 26 Providing and tilling up forms to lead to grant of administration 76 Fee on letters 60 To be received by Judges :-- On every grant of administration certified 60 27th Feb., 1875. [Note. — Reg'istrars Fees. — The Court of Queen's Bench, in re Dallas (29 Q. B. 4 executor beini? (led vod from the will ami not froiu till' priihiite, the C'cmit refuseil to restrain an execution on a iiulgiiK'iit recovered against the executor before probate {Stnmj) v. Bnidlcii, 15 (ir. oO). (M A'kvi V. Ditii'l'is, 3 T. R. 125 (Jurneil vill cukc) ; Smith v. MiUif, I T. I{. 475, 480; Taylor on Ev. t;th I'aI, p. VMM ; Wnis on K.xiirs, 7tli Ell. .•i04. And vkk ante vote to see. 4. ('■) Comic, m L. J. (N. S.) P. & M. 129, and 1 I-. K. P. & D. 449- ('/) Vox. V. Allinijltniit, .[ac. 514, and sei' h'e!hi v. ArUill, 11 Gr. 57!t. (') lie Thorpe, 15 C!r. 80. J t iil 146 SURROGATE COURTS. JvvpenseH of rnilmtf. &c. :-f W< 4 left in this Province transmitted to him by virtue of his foreign probate (a). A personal representative nmst be appointed by the Surrogate Court before the Court of Chancery will make an order or decree for the administration of the estate (/>). Upon an application in Chancery for an adminis- tration order against a person named as executor who had not obtained letters probate the order was re- fused, there being no duly api)ointed personal repre- sentative before the Court (c). 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 (d). But where in a creditor's suit, to administer the estate of a deceased debtor to whose estate adminis- tration ad litem, had been taken, the bill allei/('HiSo, and did not appear at the hearing ; the Court made the usual decree without re<[uiring a general administration to be first obtained {Dcy v. Dey, 2 Or. 149.) C.mipensation Personal representation of a deceased person Campbell's killed by accident must be obtained, in order to ^''^' bring an action for compensation, though the amount of such compensation will form no part of the per- sonal estate of the dectjased (c). J! '^ i ^ ^:[ (rt) Sharer v. Gray 18 Gr. 419. (6) Ite Marshall, Fotvlcr v. Marshall, 1 Chy Chainl». 29; Re Lvad, 2 C;hy Chamb. 392. lie Bell, Ikll v. Bell, 3 Cliy Cliamb. 397 ; The Edinbunjh Life Asx'cc Co, v. Allan 19 (Jr. 593. (f) Oiitram v. Wyckoff, 10 U. C. L.J. (N. S.) 135 ; see Rowaell v. Mon-iif,h. K. 17f;E(i- tors, nut f'x- ceedinir $'M). llndor Statute of Canada JU Vict. c. 10, for cstalt- lisliin^ Post OHice Savin;,'s IJanks, tho following' Re- gulations issued by autliority of tlie Postiiuistci- General iip|>ly to the payment of money of a de- ceased depositor to the persons entitled; " 15. In caHC any Depositor shall die, leaving any sura nf money not exceeding ^t)0, exclusive of iritcreat, dt'inKsited in the Post Office Savings Bank, and Probate of his Will, nr Letters of Administration, or Acte of Cnratolle. or Tiitolle, be not produced to the Postmaster-CJeneral, 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 be ap- pointed Tutor or Curator, be not given to the Postmaster- General, at the Post Office Department within the period if one month from the death of the Depositor ; or, if such no- tice be given, but such Will be not proved, or Letters of Ad- ministration or Actes of Curatelle or Tutelle be not taken out, and the Probate or Letters of Adnnniatration, Actes of Curatfciles or Tutelie (as the case may be), produced to the Postmaster -CJeneral within the period of two months from tlie death of the Depositor, it shall be lawful for the Postmaster- General, after such i>eriod of one or two months, as the case may be, to pay and divide such funds at his discretitui to or amongst the widow, or relatives of the deceased Depositor, or any one or more of them ; or if he shall think proper, ac- cording to the provisions of law governing the distribution of property in all such cases. " 10. In case any Depositor shall die leaving any sum of money in the Post Office Savings Bank, which (exclu- sive of interest) shall exceed the sum of $3(K).00, the same shall only be paiil to the Executor or Administrator, Tutor or Curator on the production of the Probate of the WiJl, Actes of Tutelie or Curatelle or Letters of Administratii n of the Estate or Eff'octs of the deceased Depositor, to the Post- maater-General. rayment, on " 17. If any Depositor, being illegitimate, shall die intcs- death of a l)e- t^te, leaving any person or persons who, but for the illegiti- lUegitimate, macyof such Depositor, and of such person or persons, would Funds of de- ceased Di'po^i tors, al o\ e $300. ■;< « K Pf:RSONAL RFPHESENTATIVKS. 149 'i be entitled to tho money duo to such di-couHod DoiKwitor, it uml iyiiijf in- shall bo lawful for tho Postmaster-CJencral, with tho author- t^-stuto. ity, ii> writin;,', of tho Attornoy-(ienorul of t'luiada, to pay tho III luoy of such docoasod Depositor, to anyone or more of tho persons who, in his opinion, would hivo boon ntitlod to the same, accordini,' to Law, if tho said Depositor, and such por- siiu or persons, had boon legitimate." It will 1)0 seen tlmt when the sum (exclusive of interest) exceeds 3.S00.0() Letters Probate or letters (if Adiiiiiiistratioii must be produced. And even if uiidt-r that amount, it will j^reatly facilitate the payment if there is a properly constituted personal representative. The Dominion Oovernmcnt Savinys Bank. By section 10 of 34'Vict.c.0,being " An Act to pro- Dominion Vide addUwnai Jacdities jor deposUiwj savings at savings Bank. interest with the security of the Government, and for the Issue of Dominion notes" the Governor in Council has power to make regulations respecting, Inter alia, the payment or transmission of deposits, in case of death of the Depositor. The practice in the Receiver-General's Depart- ment, as to re(piirino-, or not requiring, production of letters probate or administration, is the same as that above (juoted in connection with Post Otiice Savings Banks, no separate regulations having been (itficially promulgated. For Form of Application by an executor, or ad- ministrator, for pa^Muent, and of Statutory Declara- tion in case of missing pass-book, vide App. The blank forms are to be obtained at the oftices (»f Assistant Receivers-General, in proper cases. The general " Act relating to Banks and Banking," (General U Vict. c. 5, s. 21, provides that if the interest in J''=i»ki"g Act ' ' • , iif Canada. any share or shares in the capital stock of a bank Mil 1 150 RlinP.OOATE COURTS. •iM' Transmission liCCOlncs tvansiiiittcd ill COnHOiiUCllCC of tllO (loath (if f 1 tlic slijiix'liolder, such transmisMion shall be authen- ticated by di'claration in writing as thereinafter mentioned, or in such i)tl>er manner as the directors of the bank shall rc(|uire, and that cveiy such de- claration sliall distinctly state the manner inwliieh> and the party to whom, such shares shall have been transmitted, and sluill be by such party made and sif^ned, and lie by the party makini^ and si;j;nin<^' the same acknowledged before a Judge of a Court of Record, or before tlie Mayor, Provost, or ( 'hief Ma- gistrate of a city, town, borough, or othei- place, or before a Pidtlic Notary, whei'e tlu; same shall be made and signed, to be left with tlie proper otticer of the bank (with furtlier provision if (.'xeeuted out of ]>iiti.>h Dominions). And sections :2Ji and :24 provide DeclaiaLim that with such declaration the probate or letters of bate. v'cc. j^duunistratiou, or an olficial extract fhe)rfrom,ov (,•«'('. ?A) any (lutJientlcated copij of the prolxUC' or letters of administration, shall be produced and de- posited, to justify the ontry of tlui name of the party entitled under such transmission on the register of shareholders. Other SavinyK lia)ih's. The " Act respecting certain Savings Baidn jilace by virtue of any testamentary instrument, or by intes- tacy, on the probate of the will, or letters of a(hnin- istration, together with a statutoiy declaration, sta- ting " the maimer in which, and the jtarty to wlu)iii, such di'posit shall have been transmitted," being pro- duced to, and left with, tlie proper ollicer of the bank (cide Sees. 28 ^: 20). Other Saving's Bank.s. PERSONAL UEPRKSKNTATIVES. 151 Tlio requirement that the hitters probate, or letters if ,i(hiiiiiistratioii, shall he left with the hank, an' I'.'*y>nt> ft'nce that the depositor in liis lifetime endorsed and de- livered the deposit receipt to another person, and that tho bank upon presentation of tlie receipt, and without notice 152 SURUOOATE COURTS. of the death, jLiid tlic amount to such person ; neither would sudi a plea bo a good defence in e([uity, for it alleged neither an e(|uitable assiyunjent of the receipt or of the money se- cured thereby, ni>r a d(»iatii> mortis cdima {Lee, Aiiminintrator, tie. V. Tli>- ll»uk of n. N. A., 30 C. P. 2ho). CHAP. II. COMPKNSATKtX OU AI-LOWANCK TO KXECUTORS, A 1) M 1 N 1 STR AT( > RS, ETC. I ■ '• U.S. o., C.107 Tlic Jndn-c of any Surrogato Court iiiay allow to "■ ■* the executor or titistee («) or administrator, acting under will or K-ttcrs of administration, a fair and Allowanpf t.) I'easonaMe allowance for his care, pains and trouhle, Kxfcutors, &i. j^n, I j,j^ tiiiu> expended in oi' about the executor- ship, trusti'cshi}), or administration oi the estate and cfiV'cts vested in him under any will or letters of administiation, and in adndnistering, disposing of, and arranging and settling the sauie, and generally in arraui'in''- and settrnu' the ati'airs of the estate. and therel'or may make an order or orders from time to time, and the same should be allowed to an executor, trustee, or administrator, in pa.ssing his accounts (R. S. 0.,c. 107, s. 41). A Judge of the Court of Cliancery may settle tlie amount of such compensation upon an application to him for that pur[»ose (//>., sec. .S8). The allowance is to l)e a fail- and rea.sonalile allowance. There is no fixed percentage, but the Judgt' takes into consideration the " care, pains, trouble, and time expen-, s. ;{. m m ALLOWANCE TO EXECUTORS, ETC. 1 r,H "t'nerally in arranging and settling theaftairs of the (•state. " If viewed as a percentage on the amount passing through the hands of the executor or administrator, till' percentage would generally be less in proportion tu such amount in the case of large estates, than it would be in small estati's. The allowance is usu.iJly fixed at the tim(> ofWhenHx^d. auditing and jtjissin' ir accounts, as to which f/(^e j)OHt. Five per ce)it on sums passing through the liands -, j,,.,. ^tMit. (if executors, without complication, was considered by the Court of Chancery ;in t xeessive allowan(;e in the case of Thorn pHon i'. Freeman (a). When a suit for the administration of an estate is ]K'mliiig in the Court ff v i; ticeiy, it is improper foi- the Suirogate Court i.> it! rfere bv ordering the al- l(;\vanceof a commission to trustees or executors (/>). In McMillan v. McMillan (<•) executors were held entitled to comjiensation under the Suriogate Act for services performed before the passing of the Act ; .,1 .. * in > oj per cent. anil 21 per cent, allowed. The old rule as to compen.sation of trustee has only been abrogated by^the Surrogate Courts Act so far as relates to trusts under wills (d). An executor is entitled to retain his commission in j)reference to claims oi" ci'editors (c). Where a legacy is given to executors as a comj)en- sation for their trouble, they are at liberty to claim a further sum under the Statute, if the legacy is not siitiieieiit compensation (/). (.1) l.">(irant, .'Wt. {''t Camerim v. Jirtlnive, ir» CJr. 488. (.1 21 (!r. ;{(W,381. {d) WiUun V. I'romU.uA, L") o/i/.v noii to call the estate of his predecessor to account, see McLen- nan V. He ward (a). The Court of Chaneeiy will not refer it to the Surrogate Judge to .settle the amount of compensa- tion or commission to .an adnunistrator, but being seized of the subject matter of litigation will finally dispo.se of the rights of all partii's (/>). Executor, kv., On the other hand, where tht? Surrogate Court hail not to aiiplv '• 1 ii 11 1 ii !• 1 • !• i- toChivniiry iixcd tlic ailowaucc, and the parties Iteing dissatis- u.im-ceHsarily. ji^.,] appJi.Hl to the CoiM't of Cliaiiceiy for an increase.l allowance, that Court (Proudfoot, V. C.) refu.sed to interfere (c). An executor or administrator has no right to file a bill in Ch.ancery merely to obtain an indemnity by passing his accounts under the decree of the (\)mt. There must be some real question to submit to the Court, or some dispute re(|uiring inteiposition ; when he will be entitled to his costs, otherwise he will not receive them. And if it should appear that his con- duct ha.s been mxilafuley or unreasonable, he will be ordered to pay the costs of the defendant ((/). *■ Exi'cutors in this Province have no riirht to leave the administration of the estate to, or have the ac- counts taken by that Court, without some special necessity, wluu'e the estate is small, so that the costs of an administrati(»n suit would bear a considerabit; proportion to the amount {r). (it) itCr. 178,270; wee also VitnnUiu \. Th(ii>ij>i><,)i, 10 (ir. 51*2. (h) Il,i,t. ((•) Hi EHlntc of Finlirirk Will.i, ilimtinl. (Co. Y.nk), A \)ev. 187.S. ((/) White V. Ciiiinniii;/.^, U (;i. iW2 ; lUvrii v. lUirnj. 19 (ir. 4.'»8, («•) McUill V. Couvtii'c, 17 dr. 271. PROBATE OF WILLS. l.>5 CHAP. III.— Section I. l»ROIiATK. Till' probatt- of a will is the appiohatioii of .such I'r-'l'atw Avill iiii'ler tho si'al <»f a Proltato or Smr(»i,'ato ('ourt ufttT it has heen proved by evidence to the satislac- tion of sucli Court. Probate lias a twofohl otlice, whieh, besides ;j;rant- iMf wills of per 0(1 ill coninion or solenui form, is ajutlicial act, and as ili;ilty, a juilur nieiit ni rciu is, while uniejji'aled, eoneluNivi led. airaiiist all the world ; provided that the Court has jiuisiliction over the subjcet niattisr, and that the jiroliate is not obtained by fraudulent coMusion (6). The jurisdiction of the Ecclesiastical Courts was Odnfined to the probate vf instruineiits ichitiuL; to ])ei;s(>iial property. They had no power to compel ""t "f wilU of pioliate of wills lela tiller exclusively to real estate((). Ill till' iioods (if John lioodf ((/), Sir d. Ilaiuifn roalty. !<), Mil' ; lliirnnDii v. Mn it'C, of Siiiitliaiiipldti, I l>(' (J. MiN. & 111. Hut llii> ('o>iit of ('imnoury ill this I'roviiicf luus imwiT t valiility c.f wills, wlu-tlur pinltiiU' has lie«n r,iiit,( ,| lif II, ,t, anil if kiuuU'iI, whuthur rovoki-d nr not, Vnk ante (.. 1.;. (I yrtter v. lintt, t'ro. Car. .m. i./i h. It. V.fi It. 17? 156 SUUROGATK COURTS, ;l: lias no Jurisdiction in sucli a case," and refuscMl tlie appliciition, citin<,' the case of Drinnnioiid ("j, in which Sif Cresswell Cresswell held that it was con- trary to the practice of the Court to ina.\Q such a grant. Will of lands. Lord Ellenborough in the case of Doe ex. d. Ash. v Calvert (1810) 2 Cunip. K. li. SHD, remarked as to a will of lands, that the Ecclesiastical Courts had un control over it, and refused to receive the letters pro- bate under seal of the Court as secondary evidenci' of the will ; while at the same time parol evidence of the contents of such a will given by a witness who had heard it read over before the testator's family on the day of the funeral would have been admissibk', on proof of the will itself being lost (lb. hi nutv). The observations in Mr. Horsey's valuable ti'eatisc are instructive in this connection. He says (p. 1l'4) that " strictly s|)eaking,only those wills which supti- sede the authority of the ordinary to grant admin- istration require to be pi'oved. Probate was in fact the acknowledgement by the ordinary that his au- thority U) grant administration did not exist. This was the origin of the jurisdiction, fen-, as in ancient times, he had a personal interest in the etl'ccts of tho.se who died intestate, it was thought just iuid natural that the will of the deceased should be jtro- ved to the satisfaction of the j)relate whose right was effectual ly superseded thereby(see '1 Black. Com. H)4.j As a general rule those wills whicli reipiii'e t^i lie bi'ought into the C\»urt are such as can operate upon the ])ers<)nal estate of tiie deceased, or on the pei- sonal estate over which he had the powei' of apjxiint- ing by will (Sug. Pow. c. 5, p. 58). This ruli^ tlieii'- fore renders it unnecessary to prove wills which re- late solely to lands in which the testator had an iii- {(() '2«w. & Tr. 11. FROIJATK OF WILLS. i: It verBion. trrost of frecliold (Svvinh. pt. 0, s. 11 ; Tollor. 09). And iiltltouo'h such wills diroct that the lands shall ho -old and the proceeds distrihutcd as pevs )iialty, yet pinhate is not noeessarv, neither is probate ). P)Ut the !v C. P. Act, s. 01-:}, enabled that Court to Will.. frerJiy cstalilisli a will against pers(»n.s interested in the real ,iiin- lu-ir at estate, by its decree in a contentious suit or matter to which provision see. 40, S. C. Act in part corrcs- {londs, — empowering the Surrogate Court to cite the hiw. ilt dc' )thei rson interested in tli resteil in tlie rt'ai estate to see proceedings. v\r.. ('.) f'.iiirt.s of Ki|uity itre C'otirtH of instruction in contr.ailiHtinc- ti.'M from 11 Court ..f I'rohiiti' (Williiinix on lv\..rs. C.tli E.I. •2.v2-;{). ('I \n tho State of New York imiLate of a will of rt'iil estate ia "nly jin 111(1 faric eviilence of the valiility of tlie vili wliicli may he iinpejieheil by the li'-'irH in an action /Imlii/ \. Uliwurl, will of .1. T. >'.v.n7, 2 l.'edliuUl, N. Y. 2lL>. ifi :ji 158 SURROGATE COURTS. to be a pa])cr only applyinj^ to a freehold estate, it in the duty of the Court to establish it (a.). If executor is If ail execut(jr be appointed the will is proveable wm'i"!, vuble. though it dispose only of reality {b). In El'izahcfh Jordan the testatrix died in l.S(J7, leaving a will disposing of lealty only, and contain- ing an appointment 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, "1 think the next of kin is entitled to the grant. The general principle is laid down in Williams on Executors, Part l,Bk. 3. p.218,Gth VA. — " the bare nomination of an executor withont giving any legacy, or appointiny anything to be done by hlni is ftu(,icienf to make it a will, and usa will it is io be proced " ; if the nomination of the ex- ecutor made it a will, the fact of his subseijuent lo- nunciation cannot take away the ettect of the nom- ination. The ]irinciple laid down by Mr. Justice Williams was alhrmed by Sir 0. Creswell in WDwyer V. Gearc (18.59) 1 Sw. & Tr. 4G.5." The case of Jane Harden, supra, is apparently cciu- tra on this point, vide Coote 8th ed. p. 41 ; but Eliza- beth Jordan is the later case and would seem to be decided upon consideration of undoubted authority not referred to in Jane Burden. And if a person has by will exercised a power of appointing personal estate, such will should beproved although the deceased died possessed of no property of his own (c). A paper simply revocatoiy should be proved {d), and if after probate the executor discover subse- ((() Thoruld V. Thoruld. 1 Phill. 1 ; Durkcii v. Johnston, lb p. 8 n. (Ij) Lccsv, :U L. J., P. & M. Ft :{, p. 100, ami EUzahdh Jordan, L 11. 1 P. & D., oSoi.lan'y. l«<>8). (,) L'.tote, 8tli eil., 37 ; ftiul D. & B. ,W}. (plic'ation of section 22. A testator drew his pen thi'ough the lines of va- Pn.bateof rious parts of his will, wrote on the Itack of it " this ^^'ijj ,,.vokyti. is revoked," and threw it among a heap of waste [tapers in his sitting-room. A servant took it up and put it on a tabic in the kitchen. It remained lying about in the kitchen till the testator's deatli, .seven or oii,dit years afterwards, and was then found uninjure % o^ %' W ^ m m *■■ 1G2 SURROGATE COURTS. i M: ' Wills of sol- remembered that the exception was made at the mariners. time when the Statute of Frauds was passed (1676), and must be considered with reference to the cir- cumstances of that time, for the 11th section of the present Act (the Imperial Wills Act) is only a con- tinuation of the privilege granted to soldiers and marriners in the time of Charles II.; and that before the Statute of Frauds a will might not only be made by word of mouth, but the most solemn will might be revoked by word of mouth, and by any person above the age of fourteen years (a). A will executed in the presence of witnesses li ight be revoked by parol." The Court " had been referred to the Life of Sir Lionel Jenkins, who cl "'^ived some merit for having, in the prepara- • , "" .* the Statute of Frauds, obtained for the sol- Ll~.^.f 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 neces- sity of executing a will in writing. The exemp- tion had avowedly been borrowed from the Roman Law." In the United -^ ^^^^ privilege is enjoyed by soldiers and mari- Stotes. ners, under the laws of certain States of the Ameri- can Union. In ex parte Thompson (b), the learned judge (Brad- ford, Surrogate, Co. New York), referring to Ameri- can and English authorities, remaii^ed that, "the provisions of the Statute of Frauds was not applied to nuncupations made by soldiers or seamen in actual service. A similar exception is made in our own Statutes respecting wills." (a) Jarraan, 3rd ed., 28 ; D. & 13. 219. (6) 4 Bradford, N. Y., 154; see also Warren v. Binding, 2 R. I. Rep. 133 ; Lucai v. Goff, 33 Miss. 629, & Kent's Com. Am. Law, p. M7. i-M"S!';!i PROBATE OF WILLS. ill 163 And Mr. Smith (a), citing Huhbard v. Hubbard (b) and re Aiihur White (c), says : " The rule governing the onlj' unwritten wills now recognised is the Com- mon Law as it stood before the passing of the Statute of Frauds." A distinction was recognized from a remote period, Distinctimi. and anterior to the Statute of Frauds, between the unwi'itten wills of soldiers and all other verbal tes- taments ; the former being denominated Tnili- tary wills and the latter nuncupative wills (Swinb., pt. 1, §§ 12. 14). The effect of the Wills Act is to take away the Effect of Wills power of making nuncupative wills, except in the ■^^*' cases to which the exempting section applies (d). There is no limit to the amount of personal pro- personalty party a soldier or mariner may dispose of under sec- which may de- tion 14; and it is important to consider under what unlimited circumstances such dispositions can be admitted to probate. If not admitted, the estate will go as in the case of intestacies, and the intentions of the deceased may thereby in some instances be defeated. The same observations which apply to wills of personal property in England made previously to 1st January, 1838 (in Ontario, 1st January, 1874), apply equally to those wills excepted by the Act from its general operation, and as to which the Sta- in) Smith's Probate Law (Boston, Mass.), p. 55. (b) 4 Seld., N. Y. Appeals R. 196. (c) 22 L. R. 110. (rf) Note.— As to what constituted a good nuncupative will, see Swinb., pt. 1, 8. 12, and pt. 4, s. 29; Hubbard v. Hubbard, supra ; Sampson v. Browning, 22 Georgia, 293 ; and the Clerk's Instructor in Ecclesiastical Courts, by a gentleman of Doctors Commons, Fleet Street, London, A.D. 1740 ; Bacon's Abr. Wills, D. and Walkera on Wills, p. 218, and appendix. An instance of a nuncupative will be- ing admitted to probate was that of Ulich Howard, deceased, Surr. Co\irt, Home District, U. C, 30 March, 1832. And in same Court, Collint, Sept., 1839, and Ritchie, March, 1860. rijl .mm,S 164 The privilege confmed tu soldiers in service, or xeainen at »ea, Drummond v Parish. Shearman T. Pike. Service of E. I. Co.^ Actual service. SURROGATE COURTS. tute has left the old law unaltered (a). The privi- lege is confined in the case of soldiers, to such as are in actual military service (b), and in the case of mariners or seamen (c) to those who make their wills at sea. In Drummond v. Parish, supra, it was shown that the deceased, Major-General Drummond, Direc- tor of the Royal Artillery, was resident at Wool- wich, and the Court rejected an allegation propound- ing an informal testamentary paper, on the grouml that the deceased was not " in actual military ser- vice " within the meaning of the exception in the Act. In the case of Shearman v. Fyke (d), the will was purely nuncupative. The testator died in hospital at Moco Moco in 1721, the naval expedition in which he served not being over. In his last illness he was asked by J. P. and M. S. to make his will, and lie replied, " I give all I have to my master, and I will give nothing from him, and I'll make no other will ; he may dispose of it as he pleases." Two days after the death, the witnesses signed a schedule of the contents of the will, and made oath thereof at Moco Moco. One of the witnesses died on the voyage. The will was propounded by Governor Pyke (the testa- tor's master) as a nuncupative, will, and opposed by (a) Coote, 8th Ed. p. 94, citing Necille, 4 Sw. and Tr. 218, ami Farqithar, 4 N. C. G51. (6) Drummond Parish supra ; re Norris, 3 N. C. 197 ; Herbert v, Herbert, 1 Dean Eccl. R. 10; Phipps (A.D. 1840), 2 Curt. 369; Hill, deceased, 4 N. C. 174; 1 Rob. 270; Churchill, deceased, 4 N. C 47. ; Donaldson, deceased, 2 Curt. 386 ; Ifeville, 4 Sw. and I'r. 2IK (c) Milligan, deceased, 2 Rob. 108 ; Morrell v. Morrell (1827), 1 Hagg. 51 ; iva^, c/cceosc(/, 2 Curt. 375 ; Austen, deceased, 2 &ah,^\\\ The Earl of Eusten v. Lord Henry Seymour, [2 Curt. 33!); HaiKs, 2 Curt. 338; Corby, deceased, 18.1ur. 034 ; Saunders, deceased, L. K. 1 P. & D. 10, and 14 W. R. 148. (d) 2 N. C. 3.'54 (A. D. 1724). Donaldson, deceased, supra, the tes- tator, was in the E. I. Company's service. M PROBATE OF WILLS. 165 Shearman, one of the next of kin, but after argu- ment on both sides the will was pronounced for. Where a will made by an officer whilst engaged in Neville's case, actual military service was signed by him, but not ^'^'^^'■y ^^"■ attested, the Court required that there should be an affidavit of two disinterested persons, stating in terms Two disin- the signature to be in his handwriting, and that the ^[tnegfes. form given in the rules should be strictly followed. (For Form see Appendix.) This was the case of Glastonbury Neville (4 Sw. & Tr. 218), late a Lieutenant in the Royal Engineers, who was killed in action January 31, 1858, atBaro- dia, in the East Indies. While serving m the Crimean War, in 1855, he had made a will and codicil. The will, commencing " Camp before Sebastopol, Api'il 2nd, 1855," was written on three sides of a sheet of note-paper, with the testator's signature at the end of the second side, but not at the end of the third side. On the fourth side was endorsed, " My will, G. Neville, April 2nd, 1855." The codicil folded on the fourth side, and was date-^' June 7th, 1855, but was unsigned. Administration with the will an- nexed was granted in March, 1859, to a legatee on March, 1859. the practice above referred to being complied with. Tlie case of Farquhar, deceased (a), was that of a wiiiof asol- soklier who was a minor, and being mortally wounded '^*^'"' * ^'^°^' wrote his will in pencil on the field of battle, and the surgeon alone attested it. The question was whe- ther this was a valid will, and Sir H. Jenner Fust held that as he might, according to the Statute of Frauds, have made such a will and even a nuncupa- tive will, whether major or minor, it was under the 11th section of the (Imp.) Wills Act, a good and valid will. An officer in the Queen's army, with his regiment. In barracks, {a 4N. C, 651. ! ■ 'll \ ■ i\ 166 SURROGATE COURTS. I! .•'j not actual ■errice. Milligan's case. made at sea. in barracks in a British colony is not " in actual military service " within the section referred to (a). In William Milligan (6) the testator was mas- ter of a merchant vessel, and died at sea in May, 1849, He wrote, addi'essed, and sent by post to his wife, a letter purporting to contain his will, which she received, bequeathing to her all his pro- perty, but appointing no executor. The letter was Mariner's will proved to be in the handwriting of the deceased. It was headed "Margate Roads, 5th August, 1848," and commenced, " My dear Margaret, — Thus far on my journey. It is now blowing a strong gale. Life is uncertain. In the event of we being parted for ever in this world, I wish you to have, and bequeath, everything that I am possessed of, goods, money, ships, or land, or all debts due me, or all moneys coming by any way whatsoever. have not made any will," &c. The letter was signed by deceased, but not attested. No other paper of a testamentary nature was found. It was held to be within section 11 of the Wills Act, and that there were dispositive words in the paper. It was admitted to proof, and administration, with the will annexed, was granted to the widow, justifying security not being required as the parties cited (brothers) had not a prior claim to the grant. In McMunlo (c) a will made by a mariner serv- ing on board H. M. S. " Excellent," she being per- manently stationed in Portsmouth harbour, was on a motion for revocation of letters probate which had been granted by the Prerogative Court, held to be the the will of " a mariner or seaman being at (a) Whytev, Rcpton, 3 N. C, 97 (A.D. 1844) ; Non-is, decmd, ib. 197. (6) MiUigan, deceased, 2 Rob. 108, (A.D. 1849). (c) L. R. 1 P. & D. 540 (A.D. 1867). McMurdo's case. i;^ 1 i PROBATE OF WILLS. 107 sea," within the exemption of the Statute, and the motion rejected. In the case of Henry Corby (18 Jur. 634), an able Corby, seaman on board the ship " J. A." '-t Melbourne, Australia, application was made for probate of cer- tain informal papers (letters), under section 11, the evidence showed that the vessel was in port, and al- though the letters were written on board, she did not sail for fifteen days after they were written. Dr. Lus^ ngton refused the motion on the ground that the case did not come within the words " mariner or seaman being at sea." The nuncupative will of an officer of the U. S. At sea. Navy in command of the gunboat " Benton," made while the vessel was lying opposite Vicksburg in the Mississippi River was held not entitled to pro- bate, not having been made " at sea." {Qwin, 1 Tucker, Surr. Rep., N. Y., 44). But a similar will of the master of a ship made on board while she was at anchor in an arm of the sea where the tide ebbs and flows, was admitted (Ifuhbard v. Hubbard, supra). In some of the cases referred to, e. g. Shearman v. Pyke, E'liston v. Seymour, and Morrell v. Morrell, the will was purely nuncupative ; in othei-s written but unattested; in others attested by only one witness No particular form of words are necessary, and no ^^ ^^ fon^. particular number of witnesses is required provided the proof be sufficient to satisfy the Court as to the substance of the testamentary request or declara- tion (a). Where no executor has been named, administra- Practice if no tion cum test, annex, is granted as in cases of other ^^^cuv'or. wills where no executor has been appointed (6). {«) Ex. p. Thompson, and Hubbard v. Hubbard, supra. [b) Vide caaea of Morrell, Neville, and TItarne, supra. 168 SURROO.ME COURTS. Will of soldier or mariner, how esta- blished. Blind or illit- erate persons. When it is sought to establish an informal will on the ground of the testators having made it while in actual military service ; or, being a mariner, while at sea, an affidavit of the facts on which the privilege depends, and setting forth the expedition on which the testator was engaged must be filed (a). A schedule containing the words of the testator as uttered by him, as in the case of Shearman v, Pyke, or the informal papers containing the will must be marked and filed. In that case it would appear that the words had been reduced to wi'iting and sub- scribed by the witntisses, who two days afterwards deposed to it before some person authorised to ad- minister oa-ths. Probate was allowed to pass in common form on affidavit from a clerk in the War Office that the pai- ties deceased were at the time their wills were mtule in actual military service (6). The nuncupation is reduced to writing at the hear- ing in the form in which it may be established by the evidence (c). The other proceedings are those in the ordinary cases before the Wills Act. The practice as to wills of blind or illiterate per- sons applies to these wills, viz., that probate of the will, or administration with the will annexed of any blind, or illiterate, or ignorant person, is not allowed to issue, unless the Court is satisfied that the said will was read over to the testator before its execu- tion, or that the testator had at such time know- ledge of the contents (c^). (o) Thornf, 4 Sw. & Tr. 36. (5) 2 Curt. 2G8, n. • (c) Smith's Probate Law, supra, and authorities cited. (d) Thome, 4 Sw. & Tr. 30. Hackett, 4 Sw. & Tr. 220. h I PROBATE OF WILLS. IG) Wills of Married Women. The devise or bequest which a married woman jj^^ executed might make under 22 Vic. c. 34, s. 16 (R. S. 0. c. 5j;^^«i''^Vj.and 106, s. 6.) required to be executed in the presence of i Jan, 1874. two or more witnesses, neither of whom was her husband. By the Wills Act, section 9, s.s, 4, the words "per- Wills A ;t. son " and " testator " include a married woman, who may therefore devise, be([ueath, or dispose of her pro- perty by will (sec. 10). Among the rights incident to separate property of married women is the right of bequeathing it (a). Such wills are admitted to probate (6). • In the case of Adams v. Corcoran (c), probate of Manied wo- the Avill of a married woman living sepii vate from separate!"" her husband had been granted, and it was said that the husband might have appeared and opposed pro- bate in the Sun'ogate Court, as in Faglarx, Tongue (L. R. 1, P. & D. 158). In the executor's or administrator's oath on appli- Divorced, cation for probate or administration, a divorced wo- man is described by the name by which she was known at the time of her death {d). '■^m Section III. Probates, The probate granted to executors whose appoint- Executoin ment is gefteral and absolute is also itself general and absolute in its powers. It extends over all per- ((() Madden v. Fladgate, 1 Sw. & Tr. 52 (A. D. 1858). (0 Per Hagarty, J., 25 C. P. 254. ('/) Hay, 35 L. J. (N. S.) P. & M. 3. ; 1 L. R. P. & D. 51. (6) Ibid. l-'i 170 SURROGATE COURTS. Probate gene- sonal estate situate in Ontario, and does not termi- nate even necessarily by the death of the executors, but may be continued, as we shall see, to an indefi- nite period, by the chain of executorship. An executor is either nominated or appointed, in the will, or is executor according to the tenor of the will. Where persons are appointed to collect the assets and pay the debts and legacies of the testator, they are executors according to the tenor, and as such en- titled to probate (a). If a testator give to A. all his real and personal estate to apply the same, " after payment of debts," to the payment of legacies, without expressly nomi- nating him as executor, A. will be executor accord- ing to the tenor, and entitled to probate (a). An universal legatee is not an executor as such (b). It is obligatory on the Court to grant probate to the executor (6), except under special circumstances referred to in S. C. Act, sec. 54. Probate is granted to one executor on the renun- ciation of the others. Probate is granted to all the executors, no matter what the number may be. The executor's title is not defeasible by bank- ruptcy, insolvency, or even felony (c). Accordingly, where an executor (being residuary legatee) cut off a part of a will containing legacies, and thereby attempted to put £500 into his own pocket, and which attempt at fraud he admitted, the Court had no option but to decree probate to him with his co-executor (d). The general indefeasibility of the executorship (o) William Bdl, 4 L. R. P. D. 85. (6) D. & B. 389 ; T. H. Oliphant, 1 Sw. & Tr. 526. (c) Smethurst v. Tomlin, 2 Sw. & Tr., 143-147. (d) Mary Hill, 6 Jurist, 350. Executor poti- ore jure. Indefeasibility of hia title. PROnATE OF WILLS. 171 has been broken into, in a small degree, by the 54fth Special cir- section of the S. C. Act. By that section an execu- 54thSectionS. tor may be passed over, if he be resident out of ^" ^''^' Ontario at the time of his testator's decease, and there shall appear to the Court to be a necessity for or a convenience in making a grant of administra- tion (with the will annexed) to some other person. With this exception, lunacy, idiocy, and mental imbecility, are the only grounds upon which an executor may be excluded from probate (a). The executor has either been expressly nominated by the testator, or the latter has, by his will, au- thorized another person to make that nomination on his behalf (6). If a corporation aggregate be appointed executors, administration (with the will annexed) will bo granted to their syndic (c). If the will exist in duplicate, the executors may Duplicate will, prove one part, and the other part should be filed in the registry. The registrar will inquire if both parts were in existence at the time of the testator's death, and should one of them not be forthcoming its absence will have to be accounted for. (Coote, p. 50). If there be a codicil or codicils, such codicil or Codicils oils must be proved with the will. }^^l^'^ ^^*'» There is an exception to this rule where a codicil Exception, is litigated, which in no way alters the appointment of executors, and where there is a necessity or a reason for administering the estate siLh modo with- out delay (d). In such cases probate is granted of a will alone to (a) Evans v. Tyler, 2 Rob., 131 ; and vide •' Grant's for use and benefit," post. (6) Cringan, 1 Hagg. p, .548, and Jackson v. Paulef, 2 Rob. p. 34.5 ; see also A. H. Ryder, 2 Sw. & Tr., p. 128. (c) E. Darke, 1 Sw. & Tr., p. 517. ((/) Rtay V. Coucher, 2 Hagg. p. 249 A Coote, 50. 1 172 Probate of will without litiga- ted codicil. Power reHer- ved to other executors to prove. Double pro- bate. /'cmc executrix taking pro- bate. Probate re- fused on hus- band dissent- ing. Probate of au- thentic copy of will or ex- empli.*ication. SURROGATE COURTS. the executors therein named, the question of the validity of any codicil thereto being reserved. Such a probate of course does not empower the executoi- to distribute the residue of the estate (a). If there be several executors, one may prove alone, without notice to the others, and in this case a jiower is reserved by the court to grant probate to the latter whenever they or any of them shall duly apply for the same. But this reservation of power can only be made to an executor who is equal in degree. Therefore when an executor for life takes probate, power is not reserved to the executor substituted upon his decease. The executor to whom this power is reserved may at any time, either during the lifetime or after the death of the other executor, prove the testator's will. The grant is called a double or treble probate (1). When a feyne covert is appointed an executrix of a will, she is allowed to take^probate without notice to her husband as it is not the practice to require his consent (b). But where a husband dissented, the court excluded a feme covert executrix, and granted probate to her co-executor without her (c). If the will have been previously proved and de- posited in the Court of another jurisdiction, it is com- petent to the executor to prove an authentic copy, Probate duties (1) NoTE. — The Imp. Stat. 41, Geo. III. c. 8G, provides tUat in England duties shall not be payable in respect of grants of probate, and other grants, more than once on the same estate, a de- as to double noting stamp merely being affixed to the double grant, probates. There is at present no similar provision in Ontario. (a) Vide "The Law Magazine and Law Review," November, 1857, p. 101. (b) Due, deceased, 2 Rob. 342. (f) D. & B. 340. ,Winiam8'on\Extcutors, feth Ed. 236-456, & Coote, p. 51, & Balmm, v. Robinson, 19 U. C. C. P. 266. ies tUat probate, |e, a de- arant. Lvember, 16-456, & PROBATE OF WILLS. 173 i. e., an exemplification or office copy, loco originalis. Coote, 52. Tlie Court is accustomed to call for evidence (by affidavit) in support or elucidation of a will, if it suspects a defect in its execution, or if there be in- terpolations, erasures, or alterations not sufficiently attested, vide 'post. It is most usual for the Court to grant probate of Probate of the will latest in date ; but if tlie parties interested '^'^'^ ''^^ ^^' " under such will have been cited to propound it, and do not do so, the Court grants probate in common form of the one preceding it in date (a). If a codicil have been discovered at a period sul ■ Codiaiaiscov- 111 sequent to probate of a will being taken, a separate fpfeni™ to mo- probate for that codicil will be granted to the ^'•''*'' :. ^'J!, ' ° n 1)1)1 )Uitingilif- executor, prov lued it in no way repeals or alters the tVreut execu- appoinfment of executors already made in the will (6). If different executors are appointed by the codicil, the probate of the will must be brought in and revoked, and a new probate will be granted of the will and codicil together (c). The probate does not necessarily expire with the Transmisgion death of the grantee. An executor having taken ghip''*^^'^*"'^" probate of his own testator's will becomes executor, ipso facto, not only of that will, but also, and without further grant, of the will of any testator, of whom the other was sole or sui'viving executor (cZ), and so on, ad infinitum, upwards (e). The office of executor is transmissible downwards equally, ad infinitum, provided the same condition (a) Palmer v. Dent, 7 Notes of Cases, 555. (6) Langdon v. Eooke, 1 Notes of Cases, 254 ; Wm. Bcetson, G Notes of Cases, 13. (c) Vide post, " Revocations." (, 1858. Since Wills Act, 1873. 180 SUKROGATE COURTS. Probate re- fused if afiida- vitinsutticient. Or if doubtful, Judge to de- cide. Death of wit- nesses or lack of evidence, how supplied. of the subscribing witnesses, if they or either of them be living, to prove that the provisions of the Wills Act [sec. 12J in reference to the execution, were in fact complied with (a). " If, on perusing the affidavits of both the subscribing wit- nesses, it appears that the requirements of the Statute were not complied with, probate will be refused. " If, on perusing tlie affidavit or affidavits setting forth the facts of the case, it appear doubtful whether the will or codicil has been duly executed, the Registrar may re- quire the parties to bring the matter before the Judge ou 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 sub- scribing witnesses, and also of any circumstances which may raise a presumption in favour of the due execuvion (6). Interlineations awl Alterations. T , ,. .. " Interlineations and alterations are invalid unless they and alterations " existed in the will at the time of its execution, or if made when valid. u afterwards, unless they have been executed and attested in ' ' the 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. On what evi- " Where interlineations or alterations appear in the will dence. " (unless duly executed or recited in, or otherwise identihed " by the attestation clause), an affidavit or affidavits in proof " of their having existed in the will before its execution, " must be tiled, except when the alterations are merely ver- " bal, or where they are of but small importance, and are '* evidenced by the initials of the attesting witnesses ('•) Erasures and Obliterations. When opera- " Erasures and obliterations are not to prevali, i-o' tive. " proved to have existed in the will at ths tune of ita e^e- (a) See Latham deceased, IQ Jur. N. S. 620. (b) See Bimjoync v. Showier, 1 Robert, p. 5; Jaw. L. J. N. S. 33. (c) See sec. 23 Wills Act OiU. Thomas, 28 PROBATE OF WILLS. 181 :-, they made ,ested in been by the its e:ve- horiMK, '1^ cution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been ren- dered valid by the re-execution of the will, or by the subse- sequent execution of a codicil thereto. If no satisfactory evi- dence can be adduced as to the time when such erasures and obliterations were made, and the words erased or ob- literated be not entirely effaced, but cjvn, upon inspection of the paper, be ascertained, they must form part of the probate. " In every case of words having been erased or obliterated. Affidavit which might have been of importance, an affidavit will be thereon, required. Deeds (I'C, referred to in a Will oi- Codicil. " If a will contain a reference to any deed, paper, memo- DocnmentHrc- randum, or other document of such a nature as to raise a ferred to by question whether it ought or ought not to form a constituent proiluced. ' part of the will, the production of such deed, paper, memo- ■ randum, or other document, must be required, with a view to ascertain whether it be entitled to probate, and if not produced, its non-production must be accounted for. " No deed, paper, memorandum, or other document can When a docu- form part of a will unless it was in existence at the time "'^"t cannot , ^, .„ i 1 form part of a wlien the will was executed. will. Apj^eara'tice of tke Paper, '' If there are any vestiges of sealing-wax, or wafers, or indication of ' other marks upon the testamentary papers leading to the document hav- ■ inference that any paper, memorandum, or other docu- ,\'^xed'^^" ^^' ■ nient has been annexed or attached to the same, they must ' be satisfactorily accounted for, or the production of such '' paper, memorandum, or other document must be required, ' and if not produced its non-production must be accounted lor. Married Woma7tti Will by Virtue of a Power. " In granting probiate of a married woman's will made by The power to virtue of a power, or administration with such will annexed, ^"' specified in the power under which the will purports to have been made '^ ^^ must be specified in the grant. Codicils. ' ' The above rules and orders respecting wills apply equally g^, ^^^ ^.^ to codicils. Co'dicib. 11 •■':■ ■ 182 SURROGATE COURTS. Wills made " ^.S TO PUOBATE OF WILLS, CODICILS AND TESTAMEN- l>efore 1 Jan., " tary papers relating to personalty, and dated before " THE 1st JANUARY," 1874 (a). 1874. Execution and Attestation. When prima facie entitled to Probate. Evidence required. If unattested. Proof of hand- writing. If only one attesting witness. Execution of a Will. " It ia not necesfiary that a will, codicil, or testamentary paper, datedbefore 1st January," 1874, "should be signed by the testator, or attested by witnesses, to constitute it a valid disposition of a testator's personal property. Although neither signed by the testator, nor attested by witnesses, it may nevertheless be valid, but in such cases the testator's intention that it should operate as his will, codicil, or testa- n'entary disposition, must be clearly proved by circum- stances. " A will, codicil, or testamentary paper signed at the end of it by the testator, and attested by two disinterested witnesses, although there be no clause of attestation, is prima facie entitled to probate. '' In cases where a will, codicil, or testamentarj' paper is attested by two witnesses, such witnesses are not required to have been present with the testator at the same time. It is sufficient if the testator subscribed his name, or made his mark, to the paper in the presence of one attesting witness, or produced it with his name already subscribed, or his mark already made to one attesting witness, and afterwards produced it to the other attesting witness, pro- vided that on each occasion he declared it to be his will, codicil, or testamentary disposition, or otherwise notified his intention that it should operate as such. " If the will, codicil, or testamentary paper is signed at the end of it by the testator, but is unattested, and there is notliing to show an intention that it shoiild be attested by witnesses, the affidavit of two disinterested persons to prove the signature to be of the hand-writing of the testa- tor will be sufficient to entitle the paper to probate. " If the will, codicil or testamentary paper is signed at the end of it by the testator, and attested by one witness only, and there is nothing to show the testator's intention that it should be attested by a second witness, the affidavit of one (a) These instructions "are, in fsvct, an epitome of the law as it stood previously" to 1st January, 1838, in England. Browne on Probate ; London, 1873. |:|i m m PROBATE OP WILLS. 183 " disinterested person to prove the signature to be of the " hand-writing of the testator will be sufficient to entitle the " paper to probate. " The circumstance of a person being named as an execu- interested wit- " tor in the will, codicil, or testamentary paper, or being in- "^esn. " terested as a legatee, or as the husband or wife of a Lgatee " under such will, codicil, or testamentary paper, rendered " him or her incompetent to become an attesting witness " to it ; so that if the name of a person so interested appears '' as that of a subscribing witness to the will, codicil, or tes- " tamentaj-y paper, the same, so far as regards his or her at- " testation, must bo considered as unattested, and his or her " evidence in support thereof will be inadmissible, unless he " or she shall first release his or her interest thereunder, (a) "If an attestation clause, or the word ' witness ' appear jf will prima " written at the foot of the paper, tlie same being unattested, Z^*^'^ incom- "or if the p.aper purport on the face of it to be a draft of a " will, the copy of a will, or instructions for a will, it must " prima facie be considered as an incomplete paper, and not, " save under special circumstances, entitled to probate. Ap2)earance of Paper. " Any appearance of an attempted cancellation of a paper Presumption " by burning, tearing, obliteration, or otherwise, and every "^ revocation. " circumstance leading to a presumption of abandonment or " revocation of a paper on the part of the testator must be " accounted for. proved. Alterations and Interlineations. " Alterations and interlineations made by the testator, if Alterations unattested, are to be proved by the affidavits of two per- &c., how sons as to his hand-writing. If the same are in the hand- writing of any person other than the testator, it will suf- fice to prove by affidavit that such alterations and inter- lineations were known to, and approved of, by the testa- tor. Proof by affidavit that they existed in the paper at the time it was found in the repositories of the testator, recently after his death may, under circumstances, suffice. Alterations and interlineations made since the 31st of De- cember," 1873, " are subject to the provisions of " 36 Vic, SO. •^ (a) See sees. 17, 18, 19, Wills Act Ont. Gr. 398. and Crawford v. Boyd, 22 184 SURROGATE COURTS. fi'i M Incorporated papers. Revival of Wills made be- fore Wills Act. Mode of exe- cution. Deeds, etc., refetred to in a Will, or annexed to a iVill. " With respect to deeds, papers, memoranda, or other do- ' ' cuments mentioned in a testamentary paper, or appearing " to have been annexed or attached thereto, the foregoing*** " instructions as to wills bearing date since the J 1st December" 1S73, "apply." Bepvhlkation by Codicil. ** A will made before the 1st of January, l'^y■^^, is repuh- " lished, by a subsequent codicil thereto duly executed (a). Mode of Execution. " In every case where an affidavit is made by a subscribing " witness to a will or codicil, such subscribing witness is re- " quired to depose as to the mode in which the said will or " codicil was executed and attested." ;' dk 'i. Codicil. Defective execution supplied. Execution of wills since Wills Act. Position of testator's signature. Since the Wills Act the word "codicil" can only mean a testamentary paper duly executed and at- *-,ested (6). The defective execution of a testamentary paper may be supplied by a subsequent document duly executed, but the earlier instrument must be so described that there can be no doubt as to its identity (c). The manner in which a will is to be executed is prescribed by the Statute (sec. 12). By execution, is to be understood the whole oper- ation which is necessary to make a document testa- mentary in the first instance (Casement v. Fulton, 5 Moo.P.C.C. 141). By sec. 12, s.-s. 2, "Wills' Act," the signature of the testator may be placed :- - i. " At " the end of the will, — or {a) See Wills Act, Ont., sec. 24. (6) Vide Interpretation clause " Wills Act ; " Crokcr v. The MarquU of Hertford, 4 Moo. P. C. C. 339, 362 ; and In Ee Trusts of Am: Parker's Will, 20 Gr. 389. (c) Hahergham v. Vincent, 2 Ves. Jr. 231. PROBATE OF WILLS. 1S5 'J. " After " the end of the will,— or ,S. " Following " the end of the will, — or 4. " Under" the end of tlie will, — or 0. " Beside " the end of the will, — or G. "Opposite to — the end of the will," — so that " it is apparent on the face of the will that the tes- tator intended to give effect by such signature to the writing signed as his will." "And no sucli will shall be affected by the circuni- ^^tance that the signature : — 1. "Does not follow, or is not immediately after the foot or end of the will, — or 2. " By the circumstance that a blank space inter- venes between the concluding word of the will and the signature, — or 3. " By the cii'cumstance that the signature is placed among the words of the testiDionium clause, —or 4. " Of the chiuse of attestation (a), — or >. " Follows or is after, or under the clause of iittestation, either with or without a blank space intervening, — or G, " Follow^s or is after or under, or beside the names, or one of the names of the subscribing wit- nesses, — or 7. " Bv the circumstance that the si(;nature is on a side or page, or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will is written above the signature, — or 5. " By the circumstance that there appears to be sufficient space on, or at the bottom of the preceding sid(^ or page, or other portion of the same paper on which the will is wriv+'^n to contain the signa- ture; * * * ♦ (a) ream, 1 1\1). 70. II 186 Where signature ineffuutual. Mark. Stamp. Sealing. Oemiine exe- cution uphekl. Defective exe- cution, instances. Position of tes- tator's signa- ture. SURROOATE COURTS. 9. "But no signature under this Act shall hn operative to give effect to any disposition or direc- tion, which is underneath, or which follows it, nor shall it give effect to any disposition or direction inserted after the signature was made." A mark made by the testator, his hand being guided, and he being unable from bodily weakness to sign, has been held sufficient (a). And a will was declared valid which was signed by a mark, although the testator's name did not appear in it {Brycc, 2 Curt. 82G [1839] ). A signature impressed with a marking stamp by the testator's direction was held sufficient {b). Sealing is not good as a signature {Ellis v. Smith, 1 Ves. Jr. 13 ; Wri(jht v. Wulceford, 17 Ves. Jr. 454). The will of a testatrix, signed by her former name, was admitted to probate as duly executed (Glover, 5 No. Ca. 5.53). Within the limits of reasonable construction, the Court is prepared to go aU lengths to save a genuine act of execution from entanglement and defeat by formal requirements (c) ; but where the execution fails to comply with the requirementsof the Wills Act, probate will be refused. The following are instances of defective execution which have been the subject of legal decision : — Probate was refused of a paper as not being signed at the foot or end, the signature and attestation clause being in the middle of the back of the page on which the will was written, erasures and altera- tions unattested and unexplained appearing on both pages (d). (a) Wilson v. Bedard, 12 Sim. 28. (6) Jenkins v. Gaisford, .3 Sw. & Ti. 9C. (c) Jones 34 L. J. P. M. ), and Clark, 2 Curt- .329, -in which cafe the person directed si^ied liia own name and not that of the testator. (r) M,>rritt v. Dowjlas, lu R. 3 P. & D. 1 (1872). \d) Cotton, 6 No. Ca. 307 ; 1 Robert. 658. PROBATE OF WILLS. 18& I ' the own • pev- icient, [edged e vAt- cutors, ly name, )TTON. ar of our , the pves- nt of my STIN. USTIN." icr as it to reject ned part though xecutoi's disposi- bned anil Uecutovs actually Irwards u without 1850). ■which ewe Ithe testator. that clause, was by consent made to the residuary legatee (a). If there be no date, or if there be an imperfect Date of will or. if law against alterations. Words or figures res- tored. SURROGATE COURTS. cution of his will, does not entitle such alteration to probate (a). Alterations, however, which, though made after execution, have been either executed in the manner required 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 pro- bate ; for the 23rd section of the Wills' Act of On- tario allows the validity of an alteration, if it has been executed in the manner required by the same Act for the execution of the will itself; or failing this, if the signature of tht) testator and the sub- scription 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 op- ])Osite to a memorandum referring to such altera- tion, and written at the end or some other part of the will. If however, no affirmative evidence can be ob- tained, 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 pro- bate (b). If the obliterations and erasures are so incomplete that the original words or figures can be read or de- ciphered either by the naked or assisted eye, the court will restore them in all cases, and will grant probate of them, and will allow the use of magni- fying glasses, but not chemical agents to remove the obscuring ink (c). If, however, the original words cannot be read, (a) Adamson, 3 L. R., P. A D., p. 25.3. (h) Cooper V. Bocfcett, P. C. 4 No. Ca., p. 685; see also Ibid, p. 659, & Smith V. Meriam, supra. (c) Horsford, W, E. vol. 23. p. 211 ; 3 L. E., P. & D. pp. 214-216, 1874. PROBATE OF WILLS. 193 n to after inner i will als of D pro- i On- it lias i same failing ^e sub- in the osite to f or op- L altera- part 0? L be ob- will has teration In of the om pi'o- tomplete Id or de- 1 eye, the [ill grant niagni- aove the be read, Ibid, I). t550. ipp. 2U-216. either by the naked eye or through extrinsic aid, Wonb, Ac. . . Trt. , • • 1 • -J. not apparent, the court exercises two different principles in its way of dealing with them. If a testator has obliterated or erased the whole of a bequest or provision in his will, or has com- pletely covered it by paper pasted over it, and has so effectually accomplished his purpose, that the pas- sage is not apparent, i. e., cannot be made out on the face of the will, the revocation is complete, under the twenty-third section of the Wills' Act, and the Court grants probate of a blank (a). Bat where part of a legacy only, viz : its amount Amovmtof 1?- or the names of the legatee, has been so covered, or °' obliterated or 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 re- voke the original name or amount in the event of his having effectually substituted another, in which Erasuns &c., case the doctrine of dependent relative revocation jijj^" '^^"''*' becomes applicable ; and, by this doctrine, the obli- teration or erasure being done with reference to ano- . ther act, meant to be an effectual disposition, will be Depemient a revocation or not, according to the efficiency of the relative revo- relative act. But the alteration in the name or amount, i. e., the relative act, not being executed ac- cording to the Statute, there is no revocation at all, and the Court will restore and -^rant probate of the original words, for which others were sought to be substituted. In these cases the Court has exercised Court will the right of ascertaining aliunde, by parol evidence, oriiiinal words, what the original words or figures were, in order to restore them (b). Where the testator had erased in his will, with a (d) Horsford, ante ; Townlty v. Watson, 3 Curt. p. 7C6 ; Harris, 1 Sw. & Tr. 538. (h) Horsford, ante. 194 SURROGATE COURTS. *22ncl eection Wills' Act of Ontario. voked. knife, the amount of an annual jointure of £200, and had substituted for it, in his own handwriting, a sum of £100. He had also written under the clause of attestation an explanatory memorandum of what he had done, but the memorandum was not attested as required by the Wills' Act. It was held: 1st, that the 20th* section of the Will's Act required that there should be on the part of the testator an intention of revoking ; 2nd, that the evidence adduced showed that the testator did not intend to revoke absolutely, As to how only but meant to revoke by substituting a different sum will can be re- „ , . . . ,, , '' ,, , „ , ,, , ,, , for that originally bequeathed ; 3rd, that the altera- tion could not take effect, because it was not exe- cuted according to the Statute ; and, finally, that therefore, the revocation was ineffectual, and the will must stand in its original state (a). In a case where a strip of paper was pasted over the amount of the legacy, leaving the name of the legatee untouched, the Court, inferring that the tes- tator's intention was only to revoke the part covered, in the event of his having effectually substituted an- other bequest in its place, exercised its right of ascer- taining the original disposition by any means of le- gal proof, removed the strip of paper, and having thus ascertained the original word, granted probate of the codicil as unaltered (6). Where the name of a legatee was so entirely erased that it was no longer apparent, another being substi- tuted for it, on evidence being given as to what the original name w^as, the Court restored it (c). But the restoration of the original words which (a) Brooke \. Kent, 3 Moo., P. C. 34 ; 1 No. of Ca. 95, 1841. Th« provisions of the Wills Act as to revocation do not apply to willi of persons who died before 1st of January, 1869 : see section 8. (6) Horsford, supra : see also Lushington v. Onslow, 6 No. of G«. 183 ; Soar t. Dolman, 3 Curt. 121 ; Parr. 1 L. J. E. (N. S.), vol. 29, p. 70, (c) AfeCahe, L. R:, 3 P, A D. p. 96. Restoring words, &c. , erased, &c. PROBATE OF WILLS. 195 ,an(l sum se of at he ed as , that there ion of lowed lately, it sum altera- ot exe- y, that ,nd the ed over e of the the tes- covered, tted an- if ascer- ,s of le- having probate ly erased Ig suhsti- ^hat the whicb \\m. Tb« r to will* of Jo. of Oft. 3.), vol. 29, constituted the name of the legatee, or the amount of the legacy, is, of course, conditioned upon the pos- sibility of obtaining evidence of what, in either case, these were. Where this evidence cannot be obtained, the Court is under the necessity of granting probate of a blank (a). Unattested alterations in the testator's handwrit- ing, in a will executed before the Wills' Act came into operation, will, in the absence of a date, be presumed to have been made before that Act came into opera- tion, and are entitled to probate without any affirm- ative evidence (6). The same principle is also applied to alterations in a will made by a soldier in actual military service, the alterations being in his own handwrit- ing (c). All verified alterations, however, are not necessa- rily admitted to probate ; they are subject to the discretion of the Court. It will see with what ob- ject the alterations have been made. If it can determine that they represent a definite intention of the testator, it will adopt them ; but if it is of opinion that they were deliberative only, they will be omitted from probate, as not being in- cluded even in any confirmation made subsequently by the testator (d). Alterations which have been made since a testa- tor's decease, or by unauthorized persons at any other time since the execution of a will, being of the nature of felony, are, by the practice in England, (n) E. S. James, 1 Sw. & Tr. 239, and Sir C. Ibbctton, 2 Curt. 337. {h) Strcdker, 4 Sw. k Tr. 194, and 28 L. J. R. (N. S.) P. & M. ■lO; Pftinington, 1 Notes of Cases 399; Ptchell v. Jtnkimon, 2 <'urt.273. {() Twtcdale, 3 \u R., P. and D. p. 206. {d) Hnll, L. R. 2 P. & D. p. 358. In wills made before Will*' Act, presump- tion in favor of alteration. Verified alter ations, where not admitted to probate. Alterations not made by testator, or by liis direction*. ii 'ik 190 Suspicious or HUggeHtive up- pearancL'H on the face of a \vill or codicil Evidenct rebut. to Jlxclusiou of w iril from pro butf. Date of will nhown by affi- davit. SURROGATE COURTS. submitted to the Court for its directions as to the course to be pursued (Coote, 7th ed. 92). Where vestiges of sealing-wax, or wafers, or othei- marks appear on testamentary papers, as referred to . at p. 181 ante, the presumption of spoliation must be rebutted. This may be done by evidence, showing either that the testator, per se or per alium, removed a codicil or a portion of the will, or that when tho will was found, on the occasion of the testator's death, it was in the identical condition in which the execu- tor produces it to the Court. The Court will exclude from probate any part of a will which the testator did not know to be therein. So when a revocatory clause has been introduced into a will, without the instructions or knowledge of a testator the Court granted probate without that clause (a). And a similar order was made in another case where a testator had been found by the verdict of a jury not to have known or app 'oved of a residuary clause in his will (h). The Court has also constantly excluded from pro- bate words of atrocious, offensive or libellous charac- ter (c); but it cannot exclude any words or sentences which do not come fully within such category (d). If the date be inaccurately given in the original will the Court will allow the true date to be shown by affidavit. The true date will be inserted in the probate (e), but not in the annexed engrossment of the will. (a) Oswald L. R., 3 P. & D. p. 162 ; and see Barter v. Barter, ili p. 11. (6) Fulton V. Andrew, 7 L. R. E. A I. Appeals 448. (c) George Wartnahij, 4 Notes of Cases 477; Marsh v. Marsh, 1 Sw. & Tr. 536. (d) Curtis V. Curtis, 3 Add. 33. See Honeywood, L. R. 2 P. & C- 251 & 252. (e) Allch^i, L; R. 1 P. & D. 665. the >ther id to ist \je wing iove, Nathan v. Moras (c). In Billinghurd v. Vicfcers (d), part of a will was o'tablished, and part held not entitled to probate. In the case of deeds as well as of documents not OriginaU pro- valid per se, the Court requires the original to be produced. In the case of a deed, it will permit it to he delivered out to the trustees after probate, it be- ing first duly registered. In Dickens' case and Shel- don V. Sheldon, ante, a notarial copy was directed to be left in the registry, and probate was granted of the will and of a notarial copy of the deed. But the Court will also permit a copy of a deed Copy of deed to be brought in and proved (e). And occasionally, when the deed is in the hands of a person who will not part with it, the Court having no power to en- force its production, will decree probate without it (/). But if the paper in question be invalid and in- operative 2'er se, and made probative by reference only, the Court will enforce its production, for such a paper, unlike a deed, must be proved, ex necessitate, in order to give it operation and legal existence (r/). In the goods of William B. Asior, deceased (h), Case in whitii the testator, a citizen of the United States, domiciled in probate therein, by will and codicil disposed of his property """^eceasary. generally ; and by a second will in which he named (a) Edwards, 6 No. of Ca. 306 ; Utterton v. Rohim, 1 A. & E. 403. (6) Ante, p. 181. (c) 3 Phill. 529. (rf) 1 PhiU. 187 (1821). («) Thomas Dickins, 1 No. of Ca. p. 399. (/) Thos. Battersby, 2 Robertson, p. 440. (o) Sheldon v. Sheldon, supra. (h) 1 P. D. 150, and 45 L. J. (P. M. & A. ) 79. ■ Bi;: ■, mm 202 SURROGATE COURTS. Copy filed. separate executors of moneys invested in the British funds, he expressed a wish that the British will should take effect as a separate testamentary dispo- sition of property, independent of and disccnnected from his general will ; it was held that it was un- necessary to incorporate the American will, which was very bulky, in the English probate; but that an authenticated copy of the American will an ' codicils should be filed in the registry, and a note be added to the English probate to the effect that such a copy had been so filed (a). CHAP. IV.— Section I. ADMINISTRATION. Administra- tion. Intestacy. Under the S. C. Act, sec. 2, s. s. 2 ante, the worii " administration," when occuiTing in the Act, is to be understood as comprehending " all letters of ad- ministration of the effects of deceased persons, whether with or without the will annexed, and whether gi-anted for general, special, or limited pur- poses." If a man diu intestate, or, if leaving a will, he ap- point no executor, or if all his executors refuse to act or die without proving the will, letters of ad- ministration of his personal estate and effects will, upon application, be granted by the proper Court (in Ontario, a Surrogate Court) to the party entitled. Such letters constitute the sole authority for the administration of the personal estate of a pei-son so dying (6). (a) See alao Marquis of Lansdoioie, 32 L. J. P. & M. 121 ; Dundat, 32 L. J. P. & M. 165 ; Sibthorpe, L. K. 1 P. 4 D. 106. (6) D, & B. 393. ADMINISTKATION. 203. When granted, they relate to the day of the in- testate's death, if such relation be for the benefit of the estate (a). The administrator receives his^right entirely from the grant of administration ; the right of the execu- tor is derived from the will, and not from the probate (b). The Statute of Westminster the Second (13 Edw. I.e. 19, A.D. 1286), contains the first statutory recog- nition of the jurisdiction of the ordinary in the j^'oods of persons dying intestate, and by 31 Edw. III. Stat. 1, chap. 1, it became imperative that the or- dinary who had hitherto appointed whom he pleased to be his deputies, should depute the next and most lawful friends of the deceased to administer the goods; and by 21 Henry VIII. cap. 5, s. 3, he must have granted the administration to the widow of To widow or the deceased, or to his next of kin, or to any of *' '"" them, or to both, at his discretion. Since these Acts, subject to the right of selection Title -/e jm-e. reserved by the statute just mentioned to the ordi- nary, and now exercised by Surrogate Courts, the title to a general administration is de jure (c). Even where the estate was insolvent, the ordi- nary was bound by the Statute to make the grant to the next of kin (d). Upon the construction of the Statutes it has been The husb.ind held that the husband, as the nearest and most law- ful friend, is exclusively entitled to the administra- tion of his wife's effects (Rex v. Bettesivorth, supra ; Elliott V. Ourr, supra) that where there is a widow Widow and and next of kin, or several next of kin of equal degree, '"^^^ °^ '^"'' (a) Morgan v. Thomas, 8 Exch. 302; Beard v. Ketchum, 5 U. C. Q. B, 120. {'■•) ante p. 144, and Comber's Case, 1 P. Wms. 767. (c) lUx V. Be' ^worth, 2 SLr. 892 ; Elliott v. Ourr, 2 Phill. 16, He* -"'; Car, II. c. 3, 8.25. (d) Dimes v. Cornwell , 2 Rob. 142. 204. SURROGATE COURTS. terfered with. Administra- tion divided. Discretion of the grant may be made to either or to both (a), and that the secular Courts will not interfere with the exercise of the discretion of the Court of Probate (Anon. 1 Str. 552). The Court may grant the administration of part of the estate to one claimant, and of other part to another (6). Those who were next of kin at the time of the death, are the parties entitled to the grant, and not those who may be next of kin, when it is applied for, 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 who were not, next of kin at the death (c). De bonis grants, however, are made to those who are nearest of kin at the time of the application {d). In exercising the discretion entrusted to it the court is not guided by the wishes of the parties (f), or by those of the deceased (/). The primary object is the interests 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 ad- vantage of those who have claims, either in paying the creditors or making distribution {Wai^ck v, Oreville, supra). The Court discourages a joint administration (g) because a sole administration is infinitely better for the estate. Administrators, however numerous, Primary ob- ject, interest of estate. Joint aJmiiiis trations. (a) Sir George Sand's eate, 3 Salk. 22, and see 1 P. Wms. 44 ; 1 Sid. 179. (6) Fawtrjf v. Faxotry, 1 Salk. 36. (c) Savagir Blythe, 2 Hagg. App. 154. (d) Skeffington v. White, 1 Hagg. 699, (e) Warwick v. Grevilk, 1 Phill. 125. (/) Williams v. Wilkim, '^ Phill. 100. (gr) Naylor, 2 Rob. 409, ted vide Hancock v. LioMoot, 33 L. R. P. and M. 174. ADMINISTRATION. 205 i), and th the 'robate jf part part to ! of the and not applied the rule jn taken to make I persons ), next of ,bose who pation (d). to it the larties (f), primary first duty ts of that t,o the ad- ^n paying bration {g) better for Inumerous, WmB. 44 ;1 (c) Samt^' [,lHagg.699, \k V. itjWfood must join and be joined in every act (a). They can- not, like executors, act independently of each other (ft). It is contrary to the ordinary practice to join more than three in administration, but under special circumstances more than three have been joined in grant (c). And the Court never forces a joint administra- tion, because if the persons be at variance, it will al- most put an end to the administration (d). In general, the widow is preferred to the next of wuiou . kin; there are many instances, however, in which the Court has set aside the widow (e). Primogeniture gives no right, but if the scale be Primo^'eni- exactly poised, being tlie elder brother or sister will incline the balance (/). The whole blood is preferred to the half-blood, Ti»e whole even though the majority of the interests should coucur in supporting the latter (g). Dignity of blood is not material, a gi'andfather on Dit^nity of the father's side and a grandmother on the mother's side are equal in degree (h). Except in the case of the widow, males are pro- Males. ferred to females (i). Coiteris 'paribus, a man of business is entitled to Man of buai- the preference among males {j). The general principle, both by the Statute and by Persons hav- practice, is to give the management of the property interes* ^^ to the person who has the greatest interest in it {k). (o) Warvyick v. OrevUk, supra, Harrison v. All persons, itc, 2 Phill. 249. (6) Stanley v. Bernes, 1 Hagg. 221. (c) Blakelork, 1 Hagg. 682. ('') Wanoick v. Grerille, supra; Dumpier v. Colson, 2 Phill. 54 ; Pren- tice V. Prentice, 3 Phill. 311, (e) Atkinson v. Ladi/ Anne Barnard, 2 Phill. 316 ; Webb v. Needham, 1 Add. 494. (/) Warwick v. Ore- rille, tupra; Coppin v. Dillon, 4 Hagg. 361. (g) Mercer v. Morland, 2 Lee. 499 ; Stratton v. Linton, 31 L. J. P. and M. 48. (A) 3ioore V. Barfuim, 1 P. Wms. 53. (f) Chittenden v. Knight, 2 Lee. 559 ; Iredak v. Ford, 1 Sw. and Tr. 306 ; Lcggatt v. Ltggatt, 1 Lee. 349. (/) WUUams v. Wilkins, supra. (k) Elwes v. Elwes, 2 Lee, .575 ; TiKktr V. Westgarth, 2 Add. 352. 20(> SURROGATE COURTS. i Majority of in ereets. Wishes (if -trcditoifj. liesidont jire ferred. Party havin ioF ri ! cited prioF right t<> When Jionext of l. {>>) CmiiKc, deceased, 1 Sw. & Tr. 148; Jane Bell, deceased, 7 W. R. 349 ; 1 Sw. & Tr. 288, (f) Salmon v. Bai/es, 4 Hapg. 382, see 2 Rob. 470. ((/) Brcnchleij V. Limn, 2 Rob. 441. (e) Rex v. Bettemoi-th, 2 Str. 891. (/) i^'mrhley v. Lynn, suj/i-a ; see Boxley v. Stubbimjton, 2 Lee 537. ^'j] Goddardv. Cressionicr, 3 Phill. C37; Sir George Sand's case, sii- Pm. (ft) Wthbv. Needhnm, 1 Add. 449. and Coote 8 Ed. 104,199. '"■] Fleminii v. Pclham, 3 Hagg. 21 7n ; Leu'is v. Lewis, 1 Lee 35. 0) Chappell v. Cliappell, 3 Curt. 429; Lambtll v. Lambell, 3 Hagg. MS. — 'JULi ''"'i 212 SURROGATE COURTS. The trustees under mar- riage settlement. Where widow of unsonnd mind. second marriage in his lifetime (a), or been divorced a mensa et Ihoro for adultery (6), administration has been granted to the next of kin. Where the deceased liad withdrawn himselt from his wife, whose fidelity ho suspected, but had left his children under her protection, it was consideivil that her title to the administration was not affected as against their grandfather and guardian (c). The fact of a widow having married after the death of her husband, is no valid objection to her title (d), still if a cliild of the deceased, supported by the other children, apply, the fact of the widow having married again may induce the Court to grant the administration to the child in preference (e). Administration was granted to trustees under the marriage settlement of the sole next of kin of thu intestate, who lived separate from her husband whose address was unknown, and she, renouncing her right to the grant in favour of the trustees Justifying security was ordered, and the trust deed to be brought into the registry for exauiinii- tion, to see that its contents had been correctly stated (/). When the woman has, by her settlement or other- wise, barred herself of all interest in the property of her husband, she has no claim to the adminis- tration [g), if there be any next of kin. Where the widow was of unsound mind. Sir Jolin Nicoll in one case (h), and Sir Herbert Jenner Fust in another (i) passed her by. {a) Conyers v. Kltson, 3 Hagg. 556. (6) Davies, deceased, 2 Curi. 628. (c) Brown v. Broion, 1 Spinkg, E. &, A. 423. ifl) Stretch V. Ppnn,l Lee 30 ; Webb \. Need/tarn, supra, (f) /lirf. (/) Maychell, L. K. 4 P. D. 74. See also Probn-t 36 L. J. P. t M. 71. {g) Walkir v. Ctrfe"*, 2 Lee. 560; and see 1 Lee, 35. (A) William deceased, 3 Hajjg. 217; see Or/den d( ceased. 1 Spinks E & A. 113. (i) Dunn, deceaeed, 5 N. Cp. 97. ADMINISTRATION. 213 vovced ion has It from uad k'ft isiclorc'l affected iftcv the I to her .ipportcd widow , to <;vanl ce (e). Lindov the :in of thi' husband Duouncing trustees. the trust exauuna- covrcctly ov other- le property adiiiinis- [l, Sir John jnncr Fust leased, 2 Curt. [pra. (f)^W' [h) Tri«>«"" E & A. 113. Nevertheless, it i.s said in a hiter case (a), to be the practice to make the grant to the committee of the widow, without citing the next of kin ; and Sir John Dodson, althougli not hound, lie .said, by that practice, held theconnuittee to be preferably entitled, a^ the widow herself would have been. Failing the widow, tho.se, who at the death of the After widow, decea.sed were his next of kin, are entitled to the "^'^ ifrant. Consanguinit\- or kindred is defined to be vincu- Cnnsan- lumpcrsoiKirum ah audcm stipile desccndentiarii .^""'"y- the connection of persons descending fiom the same stock. Consanguinity is either lineal or collateral : — Lineal, lineal consanguinity is that which snbsists between persons of whom one is descended from the other ; as hetween the deceased or intestate in the accom- panying table and his father and grandfather in the ascL'iiding line, and his children and 'n-andchildren in the descending line. In matters of distribution and succession to ])er- sonal estates, the degrees of relationship ai-e com- puted according to the civil law (h). The table of co.isanguinity, of which the accom- panying is a copy, may be found in the valuable trea- tise of Messieurs Dodd and Brooks,and in other works iin the same subject there mentioned. In reference to it, it is there ob.served (]). 412), that it extends to the seventh degree, the most remote tliat seems to have come in question in the couits, citing Lock v. Lair, supra, in which Sir Atwell Lake, as cousin- gernian twice removed, unsuccessfully contested the administration with a second cousin once removed ; ''() Alford V. Afford, Deane & Rw. .322. » {!') Lock, by her guardian, v. Sir Ahrell Lake, 2 Lee, 421 ; Mcntrcy V. PiWi, Prec. in Chancery, .59.-5 (1722); .ind Utttcr v. Crawley, SirT. Hayra. .540 ; Black Com. vol. li. p. 201. ■■;;ia 214 SURROGATE COURTS. Collateral. Rules of civil law resorted to. Computaticn, and that the table may l»e easily extended, should it become noccHsary by the oceurrence of any case of ex- traordinary lonj,'evity like that of the old Countess of Desmond, wlio could say, " Arise, uaughter, andi,fo to thy daughter, for thy daughter's daughtei hath a daugliter." Collateral relatives dcscead from one common an cestor, but not the one from the other, as if John Styles leaves two sons, each of whom has issue; both these issues are descended from John Styles as the common stock or ancestor, and are collateral kinsmen to each other; because, though not de- scended the one from the other they are all descended from this common ancestor, and all have his blood in their veins; which denominates them co^isaut/itmeos. The very being of consanguinity consists in this de- scent from one and the same ancestor (2 Black. Com' 208 d seq). In the computation of proximity of kindred, cac'' person forms one degree. For the purpose of ascertaining who among colla- terals is entitled to administration, resort is had to the rules of the civil law, (a) the course is to count upwards from either party to the common stock, and then downwards to the other. Thus the deceased and his cousin-german are related in the fourth degree ; because from the deceased to his father is one degree ; to his grandfather, the common ancestor another ; then descending to the uncle, the grand- father's son, another, and from him to his son, the cousin-german, yet another. It will be seen by the table, that the great-grandfather's father, the great- grandson's child, and the brother's grandchild, are as near akin to the deceased as his first cousin, being all in the same degree. (a) Lock V. Lake, supra ; Evelyn v. Evelyn, 3 Atk. 762, and see 3 Bum's £cc. Law, 543. coUa- liad to count )ck, and eceased ourth athcr is ncestcv grand- son, tbe by the e great- ild, are n, being b, and see IV. Great Great Orandlathcr. / / / / OP • CONSANGUINITY. > Q II Or Oraiidf I. iat athor. V. Gruikt Great Uncle. 25 > 1 Orniull \ athcr. IV. Groat Uncle. VI. Cotialii German twice romuvod. \ \ I. rather. Ill Undo V. Coiuin German once removed. VII. Second Cousin once removed. \, \ THE DECEASED. Brother. IV. Cousin German. VI. Second Cousin. • \ \ I. Child. III. Nephew. V. Cousin German once removed. *1 w 0) Q d i> 3 i \ II. Grandchild. IV. Great Nephew. III. Great Grandchild. OOT.T.ATKRAr.a ,, Ij e |f;^i I m^.mf ' Mb 21G llight to udminiatr.'vtiun father and mothiT. Ascendants. Divers claim - antHiwiu'xt of- kin. Hecapitula- tion. Grants to per- sons entitled in distribution. SURROGATE COURTS. The right to admiiiistration belongs by the Statute to the next of kin ; the fatlier and mother, therefore being in the first degree, liave a title paramount to the brothers and sisters, who arc related only in the second degree. An exception, however, to the rule just statctl, prevails in the case of the immediate des- cendants of the deceased ; for not only his children, but his most remote postei'ity, are preferred to all ascendants as well as to all collateral kindred. When divers persons claim the adn)inistration as next of kin, who are of equal degree of kindred, the Court may accept any one of them; although gi-aiul- parents, and l)rothers and sisters are in the same degree of kindred, the lattcu- by the ])ractiee of the Court, have a preferable title {Vide, Evdijn v. Ecc- bjii, Hwpva). The following is the order in which administra- tion is usually granted : — 1. Husband or wife. '2. Child or children. 8. Grandchild or grandchildren. 4. Great grandchildren or other descendants. 5. Father. (). Mother. 7. Brothers, sisters. 8. Grandfathers or grandmothers. D. Nephews and nieces, uncles.aunts, gi-cat grand- fathers or great grandmothers. 10. Great nephews, great nieces, cousins-german, •ireat uncles, -neat aunts, i;reat jjrandfatluT's fathei', and so on according to the proximity of kindred; all those who are in the same degree ))eing eiiually entitled (a). Administration will be granted to any of those persons, not being next of kin, on the ground of (a) Vide tlie acoompaiiyiiiK table. ADMINISTRATION. 217 their having an Interest in the intestate's estate, if tlie widow ami next of kin liave renounced or be all (lead. In the latter case, peisons entitled in distri- Imtion (as the Ecclesiastical Court called, aiul the Court of Probate still calls them) are also allowed a preferenci! over the legal personal representatives of the next of kin. If the wndow, next of kin, and ad other pi'rsons 'Pd Ip^al per- cntitled to share distributively, bi- dead, aduunistra- *^"'>;il '.''I'l''- J ' ' si'iitativc's (it tion will be m-anted to the legal personal represen- widow or neNt tatives 01 any one or tliem, tor m such a case tliey all :ank enually. In this case tlie statute is disre- uiirde taken only of the beneficial interest whicli has Iiccu transmitted to the representatives. The executor or administratoj- of a deceast'(l per- son, who was entitled to the whole of an intestate's jiriipcrty, is also entitled to a grant of administration as fidly as such deceased jierson wouhl liave Iteen if living {<(). It is tht! practice to allow one of two executors to DiHtinction take aihiiinisiration to a deceased, wliom their tes- '"'*^^'''" '"• , t'\('('iit,(irs mil'. tatdi' was entitled to represent (h). I')ut this is nut m iidinini;- apjilieil to the case of co-administiators. They >li(iul(l take administration under such circumstances jointly ((•), but in practice, any one of two oi- more tn-adniinistrators is allowed to take ailministration 'in the non-acting administiator ttr administratoi's renouncing or consenting ((/). <'n tlu! ground of interest, administration will be 'i',, |„.,s,,nH ^ranteil to a ])er,son haviiig an indirect and deriva- '|'\\"'-.'V'''"': tive interest in an intestate's estate, as being one of the nextof kin, or the residuary l(>gateeof a next of kin of tin; intestate. IJut the apjilicant nuist lie .: f Wm ■ 1 (•() r(«./s8th fd. 110. (li) F. Nr(i. & -u 218 SURROGATE COURTS. H' n Si'5'' sionis. I'o a brother or sister. unable to become the personal repicsontative of hi.s own deceased, through the latter being already legally represented, and such legal representative * refusing to take the requisite grant. So, administration has been granted of a wifi-'ss estate to the residuary legatee of the husband, on the executor, who has proved the will of the latter, renouncing administration (a). Tonextrela- On the renunciation and consent of the father of tives who have 'li. ii ^• i i ii i-'.^- tijKssucccs- 3,n intestate wlio has died a I )aclielor, administration will be granted to his brother, though he has no interest in the estate. It is so granted on the prin- ciple that the intestate's brother may be considered to have indirectly, as his father's next of kin, a N^es successiows to the property in question. He may also, and not unfairly, be regarded in the light uf his father's attorney or agent. On the 'same grounds, also, administration will be granted to the sister of the deceased. On the same principle, the court has granted ad- ministration to a nephew, who was not entitled in distribution (6). In Keane's case the Court granted administration to a nephew, being the son of the deceased's brother, who was the sole next of kin, and only person enti- tled to the personal estate of the deceased, on the renunciation and consent of that brother (c). In Belgraves case (d), the Court granted adminis- tration to the son of a deceased brother, who was the sole next of kin, on the renunciation of his executrix and universal legatee, and of certain ne- phews and nieces entitled with him in distribution The Court said, " Though the party had not a direct interest, he is acting under a person entitled to a moi- ety in the property." To a nephew, having spcn ^uccemonit. a Ciwtc, 110. ((•) Mary Kcanc, 1 Hagg. 692. (h) lb. 111. (d) A. Belgrave, 2 Hagg. 83. ADMINISTRATION. 219 ■ nil In Jane Bell ("), the husband's second wife ap- plied for administration of the estate cf the deceased (the first wife) on the renunciation of the liusband's iulministrator (a creditor); but the Court was reluc- tant to }>ut the first wife's estate into tlie hands of the second wife, and held the cliildren of the former entitled to the <,aant. The principle which governed the Court in niak- Simgurces- ing the grants in Keane and Behjrave is not distinctly Hhown. ''^ stated, but would seem to be this : — the grant is not made to the api)licant as being the deceased's near- est relative after the renunciant, but as having a *'pes succes/^ionis to the deceased's property, though remote and indirect, through the next of kin. In an unrejiorted case stated by Mr. Coote, a what is not nephew of the intestate apjilied for administration ^,yf[/^/""'^*' on the renunciation of the widow and daughter. But the Court rejected the application, on the ground that the nephew's chance of succeeding to any part of the deceased's estate, as being through his cousin, the daughter, " was too remote and contingent to be considered an interest in the deceased's estate, and that he could not, by any fiction of law% be held to be the daughter's natural agent" {h). So, in Gibbon, the Court refused to grant to a ne- phew of the intestate's next of kin, but allow^ed the 'laughter of the latter to take administration (c). If there be no kindred the Crown is entitled to The Cro the administration which is granted to her Majesty's nominee, usually the solicitoi- to the treasury, in On- tario, the Attorney -General, for the time being, and his successors in office (d). A bastard, being nullius Jilius, can have no kin- died,but the otFspring of his own body, and if he die i' rown. ("I 1 Sw. & Tr. p. 288. Id [bid. (6) Coote, 112. ('/) Stc R. S. O. c. 60. WnW^ M r. 220 Notice t(i the Att'3'.-Gtn. Person dyiiij; in itinci't. SURROGAT?] COURTS. without wife and without issue, his effects belong to the Crown as bond vdcantia (a). The same rule applies where the next of kin are unknown, for the Crown has a right to tlie custody of the property till a hi'tter title is shown (b). Following the E. C. 1'. piaetice as it stood 5 Deo., 1859 : — Where application is made for letters of ad- nnnistration (either with or without a will annexed) of the goods of a bastard dying a bachelor, or a spinster, or a widower, or widow, without issue, or of a person dying without known I'elations, notice of such application is given to lier Afajesty's Attorney- General for Ontario, in order that lie may determine whether he will interfere on the part of the Crown ; and ]io grant is issued until the officer of tlie Crown has signified the course which lie thinks proper to take (r). In the case of persons dying intestate without nny known lelation, a citation is issued against the next of kin, if any, and all persons liaving or pre- tending to have any interest in the personal estate of the deceased. Such citation must also be served upon the At- torney-General in addition to the service by adver- tisement provided for by S. C. Rules 2.') &: 20. Where a foreigner diis here hi ifinrrc the CroAvii, though not claiming the adnnnistration, has a right to see that the property of a person dying in its do- minion gets into proj)cr hands (D. & B. 415). The law of England does not iccognise in the Consul- General of the country of the domicile any right to take possession of the goods of the deceased {Ibtd.\ The most remote relation will defeat the Queen's ((.) Diikr V. W Mo... P. r. C". 4';4, C, No. Co.. oO'X {li) Ituthn-furd V. Mmihii. 4 llai,';.'. 'J14 ; A'li/it v. /iV//»t//'/.s 4 Dc (}., M. & (J, r.tr, ; aiul Mf Att. (iiii. V. Kvinr, ) or to its Consul Cenoral (c). Where a person dies, leaving a widow, and there are no persons who answer tlu; character of next-of- kin to liim, e. (jr., where a husband who is illegiti- mate dies without issue, the widow takes one moiety (»f his personal estate, and the crown is entitled to the other (d). When the Crown administers to a bastard, it takes The Crown. the property beneficial ly, and is accounta])le to no (Hie {e), but when it takes the grant solely in the ahsence of next of kin, it takes only as a trustee for the parties who may eventually establish a title to it, and its nominee is accountable like any other ailniinistrator (/'). In practice, however, the (*rown of its l)ounty in- i'.ountyof. varial»ly divides the effects among the natural rela- tives of the deceased retaining a certain percentage only for its own use (D. i^- ]>, ol7). (i) Stotc V. Tiiwhill, 2 Lee :!!t4 ; see Ihiurhkr v. II,ti;i;iclil, 2 L(!C •">1\ wluTe kiinlreil was estiibli.shed by lutitiial ownings, {h) Sidi H'imc( Jknnmor Bcjiiut, tkcctml, 1 AJil. MO. {/■) AKpinall v. The (^KfCH's Vroct„v, 2 f!m-t. 241. ('/) C-nv v. n«hcrts, 8 Sim, 21t) (18;«;). (e) Dyke v. Walfoni, .5 Moo. V. V. ('. 434. (/) I'urnev v. Mnule, 5 Do •1. & Sin. 407; Kane v. Manic, 23 L. J. Cli. 6;t8 ; Edtjar v. Rei/w)kU, (1 VV. U, 404. ■ f^''^r'^^ 222 SURROGATE COURTS. The Crown. Creditors. In the British Parliament, in February, 1877, Mr. Smith, Secretary to the Treasury, in reply to an enquiry in re eniatc of W'dlhim Patcrson, which had fallen to the Crown HHidtima Junrrs, stated the the general i)rineiples on which the Treasury pro- ceeded in dealing with such cases, as follows : " The Treasury, in considering, first of all, the claim of any individual, inquired whether there was any evi- dence either by an informal will or otherwise of an intention to make provision for that individual. Then they considered further whether a strong claim existed on the part of individuals with regard to whom there was no such evidence. Then they proceeded to consider what would have been the disposal of the property, su])posing the deceased had been legitimate, and they followed the piinci- ples laid dowTi by the law, for distribution of pro- perty in the case of legitimate persons who died intestate. It was to be understood that the Trea- sury was simply the trustee of the Exchequer in this matter." Hansard, ccxxxii. p. JsOa. 1)1 tr Estate of Aiuhxiv Mercef, decensi't} , without known relatives, tlie Ontario Government (1878) made an allowance approaching to about one-fourth of the intestate's estate to the person having a natural claim ; the greater part of tlie balance being devoted to public charities. (Vide Out. Stats, 1878.) A paper writing had been propounded in the Surru- gate C(»urt, County York, as the will of the deceased, by tlic persons named in it as executors ; a caveat was entered mi behalf ol the Attorney-Ceneal, and an order obtained for the removal of the cause to the Court of Chancery ; the general result of the issues directed to be tried and the proceedings had in that Court being that the deceased was declared to have died intestate, .and without known relatives, and that his property had escheated to the Crown (<«). Administration is only granted to a creditor fnilintr ((() And rutt Uinciii \. Attii.-Oiii. ante. ADMIXISTRATION. 223 any other representative (a) ; his right is founded solely in this — that he cannot recover his debt nntil a representation be made to the deceased (b). The affidavits should show the manner in wliich the debt arose {Famveatlier, 2 Sw. & Tr. 588). The Court never grants administration to a credi- tor, so long as a party having a prior title is willing to take it (c). Administration cannot be granted to a person as creditor who is entitled as next of kin (d). A creditor can neither deny an interest, nor op- pose a will, nor require sureties to justify (-t avc l>con .nciple(j^\ ,s a crodi- id to, that rest inter- i * ;lodtotk 1 3 rhil. 3^1 IJond to pay pro 7-aU(. Insolvent es- tate. Aiite-miplial ort'ilitur. i:iant of lottois of administration, but he must file iui affidavit which is usual in like caso.s, statinj^ the nature of tlie security (if any) which he holds for his debt. If no objection arises on this head, let letters ",'0 on his giving tlie proper security and entering into articles to pay creditors rateahly according to their degree" (a). To secur<» the general body of eieditois, it is now the practice that eveiy creditor administrator nuist, htd'ore taking administration, enter into a bond, with two sureties, to pay the other creditors pro rata (6). It was said by Lord Mansfield that no next of kin ever struggled for the administration of an in- solvent estate with an honest view {c). Administration has been granted to the antenup- tial creditor of a married woman, her husband hav- ing; been first cited (^ I). 273 ; ;{(; L. J. 744 ; 25 W. K. C98. (') Archbinhiip of Canterbury v. House, Cowp. 144, id) Hud,lh.it„n V. Hnddhston, 2 Itob. 424, 1852. If) 1). & P.. 417 ; but see Neurombf v Hrloe, L. K. 1 P. & D. M'l. \!) Be'dier v. Mubtrly, 2 Curt. 029 ; Downward v. Dickenson, .34 I- ' F. & M. 4. nee. Person who has bought iii-i debt. ( I *^ f •iS V ;:■ 226 SUU1500ATK couirrs. cite, &c. Affidavit. fore him, the assets consi(leiiil)ly exceeded tlir amount of the debt (tt). A co-partner, or co-truste(>, of a person who was joint asslt^nee with tlie deceased is not entitled tn administration as a creditor (h). Creditor muBt Before a creditor can become administrator he must cite all persons who have a prior title to the grant, whether as executor or next of kin, or en- titled in distributicm. Sir C. Cresswell refused to ^nxnt administration to a crcditoi- because, althougli it appeared from tin affidavit that the son of the deceased was the solt next of kin, it did not appear that hv was the only person entitled in distribution. It was consistent with them that the deceased might have leftjjrand- children. The reporter adds tliat motions have been repeatedly rejected for this defect (<■). Tlie pi-actice of the Court of Probate required tliat wherever practicable the service of the citation .should be personal (d). In the case of persons dying intestate without any known relation, advertisements for next of kin an to be inserted in such newspaper, local, British or foreign, as the Judge may direct (S. C. II. 25 and 2G). The Judge will also direct how often, and at what intervals, they shall appear ; and where apjili- cation is made for letters of adnnnistration, cither with or without a will, of the goods of a person who leaves neither husband, wife nor issue, or of a person dying without any known relation, notice of such application must be given to the Attorney-Genenl, in order that he may determine whether it will he Intestate without known rela tivcK. Advertise- ment. («) Bai/nes v. Hdrrisoii, Deane & Sw. 16 ; Macmin v. Cole*, 3.'! L. J. P. & M. 175 ; Downward v. Dickenson, .vipra ; see, alee. Depit V. Dchvigne, 30 L. .T. P. k M. 86. (6) D. & B. 418, caa. cit. (c) Brown v. Wildmnn, 28 L. J. P. 4 M. 54. (d) Coote, 8th ed. 236. ifpw ADMINISTRATION. 227 r-r ; Ip (p expfilient to interfere on the part of the Crown (a). If the Attorney-Cieneral, after notice, neither assent nor ohjeet to tht; grant lie must lie serviul with a citation (/>). When the persons who have an interest are known they must, if possible, be cited peisonally. If there bo a will the executors should be cited to acceptor refuse probate; or if, no executors be named, the Icffatees, the widow, and the next of kin slioidd bo cited to take administration with the will an- n''Xod. In the case of intestacy, the citation u.sually calls Citation, upon all persons in gtnieral (c), and the wid(.)\v and next of kin in especial, to take out letters of admin- istration or sliow cause why they should not be c;ranted to the creditor applying, upon his giving usual security (d). If a person entitled appear to the citation, ho will lie preferred to the creditor ; but if he have unduly delayed, the creditor will be entitled to his eost (e). When the grant is in the discretion of the Court, Discretion o' no party being of right entitled to it, the (;itation of tho-^e who have an equal, or even a preferable claim, may be dispensed with (/). If administration be decreed to a next of kin, he may be assigned to take it out within a limited time and his neglect to do so may be taken as a renuncia- ti(jn ig). Upon the return of a citation issued on behalf of Court. (o) Coote, 87 ; D. & B. 419. 16) Hiimiltnn, dirmml, I't Jur. .")()(» ; Cnlvin v. //. M. I'rortor Ctn. ''■ Haxs;. 'J2 ; In ;ioods of U. M. George III. 1 Add. 2.55. (c) Alkin V. Fovd, 3 Ha-j,'. 19;? ; Alilkr v. Wushimiton, Ibid. L'77 ; ■^w CUvin V. Frmer, 1 Hagg. 107. (rf) Maidiiitin v. All persons iniieneral, 1 Phill.51. If) Cok V. liea, 1 Thill. 428, (delay of .six inoiith.-<). (/) Smlltmead, 3 Curt. 28; Middleton, 2 Hat,'t,'. <'0. {9) Nevin v. JVeiun, Milw. .'XiO ; (Mine v. Rebello, 16 Jur. 482. •f 228 Jimtifyinn necunty. Special tir- curastam-e". Atluiinistra- tiim t(i nonii- wv uf judye. SURIIOOATE COURTS. one creditor, it is not uncommon to grant the admin- istration to anotlun-. Upon the application of a creditor for administra- tion, justifying security is called for at the Judl coUijjendum (6), or may take the effects into his own hands and apply them in a due course of administration, but neither the Judge nor the person to Avhom such letters have been conmiit- ted, can sell any goods though there were danger of their perishing (c). Dixtrihution. ADDITIONAL NOTE. — A, The is there any distinction be- tween the whole blood and the half blood {Croh'. v. Wiift, 2 Freem. 112), and dignity of blood gives no ]ovference (Moon; v. Rarhaia, f^apra.) The following simple table of the distribution of the juTsonal estate of an intestate is contained in the tr»'atise of Messrs. ]Jodd & Brooks, who refer to Mr. Paterson's "Compendium of English and Scotch Law." p. 252, where a similar table is to be found. The persons named under one number, except the wife, all take equally, and nuist all be dead before thosf named in any following number can succeed. If there be no wife, the persons here statetl to l»e en- ntlcl to the residue will, of course, take the whole. 1. Husband The whole(rt) L^ "Wife One-third. Cliildren, per capita '\ l«8ue of deceased children, ^„ ,..'!'»'« ''e^iliH'. utirpcs , ) :i. Wife One-tliird. (irand-cliildren, ;((')• capita N T , , '""^ , , ., , ' The ivsidne. l.s.sue of (leceit.si'd grand-children, i per utirpcH ' 4. Wife iMv half Pir?t ricgrec Father The residue. 5. Wif^ ._ Une-luilf. ^ev,nd(lej,'ree. Mi Jier. brothers and sisterH, per} capita ! and ] The residue. Children of deceased brothers and sisters, per stirpes J (i) By the R. S. O. <•. 125, sec. 2."), it is enacted that the separate per ■ 'nal property of a married woman dying intestate shall be di.stribut- •^•'1 in the same proportions between her husband an. Second degree. (JiJUxlfatherH and giaiidinotliei-H The renidue 7. Wifo One-half. Third degree. (ireaturandliithers and great- "j grandmothers I ,„, . , Uncles and a.mts ( ^'"^ '^''^^*- Nei>hews and nieces, pei' capita. . . . ) 8. Wife One-Laif. Fourth degree. Grent-gi-eat-grandfathers and great- 1 great-grandmothers i Great-uncles and great-aiints | mi • ■ Great-nephews and great-nieces .. . | ^"® reswue and I Cousins-gernian, p(rr rnpita J y. Wife One-half. Fifth; degree. G reatgreat-uncles, an-e brothers of tlie intestate, when theelfeets are divided intothr'- parts, one to each. Distriliution jitr .v^/r/irais where persons iiitci u- representatives, as, if the deceased had three brothers, A. H. and (' ••ind A. be dead, leaving children ; in this case, also, the etfeotn -tlu!- be divided into three e(|ual parts, of which R. and C. take ono oa^li ptr capita : and the third part shall be divided between the cliililri'n of A., who take his share Jure rcprmciiliitioiii!!, or per stirpfs. :u»lii< representative, and standing in his i>lace. ("J Rl. Com. 'JOl t( j residue. e-hsJf. le rt' ere diJue. be ft , baatanl [f to tlh: •actico in listration ill office! Iristmi", '" ;ed to a>l- .IV 1 21 ii attt.'st."J lake in tlifir l.xt of ltate and ell't'its of the deceased is filed in the lltgistry, and the sureties to the athuinistration bond laust justify "((■). A similar practice is provided I'V S ( '. Ilules 27, ->i, and 'M) miU' ; but, instead of a declaration, an atfi- hivit of tlu' [tersonal estate and effects (Form 10) is (ci) Thi' wonls in )i)irenUu!i4i»i introduced by KuU'h of ISfi'J. (' ) HoiMuy. pp. 2;il>, 3l{». ((■) Coutf, :i70. 231 i ir In limited or .si>ecial grants, two sureties. Hiirt-tieH to hv re.spiinsible. Atliilavit an U> fstate. Juxtiticatiou. S. C.\ Kules ac to .-fanie. 232 SUUROGATE roUllTS. (■ i Bond liy foreiifuers. to 1)0 filed, and the sureties are reipiired in all ca=;t> to justify. For statutory provisions as to adminis- tration bonds see sections 38, GO, Gl i: G2, S. C. Act, ante. An administration bond was allowed to be exe- cuted by foieigners resident abroad, upon proof tliat the administrator was unable to obtain sureties resi- dent in England, that the deeeasi'd had no d('l)t^ unpaid, and that the person on whose behalf thi letters of administration was applie(»,«< }ncnfiK, administration may he coin- niitted to his committee, during his insanity ; if an infant, to his guardian, during his minority (c). Who entitled. If the surviving ('xecutor, being cited, dei-linc t" (.») FrriKiwlr:, L. H. 4 I'. |>. 22!». (')) Tir/c S. ('. Act, Mt'CH. r>2 & ri:», and: {<■) D. & B. -130. iPif ! • ^1 ADMINISTKATION. 233 take the a A".«-,wi ; (7iiii. oiii'jham V. /?.«.<, •> L.-o, 47H ; Lnithirnitf v. (lalln,>',„•/,, 2 I'hill. '11 (ISi:.) ; Smith v. Wil'^!/, .1 I'hill. .-(SI. (M P'^wr, ilirfLii,!, Dean.' .t Sw. 1H4 MH.'.r,). I'-! .A-rt.';< V. Hnitiuih, :\ rhill. i;r. (If-'Jl) ;?I',/./,-iy/ V. Wnijht, '.' rhili. -irilHll); Stenilmnn, il,r,,iK,d, '2 Hhkk'- •"'!'■ Id) A'1,,1, ilrrriiHot, ;< Sw. * Tr. .'.CO. I't Kii*.iiii\.'ii»i V. L:i,»hcyt, :\ .Villi. '_'7 (l«2">) : Pniicf, daamcd , an ■ '. •) Cotiv),:.' Fr«l,ris. the personal ie|)resentative of any one of them who may be -lead will not be allowed to take unless the other residuary legatee or legatees are also dead, or renounce, oi' have been cited. If all the lesiduary legatees be dead, the repn- sentative of one has no jireference over the repre- sentative of anothei . The represeiitativ(! of a residuary legatee for lit' has no intei'est {r). (a) KiHiijMrii v. lUiiinLtH, nufira ; Luillotr, dc^'nued, 1 Sw. X Tr -" Wdttin), dfininfd, il>. 110. {Ii) Uniiklvii, deirnurd, 1 Hdgy. 477. ((•) Sruipe V. WM, 2 Lw 111 (1757); Koutistin v. liiivskts, njr-i («/) ( *oote, Sth ed. Gti. (») yVildrilly, Wrij;h(,svpnt. ADMINISTUATION'. •235 If tlio H'sidue bt! left to .such only of the testator's If renidue to children as shall attain the age of twenty-one years, .utaining age. >o as not to vest until then, but the interest and profits be directed in the meantime to be applied to their maintenance, the Court will make a grant to their guaidian ; and will do so in preference to mak- intr a grant to a residuary legatee substituted on the <^'''"'t to " ° ' . yiiardwn. contingency of all the other residuary legatees dying liefore their legacy shall have vested (a). If no residuary legatee has been appointed in ifuoivsidu- explicit ternjs, administiation (will) is occasionally '"^^ ''"'^'^ '^*' manted to the priiKi|iai legatee [h). If the residue be not disposed of, or the l)e(|uest if residf.c not „ , • 1 1 1 I 1 • • • MIX ■ disported of 1)1 iif the residuf, the Court will grant to the testators widow, or to be'found*""" his next of kin (c). If a residuaiy legatee has assigned all his right If Ins interest ussiijiied. aiul interest in and to the residuary (?state, the as- sietu- it'!j;atee on the renunciation or rctusal ot the residu- ary legatee, or liy his con.sent only. Also, if the re- -i'liic has lapsiMi, or is undisposed of in the will, a jj'iant will be made to a legatee on the icnuneiation Ami if re^iduf 111 refusal of the next of kin, and the persons tutitled •"i"*'"''- under the Statutes of r)istributioii (r). I'l) <'o(itf, «th L'd. (iti. {',) Hurrdl v. Hm-n'l, 1 Lee. KiS (17.'C'). (i) Cidl V. (,'iiillinniii. ll' .I\ir. Vlif. (I847i. ('/I Man/ yrwstrit'i, '"iii-t. rm. lt)Jmn)j WuU,„i. 1 Sw. &Tr. Ill I ■■* 286 SURROOATK COURTS. I (!ourt couples As Ji general rule, in all grants the C'ouit follow^ thpfntercst! ' f'>c l)eneiicial interests. To couple the grant, with interest is, for the most part, one of the leading principles of the Couii; and one of the safest principles on which it can go (a). The exception to this general rule is, when then' is a statutable right. Administration (will) of nfemc covcrte is granted to the husliand, or his personal representative, on To huHband m legatees being cited. the letratee undei the will renouncing or being Spes suuccN- eioniH. cited (b). The Court will grant administration (with the will annexed) to a person liaving a uprs snxcex- ,sionifi (c). Administration (with the will annexed) has been granted to the next of kin of the next of kin to tht testator — the latter, who, as the grandmother aud sole next of kin took the lapsed residuary estate, renouncing and consenting ('/). Sectfox III. Joint Granfx. Joint grantH. Joint grants are made not only to several execu- tors, but also to residuary legatees in trust, and t^ testamentary guardians. But the Court, as already seen, prefers a sole to a joint administration (<•). Prion /^ttiiii. And, acting upon this principle, it grants adminis- tration priori jtetcnti, i. c, to that next of kin, or U> (a) Brinrhlfii v. Linin, Hi Juriht, '22<>, and 2 Uob. 470. (fc) Demimii \. Kimj, 2 Kob. ;j!t7 ; M. Jidihi, 2 Sw. & Tr. i:!" (1861). (r) C.mte 71. (d) Hbirklfit, 1 Hajs'tf. ■*''. (c) Anlc, p. 204. if' ADMINISTRATION. 23T tliat residuary le^gatoe (wlioro there are several) who first applies (a). And inasmuch as the (,'ourt gi*ants to such appli- cant the nnoyrniAn _yw.s Rncceiisioiiis, it cannot re- serve power to otliers equally interested in the tstate, nor can it make a further grant until the ik'ath of the administrator leaves the estate afirain vacant. The consent or renunciation of the othei- mxt of kin is not recjuired, the superior diligence of the first applicant entitling him to preference (b). But it is obvious that one next of kin, or one re- siduary legatee, will not, on all occasions, be able to snatch a grant, or even be willing to do so, for there may hi- others in the field who are desirous of being joined. In such a case the Court will join them in the same administration (b). A joint grant may be nuide to a residuary legatee, uihi to the guardian of another residuary legatee, or U) a residuary legatee and the attorney of another ii'siduary legatee ; or to the residuary legatee for life, and the substituted residuary legatee (6). If both are willing, the Court will join a widow To widow mm with one of the next of kin (c). H!"^ °^ '''"■ But in the case of the next of kin, an aflidavit must be made by the widow, showing her knowledge of her right to take administration solely. And all tiie other next of kin must consent that the grant diall be so made (6). The Court will join two next of kin of e(|ual N,.xtof kinot ilcgrec, though of difierent denominations, cff., a Ji|J,^[2on» ;,'n'at niece and a cousin german ; but under special J">»ed- cireinnstances only. And on an affidavit sliowing a reason for it, a grant will be made to a next of kin 'if a minor, and a stranger, jointly. (a) Curdeujc v. Traaler, 4 Sw. & Tr. .*)!. {'A <^'ooU', 8th E.l. IW. (f) But Bee i\iwMd, I I,. R. P. & I). 28G ; iW L. J. P. i M.li, I ^1 t; '■ ' . '' r ' i*,:*.i!jJH kt S;38 SL'RUO(JATK COURTS. Upon cause shown by attidavit, the next of kin of nn infant, and a stranger, may l»o assigned as joint guardians, for the purpose of taking a grant for liis use (a). The (.*ourt will do what has hcen stated, undt r the ordinary powers whii'h l>elong to it (h). But under special circumstances, and being con- vinced that there exists a necessity for so df>ing, tho ^"ImstTnS! <^'0"»-t will, by virtue of sec. 54, S. ('. Act, join par- ties not otherwisf! joinable (r). In the absence of any special circumstiinc<;s, joint grants have been refused to the widow and tin guardian of the intestate's childi'en (d) ; to a widow and a person entitled in distribution (e), and to a nephew entitled in distribution, and another nephew not so entitled (/'). When co-executors, or co-administrators, swoar the estate under ditierent amounts, probate or ad- ministration is granted to both oi* all under the higher sum {(j). The administration accrues to the survivor, and until his death no further grant can be made (li). The grant to a married woman is made to her sole- ly, and does not survive to her husband if she pre- deceases him (/). Selection l>y the t'oiirt. Section IV. Principl<'s on ichich Court selects. Upon the power of selection, and the principles (a) f'oote, 8th Ed. I'M. (<•) Jirowniiuj, 2 Sw. & Tr. 6:M. (/>) II). 197. (/) Uichavdgou, ].. II. 2 P. A D (r) Grundy, I,. K, 1 P. & D. 4.5{». 24,-), 246. [d] Rkhardt, L. R. 2 P. k D. (g) Bell, 2 L. \\. 248. 217. (h) Coote, 8 Kd. 1118 ; (.) M). ''* AOMINISTRATIoN. 239 ■i'il ' kin of s joint for bin i, undtr n2 con- >in|^, th*,' oin par- ies, joint and tlic a widow and to a I- nephew I's, swear tc or ad- he iugher ivor, an«l Ic (/i). her rtolo- shc pre- which govern its exercise by the cotirt, the tbUowinj^ mav he a(l(h'iii,in re.itin tfuc trimt. ■principle^ , & Tr. 6:»4. ; (i)^^- (a) Ante. p. '.W, (■( srq. (M StMrh V. Pijiin, I [iee, M) ; W,• n V. Chrk, 1 Ha>,'g. .•$11 ; Aiidfrnoii, ,{ Sw. & Tr. 4!)0 ; Atkiimon v. Ladij An^ H'lrnitd, 2 Phill. M7. (<■) I bill. (»/) Bell V. TfinimriMil, supm. k) Coote, Hth E.l. I!t8. (/) Bwtl V. fiilivr, 2 I'hill. .{17. (v) Dttminer v. Colimn, 2 riiill. .">. 240 Sl'RROGATK COUllTS. The ('ourt will And where legal objections do not apply tlie fitofeatate.Ac. Oouvt will look to the benefit of the estate, and tu that of the persons interested in the property («). A next of kin, being also legatee, ha.s been pre- ferred to another next of kin who is not such (b). The ])ersonnl representative of a next of kin was, in a grant - ferred to a lesiduary legatee, where the insolvency of deceased is clear, l)ut not otherwise (J). The Court has preferretl the nominee of the Inilk I'riniogfni- ture. Preference of creditrn's int0' se. Hpecial t-ir- cumBtancen. Nominee of creiiitorf. (<«) Wancirk' v. (trcrille, supra, (b) Dohnon V. Crachcrode, 2 Lee, 32(5 (17r)G). ((•) Can-, L. R. 1 P. & I). 293. (d) Webb V. Needham, 1 Add. 498. (() Waricick v. Greiilk, auk. (/) Ibid. 12r). (//) Carpenter v.Sliflfi>rd;2 ].eej>0'^. (h) Kearuei/ v. Whittakci; 2 Lee, 32,'), and ante, i). 223. (i) ErneH v. Euttace, 1 Deane & Sw., 273. (J) Haxcke v. Weddcr*)OunH, L.K- 1 P. & D. 594, & 10 W. R. 71-' ADMINISTRATION. 2+1 utMeceased's creditors, or of the principal creditors, to a sinj^le creditor (a). If the selection of the Court is not governed by Prion pet*nu. any of the rules referred to, and where there is dif- ' firulty in weighing the merits of ditterent appli- cants, it will sonietiuK's prefer the first applicant simply as such, he being a responsible person, able and willing to give security (/>). Tht-' right of the Court to exercise the discretion- Special lir- ary power given by section 54,S.C. Act, is conditioned, in all cases of testacy or Mitestacy, upon the appli- Sec. M s. c. cant's proving that it is necessary or convenient, by reason of the insolvency of the deceased's estate, or ly reason of any other special circumstances (c). Till' section cannot Ik; made to apply where there Does not »p- 1 ■•ill, !••■,• • • 1>1^'> when aiv other persons entitled to administration in pri- ority and applying for it; and it does not empower the Court to make a merely arl)itrary selection from amongst such persons and others contending for the ffrant ((/). hi the case of a will further conditions are applic- able, for the dispensing po\ver can only be exercised where there is no executor willing or competent to take probate, or where the executoi- is resident at the time of the death of the deceased out of the Province. {'i] Smilhsoti, 15 h. T. 290; .% I.. J. P. & M. 77, & He Cameron, Surr. Ct. Co. York, 1877. (b) Cordenx v. Trnslcr, supra. {<•) Harriet Cooke, 1 Sw. &Tr. 208 ; (ISr.K) F. Ketne, 28 L.J.K. (N.S.) 3.x This section of the Act is not to be resorted to on all need- "ions; it is for the Court to judije of the necessity (D. & B. 47(i.) In White (fi Weekly Reporter, N. S. p. ir>2) the Court refused to grant txlininistration under the 73rd section Imp. Act to a nephew of tha ilfcoased. The intestate's children were living in (Jeorgia jiaijratue Ullii, and his property was money in the savings bank and consols. SirCii'swell C'ress well said, " That section is not applicable to this CMf. There are no special circumstances to justify me in making the (,'rant under it. The property of the deceased is not J)eri8hable." ('/) Huynet V. Matthews, 1 Sw. & Tr. 4G2-3, & Coote, 73. I nr-T- 242 SURROOATK COURTS. Hf: ! L'i .if lis- II »> 1 1 '>*■' CHAPTER v.— Skction I. LIMITED (IRANTS. By virtue of sees. 1)7 and r)4 S. C Act, and in accordance with S. ( '. Rules, antf, p. 77, as well as under their j^fein'ial jurisdicti(jn, Surrogate rourls will iniike liuiitt'd grants. Refi'ning to the authority of the ordinary to niaki; such grants, the language of the Lord (Chancellor in Davis V. Chanter (a) is: — " Except where regulatoij l»y statute or custom, what is to prevent the holder of the unrestrictetl authority from delegating the execution of part to another ? And so is the estalt- lished practice." And in Pe Thorpe (/>) it is said that " the (\)urt of Probate in this country always exercised the same jurisdietion in granting liuiittMl administrations, as was po.ssessed hy the Ecclesias- tical' Courts in England ; and I see no reason tn doubt that this was rightfully done, and that the Surrogate Couits have now a like authority." Crants may be limited (c) (1) in duration; (2) to particular property ; or (8) to a particular object or purpose. The nature of the limitation is to be col- lected from the letters (d). fJrants limited If a testator uuike an executor from five years after his death, or after the deatli and marriage ul' his son, the ( *ourt may commit administration to the next of kin in the meantime ; and at the exj)iratioii of the period for which the administration is limi- ted, 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 will (c). (a) 2 Phill. .'iS (1848). {,/) lb., 121, l.'iS. (b) 15 Gr. 80. (Per Mowat V.C.) (c) D. & B. 4M. (c) Coote, 8th ed., 121. LIMITKD GRANTS. 24n five years larriagc of Aon to the ;X|)i ration Ion is Unii- lor. So, if may ^""fi"^ ■ill («). When an orl^'inal will or codicil, or both, have Proimte <.f a 1 • I • 1 • .1 . ^ L ' 1 . 1 1 i copy of « lo«t lifcii lost or nuslaid .since the testators death, but a will, true copy has hecn preserved, the executor may take probate of such copy limited until the orij,dnal or Mmited. an authentic copy of it be brought into the registry. Hut li(! must pi'oduce proof by allidavit, that the (iriLcinal was duly executed ; that it was in existence after the testator's death, ami has since been lost, anil that the cojty is a true one {). He nmst under some circumstances also advertise for the recovery of the lost will or codicil. The t'onii of advertisement is not settled by the registrar. The tlirections of tlie judge, however, are taken as to the ne\vspapi;rs in which the advertisements shall he inserted, and also as to the intervals anil number of the insertions. If the original will or codicil be not recovered by tJK'se means an affidavit to that etiect is filed. No consent on the part of the next of kin of the testator is retjuired (c). Whore no copy of the will has been made, but tlie Pr(.l).^teoC •Iraft of it can be produced, the case though other- wise the same as that referred to, is diHeiently con- sidered in one respect. In order to entitle the Court to deal with such cases on motion, the consent of all tho nt^xt of kin must be obtained ((/). if this consent be not given, the draft must be piopuunded in a suit for that purpose (c). I") C'<«,te, 122. (6) rh., r.t. (r) Ih., 123. ('') f^arhe,; L. K. 1 P. & I). 2tW ; 3t) L. J. (N. S.) P. & M. I'J ; Jiutln, •■! SpinkH, r.y ; Enticlinap 3.') ; L. T. 427 ; 7V pplcl.m, .{."., L. T. IKW. u) Burls V. BurU, M L. J. (X. H.) P. & .V. 125, L. K. 1 P. & D. 174 I j 244 SURROGATE COLmTS. When an original will lias been lost or destroyed after a testator's death, or has been destroyed in his lifetime by another person without his consent, or by himself without intention, and no draft has been preserved and no copy has been made, with the con- sent of the next of kin probate may be obtained of Of coni,ent> ->i [^^ contents, or of its substance and effect, if tlicv siiDsttSncf* can be established by credible evidence, parol evi- dence being admissible (a). In all these cases the validity of the execution must be shown, as well as the substance or contents of the will (h). If a codicil has been similarly lost or dcstroywl, its contents may be proved in the same manner. The consent of the residuary legatee, under tlic will, will be required. Should there be no residuary legatee, or should the bequest of the residue iuivf lapsed, the next of kin of the testator nuist consent. If the executor be the residuary legatee, his ap- plication for probate will be an implied consent. Sometimes the Court has grantetl probate of an affidavit of scripts (filed in the suit), and at other DeposHion »i times of a deposition, or an extract from a deposi- exTriicrfroiii it ^i<^" ^^ ^ witness, as containing the contents or sub- Contents "f lost codicil. Affidavit "f scriptH |)r<)vtMl l»r()ved. Probate of a will limitcil until a loHt codicil be found. stance or effect of the lost will or codicil (c), or the declaration in a suit propounding a lost will (>) H. C. Gardiner, 1 Sw. & Tr. 110. (c) Coote, 121. (d) hugdcn v. Lord St. Leonards ante. (r) Coote, 124. ■if LIMITED GRANTS. 245 • 'f So, if the will has been lost since the death of the Proi)ate of » . ,, I'i.'- -ii. •. .- codicil limittd testator, and it i.s impracticable to prove its contents until a lost or substance, the Court will grant probate of a codicil '''^' '**' io^f^d. to that will, containing dispositions independent of, and referring to it (a). 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 transmitted 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 (lid not exist in England, and that it was essential or necessary for the interests of the estate that probate should be forthwith granted, without wait- ing the arrival of the original, or a better or more authentic copy. If the copy has been transmitted to a person other than the executor, he will be required to join the executor in the affidavit. The affidavit does not '^0 into the execution of the will or codicil, as in the case of lost or destroyed instruments of that nature (h). But wliero a person transmitted to England from abroad copies of his own will and codicil, and afterwards died abroad, and tbe will and codicil were not forthcoming, the Court held, that as the statement of the deceased, nmde after the execution of tlie will and codicil, was not evidence of their t'Xt'cution, the copies were not entitled to probate (c). So also office copies of Scotch wills which have not received conffrmation in a Commissary (^lurt are regarded as unauthentic copies, and similar giants are made in respect of them. ia) ; L. R. 1 P. & D. 72. {>A Conte, p 125. (' ) J. P. Kipki), 1 S\v. & Tr. 08. Tcr ■ 24() SURUOCJATE COURTS. 11 II A). 'J'hc jiersoii who applies for letters of adnnnlstni- tioii is rf(|uired to swear that the deceased '' without having nuide a will. Jt sometimes luip|» i, though no will is forthcoming on the death of tlif Province, administration nuiy be granted for the um and Iwnefit of. and limited t<> the let urn of, siicli j)erson ((/). if a testator appoint an (>\ecutor for the pm|Mi-i of administering the estate of another testator, \vlin>. sole or surviving executor he himself was, pi\)liiit' is granted to him limited for such pur|»o.se. This prttl»ate continues the chain of executoisliil' in that particular estate (fi). ('() c.Hito, |.. i'2«;. (/.I r/i') ('iH.tf, \'iy\. (./) I'lillmo,. V. (h. (.) ('o<.ti-, U'.'S. I i n LIMITED GRANTS. 247 M If a testator has appointed a separate executor Limitrtd pro. for the purpose of carryiii ^ into effect the trusts and codicil. (li-urposes, hatv. and the general and limited executors both apply for prohato at the sanit.' time, tlie <,'rant is made in the same instrument, and tlie powers of each ar(! .|i>tinguished ; that is to say, prohate is therein ''ranted of all tli(; estate of the deceased to the tren- (lal executoi, ainl of tliat part tlu'i-eof to tlu^ limited . \fCUtor to which his executorshi[) is expressly con- tiiit'd ('(). Ii the fjenera! executor apply before the limited i'Xt'Cutor, the former takes a general probate, and a |if)\ver is n.'served of granting probate, under limita- ' »ns, to th" limited executor (!>). The will of a nuirrierl woman, made in exercise Proiiate of if a power givt-n to iier, must lie j)roveil (r). I he ..xccution ..f ;,'raiit i> in practice limite.l :— " To all such personal 'M'-wcr form. i>tate as the deceased liy virtue of the j)o\vt'r had a rii,'lit to appoint oi- dispose of, and has by her will aippuinted or disposed of accordingly' (iimrd V. Oarhiwt, ;j Curt. 'JSii ; Itr /Vn-/./, L. K. 1 P. A 1). ^^\ "I BtJmt Kftchum, d(c., Surr. Ct. Co. York, Nov. 18C.7. ^'! 248 Limited pro- bate. Limited pro- bate of will made duniig coverture. Form of limitation. Limiti'il to particular pro' perty under poWtT (if .it- tomey. Limited ad- ministratiiin with will. SURROGATE COURTS. The Court, under these circumstances, can only grant a limited probate («). A limited grant ha.s been made where the will of a feme, coverte has been made in pursuance only of the consent of the husband (6), the Inisband surviv- ing and consenting to proV)ate being granted (c). A limited probate (as in the case of a feme coverff) was granted where the testatrix made her will dur- ing coverture, and afterwards Ijecame a widow and died without republishing it ; the goods accjuired by the te.stiitrix after the husband's death, and during her widowhood, not passing under such will (d). Where a feme executrix has exercised her right at common law of appointing by her will, an executor of the goods held by lierself en autre droit, as such executrix, probate of such will is granted limited accordingly (e). In another case the'probate was infer alUi, " lim- ited to the power which the decea.sed had of appoint- ing an executor of and concerning the personal ostiite and effects of David Birkett, as surviving executor named in his will, and which power she has duly exercised, «S:c." (/). This is a si>parate proliate, where there is no settled property. Otherwise; tin; two grants are united (ij). Where the power givt-n by an executor to his attor- ney to prove a will for him is special, and limiti'il to specific property, the grant of administration (with (a) Scnmmefl v. Wilkinson, '2 East, 558; Stephens v. BagweV, IS VeH. 158. (h) Maas V. Sheffifhl, 4 No. ( 'iw :i5 ; 1 Uoh. IVA. ((■) C'ootc, 145. ((/) Noble V. I'hclps, L. R. '.' V. k I). '2K1 ; Nohle v. Willeoek,! IS.. Enj?. & Scotch App. 58'J ; Seiiinniell v. W'Ukiiitoii, tupra. U) Cootc, 14'• H. 210. (;/) 75., 160. ii I Limitecl to receipt (if divideiuls. 250 SURROGATE COURTS. tion of his effects to the cestui que trust, or if there be more than one such to one of the ccstuis que trust with the consent of the others, or to a nominee of the sole, or all tlie cestuis que trust (a). If only some of the parties elect, the grant will be made to their nominee to the extent of their shares (a), and the dissentient party or parties are at liljcrty afterwards to appJy for a j^rant limited to the iemainin_Ili(/endu7)i for the preservation of precarious or pcrisliable propertA. without regard to the interest of the party ai»plying (/). (.«) Pf!/;/ V. Chamhcrlnin, 1 Sw. & Tr. 528, ami Coote, 151. ('-) ("ooU-, 151. (.) Viilr S. ('. nilf 12, ntifc ('/) KiuktT, 1 Curt. 592, F. Ke«ne, 28 L. J. 11. (N. S) '>U;P"Qgy. Ckainbirlniii, supra. (c) Coote, 151. (/) Walker v. WoHa>t<»,, 2 V. Wins. .584. In the ffooiU of Riieli' IIit;i(n,(ki:, Surr. C"t. 5l» 1). Nov. 184!), iiiu! In th, -mor/.t of Davui Jardinc, Ct. Prob. U. V., iM'J,&m\ Hugh Latnan, Ibid. 185S. Tlif will nut annexed. Letters («/ cii/liijcndiiiii. " m LIMITED GRANTS. 251 TIlis form of adiaitusti'ation will be made to per- sons wlio are entitled to a full ^rant when it is shewn that, owing to the necessities of the estate, they cannot wait until the usual forms of the Court shall have been eomplied vrith ('<),or to entire stran- taiu]ing debts of the deceased and )>roseeute actions fur the recovery thereof, and to invest the i)roceeds ill the purchase of exchequer bills" kc. ( /). And wliere a foreigner died in London away from his relatives, possessed of certain bills of exchange upon English merchants, the Court granted adminis- ("I 10 W. R. 124 ; 2 Sw. and Tr. 382. {>•< (ludollc, .S Sw. and Tr. 22: Wychoflf, 1.') Law Mafj. 71. {<■} Ante, id) (V)otf, 157. (c) 2 Sw. & Tr. ;W2. (/) Coote, 157. illVt'.HtlUL'llt. !.^ ^ ■;( 252 SURBOGATK COUUTH. « tration to an English friend or accjuaintanco of th»> liiniitiitidn to deceased (who luid procured tlie hills to he accept.il, and liad paid certain necessary expenses ot the dc- c»;ased), " limited to the sums due and to hecouic due on the hills of exchange ; and, after the admin- istrator should have reimhursi'd himself the money which he had ex[)ended on hihalf of the deceascl, and also of the expense of the application to tin- Court, to invest the balance in his own name in government securities, and to keep it so invested until a general representation should he eH'ected to the deceased" (a). Limitation for Administration was granted to a nominee of the collertin^', Ac. _ " guardian of the deceased's only child, " limited for the purpose only of collecting and getting in all outstanding moneys, del)t«, or accounts, receiving all dividends due, or t<> accrue due, upon any sum in the j)ublic funds of (hvat Britain, and all interest or dividends that might he declared due upon any other security or securities in flreat Britain ; and also to present when due, any hill or hills of exchange, and to receive the amount thereof; and the money when so collected and got in as aforesaid, to invest in the public funds of Great Britain or other good and sutHcient security or securities in England, heal- ing intei-est, until the original will or an authentie copy should b(! brought into and left in the ri'gistiy of the (yourt, in case it should appear that the iK- ceiused made any will, or until it should be ascoi- tained that the deceased died intestate (/>), Limitation. Wlicio tlio estate was timber and certain debts tlie court directed that after payment of the charge'^ upon the timlier and servants' wages, the balance («) Don Ali'jufl, ;i Sw. k Tr. 22. (6) HuutU V. 3Ietcalfe, 2 A.ld. :«0. LIMITED GRANTS. 253 ftjioultl l»t' paiil into tho rejLjistiy, to rcnhiin until a gont'ral grant should issue (a). AikI in another case the ( 'ourt j,'ianted adniinis- Unjitatiou. tration, liuiittMl to disposo of the good will of a sthot'l, for the purchase of which an (jtfer had been iiiade, the adniinistrat(jr to pay into the reg'stry the purchase money, less the expenses of sale and the Cdsts of the letters of a deceaseii. the Court granted juliiiiuistration to tho creditor, limited to the policy (c). iMsur.iiue ,ny sum in interest or I upon any u ; and al>io exchan}j;<\ the money , to invest ;)tber goo.l laud.beav- autheiilii' le registry at the f tlie testator or intestate, are precluded from per- sonally acting by residence out o'' the jurisdiction of the Court or by their own minority, or by their lunacy, or imbecility, the Court will make a grant to another person for the use and benefit hahenilum jus s('(i int<'resii<(\ but will limit it in duration to such a period as the circumstances of tho case de- mand {d). Bv S. C. Rule 15 ante, "grants of administration Grants to "i 1 1 i.1 \- e • I- L 1 • K»i.»r(liau.. of may be made to tlu! guardians ot infants and minors, inf:vnt«. for the 1LSC and benefit of such infants and minors Limitatiim, i^iirinij their minority ; and elections by minors, of their next of kin, or next friend, as the case may be, (f) SleuHiH 38 li. J. (N.S.) V. and M. ;V.t, 1 1,. II. P. & D. 727. (M Sihwerdtfc'jer, 45 L, J. (P. D. k A.) 4t). {<•) Pattmm v. Hunter, HO L. .1. P. & M. 272. {d\ vide S. C. Act, sa. 'Xt, 54 ; and seo P. Wni». 58!). m^"^ V>': 254 SURROOATK COURTS. to such },Miardiunship shall ho rofjuiiod." (See Form of Election ante, p. 115.) This is suhstantially the sjime as E. C P. Rulo, prior to 5 Dec, 18.)!), which was as follows : — "Grants of ailministration will continuo to be mailo ai herutofuro to thu ^niardianH uf minors and infanta for tliu umu and benefit uf 8uch minors and infants durinjj their minority; and elections by minors of tlieir next of kin, or next friend as the case may bo, to such guardianship, will continue to bu reiiuirod ; but proxies, accepting such guardianship, will in futtiro be dispensed witli " («). The E. (J. P. rules, of the time referred to, coiitainoil the followiiiy further provisions : — '* In all cases where grants (jf administration are mado for tho use and benetitof minors, the administrators are requirud to exhibit a declaration on oath of the personal estate uinl eirects of tho deceased, excejit where the eli'octs are awurn under twenty pounds, or wlujre tho administrators are tlio guardians appointed l»y the Court of Chancery, or are the testamentary guardians uf tho minors ; and in all casus uf persuns cited, but not personally, and not appearing, the iid ministrators are re(piirod to exhibit a similar declaration and the sureties are reciuired to justify " (!<). The E. C. P. Rules of 1S(J2 {vide Coote, 3(i!)) con- tained further provisions on this subject, not in lorcc in this Province, e. (jr. that — " Where tho infantis under seven years (being incomiwtfiit to elect a guardian) and nut having a testamentary guardian t>r a guardian appuintod by the High Cuurt uf Chancery, tho Court wuuld assign one for the purpose of takin;^ administra- tiun fur the use and benetit of such infant." S. C. Rule 15, above referred to, does not expressly provide for guardians being assigned or nominated by the Court to take administration for infants under seven years, as do the E. C. P. Rules of 1862 (c). (rt) Horsey 240, vide ante, p. 207. ('.) Horiey, 23y. (c) Coote, 309. n LIMITED GUANTS. 255 ;e Funn ^ Rul.!. ininlc M )r the u«u minority; )xt friend inuo to bt! p, will iu ontainotl u mftile for ro rctiuiruil ostato uii'l ivro aw'iin ora arc tho or are the all cases " of uifuntx. cases (includiuj^ tho caso >, dec, upon petition of the paternal unelo of the infant pUliy V. Appkhy, 1 Lee, l;}"». Aud nee Fawktmv v. Jordan, ^ Ia-c, ;fJ7. ('/) Brothei-toi) V. HelHtr, 2 Lee, 13L (f) lie Edimrd Walker, dee., <.'t. Prob. U. C. July, 1824 ; Re John Bimii, IbuJ. 1824. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 m m ;40 1.4 IIIIIM IIIIM 1120 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ^ V ^v \\ ^*-^ .^V^ '^^ ^ rv ^ I fe C/j !?• >■ ■n f; To the guardian ap- pointed by the f»tlier. 256 SURROGATE COURTS. mitted to him " during the minority of the infant children'" (a). It has been held that a guardian appointed by the father under 12 Car. II., c. 24, takes the place of all other guardians ; " the statute put him in loco parentis" (b). By the E. C. P. practice, according to Mr. Cootf (p, 129), the person entitled in preference to all others was the guardian appointed by will or deed of the father^ under 12 Car. II., c. 24 (c). It would appear that a guardian appointed undor 8 Geo, IV. by a Surrogate Court, would be next en- titled, {ante, p. 2o5). Tothi; Next in order to the guardian appointed under pointed by* he tlie Statute of Charles II,, was the guardian of thu ci'inuo-'v. ^ ■''''^^ (.'^'^'^ ^■he person) of a minor appointed by the '- ■ of Chancery {d). i V the first case a reference to the father's will as proved, is required. In the other case, an otRce copy of the order or decree appointing the guardian is filed in evidence of his title (c). Neither of these guardians, by the E. C. P. prac- tice, is required by the Court to file an inventory of the deceased's effects for the protection of their ward, the trustworthiness of the one being vouched by the father, and the other being accountable to the Court which has appointed him. The Court will not grant to one, out of many tes- tamentary guardians, without the consent of the others, on account of their joint tenancy (/). No inventory required liom these t;uar- dians. The court will not grant to one testa- mentary guar- dian without the consent of the other. (a) Ec Leon Jones, dec, Ct. Prob U.C. temp. Grant Powell, Official Principal, 1832; & James Henderson, dec, Ct. Prob. U.C. temp. Hepburn, 0/Roial Principal. (h) 2 P. Wins. 125. (e) Louisa Morris 5 L. J. R. (N.S.), 708, and 2S\r. & Tr. Mi. (rf) IK. Jones 28 L. J. R. (N. S.) 80. («) Coote, 129. (/) Ih., 130. ■ bhc infant ointed by le place o{ Lin in loco Mr. Coote nee to all all or deed ntcd undev be next en- mted under vdian of tlw nted by the- atlier's will ise, an office he gviai'dian C. P. prac- n inventory ion of tbeir ing voucheil ountable to )f many tes- sent of the Grant VovuM let. Prob. U. C. &Tr.3i52. LIMITED GRANTS. 257 The court will grant to a guardian appointed by a To a gnaidian foreign court, competent for that purpose; but such ford^u court, t^'iiardian must prove liis ap^jointment by a copy of the decree by which he has been nominated, authen- ticated by the seal of that court («). If there be none such, the court will itself appoint a curator or guardian out of the next of kin of the minor for the purpose of taking the grant (b). The next of kin for this purpose are calculated in To^iardianof the same manner as for purposes of distribution (c). If the executor or residuar}'' legatee be above the age of seven years, but under the age of twenty-one, he has the privilege of electing any one of his next of kin to be his curator or guardian. This is done by the minor in an instrument signed liy him in the presence of an attesting witness (c^). Where there are several minors all must join in All the minors the election of a guardian. If there be a dissentient, Ju^seutient' "^ he must renounce administration by his ofuardian "^'^^^ '^®' "^ ° nounce. (elected by him 2^^'t> c<-^ vice), or he must be cited. But this rule is occasionally relaxed (e). Wlien one out of a numerous family is prevented Elinor passed by residence or absence abroad, from joining, the court on affidavit, will pass him or her over, and will give administration to the guardian appointed by the other minors, for the use and benefit of all of them. If the minor is cited (viz., to accept or refuse the proposed grant or show cause why it should not be made to the guardian of the other minors), and does not appear to the citation, the practice is to grant to the guardian of the others, for the use and benefit ofall(/). (ii) lUit Hee Brotherton v. Hellier, 2 Lee, 135. ('') Rii:h V, Chamherlayne, supra, and Emrxg, infra. (c) Coote, 130. (il) ante, p. 115. (/) See Spri(jg$ v, Bankm, 4 No., Cft. 103. (4 (e) Coote, 132. If ■ S 'v i «^|!' 258 Minors and infants next of kin, preference to. A stranger or distant rela- tive may then be elected. The court not concluded by the minor's choice. Minor may re- fuse to elect his next of kin on ground •hown. SURROGATE COURTS. The minors and infants next of kin have the pre- ferential right of assuming their guardianship ; and minors are under a corresponding obligation to elect their next of kin for such purposes in preference to all others. It is, however, in the choice of the next of kin to assume such guardian.ship or not. They may renounce it in the case either of infants or minors. The court granted administration to the stepmother of the executor (a minor) on his two sis- ters (his next of kin) renouncing, the one in due form. and the other without the sanction of her husband, and it being shown that his elder brother (his othei next of kin) had not been heard of for many yoar> (a). If the next of kin renounce the guardianship, anJ the minors elect a stranger in blood or a distant re- lative, the party elected will be entitled to admini>- tration. But the court is not concluded by the choice of the minors ; it has a discretionary power to refuse to grant administration to the person electeil by them (h). The court must have grounds for such a refusal ; but if a minor be nearly of full age, it is probable that the court would hold itself to be concluded bv his election. But if a ground of objection exist against the minor's next of kin, the minor is not, in that case, bound to elect him ; and the court will, if the ol)jec- tion be sound, pass him over and appoint a stranger in blood, or a more remote kinsman, to be guardian (c). A foreign domicile, or protracted absence from this country, would justify the minor in refusing ti (a) Widger, ;< Curt. .'56. (h) Favkaury.Jordav, 2 Lee. XIO. Wed y. Willbi/, 3 rhill. 37^ (r) Hii/, L. 11. 1 P. & D. .52. Stephenson, L. R. 1 P. & U. 2S;. Weir, 2 S\v. & Tr. 451. Ewiiig, 1 Uajjg. 381. I 4 4 LIMITED GRANTS. 259 elect, and the court in passing over the next of kin ■without citing him (a). If the minor or infant be a bastard, or have no Minor a baa- known relations, notice must be given to the Attor- out relations, ncy-General, and if he takes no objection the court will confirm the minor's choice of any person whom he thinks fit to choose for his guardian, and will !,frant administration accordingly. The number of guardians must not exceed three. Stranger join- 1,11 • 11 «<^ with next of They need not always be persons in an equal degree, kin. for the court will occasionally join a stranger in blood with a next of kin, in which case, besides the election by the minor, there must be an affidavit of theguar- (lians showing a satisfactory reason for the grant. A more distant relative and a stranger will be Distant rela- joined on the consent and renunciation of the next .strancer 'of kin (6). y''""^^' The grant ceases u})on the minor attaining his Limitation, majority. And a grant for the use and benefit 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 age, i^ ceases when the eldest '■. survivor attains majority (o). Where the jus habens is incapacitated from the For the use ,. i?" 1 • 1 • i« 1 ■ 1 and benefit of transaction or business by reason oi his lunacy, a lunatic i«» iiiiliecility or unsoundness of mind, administration '^'^''^"^• (hiring lunacy will be granted for his use and bene- fit in analogy with the case of minority ((/). In the first place, if a sole executor be a lunatic. To committee aihninistration (with the will annexed) will be jrranted to the committee of his estate, for his use iind benefit, until he shall become of sound mind (e). («) Hagi/cr, 3 Sw. & Tr. Go. Bnrchmore, 3 L. R. P. & D. 139. (M Coote, 135. (0 Shep. Touchstone, 490 ; & Coote, 133. {d) Southmead, mpra, and Coote, 135. (<•) lb. of ext'cutor HiSII 2C0 SURROGATE COURTS. m 1 f 11 1 ■ If fe: 11 To Scotch curator or for- eign commit- tee. To the next of kin of the ex- ecutor. Affidavit OH to the lunacy. To the com- mittee or the next of kin of a residuary legatee. In case of in- testacy. Grant under sec. 54 S. C. Act. If there be two committees, both must take or one must renounce. The production of the commission proved the com- mittee's title, and also the lunacy of his ward (a). Administration will be granted similarly to a Scotch curator, or to a committee appointed by a foreign court. If the executor have no committee, a grant will be made to his next of kin for his use and benelit. When no commission has been taken out, the Sur- rogate Court will satisfy itself as to the lunacy, by calling for a joint affidavit of the surgeon or phy- sician keeping or regularly visiting the asylum where the patient is confined, and of the keeper or nurse. If the residuary legatee be a lunatic (there being no executor) administration with the will annexed will be granted to a coinr-'ttee of his estate, if he have one, or to his next of .. .n, for his use and benefit, fcc. The next of kin files an inventoiy and affidavit, of value, and gives justifying security. In the case of an intestacy, administration will ho granted to the committee, if there be one, or if there be none, to the next of kin of the lunatic, next of kin or husband of the intestate (as the case may he), under precisely the same regulations ant. conditions as apply to the other cases {a). Where a necessity can be shown the Court will make a grant under the 54th sec. S. C. Act to an uninterested person for the use and benefit of the next of kin until the latter shall apply (b). Under the same section a grant will be made for the use of a lunatic, to a person of no kindred to the latter (c). (a) Coote, 136. (6) Cholwill, L. E. 1 P. & D. 192, (e) Mary Burrtll, Sw. 4 Tr. 05, and Grace Hastingt, L. K. 4, P. D 73. take or the com- ixl (rt). ,rly to a ted by a rrant will L benefit. ,, the Sur- unacy, by n or phy- lum where or nurse, itic (there ti the will [ his estate, his use and nd afndavll. tion will bo or if ther« next of kin may be), conditions Court will . C. Act to cnefit of the ,e made toi Qdred to the ^ D. 192. LIMITED GRANTS. In like manner, where the intestate's widow is a lunatic, administration will be granted to the com- raittee of her estate, if there be one, if not to her next of kin for her use and benefit (a"* Where, however, neither her committee nor her next of kin applied for such a grant, the court has passed over the widow and granted to the intestate's next of kin absolutely (b). If the next of kin in such a case renounce and consent, the Court will grant to a creditor for the use aad benefit of the widow, &c. (c). If the person entitled reside out of Ontario (d), administration, or administration with the will an- nexed, may be gi-anted to his attorney, acting under a power of attorney. This is in analogy to the practice of the English Court of Probate (e) . It was also the practice of the former Court of Probate U. C. (/). If the executor or cxeculurs reside out of the jurisdiction of the Court, he or they may appoint an attorney to prove their te.stator's will, in their name and on their behalf (e). Wliere the estate was trust property only, the Court allowed the attorney of a person residing in Enofland to take administration (g). And it would seem that the attorney need not re- ^i39. (c) Elderton, 4 Hagg. 210. Ormond, 1 Hagg. 14G. and Boylt, 'I Sw. & Tr. 427. (d) Coote, 128. (e) Cassidy, 4 Hagg. 361 ; and see 10 Sim. 621). (/) Chambers v. Bkknell, 2 Hare, .536. As to the powers of such Ml administrator, see Webb v. Kirby, 25 L. J. (N. S. Equity) 873. (;;) O. Ooldsborough, 1 Sw. & Tr. 297. LIMITED GRANTS. 263 ie in the ourt will ne coverte, But where ,e husbaml ts accepted b the Court nly, of two ^(le to such ti or all the pointed the cutors, shall vill annexed, md effects of ^ ' for the use ntil he shall he will to be nd benefit of le estate (/)■ he grant fol- returning to ,ver of substi- J P. & D- •'>^^' I4G, and Boyk, • J gee 10 Sim. B'-?.). [e powers of such . Equity) 873. tution, and the attorney exercise it, the substitute may take the grant (a). The attorney of one of many residuary legatees Grant to the 1 1 • • i i. / -UN -1 ;• .1 attorneyofona may take aurnimstration (will) without notice to the real luary lega- other residuary legatees. tee.epiuribut. The attorney of one of many next of kin may take Grant to the . . ,., , , . , attomeyofone administration m hke manner, without notice to the next of kin, other next of kin. *^'"''''"*- The limitation in the two last-mentioned grants is, vmtatls mutandis, the same as in the one which was first mentioned, and the grants will determine in like manner (b). Section III. Administration -pendente lite. The 51st sec. Surrogate Court Act enables the Court to grant administration pendente lite in the cases there mentioned (c). In Verot v. Duprez {d) it was held that the inten- tion of the Legislature by sec. 78, Court of Probate Act, was to extend the powers of an administrator pendente lite appointed by that Court, and that such administrator having the same power of protecting the property as a receiver, the Court would refuse to appoint a receiver ; and also that as the Court of Probate could appoint an administrator pendente lite, who had full power to deal with the estate except for the purpose of distribution, and as the appoint- ment of a receiver could afford no gi-eater protection, such appointment of a receiver should be refused. (a) Pullison v. Ord, Bunbury's Exch. Rep. 166. (6) Coote, p. 129. (e) And see Re Beckwith, ante, p. 34. {d) L. R. 6 Eq. 329. 264 SURROGATE COURTS. Administra- tion ptnUtnte lite. iy< I i 1.1 ((■ m It was from an early date tlio practice of the Pre- rogative Court to appoint administrators pendente lite (a), but that Court would refuse to make such a grant merely to take property out of the hands of a litigant party in actual possession of it. It was required to he shown that the property was in jeopardy, and that the party sought to be dispos- sessed was irresponsil)le and refused or neglected to furnish adequate and reasonable security (6). General rule. This practice was followed for some time in the Court of Probate 'in England, but in the case of Belhv; V. Bellew (c) the practice in this particular was as- similated to the practice of the Court of Chancery in appointing a receiver, and the general rule was laid down, that wherever there is a suit pending, an administi-ator iwndcnte lite will, on application, be appointed irrespective of the condition of the estate, or the person who has actual possession of it. But where the deceased's property was investetl in a business, wliich he had carried on in partnership with his brother, who was continuing it, the Court declined to appoint an administrator pendente lite, the brother who was a pai'ty to the suit opposing, a,s there was no sufficient evidence that he was wasting the estate (d). In a contested suit, which was likely to be pro- tracted, the Court, on the application of a creditor who was not a party to the suit, appointed a person who had been appointed receiver of the estate in the Court of Chancery, an administrator j5C)ic/eii^e lite, in order to enable a creditor to obtain payment of his debt (e). {a) Maskcline v, Hnrvinon, 2 Lee, 2.5S. ('/) Young v. Brown, 1 Hagg. 54 ; (io'lcridt v. Jones, 2 Curt. 453; Northcy V. Cock, 1 xVdd. 320. (c) 4 Sw. & Tr. 58 (1865). (rf) Horrcll v. Wills, L. K. 1 P. & D. 103 (1866). (c) Tichhornc v. Tichbornc, 20 L. T. 820. Contested suit. LIMITED GRANTS. 2G5 i the Prc- 'peiidenU iiake such the hands of it. It rty was in be dispos- eglectcd to (h). bime in the ^e of Belhv lar was a't- i Chancery :al riile was pending, an plication, lie )f the estate, of it. s invested in partnership t, the Court endente iifc, opposing, a,s was wasting ly to he pro- )f a creditor [ted a person [estate in the [dente lite, in hnent of his L«, 2 Curt. 453; ]Tr. 58(1865). Where a suit was ponding to try the validity of a codicil only, which did not affect the appointment contained in the will of the executor, the Court re- jected, with costs, a motion for the appointment of an administrator pendente lite, on the ground that the e.Kec'utor was clothed with power, and was the proper jierson to administer the estate (a). Such an administrator is merely an officer of the Adininistrator , . . . . , , II- • prudciiti' lite C curt, his administration is to be under the direction acts mideithe of the Court (^>), and he holds the property only iin- the^Court til the suit terminates. He is then bound, and the Court will comi)el him to pay all that he has received to the person pronounced by the Court to be entitled (c). The Court will not interfere with hi.s proceedings when he is acting under the direc- tion of the Court of Chancery in reference to the sale or management of the property {d). In Charleton v. Ilindmarsh (e), the Court directed that he shoiUd not discharge claims on the deceased's e«ity Sir J. P. Wilde, in Flndlau (/>),as follows; — " These powers are exercised with some reluctance, (leneral prin- but the true function of the Court is to facilitate *^''^ ^' the collection and distribution of tlie estates of deceased persons, and not by any technical rules to impede that distribution." A grant of administration, for the use and benefit PiopGity per- of the next of kin was made under the special of kin absent, power referred to (sec. 73, Eng. Prob. Act) where the (.'Slate of the intestate was perishable and the next of kin were abroad {p). Where the person entitled, the son and only next cf kin (.>f the intestate, was in New Zealand, the (1) The Court exercises the power cuiiforred by thi.i section 111 ciae of the insol 'ency of the estate of the deeeased (<•); iii- solvouoy being specified in the section, though " only given as an example" of the special circumstances ( r., J., P. & D. :.->, an.l L. R., 1 P. D. 192 (Fann stock, 'Tops, etc.), and Jones, 1 Sw. & Tr. 14, mm 272 Absence and minority. ToTterson who had jiaid debts of dect-'ased. Renunciation and consent in favour of creditor. Estate insiil- vent, next of kin untit. SURROGATE COURTS. Court upon Toeing satislio*.! that an immediate repre- sentation was necessary for the preservation of the estate, made tlie grant to the sister of the deceased, under this section, for tlie use and benefit of the next of kin, limited unto such time as he or his hiwful attorney should obtain administration (a). A. died intestate leaving four children, of whom one was of age, but was abroad, and the others were minors, and an inmiediate grant being necessary, it was made, under the statute mentioned, to the duly elected guardian of the minors, for their use and benefit, limited until someone of them should apply for it (6). The Court granted administration under thic section to the attorney of the person entitled, who w^as in India, under the following .special circum- stances : The intestate died owing debts exceediiii; his ])ersonal estate. Gifts of money had been made to him by C, a relative of his deceased wife, and after his death his debts were paid by C. There were only two next of kin and persons entitled in distribution, and of these, one renounced, and the other was a lunatic, and his next of kin renounced on his behalf (c). Where a person being the sole party interested in, and the solo party entitled to represent, the estate of a deceased, died without having taken out a grant, and his personal representative had filed a renuncia- tion and a consent to the irrant beinf made to a creditor of the party so originally intei-ested and entitled, tho Court made the irrant under this section to such creditor ((/). Where the deceased, a paper manufacturer, was alleged to be in.solvent at the time of his death, and (.() Chohvill, stij/ra. (h) Burgeaa, 32 L. J., 1\ & M. 15tS. (c) Datemun, h. K, 2 P. & D. 242. (d) Emma Fnistr, I.. R., 1 P. & D., 327. OKANTS MADK ^DEB SEC. 54, ». c. ACT. ".« Court, under this , eel ' f'"^ ? ""■ ''"-"<>•«. t» a principal credUor wt, ' ■"' "^'"'"^''''tion Tlie nearest relatives of th„ ^ '' teased, laaving been Ibid f "•"<'^'"' "^ * ■="«"■■ "r ""' /-in, eo,n„,u:t t' rt : "7 'r """- °'"°"- %l«nd, the Court of ProbaTe '""''■^ '" el"W.en to elect another pers„, t! T?"'?'"'"' "'^ "»n on tlieir behalf „f ^1 '"""^ administra- -itWut citing snb„eae:;"?r'r'° "''''''' &">«■ stance (i). * '*"'"■' '^"''"'ves in the fl«t i„. The Court o-ranfprl « i • • - and benefit, witho;t :• ^^.t T'V r'^'' "=" 'enunciation of their next of L " citation or F-ty was very small, and th/ ne'l :?r ''^ '''• -ng abroad, the Court undl; tht I r"'"' '' ^^" '^^^-^«^- " 'f ^^'-^ of administration with tt n '" ^'"'^'^^ ^J'e guardian of persons ^n^t I p^ r ^" ^°"^^^^' <^« A person dyin. Ltesta . •'' ^''^tn^^ution (d). t'^ -titled'in^.^;!^^^^^^^^^^^^^^^^^ ^;^ -l^ -'«ter P..o„.,, «"t any committee of her If . ''^^''' ^'^^ vvith- "^^. «* Wic. ^r«t'"on was under this sir "" ^''''"' '^^'"^'^i^- ^nJ benefit of the sh er d ^ 'r''' '''' ^^^ »-' ^^^'P^'other.whowasTe'e^^^^^ ^-; lunacy, to the '^^^---d of the fatlerH n 'f ."■'"•^'" "^^^ ^^'•ested under it ^ ' ^"""^ beneficially in- ^' It. Surviving cousins r 273 cited (e). (') Ma L. K., 1 P. & D. 439. 'fn 3 Sw. & Tr. 66. 3 P. & D. 139. fi 6i bein< D.86. 274 Where person entitled was a lunatic in Asylum, and maintenance due. Separate pro- perty. Husband's consent dis- pensed \vith, he being abroad. Bankruptcy •and absence of executor. When execu- tor named could not be found. Doubtful legi- timacy. SURROGATE COURTS. Where a pauper lunatic, an inmate of a public asylum, on whose account arrears of maintenance were due, became entitled to money on the decease of her mother, a grant was made under this section to the public officer, for her use and benefit, limited to the period of her lunacy, a citation having is- sued (a). Administration (will) was granted to the nominees of the residuary legatee who was a married woman, without notice to her husband, the residue being settled to her separate use, and at her absolute disposal (6). A. died a spinster and intestate, leaving her mother and one sister ; the mother had married a second time, and her husban-I was abroad; the Court without requiring the renunciation of the husband, upon the mother's consent grant d admin- istration to the sister (c). The deceased executed a will in which she aji- pointed an executor, who subsequently became bank- rupt and left the country. The property being small, on the consent of the next of kin the Court, by virtue of this section, granted administration (will) to one of the parties interested under it (d). A testator nominated as executor "William George, of 4 Finsbury Square, Watchmaker," who on the death of the testator could neither be found nor heard of, and the Court imder this section granted administration (will) to one of the residuary lef-:',- tees (e). The legitimacy of next of kin being doub . .rid {a) Findlmj, 3 Sw. & Tr. 2(i5 ; sec also Slunihcm, :. !|L. J.P. k ..., 03 ; and Windcatt v. Shm-tlnn) SiMC. L. R. 1 P. & D. :5;«. ((•) Llanwarnc, m L. J., P. & M. 2o. (d) Elvira Louisii Cooper, h. It., 2 P. AD. 21. (f) Sawtell, 2 Sw, & Tr. 418. ""'™"'^'*'=^™'=«SEC.04,S.C.AOT. rrant d admin- -> "• ^. J\\JX, a representative havino- h,. ™,ler this section anpointej "^T'' "''™' ""= ^ourt A person entitled to tht thl '•''P'-»to«ve («). ;"'«ta.y, being abroad, w ote^'lf^'^" "'"^">- - T-..,. „, mm directions as to seen- ,u '"" "'"' ™'- '°"™«™''- l'n>l«rty, and transmitting aTmln '""°''"' "* ">« Court nnder the section ."feCd " """ '° '"'"' "'« irtration to the eonsin f„,. H, '°'S"'»ted adniin- l«-on entitled. li„.il „ ? "* """' ''»»«* of the ■«-'ionscont..i„„dt',::,r;f »'-^ J he section wa,s hdd t ;-;t,s were tran.sn.itted ft-o:^ S/; " T' ^''^"■^' ^^^ ^-- to those entitled -mrJ o ' ^^^oa(i tor distr bution ''t''"*-'' f™" Soagranttai::rdr ,~''^'*. » P Ar .. ^'^ ^"•''^'''^■«. 3 r. & D 140 ^M07,J3L.J.(p.M.&A.)185. 27-5 1' 276 SURROGATE COURTS. arrangement come to by the parties to stoj) litiga- tion wliich was pending as to the person entitled to the grant (a). The consent of all the persons interested is not a sufficient ground for departing from the general rules as to grants of administration (b). The Court, (Lord Penzance) remarking that it could not " make the grant asked fur in that case, under the section, without materially laying down the ri le that when- ever the parties interested like to consent that some person nominated by them shall take the grant, it will make the grant to such nominee." The proper course to be pursued under such cir- cumstances is indicated In the goods of Bullar (c) and followed by Sir James HanuL'U In the goodn of Hale ((/), namely, — that the next of kin or persons entitled should " take the grant and thcii appoint a nominee to be their attorney." Upon an application under this section for letters of administration limited to the applicant's interest in the remainder of a term, the deeds shewing the deduction of title were required to be brought into the registry (e). !?•; CHAPTER VII. Section I. GRANTS DE BONIS NON. Where a grant having been obtained, the chain of executorship is broken or a sole administrator or ad- ministrator with will annexed dies, leaving the estate (a) Teague the foundation for its own grant (c). It is an established practice of the English Court of Probate that where a will has been proved in a foreign court, a duly authenticated copy will be ad- mitted to probate without further evidence of the validity of the will, as it is presumed that the for- eign court has been satisfied on that point {d). (a) Per Sir J. P. Wilde, in i)t*VMv, ;U L. J. (N. S.) P. M. A A. 58. (6) Per Sir J. P. Wilde iu Zit ^'i, M I.. .J. N. S. (P. M. & A.) 58. (c) HiU, L. R. 2, P. & I). 90. ((/) Smith, IG W. R. 1130. im • -'^^ GRANTS MADE ACCORDING TO FOREIGN LAW. 291 Le couu- :ove, the I a mere he mere a notary facie evi- acted on ffect to a evidence section of a two dif- ni{c But a copy of a foreign will authenticated by a Notarial certi- notarial certificate merely is not sufficient. Some cuTnt. *"* document equivalent to probate is required. " If," said Sir J. P. Wilde, (a) " you can show me any docu- ment that purports on the face of it to be equiva- lent to probate, any act of the foreign court the language of which carries to my mind in any shape . or form that the foreign Court has adopted the docu- ment as a will, that will be sufficient for me." As to cases where a gi-ant has been made in Eng- English grant* land, the law as stated by Lord Mansfield, 0. J., in Burn V. Cole (h) has continued to be followed in this country to the present time ; viz., that where the di-'ceased resided in England, and had assets there as well as in a British American plantation, the Judge of Probate in the plantation was bound by the ad- ministration granted by the Prerogative Court in England to grant to the same person. Upon filing an exemplification of letters probate EnglLsh and or letters of adininistiation granted by the Probate ^"'''' ^'''"'**' Division, High Court of Justice, in England, or of Exempiifica- the grants of the foi-mer courts, having probate jurisdiction in England or of grants made in Ireland, a Surrogate Court in this Province will adopt sucli grant as the foundation for a new grant as to the personalty here (c). A similar practice prevailed in the former Court of Probate for Upper Canada (d). Exemplifications, as understood in the Surrogate Courts, are in the form, and as to the particulars (a) DcVigny, supra. But as to Quebec, see 11. S. 0. c G2, sees. 32, 33. {(,) Amb. 416. (r) Cuthhert, Dec. Surr. Ct. Co. York, 1879. Ann Gee Macaulay, Th.\%2 ; B. Burnett Ih. 1874 ; Rev. Thos. Schrieher, lb. ; F. V. Northey, Ik, 1879. id) Sir James Monk, 1831 ; Maj. Gen. Hp. Darling, 1837 ; Sarah Skukr, 185G. W. B. Sanders, 1854 (Ireland, Exemp. from P. C). tiuiis, 292 SURROGATE COURTS. contained in them, according to the forms ante, p. 112; which follow tlieforinsof the English Courtof Probate. Scotch srajits. In Scotland, if the deceased has left a will or a deed of Trust Disposition and Settlement, or other writing, naming an executor, such executor may ob- tain from the Sheriff of the County, in his capacity of Commissary of the County, " Confirmation of the Testament," which is evidenced by a certificate under the seal of office of the Connnissariot and sif'- nature of the proper officer, called a " Testament, Testamentar or Confii-mation of an executor nomi- nate " (cfc). If the deceased was domiciled al^road or his domicile be unknown, the Sheriff of Edinburgh acting as Commis.-,ary grants confirmation. This corresponds to what is known in England as probate of a will Qj). If the deceased has left no will, or a will not nam- ing an executor, the Connnissary may constitute an executor dative qua, next of kin (or other character). The official certificate in this case is a " Testament Dative," and corresponds to letters of administra- tion or administration with the will annexed iu England or this Province. Attention may be called to the fact that real or heritable estate cannot be disposed of by will in Scotland. Any instru- ment affecting realty must be a deed inter vivos. The appro- I)riate conveyance is a Trust Disposition and Settlement. This instrument, although a deed by the law of Scotland, is not a deed, according to the law of Ontario ; as it is not under seal. Conse(iueutly it does not afl'ect real estate here as a deed. A difficulty arises in obtaining registration of such an instru- ment in the Registry office. It is suggested that in cases of this nature a copy of the Trust Disposition and Settlement be obtained from the Sheriff court books or the books of Council and Session authenticated by the seal of the court, and appended to the exemplification of the Confirmation, andfregistered as a will. The Disposition, although a deed ■inter vivos, is executed mortis cauad. (a) Vide Imp. Stat. 21 and 22 Vict. c. 56. (6) Patterton't Comp, E. r of choice observed h}' the Conmiissarv in tlie a))pointment of executors dative, it has been thouj^lit advisable to mention it. The order is : — 1. The universal (/'/'. residuary) legatee, including trustees. '2. The next of kin. ;!. Children oi' desei'ndants of any predeceasing next of kin. 4. The widow. .'». A creditor. etbre the I- or decree ne particu- 2 ; and are ,rt. Upon ,o-atc Court a grant as lo. York, 1ST**. U.C.,18-2'2. fcat. 1862; Ann J- If the will of a (loniicilcd foreii'ner bo in Encrlish, TrannlaUon; a copy of th(! Knglisli original, not of the rc;,'istcrcd traiisl.'ition into tin; foreign language, will be required fur proltate in this country (<(). In a late case a person djinicilcd in Mexico made a will according to the law of Mi'.xico, but written in Kiiglish. The pi()[)er court there decreed piobate of a Spanish translation and not of the original. Application was niaile for administration (with the will) limited to j))op('it.y in England. Per Cur. "Tlic certified translation (tf the oi'iginal will is tho proper docunie ;t ui)oii which I must act. The courts here 0(Mirt bo affixed to th(;rn (c). In the (looch of Lt. Col. Laurent Qaetton St. Probate of George (Ct. Prob, 1822), the testator domiciled in France, had made his will in the French language, wliicli had been proved according to the laws of that country. Probate was granted upon a notarial copy of the original in the French language being filed, togetlier with a translation into English made by a person proved to be conversant with both languages, MmMen (La.) lb., 1879; F. Chatham (N. Y.) lb., 1879. The same IJraitire jirevailed in the former Court of Probate U. C. Vide John Bail (N . v.), 1850. (o) Dchais, 4 Sw. & Tr. 14. (h) John Rule, L. K, 4 P. D. 70. (c) Coote, 212. Foreign Willa pi '^IP mm wammL-aa m. h u" 296 Grant first applied for in Ontario. SURROGATE COURTS. and sworn to before n notary public in this Pro- vince. The signature of the notary, certifying the copy of the French Prol»ate was certified by the Presi- dent of the Civil Tribunal whose signature, as quali- tied, was certified by the British Vice Consul. In the case of a Russian will, proved i-^ Russia, the Court of Prolmte in England allowed a copy of it to be made from the Russian probate, and permit- tod *:hat copy to be proved («). As to the .^c3ond class of cases ; — If the tesiat'^r die abroad it is generally assumed that he was domiciled in the country in which he died, and evidence must be given showing that his will was executed in conformity with the law of such country before it will be admitted to probate, The law is proved by the evidence (usually Ijy atH- davit) of a practising advocate in the courts where it is administered (^i). The certificate of the British Ambassador, under the seal of the legation, has been received (c). If it be the fact that the testator, though residiutj or dying in a foreign country, was not domiciled there, but in Ontario, the reipiisite negative proof will liave to be given, viz., by aliiy the law of On- tario. In making its grants the court will, in souio instances, adopt the rules of foreign law, though they clash with its own fixed principles. Accord- ingly the court will apply to the word executor the same sense of limited duration which the French It I M. (,i) CarU, 15 W. R- SSI ; ;itl T.. J. (N.S.) I'. &- M. 72. (b) Bondli, 4.5 I,. J. (N. S.) \\ SI. & A. 43 ; BriMow v. SaiucvUh, t> Kxch. '275, iin.l D. & B. 372, and Re V. J. Campbell, Smr. I't. ('". York, 1S7H. (r)Kli)iy»)(tnii, '.i Sw, & Tr. 10, see alHO Ann Dorino;/, oHiyg. 767. (UJ Cooto 211. KEVOCATION OF GRANTS. 297 bhis Pro- file copy he Presi- ,as qiKili- i-1 Russia, a copy of id peimit- V assvimeti which he ii<»- that his the law of to probate. Aly hy atii- lurts whore 1 dor, uuilor ;h residing doiuicilod proof will law of On- ill, in some uv, though Accord- xecuiov the the French Surr. Ct. Co. law attributes to it, and will pass over such executor if his time has expired (a). Where the will is in at'oreiyn lan^uarfe, a transla- tion made by an Engli.sh notaiy is annexed to the will, or office copy of the Avill, when aj)plication is madi' for probate. The executor is sworn to the for- ci'Mi orioinal, but the translation alone is enj;rossed and registered (h). A will made in France in the English form ])v a Frenchman who had been naturalized in England, but retained his French domicile, was admitted to probate in England under the French law (c). The ('ourt will also defer to the rules of foreign Aduiini^tra- law in granting administration of the estate of a *"'""■ domiciled foreigner (d). There are >;pecial statutoiy provisions in England a.s to admitting to probate the Avill of a Bidtish sub- ject made out of the United Kingdom, whatever may k' tlie domicile of such person (c). Section A'. • RHVOCATlON (»F (IllANTS. The grant of pi-obate in couniion form is a revoc- ri>\v.'r of Sur- able act (/ }. t., v^^^v^. (irants of this descrijition. and grants of letters of ailininisti'ation may l>e revoked at any time njutn OiUiM- shown, there being no limitation either by statute or by common law (/"). In the Ecclesiastical Courts the pfiiod of thiity years constituted prescription (/). ('1) Laitiunri'lc v. Amkrtiuii , :H) L. J. K. (N. S.) '2r>. ih) <\,,^i^', -IXX (c) Lacnix, L. R. 2 P. & 1). 97. dn hiihflla Sf art, 1 Cuit. 'Mi ; Daiiit Riuifr^im, 2 ("urt. \'M; yitm D'Animhuria, 2 (..'urt, .'177 ; Iii(i!ii<(, 1 Add. .•{40 and C'oote -l"- (() Imp. Stat. 24 and 25 Vi;t. c. 114. (♦■) 1). A 13. ;'.;«», and note. 298 SURROGATE COURTS. (Jrounda of re- vocation. A Surrogate Court (a) possesses, and, when it be- comes necessary, exercises the power of revoking or annulling for a just cause any grants which it lias made ; and in so doing, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions. The revocation may he either upon the applica- tion of the grantee himself (which has been called a surrender), and is then a non-contentious proceeding as distinguished from a revocation made in an adverse suit ; or in contentious proceedings (h). The court will revoke any of the three following classes of grants at the petition of the giantee him- self, and with his consent and co-opcn-ation, or with- out his consent and in pain of his contumacy (<■). Firstly — A grant made to a person who has no interest. Such a person having oT)tained the grant Directly false fraudulently, and maid fide, in either of two wavs, suggestions. . , , . t . i /• i i- i VIZ : by makmg a directly lalse suggestion, or i>\ surreptitious and clandestine conduct, in concealiiii;' from the court something material to the case, wliich it should have known. 1. Probate of a forged or revoked will. 2. Probate of a will ol)tained whilst a suit is de- pending touching its validity in another court, vi^ that of the deceased's domicile (d). 3. Probate of a will of a feme covertc, made with- out power for that purpose (e). 4. Probate obtained by an executor, being a minor on the tacit suggestion or understanding that he was of full age (/). (o) See sectionH 14 .and tM, S. C Act. {!)) D. & B. ,'54'J, & In the goods of Rowl'iwi Wchntcr |ei nji- a minor that he w^^^ lirtl E.l, 140. J. luiii o f Probate 111 |y.) ;■). Letters of administration granted to a woman claiming to be the relict of an intestate, but who has not been legally marj'ied, oris counterfeit altogether («)• - . . . • G. Letters of administration granted to persons claiming to be next of kin, who are in fact, illegiti- mate relatives only, or mere inijiosters or not next of kin, there being otliers neai-er (b). 7. Lettei's of administration granted (jf the estate, or letters probate of the will ot a living person (c). Secondly — It revokes a grant for the same want False sugges- of interest, where it has been obtained on a false sug- incuHam!^'^" gestion made by the party in ignorance only, or per incuriam. This class of cases will necessarily in- clude many described under the first head : i. Where a will has been discovered after admin- istration has been taken. 2. Where a later will has been discovered after probate taken of an earlier will. .'). Where probate has been taken of a will with- out a codicil or codicils afterwards discovered, which revoke or add to the appointment of executors under the will. 4. In cases analogous to Wtirirn h;/ h!)i (jaard'tan, w Kelson (t/), whore the Court of Chancery, after irrant made, ditr'ered from the Prerogative Court in its construction of the will, the Court of Probate re- voked the grant and gave a fresh one to the person who was entitled to the residuary estate by the deci- sion of the Court of Chancery. 5, Where administration Mas granted to the fleeted guardian of the intestate's ehildivn, there Ij'-'iiig a testamentary guardian who had not re- nounced (f). («) ir. Afonir, 3 No. Ca. (101. (I,) B< ninxDi, 2 No. Ca. '22. {<•) Chug. J. A'-(/-((/-, 1 Pliill. H3. ((/) 'J8 L. J. (N. S.) 121, it) Lmiim Mvvrus 7, L. T. (N. S.) 708. 300 r'upervenin:,' ik'fcct of Oj)t,'- ration in grants. Cases for revo. cation under thirii lu-ad. SURROGATE COURTS. Under this head also, will rank tho case where letters of administration (with a will annexed) have been issued upon the renunciation of an executor, who had previously intermeddled in the estate of the testator, and who has been afterwards compelled by the court to take probate () See Phillips v Alcock, 2 Lee, 9S. (f) Berfjman, 2 No. (^a., 23. (d) Coote, 192. (f) colter V. Field. G No. Ca. 182 ; and Langley, 2 Rob. 408. (/;) J. Cnr, 1 Sw. A Tr. 111. i'j) Barnes v. Durham, L. E. 1 P. & D. 729. 304 SURROOATI': COURTS. grunt. As tlu! court will .nily revoke a grant uj)on just cause, it will ivjt revoke a grant made to a person on tlie snggestion of his being sole next of kin, thougli othur next of kin ai-e afterwards discovered and tliougli all parties interested consent that the grant shall be revoked and a new grant made to another party, one of such other next of kin (n). It will not revoke a grant limited to attending proceedings in the Court of Chancery befon; the suit is en led, in order to enable the next of kin, wh'^ liad been cited, to obtain a g(Mieral grant (6). Nor will the court revoke such a grant on the a[)plication of the executor of a wdl if he cannot show that inconvenience would result from the continufince of the limited administration. The Courtis unwilling to disturb a grant without just cau.se, o)' where the executor could take a probate inferoruni (c). But in Curry (d) undei' neai'ly similai- circum- stances the court refu.se(,l to grant a probate i:atero- ram. The (.'ourt will not rijvokc a urant made on the refusal of a party cited, and not appearing, but long" afterwards coming in, mdess there was misrepre- sentation in the first instance in obtaining it {e). ThiM-e an- other cases, also, where the Court does )iot revoke ; but though it does not revoke the old gi-ant, it makes a new grant of a subsidiary nature (y ) dependent upon the circumstances which have called for it. If a sole executor become a lunatic, or of unsound mind, the court will make a new pe: V. Hartley, 7 No. C'a. 32 Supp. (/) L. Crump, 3 Phill. 499 ; and see Anon. 1. Lte, 625. 11^ K EVOCATION OF GRANTS. 305 pon just ,ersou on \, though ered iind tlio gl"Ull another {ittendiuij; )ofore the {h). ant ou the he cannot tVoiu the tion. The /ithout just e a pi'). Sec. 22 S. C. Act provides means of compelling the production of tes tamentary papers. If the Executor have intermeddled, the citation may call upon him to show cause why he should not be compelled to take probate, on account of his hav- ing acted as executor of the will of the deceased ('')■ (a) Cooto, 224, {r) Pytt V. Fcndall, 1 Lee, 557. (6) Coote, 225. CITATIONS TO ACCEPT OR REFUSE GRANTS. 307 ANTS. it to prove or declines )crHon hav- tiaving the nt ; and on the other. 3S • it eithev ^ tliose who they do not for a volun- , cited at auv ln\ii 3 having' stator's death. ratce cites the bate and cxc- l)W cause why I annexei. of cffects,rights be granted to ^pcct of a will 22S.C.Act duction of tes- I, the citation r'he should not "luntofhishav- ke deceased (<'^' lb) Coote, 225. And if there be also a residuary legatee in trust, the party citaut cites the former also " to accept or refuse letters of administration with the will an- iK'xed of all and singular the personal estate ami effects, rights and credits of the testator" qiuX resi- duary legatee in tru.st (a). A legatee, or a creditor, similarly cites l)oih the executor and the residuary legatees, or the testator's next of kin if the re.sidue has not been disposed of. In the case of intestacy, a person entitled in (lis- iVrsDus to i>e tribution cites the next of kin of the intestate and ^hol;, ,"",'/ oi!!,e Ills widow, if there be one. And a creditor (/>) cites "' '"tesucy. tlie widow, if there be one, and also all the next of kin and other persons entitled to .share in disti-ibu- tiun with them. In the case of a person dying without known relations, a creditor must cite " all persons in gene- ral (c:)." In all these cases the preliminary step to be taken Atii.i:ivit to Ity the applicant for the citation is to make an atti- Javit of the facts of the case and of his interest, as no citation i.ssues under .seal of the court until an attidavit, in verification of the averments it contains, liiis been tiled in the registry. The attorney, by power, of the party citant has I'een allowed to make the affidavit (d). by the E. C P. practice, before any citation is cuwat to i.i- '^i. (f-) A creditor will be allowed to take out a citation although hi.i riglit of action be barred by the Statute. (Coombs, L. K. 1 1'. & D., rp. 19;}, 288, and 36 L, J. P. & M. 78). (c) Vide post, p. 310. The citation is to be served on the Attor- iivy-Goneral. Fide App. K. S. O. c. 60. i'i} IkHuUey, L. R, 1 P. & D. 598. (e) Coote, 8th Ed. 373. le.iil citation. futcri'd. ' ,Ht 308 Service of cita- ti»u. On minor. On lunatic. .SU«U in re of tlie estate and effects of the deceased to which .>... n citation relates;" and notice thereof was to ho sent to the registrar of any district in which the deceased appeared to have resided at the time of his death, ii'.id siicli caveat remained in foi'ce until the proceed- ings following such citation were teriiunate(l (a). In order to clear olf a caveat wlien no apjiearaiirc has heiiu entered to a warning duly served, an affi- davit of the service of the warning, or a certifieatf of the registrar, stating the manner of .service and an atfiilavit of searcli for appearance and of non-appear- ance is filed. Citations are served personally whenever th n be done. Personal service is effected by leaving a true copy of the citation with the party cited, and by showiii;; to hiui the original process under the seal of the court. Service on a minor or infant should be eftecteJ in the presence of his natural or legal guardian, or at least of that of .sonu! person or persons upon wlioni his or her actual care and custody for the time being has propei'ly devolved (b). Where the citation was served upon two minor'; at the house where they resided, and both their custodianandnextof kin evaded service, the service on tlie niinons was held sufficient (c). A lunatic is personally served in the presence of {a) 27 L. J. (1858), P. M. & A, 94, and Horsey, 321. (h) Coo},cr V. Green, 2 Add 454 ; Brown v. WUdman, 28 L. J. 51 • For excejition see Lainson v. Naylor, 2 Sw, & Tr, 7. (c) Liaa V. Viiier, 3 Sw. & Tr. 4»J9. CITATIONS TO ACCEPT OR REFUSE GRANTS. 809 womeu. the person wlio lias the care of liini or hor, and if he lias acoinmittoo tlif latter is served also. If a coinmittoe of his estate has heeii apiiointcd, service ii2)on such coinmittoe as \vell as upon the lunatic is vecpiirod. When there is no conimittee, the service according tu thi- practice of the Prero,y'ative( 'ourt should ho ef- feoted in the presence of a medical man (d). Tf there bo no committee the next of kin, if any, of the lunatic should also be served (b). Ax to when the Inspector of Asylums is committee, rnir U. S. O. cap. 220, sec. 49 (c). A married woman must bo served in the presence Manied of her husband, or if this cannot be done, the hus- liaiid must also bo served; Broum v. WUdman. su- By the practice in the English Court of Probate, rermission to in the case of a party to be cited residing within the jurisdiction, when personal service had not been etil'cted, and the citant applied for permission to proceed, an aflidavit was recjuired showing the en- deavours which may have been made to serve the ikft'iidant, or bring the citation to his knowledge ((Z). It is recommended that a copy of the citation >lh)uld he left at his residence (c), or at his last known place of abode (/), and with the husband, wife, brother, agent (g), or other persons likely to be in c). If a citation creference in the eyes of the court (a). tora. (d) Andvcirsv, Muriihii, 4 Sw. & Tr. 11*9. 312 SUllROGATK COURTS. The first-mentioned creditor will enter an appear- ance to the cit.ation, and either dispute the grant with the other creditor or induce him to consent. The court, if the o;rant l^c made to the creditor who has not cited, will allow the other his costs out of the estate (a). Section II. CAVEATS. Caveats. 1^0^' statutory provisions as to caveats, vide ante, S. C. Act, sees. 47, 48. Any person intending to oppose the issuing of a grant of probate or letters of administrution, either personally or by his solicitor or attorney, cntei's a caveat in the registry. It is competent to any person having an interest, thus to prevent a grant being issued without notice to himself. The caveat remains in force for the space of throe months ; but may be renewed from time to time. [See S. C. llules, pp. 78, 79, 1:>1, ante, as to caveats]. A copy of tlie warning is to be left by the prac- titionei' at the place mentioned in the caveat as the address of the person who has entered it, or the re- gistrar will semi the warning by the ])ublic post, di- rected to the person who ha« entered it at the ad- dress mentioned in it. Grant to issue, If no appearance be given by or on behalf of the caveator after the service of the warning within the time therein limited, the grant will be issued to the party applying, upon afiidavits of the service of the ■warning, and of search and non-appearance. There is nuthing to preclude the caveator from ap- (a) Cooteii.U. Ac, m jbe grant consent, litov wlio sts out of ^ vide ante, isiiing of a tion, cither >y, cntci-s a an interest, thoxit notice )ace of three > to time. AX the prac- liiveat as the ,t, or the re- [blic post,(ii- ^t at the ad- lehalf of tlie if within the Issued to the lew ice of the Jmce. itor f rou\ ap- C AVE ATS— RIGHTS OF PRIORITY, ETC. poaring after the oxi)irution of the time limited in the warning. If the grant has not tlion passed tlie seal, Ills oi)position is as legal as if the appearance had licen entered during the time limited l>y the warning. If an appearance be entered the business becomes contentious (a). A caveat will enable the caveatoi- to apply for an order that the sureties of the intended administrator shall be resident within the jurisdi(;tion of the Court, or that the administrator shall exhibit an inventory or give a bond to pay all the deceased's creditors j>ro raid. The proceeding of a caveat^or in order to elFcct diese objects is by summons (/>). 313 Section III. RIGHTS OF PRIORITY AMONG PARTIES EINTITLED TO GRANTS. Certain applicants for probate or administration, or guardianship, have a preference or priority of iccdguition over others not in the same degree. In the case of wills, the executor is fdcile prln- Executor, f'Y'^, and has no superior, though he lias an ecjual in vl co-executor. The ground of the preference cxercisetl by the couit in other ca-scs, respecting wills, may be thus stated : — That a person having direct and innnediate Direct iuter- interest is to be preferred to those entitled in rciue- '^'"**" tentative character (c). Under this rule the residuary legatee in tiust has Resi.inary priority over the beneficial residuary legatee ; and ^^^ *""" ^'liere the residuary legatees are tenants in common. ("\ S. C. Rule, 24 ante. (■•) Anna MiMktvn, 2 Hajfy;. CI. (h) Coote, 234. 314 Next of kin. Attorney of Gnardians anil tTtfilitors. SURROGATE COURTS, and both having survived the testator, one of them afterwards dies, the survivor has priority over the representative of the other. But where one of such le^j'atees has died in the lifetime of the testator, and his (the testator's) next of kin are entitled to the lapsed portion, there is no preference (a). The residuary legatee for life is preferred to the substituted residuary legatee. A residuary legatee of whatever grade, or the representative of one (with the exception of courso of the representative of a residuary legatee for lift", who would not be entitled to a grant at all), takes priority of other legatees and creditors. In intestacy the next of kin under the Statute, -1 Hen. VIII. c, 5, have a preference over descendants, and collaterals, to whom the statutes of distribution ha\i' given a share in the intestate's estate, the court granting administration only to persons en- titled in distribution to the estate of a deceased per- son, where the statute of Hen. VIII. does not o[)i'rate by reason of the death or renunciation of the next (.fkin(/>). A next of kin has piiority over the representative of a deceased next of kin. In intestacy a person originally entitled is pre- fened to a party having a derivative interest. So a person i'ntitU'(l in distribution has a jirofei- encc over the representative of a next of kin (c). The attorney of a next of kin has priority overs l)erson entitled in distril)ution. A next of kin or person entitled in distribution takes priority over creditors. The guardian of a next of kin is entitled in pre- ference to creditors (c). («) Vale Coott", 214. ('.) If. ((•) C'unipti(in of law. At law a jury may presume a man dead at the expiration of .seven years from the time when he was last known to be living {e). There ai'e cases where no direct evidence enabling the applicant to depose to the date of the death can ('M LiHisu Morris, n L. J. N. S. 7ateor administratiim (as the case may be), upon the appli- cant deposing that the person died at or after the date last given of his existence. Advertisements asking foi- information respectintf the person supposed to Ite dead, are as a general rule required to be insei'ted in newspapers ; e. g., in the case of a person having been traced on board a vessel at a given date, and the vessel not having been heard of after that date («). But the adver- tisements are not required in all eases, irrespuctively of peculiar cii'cumstances. " Advertisements in newspapers are very well, if nothing has been heard of a person for some time. Here as you trace the history of the decea.sed up to a certain time, and then lose sight of hiiu, I think tliey may 1)0 dispensed with" {h). Sir C Cresswell acted upon the rule, where the seven years liad elapsed .since tlie husband had been heard of, remarking that that was " a fair ground for presuming that a person is dead, but not for presum- ing that he died at the beifinnimj or at the end of the seven years " (c). There is no legal presumption as to the date of the death {d). (a) fodtp, '204, in \v>U\ ('<) Novrla, 1 S\v. 1 Tr. 7. (r) EUziilxth l[i„r, 1 Sw. il Tr. .M. (d) Ibid, and C. W. Peck, 2'.t L. J. R. (N. S.) 90; and see also Dof V. Niii», where the [nd ha<, who were lust at sea, •lied lirst. In such a case, if a claim of succession (whether (X iestamenio or oh ivi estate) bo advanced on he- half of either of the pei'sons to the estate of tlie other, a survivorship must be shown. And no dis- tinction can be drawn in these cases lietween a claim (a) EUzahtth Howe, sujmi ; i?m,t^//'.f Tninti^, 7 L. R. Eq. 498. ('') Sfe Dian v. Davidson, 3 HiH,'b'. r>44 ; and H'. T. NorrU, t^tprn. (c) Bishop, 1 Sw. & Tr. 304. ('i) ("ooto, 20j. (e) JVicholls, L. K. 2 P. & D. 4G1. i '■ 318 SURROGATE COURTS. jiorty vested prima facie en titl-d. to property and a claim to the adininistiation of that property {a). The survivorship will be matter of evidence ; ])ut there may be nothing in the facts adduced to satisfy the mind of the court that there was a survivor- ship. The principle upon which the court has fre- quently acted is stated in the case of i^atterthwaik V. Povell (h), as follows : — N.-\t of kin of " Where a person dies possessed of property, the \vh..ni i)ro- riglit to that property passes to his next of kin, un- less it be shown to have passed to another by survi- vorship. Here the next of kin of the husband claim the property which Avas vested in his wife. If that claim was to be made out it must be shown that the husband survived. The property remains where it was found to be vested, unless there be evi- dence to show that it has been divested. The par- ties in this case nuist be presumed to have died at the .same time, and there being nothing to .show that the husband survived his wife, the administration must i)ass to her next of kin." Where a man, his wife and child, were drowneil at sea, and nothing was stated beyond these circum- stances, the court granted administration (with the will annexed) to the next of kin of the husband, there beinj; nothing to show that the wife sur- vived ((•). The decision in Underwood v. Wing (d) appears to have settled the law on the subject. A husband, a Vv'ife, and three children having been lost in the JhdhouHle on their passage to Sydney, and the proof adduced not satisfying the court that there was a survivorship of any in- eithei- of them, it was held that the property (i. e. of the husband) would go to (aj Coote, 20i3. (cj Murray, 1 Curt. 5'JC. (b) 1 Curt. 700. (d) 24 L.J. le to say. That ])eing so, what is the res\dt i Why here is a will made in which in one state of ciicninstances, namely, that if the wife died in the husV)aiid's lifetime, the property is given away. It is not proved that that state of circumstances ex- isted, and in no other state of circumstances is it |j[iven away. Then it is not given away at all. Therefore it must be taken as upon an intestacy, and must be distributed amongst the next of kin." His Lordship remarking that" it is liardly within tlm range of imagination that two human beings should cease to breathe at the same moment of time, and that to proceed upon a principh? that they did actu- ally cease to breathe at the same moment would, he thought, be proceeding upon false data." Sir Creswell Cresswell, following this authority, decreed administration to the next of kin of a de- ceased whose wife had perished by the same calam- ity, on the ground that there was no reason to be- lieve that the wife survived the husband («). In another case the applicant for the grant swore ^.',„^„ „f „:iih. "that the deceased died without child, kc, but whether or not, the deceased died a widower, or leav- ing a wife him surviving, I am at present unal)Ie to depose, the said deceased with his wife, L. H., V)eijig found dead side by side in the same bed ; their death ("J Ewart, 1 Sw. A Tr. 258; the oath stating ' that the deceased and liis vife or child jwrished at tlie same time, and that there is no rea- s"n to believe that the latter survived the former. ' m'^ I ] i* :/ 320 Til a crcilitdr. Will nni'^t 1»; SUIIROOATE COURTS. ho'\n sout ration to waivo n.. ..„ ^\ lion an oxcciifni- \^rlw^ 1 i l-l.enouucedp.ll^''i"'^"'^V^^^""^ for an account of m ,, T T^' "" ^'^'^'y '^ a l.ill .^.^ainst Jmn M-itl/ costs (h) ''"' ^i>^unss.d as J» a.I.lition to tbc ivferonco nn 1 ^ .^- • Act ant. p. 50. to tl.ni ^^J ^^^ '' !'' ^he ^ .. , C'. ' '^ to )., furtlier observed t * . , '•^^"""c-.ations '^^'• t'iat section do not n„nlv. ' Provisions of fore tlie Act (1.S.5S)' i ^ ^^\''''^»""ciation nuid. be- ''^' -tractation conli J;,;L^ ;;;t'^'' ^ f-ro (ih). ^' ^'"' «'i"io extent as be- ^'' '''••- t-renunciant^:^:!^^^^^^ •""".ciation .,,.; ex-ecutornf ''^^tractinu- bis '/. ^ ^-^^cutoi at any .subsequent ,,enod •Tile former nile that one of fwn '-tl^oftheex^cuo . T'^^^^^ -titled <,n M,.. ;'"--i-iona:d't;x: ';■""'' v^'^^'--^''^^ -'a«; entirely ehan.od '■(')' '' °'^^^' '^•^^ the new ^'•^'-xecu:!;.t :r':^^T^^^•^^'^• '^^"M>e.s..,the^enunei.-.,,,,,,,,. 321 rk)nr Bhikc 1-i ( 'iHSiJll, ^fli. il- Lef, 2;J!J (ISOl) JncI, *"«v. W/atc/uutl, •I'. (iii5. <-^''. 508 (18r,l^. See al ■""• cit. i„f. so r ^yitiu '"' ^- K. 1 P. & D. aniiatti.! \ . .l/,y. :io;{, ;jo,i , /if y ;i •' ( 1). '/) Alh o,.,e V. yv/re, 1 S,dk. 10«, referring to Ecx tn V. A,;./. .■{11 V. ,S-; i"i/>K'»i, ;{ j; ' '* '''■ (■'iistiii, 20 (j .V//^//-„ . !■• lOG ';''-' ^^'i^ In lie DcLaJio. '«/'■, UM.;.-. l]:i, .,,,,1 " i 1 Mai ! jj ' If t Hi' H|8 ; if "'"-'■ |i k I 322 Marrieil AVlJIIKin. sniltOJiATK (.'OrilTS. tion nliould 1i- a('(()iuj)anit.'(l I'V an aflidavit tliat Ik liiis not iiitiTiuftidlcd ('/). The cfisd ut' an cxi'cutor \v\\(> lias intciiiKMldlci iH'Torc rentniiieint,' is not Avilliin the statute (/<). Altlioii,i,di an exeeutor who has intei-meildled ciji Le coni]iellcd to take probate, an achiiinistratoi- wlm has internieihlled cainiut Im; conipelled to take ii grant ((•). Ordinarily an exc^cutor who renounces prohatc renounces likewise adininisti'Mtiou with the will an- nexed, [f a party he entitled to the ^nant in a su perior chai'acter, the court cannot make it to him in an inferior character (il). Infants and nunors nMiounce by their guardian cand by the sanu; means retract their renunciation (cj a minor however is incajiabht of giving a consent (f) A mother has been appointed guardian by tlu' court to renounce on behalf of the child or childroii with which she is enceivtc at the moment (;i}. A married woman cannot renounce without tin; concui-rence of her husband, unless lie be cited, so ■i'^ to enable the court to decree admini3tration in iii.s absence (li). lleminciiition. The executor may renounce probate so soon as liis testator is dead, and the renunciation may be tiK'il, piovided it be accomi)aiiied by the original will (/j. The rt'inuiciation of executorship, whicli is an otiice, binds the representatives of the executor (j). xso second renunciation is reiiuiied {k). t ; •^ i I {a) TToi-cy, 102. (h) Badenadi, 10 Jur. N. ^, ((■) It'll ix da: nii/ira. {•I) JUlHCca Bullock, 1 Hob. 275, 4 No. Ca (» ) West V. WiUi,,, 3 I'liill. 374. (/) Tlioinaa, 1 Ha^'g. (VJ.-). (y Retiactation. special leave of the court) he i-etracted ; hut it is iitlierwise in the ease of a person entitled to adminis- tration (e). The renunciation may he retracted at any time Irfore the ir^'ant of administi-ation has actually passed the seal (/'). It would apjiear that the court is not concluded Court notcou- l>y the Act, Imt may permit an executor to retract lenuuciutiou. I'.is reniuieiation in a propei- case, (g) he being pre- jiared to show that his retractation is for the bene- tit of the estate or of tiiose who are interested under deceased's will (li). An executor is barred fioni retiactiny his renun- (u) Horsey, 102. •M M L. J., I't. :'., C't. Vr«h. J). 40. {,) Rtbara Bni!urk, supm. '•') Doe. d., EUit V. McUiU 8 (l B., 224 ; and lioiih; 3 Sw. & Tr. 4j(i. <-] Cracfer v. Tteiinokln, cit. 3 Uaf,'K- -15. [/) Yurkr V. Manlvre, '.i Hagg. 215 ui. note ; JUcBonitill r. I'niidtr- mt, ;j Hagg. 212 (1830). Ifl) Ba-kiiavh, 3 Sw. & Tr. 4WJ ; See also MoraiU, 3 1'. & D. ir.2. (A) I . 1,. R. 3 P. & D. 113. Ui I;:: 324- SURROGATE COURTS. elation qua residuary legatee, if lie has renounced in that character also (a). H. P. \V. sole executrix and universal legatee re- nounced her right, as such, to the grant of letters of administration, which was accordingly made to G, W., one of the next of kin. Upon the death of (!, \V. intestate and insolvent, H. P. W. was allowed to retract her i-enunciation as universal legatee, and t(j to take a grant of letters of administration de bonis non (h). Retractation III case of a simple administration granted to a y nex o in, pg,.j.Qj^ entitled in distriVtution, or to a creditor, on tlie renunciation of the next of kin the latter may, on the administrator's death, retract and take admiiii> tration de honlfi non (c). A person who has renounced hy his guardian re- tracts in the same manner as if the renunciation had heen his own direct act. But the retracting party may only take a- tration pas.sed the seal, the court refused to pernut it, and held him to his renunciation (c). (n) Sfo A'(.7i(()-'/,w», 1 Sw. it Tv. ."ila, (18.V,)) .•iiid MmriKon, 'JSw. .'; Tr. i;!0 ; A'. Jhilhick 4 No. of ("ii. (i47 overniloa. ('..ote, 22:;, in i"- (i>) Whirl w)'i;ilil, L, n.M'. I). 71. ((•) Shrlti,i;itiiii V. Wliitr,! Ha-j,'. 702. ('/) n.jiaiU mivl">i I'unni, 1 \\i>\ 12(i. (r) (.'. Nucl, 1 Hay;,'. 2(I.S. refused. INVENTORY AXD ACCOUNT, 325 :;nounccd jcratee vc- letters of lade to U. ^atli of (i. illowed to tec, an- 1 t(j n de bonis inted to a itov, on the ,ev may, ou kc adinini^- Tn all cases of renunciation, save in that of an Retractation executorship, on the death of the remmciant his re- presentative may take a ^lant to the same deceased, without retractation; for a renunciation, except in the case of executorship, does not bind representatives ((f). Refusal, shown by non-appearance to a citation, retiuires no retractation. The party so refusin«jf may, on the death of the adnnnistrator, come in and take a o'rant de })onis nan. He is, however, subject to pre- cisely the same rules which re,i,adate a retractation, and has no more privileges than the person who lias renounced in form (h). ruardian re- ticiation had ike adiuini:^- ally ^^rautcd, iceoinpaniol efor( 00. |\ venouiu'C'i- one of tlu'Ui I the aduiiiib- n\ to pcvmit ilTIJ")". ! S\v. .tu, '^-' t/, 1 Uay >.>•> m II. CHAPTEH IX. INVENTORV AND ACCOUNT. Any person intei'ested in an estate whether as a citation to ex- next of kin, as being entitled in distribution, or as and uccount*!'^^ a legatee, or creditor, may call upon the adminis- trator or executor who has become the legal per- sonal representative of the deceased to exhibit an inventory of the estate, and to render an account of his administration thereof (c). This was done un- der the Court of Prol)ate Act (U. C) (d), and has continued to be the practice in the Surrogate Courts (e). The inventory .should contain a statement of (a) Thomns Newton Penny, svpra, (b) Coote, 2nrl Ed. 170. ((■) Hee Form of Oath iind Condition of Bond, ante p. 102-3 ; and Coote, 232, and vidi }H>at V. B. [d) O'Kell Jones, Ct. Prob. 1849; Robt. Hamilton, 11,. 1824 ; Richard Hatt, lb. 1827 {tentate) ; Patrick Smi)tl<, lb. 18'M (testate) ; Downey, Suit. Ct. Y. O. & P. 1850. {<) In the goodt of Samuel Zimmerman, the, Suit. Ct. Y. &P., 18M ; Frcdk: Huldetmyrth, lb. 18.'>8 ; Thos. Daiidnon, lb. 18C0 ; Ahx. ^mathun, lb. 1861. ••Its. 326 SUKrvOGATE COl'Iil'S. PdwerH of former Court of Probate an to calling for account. all the goods, chattels, Avaresand meichaii
  • "pi'"- after administration. A fiat for the filing of tlie in- . ventory is in special eases made simultaneously with the trrant. There does not a[))tear to he any tinje limited hefore which either the- account or the inven- tory may not he called for (a). .l)isohedi(>nce to the citation is followed l»y attu( h- mcnt for contempt. Inventories and accounts may 1)0 brought in vol- untarily without awaiting the compulsory proceed- ing hy citation. This jui'isdiction, it is remarked hy Mr. ( /oote, p. •i:>*2, is preserved to th(i Court of Probate by the li.'h'd section of the Court of Prol)ate Act, 1857. By force of sections 15 & 52 S. C Act, it would appear to be ])reserved to the Surrogate Courts of Ontario. The executor or administrator files his accounts, Ky^ctors ac- vcrified by affidavit, in the otKee of toe Registrar of '''>'»»ts. till' Surrogate Court, together with a petition setting forth the facts briefly, and pi-aying that the jieoounts may be examined, audited, and allowefl, antl a com- AniHtin- and pensation fi.xed, or to that efi'ect — following the Ian- J.''^^J','"j''' '^'^^' Ljuage of the statute (J)). An appointment is then obtained from the judge. Appointment. f(ir , r.-'. (A) Vide auk [y. ^r,2. {>') Ha m if ii » 1 HI 328 SURROGATE COURTS. Notice to ere ilitoi'H. tected. Altlioii;.,'h no order is made finally discharging tho accounting party or his sureties, yet the passing of tlie accounts as above mentioned, being a judicial pro- ceeding under the statute together with the protec- tion thrown about an executor or admini.sti-ator by the Tropeity and Trusts Act (R. S. 0. c. 107, s. 34; , upon his complying with its provisions, would seem to render his position as secure as it could be made by any such order of Court. In the case of Cle) to the creditors, provided fur in the statute referred to. publishing it in several news- papers, and on tho 1st Fcbiimiy following, having' Executor pro- paid the creditors, distributed the whole net residin- of the personal estate, paid such part as was paya- ble to legatees, absolutely to such legatees ; aivl there was no part of the estate left in his hands '/*«/ executor. It was held that the executor so distri- buting the assets after issuing the advertisement^ and taking the steps pointed out by the section abow referred to, would have the same protection as if h. had administered t]\e estate under a decree of the Court of Chancery. A Surrogate Court may also require a guardian nt infants to account, in the same manner as an admi- nistrator (vide mite, \). 08). A donation mortis causd is not the subject of a grant of letters probate (c). Such a gift does not vest in the personal represen- tative ((?), and need not be included in the executorV or administrator's accounts (e). («) :i Ii. R. Kq. 3(i8, (h) For Form of Notice, ride Appetuiif. (f) BurnH Pied. Law, vol. 4, p. !;«♦, 140, ami cases cit. Wnw- on ExorH. 7th e.l. 781. ('/) /6. 770. (f) Delmotlt V. Tatilor, 1 RedfieUl, N. Y. Surrogati' Court Rep. 417, citing En}?, ami Am. cases ; anil »ef Ward, 2 Uedfield, 251. Seesli"* Harrison v, Morehoutc, 2 Kerr, N. 11. Rep. ."i!M), and caccs citeti. iiuardians. Donatio mortis caitid. Not included in account. In.'.*- "r" '' m PART IV. THE PRACTICE OF THE SURROGATE COURTS IN CONTENTIOUS BUSINESS. CHAPTER I— Section' I. JURISDICTION OF HURROGATE COURTS IN CONTKNTIOUS BUSI- NESS. By the torni " Contentious Business " is to be C'lntentiou* 1 i 1 11 1- • 'j;t ; set- also lieattii v. Huldwi, 4 Ait^ U. 2l(i; Tiirkir v. Snulh. Siiir. Ct., Co. Ontari", 1873 ; Curtis \. MovNalili, Suit. Ct.,Cii. Vmk, 1S7W; Irwin v. Jirixhn, Co. SiiiiLi"?, isri). ((/) Ikiijaiiiin Oiiiih'i, Ct. I'roli.ate, U. ('.,1841; Jnliiison, Juik-^'n V. Jiihiixiw, il>., ]Sl."., iiinl Ahvuhmit PitivMni, ih., 182!). P.y 22 Vi.t. c. !•;!, abolifiliiii;; tlie Ciiiut iOtiitll>>, .'"i57, 501, & c<'<- cit. PnonAFE IN SOLKMX FORM. 331 inc; the will, if the con.sci»>iMo of the jiulge, upon a cureftil nni'o- «'niiiiii(H(:c- , , ill lIK'Ilt of (.'Oil- co((ling an ap]»earance has heen entered oy any jx-r- t.utioiw Min In opposition to the party ]>roce(M]inj,' ; (*') or '""""'■''•''• uiicii in a proceediuLf a citation has been extracted a^fiirist a paity supposed to be interested therein; or when aTi ajiplication for a grant of probate or ail- niinistration is madr on motion, and the right to -ucli grant is opposed. Skction II. JMtOr.ATK IN SOI.F.MN FORM. Tlnre are two kintls of Probate, viz., Pi(il>ate in Ciinunon Form, and Piobate inSoKinn Foim of Law. (') I ndor tliu title '' F(ftit)ti of ilic Will," tiic Icivniil authors already referred to (d) consider the ([uosiiuns ; *' l.sf, ^J wliat law the validity cf tlic will iw ti> be detcniiincd : L'ud, the ciijiiicity to make a will ; and 3rd, the nature and form of the will,— and therein of the e.\eoution,;,ri\(icalii)n, and re- vival (if willa." la) UiiUv V. Rail, •_» M,),.. P. C. 317, 310 ; cit. in »'i,V.» v. n'i'.^.v,, '.-J, (Jr. 84. ")1 1>. .1 B. X], leferrinK to Znrhnriiti v. CoIHk, o rhill. ITlt. ill >Vt ,uUr \K 7!>, and i^stV. K. (/. 2\t.rt'ics who, as Plaiat'iij'i^, ore entitled to prove a }V'dl in Soletan Form. (Il The executor is the person upon M'honi tlii> wii.. nmy bo iluty primarily devolves, provided he is willing t_o *"'""•'' "• act. llr may prove a will in solemn form (I; by his AMI nicie motion, or (2j by compulsion — at tin- in- stance of a party whose interest i.^ advcr>.cly atl'i.ct-d ty the will. (1! The Imii'l Statnt.- ..f IJinit.itii.ns (.1 & \ Will. 4, c. -JTi initioii ill so far as they relate to jiersoiial iiroijcrty. Nor does thi' Statute of limitations. It. S. O. e. til. (') Uuffmnn v. Nm'ris, 2 Phill. "I'M, ii. ; .Vcrriiwcalin r v. Tminr, 3 t'mt. MVi, 817 ; Snnth Ti>pj>iii;i, 2 Rob. 020. '■> yiWill V. ^yak.■<, 2 I'hili. •11\ ■. H.H v. ArmHl>;„iJ do SO of liln oii'ii III! re, 'ino/'ioll (d). It ih wiinii'suiijimi always coiaiiitent to an executor to prove a will in owu m. I'.'^ si.k'iiin form. 1 ii many cases, as a matter of pnidonci!, iiiotioii it jsj lijirlily e\i)edient tliat lie sliould do so. For his iunvJniiii'('I-i.f "^^" protection tiiis course would .seeiii advisalilo, iK.t |pniviii-ii xvlienever serious tlouhts ai'e entertained as to the will Ml sok'tim foriiiiii leitaiii validity of tlie will, or when tluire is a risk or an ap|treliensioii of its validity bein^' at a future time contested. The force of this observation will f)e bc.it seen by an example. An executor takes probate of a will in eomnioii form, and pays a legacy under such prtjbate ; thr probate is subsecpiently called in, a!id is revoked on the giouiul of the invalidity of the will; the excicu tor may be recjuired to refunvl the lei;aey so paid in error. lie is of course entitled to call upon the Icj^a- tee to whom he paid it to recoup him, but supposing the legatee is unable to do .so, he will then liavepor sonally to bear the lo.ss (b). It is, moreover, very often inconvenitint for an executor at a distance of time from the death of tlii testator, to be put on proof of a will in solenni ruiin Sir John D(jds"n on this point says, "1 know oi no way in which executors can protect theinsc'lvi!> from that inconvenience, except by exaniinini; the attesting witnesses before taking piobatc " (c). " But, by the practice of the Court of Probate, t prove a will in solenni form, it is sutticient to exa- mine one (d) only of the attesting witnesses, uiiles- the court requiies tlie production of the othe«." ((() D. & 15. 041, ami untt\ Sec. 4!», 8. C. Act, niid imto. Execu- tors caniuil I'ito le;,'iitet'H ti> propound a codicil. 'l\u:y may prop'Hinil i will iiiid ci!e purmiiis iiitere.stfil iiiuicr the codicil; Jkul/ow (lfcra»eil,'Mi L. J. I'. & M. 171. (b) yiih anti', Bee. 57, S. V. Act, and uote a« to revocation of |ini- butp, and actn done before revocation ; (-'oote &. Tri«., ',inl ed., p. 21.'i. ((•) III tlie Ooo'ls of Sarah Tuppiiui, antf, ('/) JJclhin V. Skeats, unk. PROOF IN SOLEMN fOUM.— PAUTIES. S35 (a), li is ^' a will ii\ 'pniUcncc, lo. For his {ulvisalilo, I as to thi' risk or an future time xvill belxi^l in coMiiiion HjVtate ; Uu' revoked on ; the execu- y so paid i'l' )on till) l('-,'a- [\i supposiivi uMihavep'!'- tici.t I'or an iloath of tlw isolouui I'orni. I know of b thoiiwt'lv(^ Liuiuuin If tlv |to " (f). ,f L'robati', t Icicut to cxa- m,ssr>, unlo.s- b othi'." Ii.l unto. Kxeoi- may iiri.pouwl J riihow ileceoiKl,'" evocivtion of \«>'- J II c.recuto)' 'ina;j In' i>nf on proof nf n {>•'(][ \,\ solemn for nt {bi/ com pah ( on) at Ike lat'ttintr, of aii;i jurxuii vhnsr 'nitercst isi wUxi'ki'I ij ajfccfi d hjj ike it'll/. To cntitk' a jici'son to put an oxecutor on proof «>f a will, lie must sliow that he has some intcrt'st in iniptiifniiiL;' tlie will, liowcvei' small (<(). Thus a jicrsoii in the charactt-r of the next of kin wouM have a rij^'ht to ojipose all the testamentary papers of tlie deceased, yet he would not have a rif,'ht to oppose o?*" pa[)er «»nly in wliich he has no interest. A possil.ility of interest is sufficient (h) to entitle iiini ti> df) so. The foUowin;:^ are the j»arties by wliom an exe- cutor may be put on proof of a will : (r) 1. The widow and next of kin of the deceased, and all otlier persons entitled in distiibution to his per- S(jtial estate in the event of his dyinj,' intestate, or tlitir representatives; and in the event of his dyinj^ without known relations or a bastaid, the Attorney- Ciciieral (". iiiuy If put nil priKif ..f .1 will liyci'iiipiiNiuii. At tliein- .■itiiiicc of par- ticsHhiiwiii.,' .•tration of tlu; effects of tlie testatoi', i e, done any act in relation to his effects, allowing an intention to accept tliu e.vecutorshi]). or any act wliich would make him liable as executor de son tort [h), it is obligatory upon him, if re(piired by any of the parties interested, to prove tlie will in solemn foi-m (c). When he lias no* so compromised himself, he is at liberty to refuse to act ( then one of four courses open to him ; 1. To ai)pear and i)ray time to consider whetlu'i he will act or not (<;); 2. To appear and }iiopound the will liimself ; 'S. To appear and lefuse to act ; 4. To fail to appear (/). When an executor appears to the citation, an'l propounds the will him.self, he becomes only noini- (a) Mfn:ies v. Pnlhvook, 2 Curt. 851. (h) 1 Williams on Ex'ori loth e, 244. (r) JacLsoii V. WldUhavl, :i I'liill. .^77. ((■) William.^ on Ex. (.5th K.l.\ LM2. {/) tViote & Tris. lir.l VA. 217. (*<>" e»t>tled - pear, or appears and refuses to act, the party entitled the residue, or to the resit'. ue, or a legatee named in the will, or pro!j^„n*i|a"*^ eitlier of their representatives, may propound the *^'^ will ill loco i'xecutorin (b). '2nd. Parties who may bo Defendants in a Suit of proving d Will in Solemn Form of Laiv. Any party whose interest may be adversely af- fected by the will may be a defendant ; and a po.ssi- hility of interest is sutKcient to entitle a party to appear in this character (<). But he must have a direct interest in the suit {d). Amongst the persons therefore who may appear as defendants will be included those who are en- titled to put an executor on proof of a will, viz : — 1, The widow and next of kin of the deceased, and all other persons entitled in distribution to his personal estate, in the event of his dying intestate, or their representatives. 2. A legatee named in the will in question, if his legacy has been omitted from the probate, or his representative. ;}. An executor or legatee named in any other tes- tamentary instrument of the deceased, whose inte- rest is adversely affected by the will in question, or their representatives. When an administration has been previously ;,Manted : — 4. A creditor in possession of administration. The widow and next of kin, &c. Legatee in the will. An executor or legatee in any other will. Creditor in iwssesiiion of administra- tion. Ud) Ante, p. (a) Brandreth v. 5. , 2 Sw. & Tr. 446. (b) Coote & Tr. , Srd Ed. 210. 320. ^1 (<) Tui non interest may be objected at auv stage of the suit ; '('r^At V. Rutherford, 2 Lee, 267. id) Brotlierlon v. HeUier, 1 Lee, 699. V 338 SURROGATE COURTS. m An appointee of the court. The heir at law. The heir-at- law, &c., may be cited. The heir at- law, &o., may intervene. 6. A poison in possession of administration under section 54, S. C. Act, as appointee of the court, without having a beneficial interest in the estate of the deceased. C. When the will relates to real estate, the heir at law, devisee, or other persons pretending an in- terest in such real estate, are to be nuide defend- ants (a), unless the court (6) shall, with reference to the circumstances of the property of the decoiwcd, or otherwise, think fit to direct that the cause may proceed without their being citccl (h). They are made defendants by being cited by eitlior party to the suit, to see proceedings in pursuance of an order obtained for that purpose on motion. Hut the Judge, before granting an order, must be satis- fied by aftidavit that the will in (|uesti()u aH'ects, or purports to afifect, the real estate of the testator, ninl he may then make any special directions as to tlic persons to be cited, Mdiich he may think the justic of the case requires. The heir-at-law and other parties interested in the real estate affected bv the will, thouyh not cited, may become parties (defendants), and interviMie with leave of the Judge obtained by order on sumnioib for their respective interests in such real estate (c). It was a rule of the Prerogative Court, that when a suit was pending, a party whose interest might by possibility be aflfected by the suit, should be allowed to intervene to protect his interest. He was called an intervener, and by C. Rule 4 jiost, that right wa.- continued, .subje<'t to the same limitations, and In the same rules with respect to costs as theretofore, viz., as in the Prerogative Court (c). Hf-^' •' '.it {a) Vide, sec. 4i), S. C. Act and C. K. rule 34, post, (h) Emhtrly v. Treranion, 20 L. J. 142. (t) Sec. 49, S. C. Act. '3KS PROOF m SOLEMN FORM,— PARTIES. 330 ,ion under the court, c estate of B, the heiv ilin<^ an in- de defend- ref erence to c deceivscil, > cause may ,cd by t'ither [Hirsviance of notion. H»it, lUst ho satis- i.u art'octs, or testator, aivl ons as to the .k the justic The distinction between an intervener and a defen- pi>«tiiiction . between inter- dant properly so called, would seem to bo this, viz., vonern uiui that an intervener is a person who puts in an appear- ance in a suit without bein«? cited, and while the suit is pending. If he puts in an ap{)earance in an- s\v"r to a citation served upon him Ijy the plaintift', or at the commencement of the suit, he would bo calK'd a defendant, and not an intervener. It was the practice of the Prerogative Court that inttrvcnei-s should take the cau.se as they found it at tli<' time of their intervention; hence they could, of riiriit, do only what they might have done, had they boon parties in the first instance, or had their intirvention occurred at an earlier stage of the cause; thiivfore an intervener in a cause had no right wlion the cause was fonnally concluded by the |iiil'lication of the evidence to plead in the principal caiiso, but the (^ourt might allow an intervener to ijo so, e.r fjrdt'id, if the cause at the time of this intnvontion was not actually and fonnally con- duilnl (jl). A jiorsoti desirous of intervening lias but to enter an ;ippoaranco and give notice of his appearance to the parties litigant. The proceedings are thence- forth intituled, A. v. K, C. intervening. A minor (/. e. a pei'son al)ove the ago of seven years Minor*, ami under the age of twenty -one) may elect a guardian for tlu' purpose of carryi'g on, defending ui intervening in a suit. An infant (i. e. a person umier the ago of seven years) would, by the E. ( '. P. inaotice.have a guardian a.ssigne(l to him by the judge on atHdavit (/;). Any jierson who is not worth £25 (c) after pay- Pormn iiit.nt of his just debts, save and except his wearing '"'"P*"'*- I'll C'enmitH v. liluxiin/A .\(lil 40. ('<) See aim) p. (55, nntf. (n III the Keel, Courts the limit Appcur« to have been i)."). C'oote, Ecol, L,^NV,80, 1% m. iiiiiif 340 ■•i^''^ SURROGATE COURTS. fpparcl, is allowed to sue (a) or prosecute (h) a suit hi forma pauperit^ (c). Any person desirous of prosecuting a suit in forma paiq^eris is to lay a case before counsel and obtain an opinion that he or she has reasonable grounds for proceeding ((/). " No person shall be admitted to prosecute a stilt in forma pin i>cr in without the order of the judge; and to obtain such ordrr, the case laid beforo counsel, and his opinion thereon, with an attidavit of the party, or of Jus or her proctor, solicitor or attornf\ that the said case contains a full and true statement of all the material facts, to the best of his or her knowk'dgc and belief, and an affidavit by the party a})plying that ho or she is not worth £25, aft<'r pay- ment of his or her just debts, save and except his or her weai'ing a])parel, shall be produced at the time such application is made. Wiiere a pauper omits to proceed to trial, pur- suant to notice, he or she may be called upon by summons to show cause why he or she should not pay costs, though he or she has not been dispaupereil, and why all future proceedings should not be stayt'd until such costs are paid." Althougli the language used hero by Dr. Tristram, in stat- ing tlie practice in suits in whicli minors and infants are parties, and in suits infonrnt fxiuptriii in that of the nilcs of 1W()2, (f) the same practice appears to have been followeil in the Prerogative Court iu tliose matters ; except tliat £'">. in ■tead of £25, appears to have been the limit for paupers (.' ). (fi) Re Jones, 1 Hagg, 81. (M Cothrdl V. Jcffree, :« L. .1. V. k. ^^., 178. ((•) 11 Hen. VII., c. I'J ami '2;{ Hen. Vlll., c. 15. See also P-r V. MonUjomrry, 'I'l Gr. 170. (d) As to (Hspauperizing, see Lovckiii v, Edwitrd$, 1 1'hill. 18ii ; A-"' V. BnUcy, 2 Rob. 150. (e) Vuk Coote k Tris, Cth Ed, 454. (/) U. &B. Ua3 &ca8. cit. CONTENTIOUS BUSINESS. — PROCEDURE. 341 Section IV. PROCEDURE. Of the. Commencement of a Suit. A step fiv(|uently resorted to prcliiuiricary to com. Caveats, mciicing a suit, wlion a grant of probate or atlminis- tration or guardiansliip has not alrc^ady passed, in entering in the registry a caveat (ti) against sueh grant passing witliout notice being given to the j>arty who entered the caveat or to liis proctor or solicitor. (See. 47, S. C. Act.) This caveat wil' remain in force for tlie space of three months (S. C. R. 1!>) and then expire, but may be re- newed from time to time, and so long as it rc- "lains in force, no grant can ])ass withovit notice •ing given to the party wlio lodged it or to his jiioctor or solicitor, so as to give liim an opportunity of appearijig and o])])osing the grant. The giving of this notice is technically termed vjarniiuj the caveat (6). 'I'liu Form of Cavinit in Coiitentitms Hu.sineHS, E. C 1',, iliil not m-X furtli the interest. It was as follows : — CWEAT ('•), In her Majesty's Court of, etc. I, it nothing be done in the goods of A. B,, late of (Utilised, wlio (lied on the day of at unknown to ('. D„ of having interest \nr to E. F., (irmtor, Rolieitor or attorney of i)arties having interest]. Dated this day of is . (Signed) ('. 1)., of \ur V.. F., of the proctor, Bolicitor or attorney of parties having interest. ], [ii] It is said that an .art done pending eaveat is vni.l. (1 ). fi \\. 6S9). ('•) The warning of caveats is included in the (UTinition of non-con- tentious business, S, ('. U. 1. See also S. C. U. '11 and I'l. (<•) Coote fc Tins. 3rd I'al. 'MVi. Warning of caveati. Appearance. 342 SURROGATE COURTS. (See further as to Caveats — C. R. 5, 6, and S. C. R., 18-22, and ante chap. VIII. s. II.) The warning of a caveat is to state the namo and interest of the party on whose behalf the same is issued; and if such person claims under a will or codicil, it is also to state the date of such will or codicil, and must be accom[)anii'd by an addre.ss within three miles of the General Post Office (accord- ing to F (.'. P. practice), at which any notice re- (juiring service may l)e left. When the caveat ha.s been warned, the party who lodged it nuvy enter an appearance, and upon his having entered an appearance, the suit is said to be commenced. The entry of an appearance to the warning of a caveat sets forth the interest in the etieets of the de- ceased testator or intestate of the person on whose behalf such appearance is entered (C. 11. 74, 2^od). Upon an appearance being entered in answer to the warning of a caveat, the matter is entered as a cause in the court V)ook, and the contentious business shall thereupon be hel«l to commence, (C. R. (I, pout). Another mode of commencing a suit is by citation, This mode will be resorted to where an executor or person acting loco exevutoris proposes to piove a will in solemn form of law, and no caveat has beon entered, or a caveat has been entered and no ap- pearance given to the warning thereof. The conten- tious business shall be held to eonunence with the tious btiHinegs extractiiit; of a citation in the Form No. I., or in some commences " ' witii. similar form. (('. Rule 7 jn)s(.) So, also, a party inter- ested, who purposes to put an (executor who has taken probate of a will in eonunon form, on proof of the will pertedtcf*, or to call in a grant of administration timt CJitntiona. When conten CONTENTIOUS BUSINESS. — PHOCHDUUE. 343 S.C.R., imo aiul same is will or will or address (acconl- otice rc- arty who upon his md to he the same may he revohoil, wouhl eommonce his suit by citation. (See Forms, Nos. II. and III.) (a) No citation is to issue under seal until an affidavit in veritication of the averments it contains has been tiled in the registry. The alKdavit should be made by the party, or one of the paities, on whose Itehalf it is extracted, and if he is the heir-at-law, it should recite bricHy the order on motion. Before a citation is signed by the registrar (6), a caveat is cnteretl a<'ainst anv <'rant beiiiL' nuide ill respect of the estate and efiects of the deceased to which such citation relates. Such caveat is to be reiiewe time, so as to be kept in force so long as the proceedings arising from the .service of the citation are pending. This rule doe." not apply to citations to exhibit an inventory, and to rt'iulcr an account, nor to citations to show cause wliv a bond should not l)e assij^ned in ordt-r to its lifing enforced against the sureties. Citations to see j rocoedings may be extracted from the registry on the application of any jwirty to the cause. (C. Rule 1(5.) See further as to service of citations ante (/>). If the party cited be abroad liaving an agent resi- lient in this Province, .such agent must be served with a true copy of the citation. An affidavit ri'muKite to lead citatiuriH. ("aveatto l>e fiitiTcd liefure citation Hi^'iied. ('itations;to Hee imn'it'dingH. Service (in airt'iit in On- tario (if any) of party citi-d. 0/ ro'sonal i^ei'V'cc of olhi r I iiHtrumend^, Tile rules issued, .so far as tlu'y relate to tlie ser- vice of citations, are to apply to the service of all other instruments rcipiiriiig })ersonal .service. () Vidt ante Ch. on Citations. 344 SUHUO(!ATE COUUTS. (\f App('(tr(rnc<' (u). The party cited, or whoso aivcat is wnriu'd,. sliovild witldii the time naiiifd in tlie citation or in the warnin;,', enter an appearance in the re«;istry in a hook provide entry nujst set fortli tlie interest wliicli the peison on whose hidialf it is entered 1ms in the estate and cti'ects of tlie deceased. (C. 11. 74, post.) The entry and the appearance of a Jiarty is al>o accompanied by the addivssof the jiarty t'nteriiii,'it or his attorney. (C. H. 10, post, and S. ( '. U. 2.*) (inte (6). (>/ Procredimjs In dej\iitU of Appearance. In case the party cited does not appear within the time limiteil in the citation, the canse proceeds by default. (C. U. U, iwst.) It will then be hiwful for the plaint ilf to proceed in default on tiling in the registry an athdavit of per- sonal service of the citation and of non-appearaiici'. together with the citation, or where personal servict' has not been duly etlected the order of tiie judi^e, founded on an allidavit, anil giving leave to proceeil, must have been obtained. (C il. 8, post.) {(i) Any iwrwon hoi'vimI with a suliinvna t<> liriiij; in :\ ti'Htanu'ntsry pfvimr wuK, nniliT tin- 10. ( '. P. KuU-m of isii'j, at lilnTty to cutiTaii a|i|)efti'untv «>n piiynicnt of ttie wswA fees, if hy tllon^'ht tit to do po. C'ootf \ Tr, :ii>'>n, ."> No. Ca. 1(>7.) My I'Htoring !>ti al>s4>lnti- .tpjiearanct' tlie dcfi nilant ailniit'' tlio jurindii'tinii (if the roiirt ilioiiii\. lioinl, 2 Sw. k Tr. '.Wl.anil waives any irri- gularity in the oitj»lion. or in th>' copv, or in tin' scrviot! of jt (1>. A li. 71i">. and ca!»e> cited); but not a nullity (AckirUiJ v. J'arkin»i>n, ;i M. &S. 411.) I'pon an appearanci- under protest the jiirisdietion of the cniirt uiim-r protest, f '*'"''" ^ • ('""Ic", J A''"'- •'^•'', "•). "•«■ the eapaeity of the plaintiff t( k' may he put in iHniie ; in the same way the validity of the uitution "i of the service may he ohjeeted to, and it may he siiewn that ( iniiii.- stances which do not amount to a le^'al liar to the suit render it iiii- conscientious that it should bo prosteuted in the imrticular owo. (1). &B. 71.-..) CONTKNTIOUS BUSINKSS. — PROCEDURE. 345 wnriu'il," tioii or in otristry in * The lu> jUMSnn estate an«l i-ty is iilx) »">• K-„. Civ. ii">7.) i>y 1^ tli<> j»uimUcliiin iNVuivo^ iviiy irr>- ]i,.,'..fjt(l>. M'- I'nrkinton, :*M. hon "f tin- '»"« \w i.laintiff t( ne lofllu-cituti.mr Wn that rir>in' • tmil roiu>>'r it im- l-articvilin- ou>->'. In case the citation has heen advertised, tlie ncws- jiaper containinjj tho ailvertiseinent, to^^'ctlier with tlu' citation and aMidavit of nun-a|tpearance, nnistbo tiled in thf i-e^^istry (//). The plaintiff slioidd tlien file his dechiration in the ivifi'itry within eij^ht days (hy K. ('. P, pnutice) I'nnn tho last day allowed in the citation for the appearance of the defendant. ((\ 11. 10 post.) At tho time of filin;^' his declaration, he shonld file Scriptn. therewith an atfiduvit of scri{)ts. (('. II. 1!), post.) An application n\nst be made on motion to the iiiiii,'e for his direction as to the mode of hearin<^ tho cause. (( '. U. 2.'), post.) There \k''u\'^ no defendant, and tliereforc no issue, the eanse wiU be directed to be heard before the court without the assistance of a iurv. A record, in Fonu No. xv., or as near thereto a.s can bo, shall be deposited in the rc^dstry. (C. R. 2S, joo.s^) Should the court at the heariu"; be satisfied, upon Decree the exandnation of one or more witnes.ses, that the will was dul}' executeil, and that there is nothing' to ^h(|\v that it was not tlic^ free act of a competent Probate in . .. L -i. •!! 1 1 1 li i.\ • L L ' Holenm form. tiMator, it wul decree proI)ate or the instrument m solemn form. but the party cited mayenteran appearance at any Appear.'xuuo time befo'e a proceedim,' has been taken in default, er afterwards by leave of the jud_<,a^ (I). * * * ullcAveil. (I) III tho Prercigativo Court proceedings in default woro saiil to 1)0 in pd'intiit r(»itiim(U'i. In ordinary cases it belongs to the defendant to («) Coote & Tr., 5th VA. 25.3-4, & C. R. ;;o»<, (b) Marsh V. Con-ii, 3 Sw, & Tr. 400 (18«)0). (.) See C. R. 14, 15, 75, po»t. -S . CONTENTIOUS BUSINESS. — PROCEDURE. 347 *■ Appear- n\\, script, fac-simile ;, or of the encil writ- in red ink Such copy testamentary lio papers to (ttioil. ist will and the proper In or< Unary }r the deda- ns fur the re- le defenlant the opposite istry on one th from the ut the party laration shall copy there- cr the other llefendant to deliver the plea, but in cei-tain cases, e. g., in suits for the revocation of probate, it belongs to the plaintiff. A party desirous of pleading must deliver his pica to the other party within eight days after the service of the declaration, and file a copy thereof in the registry on one and the same day, otherwise ho will not be admitted to plead except with the per- mission of the judge, * ♦ * (Q. R. 17^ post). The pleas to be filed depend on the circum- piew. stances of each case. There are various pleas, e. (j,, denying that the will is the will of the deceased ; denying the due execution of the will ; denying the testamentary capacity of the deceased, or alleging that the making of the will was procured by undue intluence or by the fraud (a) of some person or per- sons named. Of Filing and Deliver)/ of Demurrers, Replications and farther Pleadings. Either of the parties nmy, within eight days of the service upon him of the last previous pleading, give in a replication, rejoinder, suiTejoinder, rebutter, or demurrer, as he may be advised. The form of t}ie declaration and plea will, it is presumed, be a sufli- cient guide as to the form of any further pleadings -(Coote & Tr., 5th Ed. 257, 4r)G.) Of obtaining Leave for further Time to Declare or Plead, .j-c. (b). If a party in any cause fail to deliver, or file a copy of the declaration, plea or other pleading within the time specified in these rules, or within such extended time as may have been allowed, the p'iity to whom such declaration, plea or other plead- in) Vide infra, Pleading. [I,) See C. R. 52 pott. i^;: 15' ■'■;'. ;'■? •■ i.^ r 348 Sl'RllOGATP: COURTS. ing onglit to ImN-e hccn dcHvcrcd sliall not 1)C bounil to receive it, and the eopy of sueli deelaration, plea (jr other ])lea(lin<,' shall not lie filed, nnless l»y direction of the judge, ohtained on sunnnons. The expense ot every application for such direction or order shall fall on tlie party who has caused the delay, urilfss the judgo or registrars shall otherwise direct — fC 11. .S7, poHt^. Power of jticlKc Hut tlu' judge \\\ cvery case in whieli a time is tixt'il to cxtciiil lime , , ,' ,,' i ,*• r i for .l.iivi liiiK liy the lilies tor tlie pertoriiiance of any act has ])n\v( r (|iialili('ationH and restrictions, and on sucli terms, ws to him may simmu fit (a). In order to prevent the time limited for liringing in the declarations, \\Vn> and other ])leadings, from expiring hefore application can he made to the judge for an extension thenof, a registrar of tlie Knglisli Court of Prohate niii:Iit upon reasonahle cause being shown, extend the tiin'. for iningijig in such declaration, plea or otlu-r pli'a4- ing or proceeding, provided that such time shnll in no case be extendi'd beyond tlie day upon wliicli tin judge .shall next sit in open Court or in Chambers('j . Of Amcndmenl of Plcadivijn hefore Trial. Am»;jiJmt.iitH. Tf the plaintitf or defiMidant is a2 poKt. (<•) C. Riilea, 20 and 21, post. id) Ware v. Olaxton, 1 Sw. & Tr. 251. (I.) C. l\. 58 iMit. friif CUNTKNTIOUS HU.SINES.S. — PUOCEDURE. 349 P)Ut if the alteration or aincndmont rerpiired be jiunly vi.'rl>al, or in the nature of a clerical error, it inav l»! made liy oi'dcr upon sunniions. Where a party Ims obtained, on sumniona by con- •ictit, leave for further time to ])lead, he is taken to have waived all technical objections to the form of till' plea which has been Hied by the opposite party (a). When a pleading,' had been ordered to be altereil (ir amended, the time for filinj^ the next pleadinj; coininenood from the time of the order having been coinplied with (h). As to Amendment at the Trial. On an npi)lication for leave to amend at the trial, tlio iiulination of the (\nirt will V)e to j,'rant such iijijilieation, rather than shut out any defence which ini^'ht be raised. Thus, in Todd v. Siimpsion (c), in wliich the plaintitts in their declaration had propounded a will in solemn form, and the ik'ft'iidauts in their plea alleged, Jirst, that the will was not the will of the deceased ; secondly, that it had not been tluly executed according to the Wills' Act ; and thirdhj, that, at the time of its exe- cution, the deceased was not of sound mind, counsel for the defendants during the trial applied for leave t't amonil their pleas by adding a /o(tr//t jdea, viz., that the making of the .said will was procured by tiie undue influence of Todd (the plaintiff) and I'thcMs acting with her. Sir C. Cressv.'
    ^;. '/ z!^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. t4S80 (716) 872-4503 i/.A ^^ 350 SURROGATE COURTS. the record, he should only do so subject to a rehear- ing, if required by the plaintiffs, and that he would then discharge the jury, so as to give the plaintiffs time to prepare a defence against this new plea; and for this indulgence asked on their part the defend- ants must pay all the expenses of the postponement of the trial " (a). Where two wills are pro- pounded. Notice by de- fendant as to oross-examina' tion of wit- nesses. II Irrelevancy. Section V. PLEADING. If one party pi'opound a will in his declaration, aii ' Vr'p other party in his plea allege the existence of aiiother will, each party may, with and subject to the revr ission of the judgfe, adduce proof at the trial or )u,: '-' • oi t,he cause of the validity of the will upon '.' \i V. Cowcher, 1 Hagg. 75. (M Powell V. Powell, 35 L. J. P. 4 M. 5 (1866). {c) Ih. id) See also Butlin v. Barry, 1 Curt. G14, and 2 Moo. P. C. 480; and Baslilow v. Stobie, 35 L. J. P. & M. 18. l|{if 4'1'f '4 352 Interest cause, Particularity, sufHcient. SURROGATE COURTS. that he merely insisted upon the will being proved in solemn form of law, and that if both attesting witnesses were produced by plaintiffs in support thereof, he only intended to cross-examine them. A motion to strike out the third plea, or the notice was rejected with costs, as knowledge and approval of the contents of a will are part of the burden of proof assumed by the person who propounds it (a). Referring to authorities in the Prerogative Court and also to Sutton v. Sadler, ante. In an interest cause, instituted by the Queen's Proctor, who alleged that the deceased died a widow, without lawful issue, intestate and illegitimate; the defendant, who claimed as nep^-^w, pleaded that deceased was not illegitimate ; that she was the legitimate child of S. W. and Mary, his wife ; that S. W. and Mary, his wife, had one other lawful child, of wiiom the defendant was the lawful child. Held, that the plea was sufficient, and that it was not necessary that the time and place of the birth of the deceased's parents should be alleged (b). A plea to a declaration, propounding a will of A., and stating only that it " was after the execution thereof, revoked by another will duly executed by the said A.," is bad on demui-rer, on the ground that a will relied upon as revoking a former will, should be pleaded with the same circumstantiality as to the time when made, and its due execution, as if it h.ad been propounded; and that the plea need not set out the will to show their inconsistency (c). When a will, which has been destroyed, is pro- pounded, it is not necessary to set out its contents or the circumstances of its destruction, but its date m" ''' (a) Chare v. Ckare, 1 P. & D. 655. (6) Queen's Proc. v. Williams, 31 L. J. P. & M. 90; see, Queen's Proc. v. Wallis, lb. 97. (c) Leake v. Hurst, supra. ■■'{'<] CONTENTIOUS BUSINESS. — PLEADING. 353 sing proved ,li attesting in support ae them. A c the notice nd approval 16 burden of )Ounds it {a). gative Court the Queen's died a widow, igitimate; the pleaded that she was the his wife ; tiiat- ir lawful chiW, il child. Held, at it was lu.t he birth of the ^g a \vill of A., the execution ly executed by le ground that ,er will, should iality as to the ,n, as if it l^^d need not set icy (c). [troyed, is pi'O" it its contents ,n, but its date must, if possible, be declared. The declaration should state all particulars within the knowledge of the party, so as to enable the defendant to plead specifically to some particular will (a). Where it is intended to invalidate a will on the Fraud. ground of fraud, or of circumstances, tantamount to a charge of fraud, there should be a plea on the record, alleging that the execution of the will has been obtained by fraud ; a plea of undue influence is insufficient to let in a charge of fraud against the party propounding the will. Here an amendment was permitted, subject to an adjournment and costs, and the charge was withdrawn (6). A plea of undue influence, or other influence, ex- Undue ercised over a testator, as intimidation, duress, or '" "'^"<^®- improper control, is bad unless it contain the name of some pei'son who exercised such undue influ- Vagueness, ence (c). To a declaration, propounding a will, the defen- dant pleaded — (1) that at the time of the pretended execution of the will, the deceased was incapable of executing it ; (2) that the will w i prepared and made by A., and that the deceased had not given A. directions to prepare or make it. Held, on demurrer, that both pleas were bad (d). Under a plea that a paper propounded " is not the " Not the will will of the deceased," evidence of undue execution bad kfr^am- or incapacity, is not admissible ; the meaning of this ^'8">ty- plea is, that the deceased did not execute the paper intending that it should operate as his will. An issue being joined on this plea, the verdict might be (o) Olm V. Burgess, 3 Sw. & Tr. 43. (6) WhUe V. White, 2 Sw. & Tr. 504. (c) Harris v. Bradbury, 30 L. J. P. M. & A. 168; West v. West, 34 L. J. P. & M. 146. [i) Middkhurst v. Johnson, 30 L. J. P. MJ.k A. 14 ; and aee Has- Mw V. Stohie, 35 L. J. P. & M. 18. W 354 Omission of material fact. General plea, where allowed. IntereHt. Want of interest. Admission of interest. SURROGATE COURTS. for the defendant, and yet be no answer to the de- claration (a). Where the executors of a will having called in the probate of a will of prior date, propounded ir a declaration the later will, it is not competent to them to allege in their declaration that the probate of the earlier will was surreptitiously obtained, or that the earlier will ought to be pronounced null and invalid (b). A declaration, omitting to state that the will of a foreigner, depending on due execution accordini,' to the law of domicil, therein propounded was valid according to the law of his domicil, was held bad on demurrer, leave being given to amend on payment of the cost of the demurrer (c). In Brovjnv. Thomnfi (d),w\\ere the question was as to the revocation (under the Wills Act) of a will by subsequent marriage,it was held that the " arty might plead the marriage generally, in order v .> obtain the answer of the opposite party as to the fact, it being peculiarly within her knowledge. A party in possession of administration is not bound to propound his interest till the party calling it in question has established his own (e). Want of interest might be objected at any time in a cause, especially before issue joined (/). An admission of interest in the party opposin^ra will by the party propounding it, may not be re- tracted {g). Of the Delivery of the Issue\ — See C, Rule 22, imt (a) CunUffe v. Cross, 32 L. J. P. A M. G8 ; and see Owen v.Davii, 3 Sw. & Tr. 588, and 33 L. J. P, M. & A. 201. {h) Bosbotham v. R., supra. (c) Isherwood v. Cheetham, 31 li. J. P. M. & A. 99 ; 2 Sw. A Tr. 60:. (d) 1 Spink, 29. (e) Hihben v. Calkmberg, 1 Phill, 166. (/) Wright v, Rutherford, 2 Lee, 266. {g) Panchard v. Weycr, 1 Phill. 212 ; Inkun v. Jeeves, 32 L. J. P. M. & A. 69. CONTENTIOUS BUSINESS. — TRIAL, ETC. 355 r to the de- jg called m ounded ir a ompetent to , the probate obtained, or lounced null it the will of ton accordinj; ded was valid ts held bad on ,d on payment juestion was as et) of a will by the- arty migl^t sr „., obtain the ,e fact, it being Istration is not l^e party calling 'n {e). at any time m [arty oppose? a aay not be re- lc,Bulo22,2W^^'- L see Owen V. raw, Section VI. TRIAL AND OTHER PROCEEDINGS. 99.2Sw.ATr.6O:. ^g/l PhiU. 166. v.Jeei;e«,32L.J.f' Of Motion for the Directions of the Court as *o the Mode of Trial.] See Rules 23 and 24 (1857) post. Of the Mode of Trial.]— See Rule 25 (1857) l^o^i- Questions of law will be directed to be tried before the Court without the assistance of a jury. Questions of fact may be directed to be tried either before the Court itself without the assistance of a jur}', or to be tried by a jury. Where issues of law and fact and^fLct! ^** are raised on the pleadings, the Coiu't has power to direct the issues of fact to be tried by a jury, I'eserv- ing the issues of law to be tried by itself alone (a). An heir-at-law, who is party to the cause, upon umking application to the Court for that ]mrpose, has a right 1^ have questions of fact tried by a jury. In other cases it is within the discretion of the Court to direct questions of fact to be tried with or without a jury (b). But where the isoues raised are testamentary capacity, undue influence, or fraud, it is the practice of the Court on application made by either party to grant a jury. And where any of the parties to a suit, other than the heir-at-law, apply for a jury, and the Court refuse one, such refusal is, with the leave of the Court, subject to an appeal. (Sec. 31 S. C. Act.) The Court of Probate, however, unless reason were shown on affidavit (c) to the contrary, was held to be the Court in which the cause ought to be tried. The power of the Judge to direct an issue is dis- cretionary, and to be exercised only where it wou Id be a discreet exercise of such power (d). (a) Crispin v. DogUoni, 1 Sw. & Tr. 493. {h) Sec. 18, S. C. Act. (f) Brandreth v. B. 2 Sw. & Tr. 440. & (Joo. & Tr. 3rd Ed. 228. i'i) Couper V. Moss, 1 Sw. & Tr. 143. The Court has refused to 356 Isfue. Power to ex- amine wit- nesses. SURROGATE COURTS. Of the Record.] — Vide C. Kule 26, post If the cause be directed to be tried by a jury, the questions at issue between the parties are to be pre- pared by the party declaring from the record, and settled by the Judge in Chambers. A form is given, No. XV., and a copy of such questions so settled is to be served on all the other parties to the cause. After the questions have been so settled, any party in the cause shall be at liberty to apply to the Judge on summons to alter or amend the same, and his decision shall be final and binding on the parties. Where the Judge directs an issue, the plaintiff should prepare the issue, and submit it to the defen- dant. Of setting the Cause doivn for Trial] — Vide C, R. 27 post. Setting down Demurrers. Demurrers are set down for hearing in the same manner as causes, and will come on in their turn with other causes to be heard b} the Judge without a juiy. (C. Rule 56.) Of the Power of the Court to summon a Jury] — See sees. 18 & 19 S. C. Act, ante. Of the Powers of the Court to examine and enforce 'H:i order* ^° ""^"^ ^^^ Attendance of Witnesses and the Production oj Deeds, endenteLite.] — Vide ante sec. 61 S. C. Act, and p. 263. Of Accounts of Administrators pending Suit^- By Rule 96 E. C. P. of 1862, every administrator (a) See 25 S. C. Act, and see sec. 26 as to powers of Court for t^ forcing examinations. (6) Harvey v. Allen, 1 Sw. & Tr. 151. CONTENTIOUS BUSINESS. — INTEREST CAUSES. 359 ,roed in such •der is served itself should Trials before e has been ef- the terms of 'inding of the, f/e.]— See C R. ause8 tried he- ante ; and see 36 L. J. (P. M. ause tried he- ^-Sec C. B. 36, •ds, Infra. ,, & ante, p. 84. jffect the dcci- thstanding any [n for leave to ise order ; and of his decree or srms as he saw -Vide ante Hit inding Suit]- adniinistrator pendente lite was required to exhibit an inventory, and render an account of the property of the de- ceased which came to his hands, and the accounts of every such administrator were referred to the Regis- trars for investigation and report, before the same were allowed by the Court unless the Judge should otherwise direct. See also Ch. on " Inventory and Account," and Beatty v. Haitian, (I lite. Of the granting of Probate in Common Form after the Termination of Suit. When the Court has pronounced for the validity of the will, the executor may take probate of it in common fomi. He will be required to make the or- dinary affidavits as to the due performance of his office^ &c., and the amount of property. Section VII, OF INTEREST CAUSES. vera of Court for t- Interest causes are administration suits in which the right of a person applying for a grant of admin- istration is contested, either on the ground of his having no interest, or that his interest does not en- title him to the grant, or that for some cause he is incapacitated from receiving the grant, or is an un- desirable person to receive it (a). In interest causes in the E. C. Probate, as in the Prerogative Court, each part}' was at liberty to deny the interest of the other ; and in such cases both parties might, with and subject to the peraiission of the judge, adduce proof on one and the same trial of their interest respectively. (Rule 42, 1857, post) (a) The next of kin may contest administration with the mdow. ^ikinson v. Lady Ann Barnard ante. 360 Int«r«it ckiuei. SURROGATE COURTS. In interest causcM tho pleading of each party must show on the face of it that no other person exists having an interest superior to that of tho claimant. (Rule 43, 1857, post.) For example, V.vxt tho de- ceased died a widower, without child, parent, l)ro- ther, or sister, uncle or aunt, nephew or niece, leavini; the claimant, the lawful cousin german, and one of his next of kin (a). Greater particularity than this is not required, except when the Crown claims adniiu- istration on the ground that the deceased was illegi- timate. To narrow the issue, and so to save expense, tho parties should set forth in their pleadings thu pedi- gree they intend to rely upon in support of their re- spective interests. And where both cases are dis- closed on the pleadings, it is advisable that each party should admit so much of the other's case (tho whole if he may) consistently with and without pre- judice to his own case ; since such a course will often save expense, and the sooner enable the court to ar- rive at the justice of the case (6). A plea cF legitimacy in answer to a declaration of bastardy should set out the steps of the pedigree, showing that the deceased and claimant were descend- ed from a common ancestor, but it is not requisite 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 (c). It was the practice in the Prerogative Court for the parties to propound their respective interests in allegations ; these allegations were exchanged (for a party had no right to see the adverse plea till lie had set out his own pedigree (d), and they then proceeded (o) Dyke v. Williams, 2 Sw. & Tr. 465, and vide infra, (5) Lavxrence v. Maud, 1 Add. 334. (c) Rutherford v. Maule, 4 Hagg, 238. INTEREST CAUSES. 301 party must irson exists le claimant, ^at the de- parent, l)ro- iece, leavint; I, and one of ■ than this is taims adniiu- sd was illcgi- , expense, the ngs thij pciii- )vt of their re- cases are dis- ble that each ,her's case (tho td without pre- )urse will often he court to ar- paH passu, even where the alleged next of kin were . in different degrees of relationship. But where an administration had hvxm fairly and regularly taken, the administrator in such case was not hound even to propound (a) his interest till that of the party questioning it had first been both propounded and proved (/>). The rules already given with regard to pleadings, fcc, in treating of the procedure in a suit proving a will in solemn form, are generally applicable to in- terest causes. Where the Crown is concerned, and it is declared Where tho on its behalf that tho deceased was a bastard, a per- cerned." ^°^ Kon who claims to be an ascendant or collateral relative is bound to set forth liis peiligree ; but Pedigree .~, b& it is sufficient to aver that B was the legitimate ""* ^"'*^' child of A and his l:u\ ful wife, without stat- ing the time or place of the marriage or tho name of the wife, or the date of the birth of B. (c). The following is the form of the plea in Dyke v- Williams, which, on motion, and on looking at the Forms of Declaration and Plea in an interest cause, given among the forms of 1857, for contentious business, was held to be sufficient : — (ti) 1. That Mary E., &c., waa not a bastard. 2. That the said Mary E. waa the legitimate child of Sam- uel Williams and Mary, his wife. 3. That the last mentioned Samnel Williams and Mary, his wife, had issue one other lawful child only, namely : Sam- uel Williams who died in the lifetime of the said M. y E., to wit, on the day of , leaving him surviving the said Samuel Williams the defendant, Elizabeth Gotz, wife of Gotz, Abraham Williams and Joseph Williams, his natural and lawful and only children and only next of kin. (a) Hibhen v, Calemlxrg, 1 Loe, 658 ; Dabbsv, Chaisman, 1 Phill. iri5. (h) Thomns V. Maud, 1 Add. 482. (e) Dyke v. Williams, supra. And vide p. 220-1, ante, (d) Per Sir C. Cresswell in that case ; See also 2 Sw. & Tr. 469; Eline V. De Costa, 1 PhilL 173 : Dabbs v. Chisman, supra, and D. & B. 727. 362 Kule as to costs. SURROGATE COURTS. The ^ .tomey-General has no privilege in the matters mentioned that is not common to every suitor ; and a pleading which would be a sufficient answer to the declaration of any other suitor will be a sufficient answer to his (a). In interest causes costs generally follow, where the person whose interest has been denied succeeds in establishing it, almost of course without some special ground of exception to the rule (6). Section VIII. SUITS FOR REVOCATION OF GRANTS (c). Suits for the revocation of a probate or of an ad- ministration with the will annexed are suits where- in the executor or person who has obtained probate or letters of administration with the will annexed in common form is put upon proof of the same in solemn form. They ai'e substantially suits for prov ing wills in solemn form. So also suits for the revocation of letters of ad- ministration simply are substantially interest causes, The only difference between suits for revocation of probates and letters of administration, and suits for obtaining probate in solemn form, and interest causes, is in the form of the commencement of the suit. The party calling in the probate or letters of ad- ministration, and who is nominally the plaintiff in the suit, commences proceedings by citing the party who obtained the grant to bring the probate or let- ters of administration into the registry Avithin a cer- (a) Ibid. (h) Northey v. Cock, 2 Add. 294. (c) See Sec8. 14 & 56, S. C. Act, and Ch. on Revocation, &c. antt, and CooteA Tris. 5th Ed. p. 296. SUIT FOR INVENTORY AND ACCOUNT. 363 lege in the m to every , a sufficient r suitor will ollow, where nied succee>) D. & B. 12, 663, 778. See also ch. ix. ante, and Williams on Exors. 6th Ed. pp. 119, 1901. mrnf |!l 364 SURROGATE COURTS. hands, possession or knowledge, or into the hands or possession of any other person or persons for him ; and further, shall make or cause to be made a true and just account of his administration whenever reijuired by law so to do. It is a matter of duty, therefore, for an executor or administrator to deliver an inventory and account when properly called upon for that purpose ; and it is always most prudent for him to do so before a final settlement, in order to exonerate himself from .all liabilities (ft). The obli- gation extends not only to executors and general administrators, but also to persons to whom limited grants have been made (6), — during minority (c), dur- ing absence {d), and upon a reasonable presumption being raised that any part of the effects of the first testator have travelled into their hands, — to the representatives of a deceased executor or adminis- trator (e). Section X. SUITS RESPECTING GUARDIANSHIP OF INFANTS. When a caveat is lodged against the grant of let- ters of guardianship, the practice in respect to it is, to conform as nearly as may be to the practice in the case of caveats against the grant of adminis- tration (Gdn. Rule, 4) ; and generally the practice and procedure, except where othei'wise pro vided by rules, or orders under the S. C. Act, is to conform, as nearly as the circumstances of the case will admit, to the practice and procedure prescribed by the Act (/'). (a) Kenny v. Jackson, 1 Hagg. 105. (6) Brotherton v. HiUier, 2 Lee, 131. (c) Taylor v. Newton, 1 Lee, VS. (d) Bailey v. Bristotue, 7 N. C. 387 ; 2 Rob, 145. (e) Ritchie v. Bees, 1 Add. 144. (f) Vide Ch. on Guardians, ante, and D. & B. 6C2. tl .mi:: m e hands or I for lum; ide a true i whenever 3r of duty, )r to deliver called upon prudent for in order to ). The obli- and general 7hom limited ority(c),dur- presumption bs of the first mds,— to the : or adminis- ,F INFANTS. MOTIONS. 305 Section XI. MOTIONS (a). In contentious business the question at issue may be brought before the Court for its decision, either on motion or by petition, as well as by the more formal proceeding of a regular suit. Motions are often made ex j>arte. Ex parte The opinion of the Court in reference to the grant- "'"*''"'"'• ing of probate, administration, or guardianship, is constantly taken upon motions made ex parte, without a citation being extracted and served upon, or an appearance entered or opposition made by parties interested. The matter then comes under the class of non- contentious business. But contentious business may be, and frequently is, brought before the Court on motion. 1. When a party making a motion gives notice of Moti'nis in ., , . , , , , , cDntontiiitm it to a person interested, and such person opposes buHiueH.-.. the motion. 2. When a motion is made and a party interested in it, though he has not had notice of it, appears in opposition to it. 3 When it is necessary to take the opinion or directions of the Court in reference to any step or matter interlocutory arising in a suit. The following are the regulations to be observed according to the E. C. P. practice in bringing a mo- tion before the Court : — There should be lodged in the registry before two o'clock p.m., on the fourth day before the motion is is to be heard, exclusive of Sundays — (a) Coote 4, Tris. 5th Ed. 234. 6G2. Wf 366 If « li'fji Petition. SURROGATE COURTS. 1. A motion paper containing a short outline of the principal facts upon which the motion is grounded, and concluding with the terms in which the motion is to he made. This statement should comprise no facts which are not supported by affidavit. 2. An affidavit or affidavits of the facts to be brought under the notice of the Coui-t in support of the motion. If an appearance has been entered by the defend- ants, or if a party interested, with or without notice of the intended application, has intimated his inten- tion of opposing it, notice of the time and form of the motion, with copies of the affidavits filed in sup- port of it, should be delivered to him, It is compe- tent to him, either before or after their delivery, to file counter-affidavits. If copies of the affidavits have not been delivered to him, or not delivered to to him in time to enable him to prepare counter- affidavits in answer to them, the Court will, on his application, when the motion is called, adjourn it in order to give him time to file counter-affidavits. Section XII. OF PROCEEDINGS BY PETITION. Contentious business may in some cases be brought before the court by petition. This is a summary mode of proceeding, and was resorted to in the Prerogative Court for the adjudi- cation of any incidental subject, which might arise during or after the progress of the suit, such as the taxation of costs between party and party ; or on a OF PROCEEDINGS BY PETITION. preliminary matter, such as a question of domicil ; or on an appearance under protest to the jurisdic- tion of the Court (a). It was not, however, resorted to in the Preroga- tive Court, except with the consent of both parties to the suit. It was always competent to either piirty to insist upon the question raised being heard by plea and proof. Questions to be Heard on Petition. 3G7 By C. R. 45 post, any quest'on arising in a cause, and not being one of interest, domicil or other mat- ter usually brought before the Court by declaration and plea may be brought before the Court by peti- tion. This mode of proceeding is very simple, and con- sists of short statements of the cases respectively i"c- lied on by the contending parties, supported by affi- davits. A case may be brought before the Court by peti- tion at the instance of the plaintiff or the defendant For other steps in proceeding by petition, vide C. Rules, 45 to 48 post. A form of petition is given No. 28. mi 1 • n' 1 • 1 T CroRa-examin- Tlie deponent in every affidavit, on the applica- ationonatfidi*- tion of the opposite party, is subject to be cross-ex- amined by or on behalf of such party in open Court, and after such cross-examination to be re-examined by or on behalf of the party by whom such affidavit was filed (c). After the time for filing the affidavits and other vit. (a) See 3 Burn's Eccl. Law, 202. (i)SeeC. Rule, 02 isost. (c) S. C. Act, sec. 24. 368 Abatement. SURROGATE COURTS. proofs has expired, the petitioner is to set down the petition for hearing in the same manner as a pause. Of Summonaes. As to summonses, vide C. R., 65 to 73 post. Abatement. CFpon the death of either party to the suit a sug- gestion must be entered on the record, or in the pleadings, if befoi-e the record is made up, and the suit revived and carried on in the name of the legal personal representative of the deceased party; {a). Stay of Proceedings. The Court suspended proceedings as to the valid ity of a will until it should be pronounced valid ^ . invalid by the law of France, the deceased having been at the time of his death a domiciled subject of that country (6). Proxies. A proxy is the warrant of the practitioner which confers upon him authority to represent his client in the suit. They were required by the practice of the Prerogative Court, and there would seem to be no room for doubt that it is competent to the judge to call for the exhibition of a proxy whenever the course of justice may require it. It was essentia! (a) Staines v. Stewart, 31 L. J. P. M. & A. 10 ; 2 Sw. & ir. 326, and Jonen v. Jones, 36 L. J. P. & M. 43. And see A, J. Ai^. R. S. O., c. 49, 8. 9, as to power of judge in case of the decease of parties interested in suits, Ac. And see D. & B. 610., and 2 Lee 369; Harrison's C. L. P. Act, 3rd Ed. 189, & cas. cit. A R. S. O. p. 659. (6) DeBonneval v. DeBonntval, 1 Curt. 8.'56 ; see also Hart v. No- smith, 2 Add. 35, and Bremer v. Freeman, L Deane & Sw. 192. m to set down manner as a IS post he suit a sug- )rd, or in the le up, and the name of the eceased party^ ,s to the valid inced valid ( . ceased having niciled subject titioner which lent his client bhe practice of lid seem to be it to the judge whenever the t was essential 10 ; 2 Sw. & ir. Ind see A. J. Aii-. e of the decease of 310., and 2 Lee 369; * R. S. O. p. 659. le also Hare v. Na- e & Sw. 192. m ^•OSTS ,« eo^V^TIOUS BUSINESS. »%• "written paperi'rrf''' ^'" '' ™' "«"- V two witneio/ Jt !!' T';'"''"' »d attested party, or some other T, • '™'' '•°"^™'-- '^ the j"di'e a letter or other writ- ■■' u'"""' "'^^''"^ *» the ;>•'>»• "0 had ehosenforh :-"''' 7''"''n!' "P''^-^ "y ceased upon the de ve^Xfln", ^""^ ™"'°'- 'very 01 a final sentence (a). Section XIII. COSTS IN CONTENTIOUS BUSINESS ^vn n WHIPW ?; ' P^JNCIPLES ON WHICH ALLOWED. ."at'T.S::'!^-"- °' '^^ «-'. and not ™-^t not be unde^tood tl nel^tr* "/ ''°"^^»'' l;»wer of the judge to give orw^h^n " '° "'« Pte> Allowe'l llUHUCCfSsful jiaity out of eutiite. Next of kin oppoHiuf,' will entitled to co.strt of e.state, when. When an un- successful party forfeits iiiH claim to have costs out of the estate. 374 Coatii. UnouccesRful party entitled to. Next of kin or executors or legatee of a former will to have coBtH out of the eatate. According to Practice in Prerogative Court. Practice in Prerogative Court. COHtB. SURROGATE COURTS. (3) When from circumstances clisclo.se Apportion- ment of costa, real and per- sonal eutate. Costs taxed distributively. Creditor. Costs of Ad- ministrator pendente lite. Party not ap- pearing. SURROGATE COLRTS. vener's costs should be paid out of the estate : a next of kin, who unsuccessfully opposed a will, was con- demned in the costs of another next of kin, whom he cited to see proceedings, and who had appeared and pleaded, but had taken no other part (a). Where the personal estate is insufficient, costs are ordered to be paid ratably out of real and personal estate, according to their respective values b). Where the heir at law, and an executor of a for- mer will respectively contested the validity of cer- tain testamentary instruments, but pleaded separately and were condemned in the costs of the suit, the Court, on reviewing its decree as to costs, held, that each party was liable in respect to that part of the costs which belonged to his own case ; and where costs had been incurred in any matter equally ap- plicable to both parties, so that it could not assign them more to one than to the other, that portion of costs was directed to be taxed equally between them (c). The costs incurred by a creditor in obtaining the appointment of an adminmiia,ior, pendente lite were allowed out of the estate (d). In a testamentary suit, condemnation in costs in- cludes all the charges of an administrator. pewc^n^o lite (c). In decreeing probate of the contents of a de- stroyed will, the Court condemned in costs a defen- dent who had destroyed the will, although he had not entered an appearance (/). (a) Cross v. Cross 3 Sw. & Tr. 392 ; and 33 L. J. P & M. 49. (b) Smith V. Hopkins, L.R.4 P.D. 84. Bennett v. Foster, 2 Phill. 161 (c) Fyson V. Westrope, 1 Sw. & Ir, 279. See also Rayson v. PoHon, L. R. 2 P. & D. 38. (d) Tichlmrne v. Tichborne, 1 L. R. Prob. 730. (e) Fisher v. Fisher, L. R., 4 P.D., 231. (/) Kini/ V. Oaillard, 37 L. J., P. & M. 4. COSTS IN CONTENTIOUS BUSINESS. 37J) state : a next all, was con- tin, whom he appeared and a). lent, costs are and personal dues h). iutor of a for- ilidity of cer- ded separately ; the suit, the )sts, held, that lat part of the se ; and where ter equally ap- )uld not assign that portion of ^ually between n obtaining the idente lite were ion in costs in- \iYSitoi\pend£nte Itents of a de- [n costs a defen- Ithough he had . J. P & M. 49. foster, 2 PhiU. 161- [iso Rayson v. Parton, women. W. J., having obtained probate in common form Where pro- , „.,,., Ml i> A T 1-1- ^^^^ obtained of a paper proiessmg to be the will oi A. L., which, by fraud and at the suit of the next of kin of the deceased, was '•^^oked. revoked, the Court holding that the paper in ques- tion was not the will of the deceased, and that W. J. had been guilty of fraud in obtaining probate of it, and in contesting the suit. W. J., though suing in forma pauperis, was condemned in the costs of the suit (a). Where a will was propounded by a married wo- Married man, and her husband had not been joined with her as a party to the suit, the Court having pronounced against the will, condemned the wife in the costs. The suit was for revocation of probate obtained by the wife, knowing that the will had not been duly executed (b). In an action for probate in the Probate Division H. C J., tried by a juiy, in which the verdict was for the plaintiff, it was held that that Court has power to condemn in costs the defendant, a married woman, having general separate estate (c). Of the Liability of a person suing in Forma Pauperis for Costs. When a person suing in in formd pauperis is un- successful in his suit, and his conduct has been vexatious, or such as to expose him to suspicion of fraud or improper acts, the Court may condemn {d) him in costs, but it will be a matter of discretion (e) whether the Court, unless he should cease to bo a pauper, would proceed to enforce their payment by attachment {d). (a) (Jarkss v. Thompson, 1 Sw. & Tr. 21. i>M Clarkson v. Waterhoitse, 2 Sw. & Tr. 378. See also Arbevft v. Mie, 1 Hagg. 219. (c) Morrit v. Freeman, 3 P. D. 65. (<•') Curleaa v. Thompson, supra. (e) Rind v. DavieSf 4 Hagg. 394, 380 SURROGATE COURTS. Security for costs directed to be given. Security for costs refused. Where a pauper was condemned in costs in the Prerogative Court for vexatious conduct, the Court intimated that it would not enforce the decree against her unless she should succeed to property (a). Of Security for Costs. By Order of February 13,1830 (6), it was provided, that, in all cases, the Prerogative Court might, upon application made to it, direct security for costs to be given by either or all of the parties. When a will was propounded, and an appearance in opposition thereto had been given for the only next of kin of the deceased, who was absent from England, the Court directed that he should, on ac- count of his absence, give security for costs in the sum of oOl (c). And where a party who had pro- pounded a will afterwards became bankrupt, he was also directed to find security for costs (d). Where a party to a suit, though a foreigner, was in England, and there was no reason to suppose that he was on the point of going away, the Court declined to make an order for security for costs (e). Principles of and Rules for Taxation of Costs (/). Where the practice of the Prerogative Court in reference to questions arising on taxation of costs was applicable, the Court of Probate was bound to abide by it ; but where it was inapplicable it was not bound by it, and would exercise its own discre- (rt) Wagner v. Mears, 2 Hagg. 524 ; see also Lemann v. Bomall, 1 Add. 389, and Coote & Tris. 3rd Ed. 252. (6) 2 Hagg. p. xvi. and Coote & Tr. 3rd Ed. 251. (c) Hillaiii V. Walker, supi'a. (d) Goldie v. Murray, 2 Curt. 797. (c) Crispin v. Doglioni, supra, ( f) Coote, 3rd ed. 252. COSTS IN CONTENTIOUS BUSINESS. 381 Umann v. Bomall, 1 tion. Thus the practice of the Prerogative Court in Rules for tax- reference to the number of counsel to be allowed "^''"'° *'*"*** was held to be inapplicable to the mode of procedure in the Court of Probate, and the registrar was held not to be bound by it (a). By E.C.P. Rule 10 (1858), when a caveat had been entered, and subsequently warned, and such warning resulted in the commencement of contentious pro- ceedings, the expenses of the entry of such caveat and the warning thereof were, upon taxation, consid- ered as costs in the cause. Coote & Tris. 4th Ed. 252. If contentious proceedings arose from the service of a citation, the expenses of the citation and service thereof were, upon taxation, considered as costs in the cause. (E. C. P. Rule 15 (1858) C. R. 53 post.) In making an allowance for briefs, l'.-3 registrar Taxation, should consider whether they have been made unne- cessarily long and expensive (fc). Where two witnesses were called to prove a fact which was material to the issue, but which was not controverted, the costs of one witness only were allowed. The question as to the number of counsel to be allowed, is one en- tirely in the discretion of the registrar, and the Court will not interfere with such discretion. More tlian one consultation in the progress of a cause is never allowed [c). When the costs of an unsuccessful pai'ty to a tes- tamentary suit are ordered to be paid out of the estate, they are not taxed on so liberal a scale as be- tween proctor and client (d). If more than oue-sixth was deducted from any bill of costs taxed as between practitioner and client, no costs incurred in the taxation thereof were allowed (a) Braint v. Braim, 1 Sw. & Tr. p. 271. (r) Edwardi v. Payne, 1 Sw. & Tr. 276. [d] Jiftry V. J. 28 L. J. P. & M. 43. (I) Ibid. hi til ' •'i 382 SURROGATE COURTS. Ijr 1 as part of such bill (a). But this was held not to apply where the costs were directed to be paid out of the estate. m .. ft ^ B Of Payment of Money out of Court. For old practice as to payment in and out of Court, see Taylor v. Taylor (b), and Franco v. Franco (c). (a) C. R. Mpost, k Coote & Tr, 3rd Ed. 273. (6) 1 Lee, 527. (c) Ibid., 659, 661. & C. R. 97, E. C. P. Rules of 1862. appe:n'dix a. C0NTKNTI0U8 BUSINESS. Rules and histnictions governing the Practice of the Court of Probate in England, in force 5th Dec, 1859'. [NoTB. — The following Rules and Orders, with forme, in re- spect to contentious business, published in the Jurist (a), were in force in the English Court of Probate, 5th Dec, 1859, and are set forth here for reference as to the practice at the date mentioned, in that court, within the meaning of sec. 32 S. C. Act. Where any of such rules do not indicate the prac- tice in Ontario, by reason of provision having been made in the S. C. Act or Rules, the section of the Act or number of the Rule containing such provision is referred to in the mar- gin. And it should be borne in mind that it is " so far as the circumstances of the case will admit," that the practice of the Court of Probate in England, at the date mentioned, is to be followed, and is, in fact, followed in the Surr. Courts, under the section referred to of the S. C. Act.] The Act referred to in the following rules is the English Court of Probate Act, 1857 ; sections of which are noted in the margin of S. C. Act ante. [Certain proceedings, e. gr. citations, caveats, warning of caveats and affidavits, are common to contentious and non- contentious business. D. & B. 593.] " 1. All proceedings in the Court of Probate, or in the regis- Nuture of tries thereof, in respect of business not included in the Act buaingag itself, under the expression, " common form of business," except the warning of caveats, shall be deemed to be con- * See S. C R. tentious business.* l'ec!fanU.'^ (a) 4 Jur. (N. S.) pt. II. pp. 7-9, 24, 27, 37-38, 45 ; & .5 Jur. (N S.) pt. II. p. 107 (viz. of Jan. and Nov., 18.58, and Mar. 1850) ; & 27 L. J. (N.S.) Prob. 1, & 93. And see Horsey, 3rd Ed. App. 384 Voluntary proof byex- ecutora in Holeinn form retained. Compulsory proof in solemn form continued. llighta of in- tervening par' ties continued, SURROGATE COURTS. PARTIES TO CAUSES. 2. Executors or other parties who, previously to the pass- ing of the Act, might prove wills in solemn form of law shall be at liberty to prove wills under similar circumstances and with the same privileges, liabilities and effect as here- tofore. 3. Next of kin and others who, previously to the passing of the Act, had a right to put executors, or other parties en- titled to administration, with will annexed, upon proof of a will in solemn form of law, shall continue to possess the same rights and privileges, and be subject to the same liabilities, with respect to costs, as heretofore. 4. Parties who, previously to the passing of the Act, had a right to intervene in a cause, shall continue, to possess the same right, subject to the same limitations, and the same rules with respect to costs, as heretofore. • F" 3nrr. Cotirt Rule 19 —"three months." W.^rning. On appearance to warning cause to com- mence. On voluntary proof in so- lemn form. Citation to be- gin contention. Proceedings after citation to be CAVEATS. 5. A caveat shall remain in force for the space of six* months, and then expire and be of no effect, but may be re- newed from time to time as heretofore. A caveat shall be warned at the place mentioned in it as the address of the person who entered it. It shall be suffi- cient for the warning of a caveat that one of the Registrars send by the public post a warning signed by himself, and di- rected to the person who entered it, at the address mentioned in it. 6. Upon a party appearing in answer to the warning of a caveat, the matter shall be entered as a cause in the court book, and the contentious business shall thereupon be held to commence, (a) CITATIONS, (b) 7. When a party proposes to prove a will or codicil, in solemn form of law, and no caveat has been entered, or a ca- veat has been entered and no appearance given to the warn- ing thereof, the contentious business shall be held to com- mence with the extracting of a citation, in the forms i. and II. post, or in some similar form. 8. Citations to see proceedings may be extracted from the registry, on the application of any party to the cause. {See (a) See S. C. Rules 23 & 24. (6) See S. C. Rules 25 & 2C. 1'' r< Mm . :i; CONTENTIOUS BUSINESS.— APPENDIX A. :]h; f()rmpost.) Before a party can proceed, after the service of upon appear- a citation an appearance must have been previously entered '*'"^^' personal by, or on behalf of, the parties cited, or on affidavit of per- leuve of th« 3onal service must have been filed in the registry, or the cotirt. order of the judge, founded on an affidavit, and giving leave U proceed, must have been obtained and filed in the registry. 9. Every citation shall be written or printed on parch- Citation how ment (a), and the party taking out the same, or his proctor, so- isswetl and licitor, or attorney, shall take it, together with a prajcipe, a And «ee S. f !. form of which is given, marked No. v. {post), to the Registry, K. 2'> and 2ti. ftad there deposit the prsocipe, and get the citation signed and sealed. The address given in the praecipe must be within three miles of the General Post Office. APPEARANCE, (1) AND DEFAULT OP. (1) See S. C. 11.23. 10. The entry of the appearance of a party shall be accom- panied by an address within three miles of the General Post Office. 11. It shall be sufficient to leave all pleadings and other Service of proceedings not expressly requiring personal service under I'li'^fl'^;? and these rules and orders at the address furnished so as afore- " ' said by the plaintitl' and defendant respectively. 12. In case the party cited does not appear within the time (Janse to pro- limited in the citation, the plaintift" shall allege the default of c'-wl on non- appear.ance on the record, and the cause shall thereupon pro- citation, ceed in default. 13. The form to be used in entering an appearance is given. Form of a|i- No. vi. i^ost. pt-arance. PLEADINGS. — DECLARATION. 14. In case of proving ". will in solemn form of law, the Declaration on plaintiff shall declare in the form No. vii., or as near thereto sol«nin proof as the circumstances of the case admit, and such declaration shall be delivered to the defendant, and a copy thereof tiled in the registry upon one and the same day. 15. The declaration may be delivered to the defendant at Declaration, any time after the defendant has entered an appearance. If '"'* delivered .,..„, , ,. , . , , . . , . ., or coniiiolled. the plamtm do not deliver his declaration within one month after an appearance has been given, the defendant may apply to the Judge in Chambers to fix a time within which such declaration shall be delivered. (a) Parchment not required in Surr. Ct. 386 SirUROGATE COURTS. m ' Dedari'ion, 16. In case of proceedings in default, the plaintiff shall file fii'*i' •*"'! •• '"^" ^"^ ^^'^'*''**'"" *" *^® Registry within eight days from the fault. Ifist day allowed in the citation for the appearance of the de- fendant. I'LEA. 17. Tlie defendant, if desirous of pleading, must deliver his plea to the plaintitl" within eight days after the service of the declaration, and file a copy thereof in the Registry on one and the same day, otherwise he will not be permitted to plead, except with the permission of the Judge. Forms of pleas are given in Nos. x. and xi., pout. 18. If the plaintiff propound a will, and the defendant in conHictin;,' will j^jg ^^^^ j^jj^g^ ^.j^^ existence of a will of later date, the plain- hy plaintiff tiff, as well as the defendant, may, with and subject to the andi>titf may disclose sufficient to enable hira to proceed with safety, ho .•mR.iuhnent of may apply to the judge to order the pleadings to be amended, the other and, if necessary, further application may bo made to the ""^ °^'" judge thereon. IS.SUE, 22. Within eight days after the delivery of the last plead- Form of issue, ings in the cause, the plaintiff is to deliver to the defendant the issue in the form No. xiii. ipoat), or in a form as near there- to as the circumstances of the case will admit. NOTICE OF TBIAI, AND MODE OP TKIAL. 23. The plaintiff, after delivery of the issue, shall give Notice of triul. notice to the defendant that after the expiration of eight clear days he intends to apply to the Court to try the (jues- tion at issue before itself, either with or without a jury, or tu direct an issue to be tried before a judge of assize, as the case may be ; and if the plaintiff do not give such notice \vithin sixteen days from the day on which the issue was de- livered, the defendant may give a similar notice to the plaintiff. A form of notice No. xiv. (post), is subjoined. 24. A copy of every such not;, e thall be filed in tiie regis- Filint? of copy try upon the day on which the same is served upon the op- fiotice. posite party in the cause. 25. In each case the judge shall direct, and if necessary, Judge to after hearing the parties, in what mode the cause shall be ^^y^^^ mode of tried. RECORD. 26. After the direction of the judge has been obtained as Record. to the mode in which the cause is to be heard, the plaintiff shall, within four clear days, deposit the record of the cause in the registry. The record is to conclude with a statement of the mode in which the judge has directed the cause to be tried, as in the form No. xv.,post. SETTING DOWN CAUSE. 27. The plaintiff shall, on the day on which he sets down Qause • how the cause for trial, give notice to each party for whom an ap- set down. S88 SURROGATE COURTS. ni pi" Record in de* fault of appearance. SubpoenaH. .} i pearanco has been entered, of his having done so, and if ho delay setting down the cause as ready for triiii, for the space of one month afttr the Court has directed the mode in which the question a issue shall bo tried, the defendant may set the cause down as ready for trial, and give a similar notice to tiiu plaintiff and the aforesaid other parties. A copy of every such notice shall be ti!ed in the registry, and the cause , ex- cepting the judge shall otherwise direct, shall come on in its turn. 28. In default of the appearance of the party cited, a record in form No. xvi. (post), or as near thereto as can bo, shall bo filed in the registry. 8UBPfENA..S. 29. Every subpcona shall be v ritten on parchment (a), and may include the names of any iiumber of witnesses. It will be obtained at the registry. (See Forms xviii., xix.) NOTICK TO ADMIT AND I'luJUUCK DOCUMENTS. Notice to ad- 30. Either the plaintiff or thu defendant may call upon tho mit and costs other party by notice in writing, to admit any document of proof on . "^ ''. •[ .. , .° r r i i . refusal. savmg any just exceptions, and in ca.se of refusal or neglect to admit the same, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever tho re- sult of the cause may be, unless at the trial tho judge shall certify that the refusal to admit was reasonable, and no costs of proving any such document shall be given, except in cases where the omission to give the notice is, in the opinion of the Registrar a saving of expense (6). 31. Applications for the production of instruments pur- portiug to be testamentary, and shewn to be in the possession or under the control of any person or persons as mentioned in the 26th section (c) of the Act, may bo made to the judge on motion or petition, or by summons served on the opposite party, in any suit and upon motion and affidavit in cases where no suit is ponding. HEARlNCi. Production of documents, how enfored. Hearing. 32. The hearing of the case shall be conducted in Court, and counsel shall address the Court subject to the same rules (a) Parchment not required by Surr. Courts. (6) The notice is to be a reasonable time before the trial. Taylor on Evidence, 3rd Ed. 638, (c) 22nd sec S. C. Act. CONTENTIOUS nirSINKSS— APPENDIX A. n89 and rogulationa as now obtain in tho Courts of Common Law. POSTEA. ^3. After tho conclusion of tho trial the registrar sliall Poste*. enter on tho record, tho finding of the jury or the decision of the judge, in a form corresponding, as near as may be, with tliat given in Nos. xxvi. and xxvii., and shall sign the same. UEAL E.STATE. 34. Any person proceeding to prove a will in solemn form Ileir.i or dovi- or to revoke the probate of a will, may, if tho will aflects >'«•-'« ''ow cited ' » ji ... onproof of wnll real estate, apply to the judge for an order authorising hna inHolenm to cite tho heir or heirs at law, or (»thcr person or persona '<"■"'• I'rctonding interest in such real estate, and tho judge on being satisfied by atHdavit that tho will in iiuestion does all'ect or purport to affect the real estate shall make an order authorising tho person applying to cite tho heir or heirs at I iitV or other such person or persons as aforesaid : provided always tl>at tho judge may make any special direc- ticms as to the persons to be cited which he may think the justice of the case reciuires. NEW TRIAL OR KE-HKABINlI. 35. An application for a new trial may bo made to the j^eyy trial, Court of Probate in respect to causes tried before a jury motion for. within ten d^ys of the day on which the cause was tried, or on the first sitting of the Court after the cause has been tried. 3G. An application for a rc-liearing of any case tried before Ke-hearing. tlie judge without a jury, and in which evidence is given (■iva vocv, may be made within ten days from the day on which the same was heard, or at the first sitting of the Court after the cause has been heard (a). tlENERAL MATTER.-!. 37. If the plaintiff or defendant in any cause, unless by A.s to default leave of tho judge previously obtained, fail to deliver the <;f plaintiff or •• ° * ^ ' defendant to («) When a cause ha.i been heard in tlie Probate Di\ i.sion before f,jf,'7*''" '''^'*^' .■V judge without a jury, the evidence beinij s^ven viva voce, the par- ties may, if they i)lease, apply for a rehearing under the Rule (i. e., Rule GO of 1862, corresponding with this rule, excepting aa to the time, which is 14 days in.stead of 10 days) ; or they may, without doing so, appeal from the deci^^ion of the judge on the facts as well M the law, to the Court of Appeal. —Sudden v. Lord St. Leonards, IP. D. 154. m j;' f:: ^ ; -'li 1 390 iServicc, cita- tions, Ac, t(» be advertised. Affidavits out of date not receivable without leave of judge. Inventories to be used in oause. Notices to be in writing. Each party may deny the hostile interer* and with luavt- prove his own. Superior inter- est to be nega- tived by each party. Forms of pleadings. SURROGATE COURTS. declaration, plea, or other pleading within the time specilied in these rules, the other party in the cause shall not be com- pelled to receive the same unless by direction of the jud;,'o. The expense of every such application to the judge shall fall on the party who has caused the delay. 38. Citations, notices and other processes heretofore in use and still retained, are to be inserted in the London Gazriti and in such of the leading morning and evening papers and such local paperb as the judge may from time to time direct, instead of being served on the Royal Exchange (a). 39. Where a special time is limited for filing affidavits, nri affidavits filed after that time shall be used in Court, except by leave of the judge. 40. In contentious business, inventories, and not merely declarations of the personal estate and effects of the deceased, are to be used uniesa by order of the judge. The form of in- ventory is given No. xxviii., post. 41. All notices required by these rules or by the practice of the Court, are to be in writing. INTEREST CAUSES. 42. In interest causes, as heretofore, each party shall be at liberty to deny the interest of the other, and in such cases, both parties may, with and subject to the permission of the judge, adduce proof on one and the same trial, of their inter- est respectively. 43. In interest causes, the pleading of each party must slior/ on the face uf it, that no other person exists, having an in- terest superior to that of the claimant. 44. Forms of the declaration and plea in an interest cause are given in Nos. viii. and xi. pout. I'EOCEEDINGS BY PETITION. Act on peti- 45. In pre oeedings' by petition the plaintiff shall within tion, when ami f^^^j. pig^r days after an appearance has been entered for the defendant, or when the defendant is already before the Court, within four clear days from the day on which he claims to bo heard, by petition deliver his act to the defendant, and file a copy thereof in the Registry upon one and the same day. Answer of di- 40. The defendant shall, within eight days after the delivery fcndant there „£ ^j^g ^^^^ deliver his answer to the plaintiff, and file a copy thereof in the Registry upon one and the same day. ((/) See S. C. I{, 25 and 2«. a mm ■'■mm 3 CONTENTIOUS BUSINESS— APPENDIX A. 391 time specitieil I not be coiu- of the judi^e. idge shall fall ■etof ore in iiau london Gazdir. ng papers and to time direct, e(a). g affidavits, no 1 Court, except md not merely )f the deceased, The form of in- y the practice of party shall be at id in such cases, ermission of the al, of their inter- party must sliow I, having an in- lan interest cause lititl shall within entered for the [before the Court, Ih he claims to be Indant, and file a Ihe same day. |after the delivery jf, and file a copy Ime day. 47. The same course shall be pursued with respect to the Course until reply, rejoinder, &c., until the petition is concluded. petition con- 48. Both the plaintiff and the defendant shall, within eight . o, , ,.. , clear days from the day upon which the petition is concluded, ter petition file in the Registry such affidavits as may be necessary in sup- concadea, port of their several averments therein. A form of petition is given in No. xxix. post. APPEALS (a). 40. No petition of appeal shall be lodged against any son- Appeals tence of the Court of Probate unless within a raotith from tho delivery of the sentence appealed from, or within such other time as the judge may direct, and unless notice of such ap- peal has been given to the opposite party in the cause, and filed in the Registry. 50. Parties may proceed to carry into effect the decision Notice of ap- of the Court of Probate, notwithstanding any such notice of '"''"^^ on stay of 1 1 1 1.1 1 11 1 ■ - proceediiig.s. such appeal, unless the judge shall otherwise order. 51. After notice of appeal has been given, the judge of the .Tudtje may, Court of Probate may order the execution of his decree to be ^''^^'^^^f, stay ^ proceeding suspended on such terms as he sees fit. pending ap- peal, TIMB. r>2. The judge sh.all in every case in which a time is fixed Time for pro- by these rules for the performance of any act, have power to v,e*^extende(l extend the same to such time, and with such qualifications by judge. and restrictions, and on such terms as to him may seem fit. Further Jiulf-f and Orders for Uer Majesty's Court of Pro- bate, made ISth October, 1858, came into f'rrce 2iui November, 1858. 5[). " 15. If contentious proceedings arise from the service (.„j,^ „f ^.j^.^. of a citation, the expenses of the citation nvd service there- tion ti> bo in of shall, upon taxation, be considered as costs in the cause. ['^^^^^^, 54. " IG. The entry of every appearance to a citation, or Notapulical)li' to a warning to a caveat, shall hereafter be made in the to Sur. Courtu ... of Ontario, principal registry. 55. "17. The words 'or of a registrar of the principal This refers to a registry ' are to be added at the end of Rile 74, of the rules, coinnionforui orders and instructions heretofore issued for the district registrar. (a) See sec. 31 ,S. C. Act, and S, C. Rule M. fW^ fH^SBSSSSSEPB^S 392 SURROGATE COURTS. !1 liii;- Ten (lays to elapBc between Netting down cause and trial. Affidavits of scripts to be filed eif^'ht days after appearance. Scripts affida- vits to 1)e close until all .'ire filed. Declaration of ])laintiff neeil not be filed till eight days after defeiul- iint scripts affidavits. Defendant specify the precise object of his conten- tion. Kegistrar may extend time for filing,' pleane clear day at least liefore the stnumons is returnable, and before seven ii.m. On Saturday, the copy of the suunuons is tu be served befnro two p.m. (i8. " 4. On the day and at the hour mentioned in tlie Attendance. sumnir)ns, the party issuing the same is to present himself, »nth the original, at the Judges' Chambers. (a)'riu're i.s no i)rovi.' to obliterate such stamp. 73. " 9. If a summons is brought to the clerk of the papers, with a consent, signed by the party summoned, or his proc- tor, solicitor or attorney, indorsed thereon, an order will be drawn up without the necessity of going before the judge ; Provided that the order sought is, in the opinion of the regis- trar, one which the judge, under the circumstances> would make." Farther Rules and Orders. Consent orders Apjjce. to .set forth interest. Party to de- Feb. 24, 1859. 74. "27. The entry of an appearance to the warning of caveat shall set forth the interest in the eflects of the deceased testator or intestate of the person on whose behalf such ap- pearance is entered. 75 . ' * 28. In a testamentary cause — when a will is opposed t'lare''or plead . by a next of kin of the deceased testator, or liy a person wh ' would be entitled in distribution to his eflects in case he should be pronounced to have died intestate, the party claim- ing under the will, though defendant in the suit, shall be the party to bring in the declaration, and the party clainiiiK' under an intestacy the party to jilead thereto, at the times and in the manner required by former rules and orders, i" respect of contentious business in this court. CONTENTIOUS BUSINESS — APPENDIX A. 39; judfje, who will ote of such or- .ons book, ippear after tlu' 1 the summous. efore the judgo ay think tit. larty summoned ty do not during md bar the party .before the judge same may be had that purpose tho e opposite party, viU thereupon bo such summons or ng out the order, ithxedtoit, andu jlerk of the papers, loned, or his prol- an order will l)t 'before the judge. [)iuion of the regis- jumstancesj would 70. " 29. In all cases the party opposing a will may, with his Party oppoa- pleas, give notice to the party setting up the will that he '^"^g^Q^^ti"*^ merely insists upon the will being proved in solemn form of that he only in- law, and only intends to cross-examine the witnesses pro- teiulH to cross. c\ (inline duced in support of the will, and he shall thereupon be at witnesses. liberty to do so, and shall be subject to the same liabilities ^o. 41 "f ill respect of costs as he would have been under similar cir- cumstances according to the practice of the Prerogative Court. Tliis 23rd day of February, 1859." FORMS IN CONTENTIOUS BUSINESS. Being those referred to in Con. Rules ante. CAVEAT. — WARNING TO CAVEAT (a.) No. I. J CITATION TO SHE WILL PROVED. In Her Majesty's Surrogate Court, County of Victoria, By the Grace of God, of the United Kingdom of Groat Britain and Ireland, Queen, Defender of the Faith ; To of in the County of (b) Whereas it appears by an aflidavit of A. B. of , sworn on and filed in the Registry of our said Surrogate Court, that the said A. B., claiming to be the executor of Andrew Mercer, late of , deceased, who died on or about the day of at , intends to prove in lolemn form of law as well the alleged last will and testament of the said deceased, bearing date the day of , as also the [first] codicij thereto, and bearing date the day of \ a mt .so on for any otlirr codiciln], and that the said deceased died a bachelor without parent [or as the case may be] and that you the said are the natural and lawful , and only next of kin of the said deceased, and the only per- (a) Forms 1 and 2, — The Caveat, and the Warning to Caveat,— among the Forms f')r Contentious Business in the English Court of Probate prior to 5tli December, 11)59, are omitted from the above, as forms for those instruments are provided by theS. C. Rules ante. See also p. 341 ante. [b] This form of commencement being a slight alteration of the form previously used, w;w introduced by Rule, 8 E. C. P. 1858, Coote, 3rd Ed. 363 n. 39G SURROGATE COURTS. son entitled to his ])er8onal estate and effects [or as the case may be], ir, case ho be pronounced to have died intestate : Now this is to commamd YOU, the said , that within days after service hereof on you inclusive of tlie day of such service, you do cause an appearance to be entered for you in the Registry of our said Surrogate Court in support of any interest you may have in the personal estate and effects of the said deceased : And take notice that in default of vour so doing, the Judge of our said Court will proceed to hear the said rfiU [and codicils] proved in solemn form of law, and to pronounce sentence in regard to the vahility of the same, your absence notwithstanding. Dated this day of 18 , in the Citation to see will proved. [Name of practiionerj. year of our reign. E. F., Jityisttur Itidorstw"! ^"de after service. This citati.jii wna .-icj'ved by G. H. on the within named of at on t'le day of 18 . (Signed), G. H. No. n.] <;itation to brtno in probate. In Her Majesty's Surrogate Court of the County of , Vk'Toria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen Defender of the Faith : To of , in the County of Whereas, it appears by an affidavit of C. D., of , sworn on and filed in the Registry of our said Surrogate Court, that probat* of the alleged last will and testament [with codicils thereto] of A. B. , lat« of , deceased, was on or about the day of 18 , granted to you by our said Surrogate Court, and that the said deceased died a bachelor without parent [(»*• as the ca.w may he], and the said C. D. is one of the natviral and lawful brotlu^rs, and next of kin of the said dece i"d in the year of our reign, (Signed) E. F., Ixrgistrar. I Mame of practitioner]. Indorsement to be made after service as before. , of Great Britain XO. Iir,] CITATION TO BRING IN ADMINISTRATION. In Her Majesty's Surrogate Court for the County of Victoria, by the Grace of God, of the United Kingdon of Great Britain and Ireland, Queen, Defender of the Faith ; To of in the County of ."iworn on Whereas it appears by an affidavit (a) of A. B. of and filed in the regi.stiy uf our said Surrogate Court that late of deceased, died on at and that on the letters of ad- ministration of the personal estate, and ellect.s of the said deceased on the suggestion that he had died intestate were granted to yon by the author. i;y of our said Surrogate Court as the and next of kin of the said deceased and as has since been discovered that the said made and duly executed his lust will and testament, dated and thereof ap- pointed executors [or as the cane may he] and that the said letters of ad- ministration ought to be called in, revoked and declared null and void in law ; Now THIS IS TO COMMAND YOU, the said that within eight days after service hereof on you, inclusive of the day of such service, you do bring into, and leave in the registry of our said Court the said letters of administration, and further do show cause, if yyu should think it for y"ur interest so to do, why the same should not be revoked and declared null and void. , and in the Dated this day of 18 Citation to bring in administration. [Name of practitioner.] Indorsement as before. year of our reign. E. F., lii-ijutrar. \ " ) The affidavit should be made by the plaintiffs or one of them. r mm i^l 398 SURROGATE COURTS, I I9»ff 71 Ii)i4 IS, 'A No. IV.] t'lTATIoy TO ISKE PROCEEDINGS. In her Majesty's Surrogate Court of the County of VicTOKiA, by the Grace of God, of the United Kingdom of Great Britain and Irehuid, Queen, Defender of the Faith : To of in the County of Whereas it appears by an affidavit (a) of sworn on the day of 18 , and tiled in tlie registry of our said Surrogate Court tliat there is now depending in our said court a cause entitled A. B. v. C. D., wlierein the said is proceeding to prove, in solemn form of law, tlie alleged last will and testament with codicils thereto of Andrew Mer- cer, late of deceased, who died on or about the day of at And whereas it appears by the said affidavit that you are the natural and lawful and one of the next of kin of the deceased, and a party entitled in distribution to the personal estate and efTects of the deceased in case he should be pronounced to have died intestate [or interested umUi (I former will of the said eleceased bearing date, C. D., of itc, who is the lawful child and only C. D., defendant. ) next of kin or, [as the case may he settituj forth uifi'rrst],oi the said deceased, who intends to oppose the grant of probate \'jr administration], for which application has been made herein, appears for him. E. F., Attorney fur the said C, D.* Entered the day of A.D, 18 . (Add Address, «S:c.) * If the defendant appears in person, then nnitatis rautandis. Nil. VII.] DECLARATION. the citation is ex- In her Majesty's Surrogate Court of the County of Tlic day of 18 , , A. B. [or A. B. by C. D. his solicitor or attorney] saith that Andrew Mercer, late of deceased, who died on or about the day of ^ J , at being of the age of twenty-one years and upwards mane his last will and testament, with codicils thereto bearing date, to wit, the said will on the day of 18 , the first of the said codicils 'nthe day of 18 , [aiid so on for any other codkils] &nd in the said will appointed the said A. B. sole executor [or as the case may he] that the said will and codicils respectively after having been reduced into writing, were signed by the said testator [or signed by G. H. in the pre- sence, and by the direction of the testator, or signed by the testator, who acknowledged his signature thereto, or as the case may be] in the presence 400 SUBROGATE COURTS. of two witneBses present at the same time, and who subscribed the same in the presence of the said testator, and whoso names severally appear upon the said will and codicils, and that the said testator was at the time of the execution of the said will and codicil respectively of perfect sound mind, memory, and understanding. NOTICE WHERE THE DEPENDANT APPRAR.S. The defendant must plead hereto in eight days from the date hereof, otherwise the plaintiff will proceed to obtain probate of the said will and codicil [or, as the case maij be]. No. VIII.] DECLARATION IN AN INTEREST CAUSE. In Her Majesty's Surrogate Court of the County of The day of 18 , A. B. [or A. B. by C. D. his solicitor, or attorney], saith that An- drew Mercer, late of deceased, died on or about tho day of at intestate [or, ((s tlie case maij be,] a widower without child, ; ^rcnt, brother, ur sister, uncle, aunt, nephew or neice, leaving the said to A. B. , his lawful cousin german, and one of his next of kin (or, ai the case may be). NOTICE. The defendant must plead hereto in eight days from the d.ito horo;■ "plain- tift'"] says that the declaration [or "plea, &c.,"] is bad in substance. No. X.] I'LEA IN TESTAMENTARY CAUSE. In Her Majesty's Surrogate Court of the County of day of The ]8 G. H. [or G. H. by K. L. his solicitor or attorney] saith that the paper writing bearing date the day of 18 , and alleged by the CONTENTIOUS HUSINKSS. — APPENDIX A. 401 (1 the same in appear upon it the time of jcrfect sound ; date hereof, e said will and saith that An- ho ^^i^y ^^ ridower without ,eice, leavinjithe 3xt of kin (ur, ii» plaintiti'to be the hist will and testament of Andrew Mercer, late of in the County of deceased [or the first or utuj othvr codicil thereto,] waa H'jt executed according to the provisions of tho Wills Act of Ontario, (or, that Andrew Mercer, the deceased in this cause at tho time his al- leged will [or codicU] bears date, to wit, on the day of 18 , was not of sound mind, memory, and uuderstauding.) {or (tny other aver- m.nt in opijosition to the. will or codicil propounded.) No. XI.] PLEA IN AN INTEREST CAUSE. In Her Majesty's Surrogate Court, County of The day of , 18 . G. H. [nr G. H. by J. K., his solicitor o>' attorney] saith, that A. B., the plaintiff, is not the lawful cousin german of Andrew Mercer, who died (111 or about the day of 18 , at the deceased in this cause. And further, that the said deceased died iiitcstate [or us the case may be] a widower, without child, parents, brother or sister, uncle or aunt, ne- phew or niece, or cou.sin ijorinan, leaving; him, the said G. H., his lawful cousin german once removed, and his only next of kin [or, it*' f may be.] the date hereof, Lliuinistration of case may 6c J. I&c.,""*- substance. "plaiu- that the paper alleged by the No. XII.] AFFIDAVIT OF SCRIPTS, In Her Majesty's Surrogate Court of the County of A. B. I'. C. D. 1,A. H.,of in the coimty of , party in this cause, make I), 'h and say, that no paper or parchment writiii in this cause intends to apply to the court to try defendant ) the question at issue before itself [or by a common jury before itself], [or to direct an issue to be tried before the judge t)f, by 8 common jury at the next to be huldeu in and for the County of ], [or as the ease may 6e]. Dated this day of 18. (Signed; j ^- jy' J or E. F., proctor, solicitor, or attorney for I CONTENTIOUS BUSINESS. — APPENDIX A. 403 Id be tried as the No. XV,] REL'URD. In Her Majesty's Surrogate Court of the County of Tliis day of A. B. ... C. D. 18 B. by E. F. , liis solicitor or attorney [or in person] liaving cited C. -. to appoi'.r in support of any interest ho may have in the estate and of- ftctii of Andrew Mercer [or according to the term of citation], [or A.B. by E, F. , his Solicitor or attorney {or in per.sm), having warned tlio caveat entiTcd by C. D. in tiiu estate and etiects of Andrew Mercer], hito of , deceased, who died on or about the day of ^8 , at , tlie said C. D. appeared thereto personally [or by his solicitor or attorney |, whereupon to wit, on the day of 18 , did ililivur iiis declaration to the said , in the words and figures follow- ing ; [Here insert declaration at length.] Whereupon the said did deliver to wit, on the day of to the said his pka in the words and ligures followini,' ; [Here insert ot lenytli plea a)til a\iy further /d^yk/uj^.^.] Therefore, claimed tliat the cause should be tried as the Court should •"it. 'lereupon the j»ul,'e did order as follows [here set forth the direction a$ iHodc of heari)iij or trial] : No. XVI.] UECORD IN CASE OF PARTIES CITEU NOT APPEARINQ. In Her Majesty's Surrogate Court of the County of This day oi A. B. r.s. C. D. 18 A. B. by E. F. , his solicitor or attorney [or in person], havin;^ cited C. D. to appear i" supp >rt of any intert^st he may have in the estate and ef- fects of Andrew Mercer [')/• according to the terms of the citation], late of , deceased, who died on or about the day of , at , the said C. D. did not; in any wisa appi.'ar thereto : Whereupon in default of appearance of the said C. D. , the said A. B. did file his declaration in the Registry, in the words and figures following : [Here visert the decLar- olinn at length]. Therefore, A. B. claimed that the cause should be tried as the Court shoiiM direct ; whereupon the judge did order as follows : [He,e sei forth ^ dWtclion as to the mode of trial]. Hi' •■■ 404 SURROGATE COURTS. (.. 1- f 1 1 No. Xni.J B'ORM OK QITESTIOXS TO THE JURY. In Ilor Majeaty'a Surrogate Court of the County of A, B. vs. C. D. Whereas, A. B., the i \'}''J1}^ I avers, and CD., the \ 'h'^^^J^'^_i, I ( defunuant, ) ( pliiiutift", \ denies that [here set out each questiim at Ixsiie lietweeii, tiw piirtiets and i-e})ent the farm as vftcn as maij be necessarii, ami amrhule] therefore let a jury come. No. XVII I.] HUBr(K>fA AD TESTIFICANDUM. Victoria, by the Grace of (lod, of the United Kingdom of (Ireut Britain and Ireland, Queen, Defender of the Faith : To l^iuimes of the lolti^'sses imhuled in tlie subi)ii}iui.] — Grbetixo. We connnand you and every of you, that all other things set asiile ami ceasing every excuse, you and every of you, be and appear in your pniper persons before [itisert the name of the jiul*:ciPF, for subp(ENa duces tecum. In Her Majesty's Surrogate Court of the County of A. B. VS.C. D. Snbpcena for to testify and produce, Ac, between A. B. plaintifl' aid C. D. defendant, on the part of the plaintiff [or defendant], the 1 accurately as posirible], of which said paper, writing, or script, reasonabit' grounds liave been furnished to our said judge for believing that yjii have knowledge. And this you shall in no wise omit, under the penalty ;i Witness [insert the name of the judge], at the Surrogate Court, thi' day of 18, in the year of our reign. E.F., Regiitrai [Name of the practitioner and address. ] Indorsement to be made after service. This Bubpa'na was sarved by J. K. on the within named oiitli'^l day of 18 . (Signed;, J. K. CONTENTIOUS BUSINESS. — APPENDIX A. 407 5 said documents gned or executed re specified to W ted to have been jred respectively, iich documents as icitor ) defendant. ) plaintiti'. icitor } plaintiff. i defendant. ,10 counts.] TOUCHING ATEST.V- E KNOWLElHiE. ,m of Great Britaiu iiith. aside, and ceasing judge of our said 18 , by «f •om day to day until [e truth according t' ,8 to be adiuinisterod jeing, or purporting \ctnd 'jh'f- I*" '^'''•' ;■ or script, reasonable ^r believing that y.'J under the penalty t |\irrogato Court, '!'•' E.F., ce. inamcd led), on ill* I J.K. No. XXIV.] PR.ECIPE FOR SirBP(EXA TO A WITXESS TO BRING IN A SCRIPT. In Her Majesty's Surrogate Court. A. B. V. C. D. Subpoena for W. W, to bring into and leave in the registry of the said Court [here accurately describe the script]. day of 18 . The ,e ,. 5 A. B. or P. A., plaintiffs [or defendant's] proctor, solicitor, or attorney. N'l). XXV.] PRAECIPE FOR SUBP(KN'A TO BT2 EXAMINED TOUCHING A TESTA- MENTARY PAPER OF WHICH HE IS SUPPO.SED TO HAVE KNOWLEDGE. In Her Majesty's Surrogate Court. Subpoena for W. W. to testify respecting a pai)er, writing, or script, being, or purporting to be, testamentary, to wit : [ilcscribimj it], of which he is supposed to have knowledge, on the part of , this day of 18 . (Signed), i Alk \ or \ ''• ^- l'^^^"'^'^'^ f"' (CD.) ( solicitor, or atturne or defendant's] proctt^r, ney. No. XXVI.] ENTRY (JN THE RECORD OF A VERDICT. Afterwards, on the day of 18 , before tlie Judge of Her Majesty's said Surrogate Court, ci>nie the parties within mentioned, l>y their respective attorneys [or («.s the ca.sc jua ;//«'] within mentioned, and a jury duly summoned also come, who, being sworn to try the matters in iiuestion between the parties, upon their oath say that [staie the affirma- tive or negatioe of the issue, asfouwlfor the plaintiff' or di'fetuiant, ami in the terms adopted in the questions for the jitnj.] [If there be several issues joined and trial, then say] as to the first is- sue within joined, upon their oath say, that [here state the affirmative or wijative of ' .e issue, as found for plaintljf or defendant], and as to the second issue within joined, the jury aforesaid, upon their oatli, say, ttc. [m proceed to state the Jinding of the jury itpon all the issms] : Whereupon the judge decreed [here set forth the tenor of the decree.] (Signed), A. B., lieijittrar. Ik : K ' > r ! ( R-^: 408 No. XXVII.] SURROGATE COURTS. ENTRY ON THE RECORD OF A JUDGMENT. Afterwards, on the day of 18 , before the Judge of Her Majesty's said Surrogate Court, come the parties within mentioned, by their respective attorneys [or as the ratte may be] within mentioned : Whereupon the jut'ge decreed [Imre insert ilic teiu)r of the decree. ] (Signed), A. B., Jii'giiirar. No. XXVIII.] INVENTORY. A true, full, and particular inventory of all and singular the personal estate and etlects of A. B., late of deceased, which have at any time since his death come to the hands, possession or knowledge of C. D. , the sole executor named in the last will and testament of tlie said A. B. [or administrator of the said personal estate and otfects, as the case may lie], made and exhibited upon and by virtue of the corporal oath [or solemn affirmation] of the said C. D. , as follows, to wit : First, this exhibitant saith, that the said deceased was .at the $ time of his death possessed of [The details of the deceased's effects must be here inserted in as in many sheets of paper as may he necessary, and the value inserted opposite to each particular] (a). Lastly, this exhibitant saith, that no personal estate or effects of or be- longing to the said deceased have at any time since his death come to the hands, possession or knowledge of this exhibitant, save as is hereinbefore set forth. (Signed) C. D. On the day of 18 the said C. D. was duly sworn to [or solemnly, sincerely and truly declared and affirmed, accord- ing to the form of words prescribed by the statute applicable to the particular case] the truth of the above inventory at Before me [person authorized to admiiiister oaths under the Ad], (a) As to value see Brailshaie v. BraJuhaw, 2 Lee, 272. CONTENTIOUS BUSINESS. — APPENDIX A. 409 No. XXIX.] PETITION. In Her Majesty's Surrogate Court of the County of A. B. V. C. D. The day of 18 . A. B. [or E. F. proctor, solicitor, or attorney for A. B.] the plaintid says, that [Here iimert all the facts irliidt are fa he alktjfd.] Wherefore the said A. B. prays, that [Here end ivitk the praijer of the p'uintijff'.'] (Signed) A. B. [or E. F., &c.]. XXX .] ANSWER TO PETITION. In Her Majesty Surrogate Court of the County of A. B. *•. CD. The day of 18 . C. D. [or G. A., proctor, solicitor or attorney for C. D.] the defendant says, that [Here insert the facts to be alleyed mi answer^. Wherefore the said C. D. prays, that [Here insert the prayer of the defendant\ (Signed) C. D. [o»- G. H]. The rephj, rejoinder, d-c. (if a)iy such be necessary), are to be followed out in the same form. No. XXXI.] NOTICE OF APPEAI-. A. B. r. C. D. Notice is hereby given tliat the defendant (o/- plaintitl'] in a suit lately depending in Her Majesty's Surrogate Cdurt of iVo. , entitled A. B. w C. D., has in due time and place appealed agiiinst a ciitain final (udor or de- cree made in the said cause by His Honour the Judge of the said Surro- gate Court on the day of 18 ; whereby amongst other things, lie did order and decree. [}hre set forth the matters irhirh ore the subjects of appeal], (Signed) C. D. [ words, .. If the same or any part thereof nre required to bo made fiic simile, for the part or parts copied fac simile, in addition to the above, per folio t)f seventy-two words, ... COLLATiyr,. For collating any copy of a script, exhibit or other instrument with the original, or with another copy thereof, per folio uf seventy words, ill addition to the fee for attendance, NOTICES. All necessary notices, if throe folios or under, inclusive of copy and service,... If necessarily exceeding three folios, for every additional folio, In all cases where service of a notice is necessary beyond two miles miles of the place of business of the practitioner, the same foo as upon the service of a citation. SUMMOS.SES. Drawing summons, Copy of summons or order of the judge, and service, ATTENDANCES. P\)r attendance on and feeing counsel, Attendance on consultation, Attendance on conference, Attendance in pursuance of notice to admit,... For every hour after tlio first, Attendance on trial or hoaring when cause is on paper and not tried or heard, or on motion in court, On trial or hearing. If it lasts the whole day, ... Attendance on examination of witnesses under a conimissiim or or- der : If in (England or Wales) Ontario, per diem, If elsewhere,... For all necessary attendances in chambers before the judge or before a commissioner, on counsol, in the registry, or upon the ad- verse parties or practitioner, for which no other fee is herein allowed, 415 1 mf' 410 SUIllUKJATK ('(juirrs. I I TEItM FKKS, LKTTEKS AND MBSSKNU'^UH. Temi fee, loiters nml mes8eiim«r8, for eiich term in which any busi- ness is done in court or in chambers other tlmn obtaining' an or- der for taxation, or attendint; the taxation of bills of costs. For every necessary letter written to any jierson «)ther than the practitioner's own clioT»t, IIIIJ.S OK COSTS. Drawing bill of costs and copy for taxation, per folio of seventy- two words, Copy for the adverse party, per folio of seventy-two words, Attendance on taxation of bill of costs, If necessarily above an hour, for each additional ho\ir or part of an liour, i?!^* If in any court or contentious business it shall become necessary for proctors, solicitors or attorneys to transact any business for which no foe is herein specified, such foe shall bo albjwcd to them as would bo allowed for similar business dom- in the courts of common law and equity. (Ouoto 4th Ed. 428.) ALLOWANCE TO WITXESSES. {(l) To witnesses rcsiduig within three miles of the Court-house, per diem, 5<1 GO To witnesses residing over three miles from the C(mrt-houso, per diem, 1 26 Barristers and attorneys, physicians and surgeons, when called upon to give evidence, in conso(iuence of any professional service ren- dered by them, or to give professi>tnal opinions, per diem, Engineers and surveyors, when called upon to give evidence of any professional service rendered by them, or to give evidence de- pending upon their skill or judgment, per diem, ... If the witnesses attend in one cause only, they will be entitled to the full allowance. If they attend in more than one case, they will bo entitled to a proporticmate part in each cause only. The travelling expenses of witnesses, over ten miles, .shall be allow- ed, according to the sums reasonably and actually paid, but in no case shall exceed one shilling per mile one way. 4 (10 4 W i i Ik. SHOKT-HAND WRITER. The Statute of 40 Vict. c. 19, sec. 4, as to short-hand writer and the rules made by the County Judges under a\ithority ■ that Act, provide for the atter 'ance of short-hand writers in Sur- rogate Courts. {«) Same in Sup. and Co. Courts, vide Ewart'ri Costs ; and Chancery Orders of Feb'y 18, 1875. APPENDIX C. STATUTES. PROOF OF \VH,I.S IS ArTIONS ANI> sriTS (<(). Reviled Statnfis i>f Onturio, Vhap. (52. Sk(\ 41. In any Jicticin ivt law or suit in t'(iiiity where, acconliii^c to tho ixinting law, exchisivo of tlio provisions coiitiiinod in tliis Act, it would bo necessary to produce and prove an original will in order to establish a de- vise or other testamentary disposition of or aH'ectiiij,' real estate, the party intending to establish, in proof, such devise or other testamentary dispo- sition, may give notice to tho oi»posito party ton days at least before the trial or other proceeding in which the said proof is intentled to be ad- duced, that ho intends at the said trial or other jiroceeding to give in evi- (luiice as proof of tho devise, or other testamentary dispositions, the probate i>f the will or letters of :'.d;iunistration, with the will annexed or a copy thereof, stamped with tho seal of tho Surrogate Court granting the same, or with tho seal of tho Court of (chancery whtjn* tho probate or letters of ad- ministration wore granted by the former Court of IVobato for Upper I'anada ; and in every such case the proba'o or letters of adnanistration nr copy thereof rfcsi)Octively stamped as aforesaid, sh;ill be sullicient evi- (luiue of such will and its validity ami contents, notwithstanding the same in;iy not have been proved in solemn form, or have been otherwise do- thred valid in a contontio"s cause or matter under " Tho Sur ogate Courts' Act," unlos-i tho party reciMving such notice, within four days after audi rocoi})t, gives notice tliat ho disputes tho validity of such de- "i^p or other testamentary dispositions. 4_'. In eveiy case in which, in any such action or suit, tho origimvl will » \>r 'iced and proved, tho court or judge before whom such evidence is !,'ivi 1, may direct by which of the parties the costs thereof shall be paid (Ji). ('») r/'/c note to Sef. \ S. V. Act autf. [h] .Vs to i>l)t:iiiiiii ' ^ll ii)(B:ia to ro^'i-itrar to i)roduce original will. Vide note to Sec. 12, S. C. A. o A A 418 SmnOGATE COURTS. ^4' I '.5 ' ■■I fef i 43. In case of the deatli of any person in any of Her Majesty's posses- Bions out of Ontario, after having made a will sutiicient tu pass real estate in Ontario, and whereby any sut-h estate has been devised, charged, ar aflected, and in case such will ha» been duly proved in any court liaviu.^ the proof and issuing probate of wills in any of such possesaions, and rv- niains filed in such cmu't, then in case notice of the intention to ijse such pro- bate or certificate in tlie place of the original will is given to the opposite party in such proceedings oue month before the same is to be soused, the production of the probate of the will, or a certificate of tlie judge, regis- trar, or clerk of such court, that the original is filed anil remains in tliv court, and purports to have been executeil before two witnesses, shall, in any proceedings in any court of law or eipiity in Ontario conceruing sucli real estate, be sufficient prima faiue evidence of such will and the contents thereof, and of the same ha\iiig been executed so as to pass real estate without production of the original will, but such probate or certificate shall not be used if upon cause shown before any audi court or any judge thereof, such court or judge finds any reason tj doulit the sutticiency of the execution of such will to piiss sxich real < state as aforesaid, and makes a rule or order disallowiii;j the piodiictiou . f such probate. 44. The production of the certificate in the last preceding section ineii- tioned, shall be suHicient prima facie evidence of the facts therein statcl, and of the authority of the judge, registrar, or clerk, without any pnof of his appointment, authority, or signature. \n Act i{ksi'R(;tin() the Pikjok ok Pkockkhimjs in Phovinciai. am» CoLOMAF, CoVKTS, 43 VlCT. »'. 7. Hkk Majkstv, by and with the advice and consent of the Legislative Assembly of the I'rovince of Ontario, enacts as follows : — I. Any judgment, decree or other judicial proceeding recovered, iiuule, had or taken in any court of record in any of the Provinces of Canada, (f in any IJritish col<'t APPENDIX c. — statutf:s. 419 lOVINL'IAl. AM» FOKKIOV JUDOMK.NTS. !{>','. ,Sfats. (hit. Cliiip. 02. Sue. 31. Any jiulgiueat, decree, or other juclioial proeeeiling recovereJ, made, had or taken iu the Supreme Court of Judieature in England, or in any of tlie Superior Courts of Law, Eri' a Nutarj' ur ?s'otaries, or bo tiled, enrolled or enregistered by a Notary or Ni)tarie.s iu (^)iiebec. AKKiDAvrrs, iVi., v.\\>v. oir oi ontauio. Sec. 38. Oatha, afJidavits, atlirmalinns or dciliUMticns adininisttred, 8W(irn, atlirmed or made out of the I'rovince of Ontario, before any ( ''innnis- m'mivHt'f nuthori/cd to administer oaths in the Supreme Court of .ludica- turo in Enijlitml, or before a Judge of the Sui>reiue Court of .ludicnture iu England, or of the Court of Session, or the.Iusticiary Cnurt in .sV(»^^l,|./, "T in the High Court of Chancery, or the Courts of Queen's iiench, Cum- nion Pleafj, or Exchecpier in IteUmd ; Or, before n idgc my tinty //( or Irdantl within his Ct)unty, or before any Notary Fuftlic certiliud under his hand and uHiciul seal : Bffli'^^'i ^^Ifi h.^ Hw iii iii^ m W m Pii Be in iw 420 SURROGATE COURTS. irporting to have aflixed, impressed or ini- ])ri'SMi'd or subscribed thereon or thereto, t\w. sigiiaUur of (imi auch (\iinmi.>- siiiti, or the sigiKitnre (lud ojfiriid seal ,\\c\\ Juilgc, Cmisul, Vicc-Cousul, or Citusular Agiiit in testimony of any Hucli oiitii, alii lavit, allirmation or deciaration having been adiniiiiHtenil, sworn, aflirmed or nnide by t)r before liini, shall be admited in evidoiict' without proof of any sudi fiignature, or seal and siiinature, ln^ini- the mi\:\- t»uv or the seal, and signature of the per.sou whose siy;natiire, cir«i'al and signature the same purport to bo, or of the ollicial character uf such person. -wyr SI'S' I'M I'll APPENDIX C. — STATUTES, 421 gh or Town seal of swcl^ Jurisdiction reat lirilaui, e Oownior of f the SuikHoi- : Her JlfaJMfy , to take ufliila- !o, for the pnr- ipendinj!, or in le said Courts, otl'ect to all in- lechvration liad viuce I'l'fore a eteut aivllionty jirossed or iin- ,,, ,si«-/i (Vmiiii.'i- „/./(•.■ or I'lolh"- L.si(c/i 3/ii!(: :5('. V. c. '20, ss. 2 and H). 4. Wlierever land is dovisi'd in any such will as aforesaid, it shall bo considered that the devisor intended to devise all such estate as he W!is seised of in the same land, wlu^ther in fee simple or otherwi.'o, un- less it apiu'ars upon the face of such will that he iutendi'd to devist; only an estate for life, or other estate less than ho was seised of at the time of making the will containing such devise. C. S. U. C. c. 82, s. 12 ; .•fe IW Vic. c. 20, ss. 2 and 4«i. r>. Any will affecting lainl executed after the sixth day of March, \6'6i, and before the tirst day of January, 1874, in the presence of and ■J 422 SURROGATE COURTS. attested by two or more witnesses, shall have the same validity and effect ns if execnti'd in the presence of and attested by tlirec witnussos ; and it shjill l)e sudicient if such witnesses subscribed tlioir names in proHeiice i»f each otlier, aUhovigh their names were not siibscribed in presence of tlic testator. C. S. U. C. c. 82, s. K5. tS-r 30 Vic. c. 20, ss. 2 and 4li. f). After the fourth day of May, 1859, and before the tlrst day of Jan- uary, 1874, every married woman might, by devise ar becpiest executed in the presence of two or more witnesses, neither of whom was her Inis- band, make any devise or bequest of her separate property, real or per- sonal, or of any rights therein, whether such property was acquired be- fore or after marriage, to or among her child or children issue of any mar- riage, and failing there being any issue, then to her husband, or 'as she might see tit, in the same mahner as if she were side and unmarried. C. y. U. C. c. 7o, 8. 10. ■WILLS AFTER IsT .lAMAHV, 1874. 7. I'nless herein otherwise expressly provided, the subsequent sections «if this Act shall not extend to any will made before the tirst day of Janu- ary, one thousand eight hundred and seventj'-fuur, but every will re-exi- cuied or re-published, or revived by any codicil, shall, for the purposes of the said sections, be deemed to have been made at the time at which the same shall bo so re-executed, re-published, or revived. 'M Vic. c. 20, s. 2. 8. The twentieth, twenty-first, twenty-second, twenty-tifth and twenty- sixth sections f)f this Act shall not apply to the will of any person wlm wa.? dead before the first day of January, luie thousand eight hundred and si.xty-nine, but shall apply to the will of every person who has died since the thirty-first day of December, 1808, or who dies after the passing of this Act. 32 V ^ - " c. 8, s. 0. !>. In the construction of the sections numberod ten to thirty-eight in- clusive, in this Act ; (1) " Will " shall extend to a testament, nud to a codicil, and to an ap pointment by will, or by writing in the nature of a will, in exercise of a power, and also to a disposition by will and tesfanu^nt, 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 c'harles the Second, intituled •' An Act for tak- ing away the Court of Wards, and liveries and tenures in aipifi-, and by knight's service and purveyance, ami for settling a revenue upon His Ma- jesty in lieu thereof," and to any other testamentary disposition ; (2) '• Heal Estate '' shall extend to messuages, lands, rents and hcre- ditamonts, whether freehold or of any otlier tenure, and whether corporeal 5' It'' APPENDIX C. — STATUTKS. 423 lucurporeal or personal, and to any undivided sliare therocf, and to any estate, right, or interest (other than a chattel interest) therein ; (3) "Personal Estate" shall extend to leasehold estates and otluT chattels real, and also to moneys, shares of s,'overniiient and other funds, securities for money (not being real estate), debts, dmses in actii)n, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein ; (4) " Person ' and "Tostator," shall include a married woman ; (.")) " Mortgage " shall include any lien for unpaid purchase money, and any charge, incimibrance, or obligation of any natiire whatever upon any lands or tenements of a testator or intestate. 3G V. c. 20, s, 4 ; 35 V. c. ir», s. 2. 10. Every person may devise, be(]ueath, f)r dispose of by will, executed in manner hereinafter mentioned, all real estate and personal estate which he may be entitled to, either at law or in ecpiity, at the time of his death, ;md which, if not so devised, bequeathed, or disposed of, would devolve upon his heir at law, or upon hia executor or administrator ; and the jiower hereby given shall extend to estates pur autre rie, whether there be or be not any special occupant thereof, and whether the same be a cor- poreal or incorporeal hereditament ; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testa- tiir be or be not ascertained as the person or (jue of the persons in whom the same may respectively become vested, and whether he may bo entitled thereto imderthe instrument by which the same were respectively created, or under any disposition thereof by deed or will ; and also to all rights of entry for conditions broken and other rights of entry, and also to such of the same estates, interests and rights respectively, and other real and per- sonal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subseijucntly to the execution of his will. 30 V. c. 20, s. 5. 11. No will made by any person under tlu? ago of twetity-one years bhiUl be valid. 30 V. c. 20, s. (i. 12. No will shall be ^alid unless it is in writing, and executed in man- ner hereinafter mentioned ; that is to say, it .shall be signed at the foot or end thereof by the testator, or by some otiier [ler.son in his pre.sence and hy his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more wifiusses present at the same time, and such witnesses shall attest and shall sul)scribe the will in the presence of the testator ; but no form of attestation shall be necessary ; (2) Every will, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, shall be deemed 424 SURROGATE COURTS. « •! to be valid, within the meaning of this Act, if the signature is so placed, at, or after, or following, or under, or beside, or opposite to the end of the will, that it is apparent on the face of the will that the testator intended to give ctlect by such signature to the writing signed as his will ; and no such will shall be aft'ected by the circumstance that the signature does no* follow or is not immediately after the foot or end of the will, or by tho circumstance that a blank space intervenes between the concluding word of the will and the signature, or by the circumstance that the signature is placed among the words of the testimvniiim clause, or of the clause of at- testation, or follows, or is after or under the clause of attestation either with or without a blank space intervening, or follows, (jr is after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature is on a side, or page, or other por- paragraph or disposing part of the will is written above the signature, tion of the paper or papers containing the will, whereon no clause or or by the circumstance that there shall appear to be sullicient space on or at the bottom of the pnceding side of the page or other portion of tl;e same paper on which the will is written to contain the signature, and the enumeration of the above circumstances shall not restrict the generality of the above enactment ; but no signature under this Act shall be oper- ative to give etl'ect to anj' disposition or direction which is underneath, or which follows it, nor shall it give effect to any disposition «»r direction inserted after the signature was made. 15(3 V. c. '20, s. 7. 13. No appointment made by will, in exercise of any power, shall be valid, uidess the same is executed in manner hereinbefore ro((uired ; and every will executed in manner hereinbefore reijuircd, shall, so far as respects the execution and attestation thereof, be a valid execution uf a power of appointment by will, n(jtwithstanding it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity. 'M't V. c. 20, s. 8. 14. Any soldier being in actual military service, or any mariner or sea- man being at sea, may dispose of his i)er8onal estate as he might have done before the passing of this Act. 'M V. c. 20, s. 9. 15. Every will executed in manner hereinbefore required shall be valid without any other publica. ion thereof. 30 V. c. 20, s. 1. 10. If any person who attests the execution of a will is, at the time of the execution thereof, or becomes at any time afterwards, incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. 30 V. c. 20, s. 11. '-a APPENDIX C. — STATUTES. 425 I shall be valid 1 7. If any person attests the execution of any will , to whom , or to whose wife or hnsband, any beneficial devise, legacy, estate, interest, gift, or ap- pointment of, or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), is tliereby given or made, such devise, legacy, estate, interest, gift, or appointment, shall, so far only as concerns snch person attesting the execution of stich will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove tlio validity or invalidity thereof, not- withstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will { be admitted a witness to prove the execution of such will, "T a witness to prove the validity or invalidity thereof. 'M V. c. 20, s. 14. 20. Every will shall be revoked by the marriage of the testator, except a will made in the exercise of a power of appointment, wliere the real or personal estate thereby appointed would not, in default of such appoint- ment, pa.ss to the testatnr'.s heir, executor or administrator, or the person entitled as the testator's next of kin under the Statute of Distribiitions. 32 y. c. 8, s. 3'; 155 V. c. 15, s. li ; 'M V. c. 20, s. 15. (.b'tc svclion eujht of this Act.) 21. No will shall be revoked by any presumption of an intention, on the ground of an alteration in circumstajices. Ii2 V. c. 8, s. 4 ; 'M V. c. 20, s. 10. (See section 8 of this .\ct.) 22. No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or bj* another will or codicil executed in manner here- inbefore retjuired, or by some writing declaring an intention to revoke the the same, and executed in the manner in which a will is hereinbefore re- "luircd to bo executed or by the burning, tearing, or otherwise destroy- (a) A deviHe hy a testatrix, whodiud in IStiO, to a married woman, whose husband was one of the two witnesses to the execution to the will, was held void, notwith- standing the i)rovi8ionB of the Evidence Act of 1852 (IG Vic. ch. 19). {Crawford v. Ik'ltd, 22 Gr. ;W8. 426 SUUIIOGATK COUUTS. W'"' ing tlio saniu, ])y the testator, oi* by some person in his presence and hy his direction, with the intention of revoking the same. '62 V. c. 8, s. 5 , 3(j Y. c. L'O, s. 17. (See section 8 of this Act.) 21). No iiblitoration, interlineaticjn or other alteration made in any will after the execution thereof, shall bo valid or have any etlbct, except so far as the words or effect of the will before such alteratit)n are not apparent, unless such alteration is executed in like manner as hereinbefore is re- <|uired for the execution of the will ; but the will, with s\ich alteration ;i» piirt thereof, shall be deemed to V»o duly executed, if the signature nf tin- testator and the subscription of the witnesses are made in the mart^in or on some other part of the will ojiposito or near to such alteration, .'). Gifts to issue who leave issue on testator's death, shall not lapse. (Imp. Act, //'. s. 33.) :!('(. Mortfjaye debts to bo ]irimarily chai'geable on the lands. (Imp. Act, 17-18 v., c. 113. rrovi.so.) ;!7. Consequence of direction that testator's debts be paid out of person- alty (Imp. Act, 30-31 v., c. (19, .s. 1.) ilK. Acts repealed. Jiif. Shif. (),it., ('Imp. (}(). An a. T KKSIT.i T1N«1 TUK ADMINlSIUATInN [iV THE CliOWN nITIll', E.STATF, <*V InTKISTATRS I.\ CKUTAIN I'ASKS. Hi;r Ma.ik.stv, by and with the advice and consent ol the Ltgi.slativo Assembly of the I'roviiice of Ontario, enacts as follows :— 1. So often as the Lieut,uiiant-(!ovenior, by a warrinit \uhUt liis pri\'y .seal, is pleased to direct Her Majesty's Attorney-General for Ontario, for the time being, to apply for and obtain letters of administration (whether :,'eneral or limited) of the personal estate and cllects of any person dying intestate, or intestate as to some [lart of his estate, where, in respect of the iutore.st of Her Majesty in such estate and etlects, such administration may he rightfully granted to a nominee of Iler Majesty, it shall bi- lawful fiTany competent Court in this Province, nixm application, in pursuance I'f such warrant, to grant, by the name of otlice of such Attorney-dleneral, liilniinistration accordingly to the said Attorney-General and his successors ill the otlice of Attorney-CJeneral for Ontario, for the tise and benefit of Iler Majesty. 30 V. c. 21, s. 1. 428 SUimO(}ATE COURTS. K m H^> 2. When any person tlicH in tlii» Provineo intestiito, eitlior in wliole or in part, and without loavin;^ any known rolatives liviniif within the Pro- vince, or any known rolatives, wlio can he readily coniiimnicatod with, living elsewhere, the Lioutenant-CJovernor may (if ho thinks tit), by war- rant under his privy seal, direct the Attorney-(Jeneral for the I'rovince of Ontario, for the time heinj^, to apply for and ohtain letters of administra- tion, whether general or liiiiitod, of the jjcrsonal estate and etlects of any such person ; and it shall bo lawful for ajiy competent Court of tliis Pro- vince, upon application, in pursuance of such warrant, to grant adminis- tration accordingly to the said Attorney (ieneral by his namcjof otiii i , imd his successors in the oflice of Attomey-lieneral for Ontario, for the use and benefit of llur Majesty or of such persons as may idtimately appear to he ontitled thereto. 40 V. c. 4, s. 1. IS. In any of such cases, the administration so grantcid, and the ollico of administrator under the grant, with all the estates, rights, duti-s and liu- bilitii's of such adndnistrator, shall, upon the death, resignaiion or rciiinval of the Attorney-General for Ontario, for the time being, devolve iij^in and become vested and continue in the succeeding Attorney-fieneral, by virtue of his appointment, and so in perpetual succtission, without any fnrtluT grant of aiiministration, or any assignment or transfer of the estates (if tin* administrator ; and all actions, suits, informations, and other procccdini^s whatever at law or in ecjuity, by or against the Attorney-Gentral, for the time being, as such administrator at the tinn.' of his death, resignation, or removal, shall continiie, a».d may be proceeded with, l>y, in favoui- ..t .md against the succeeding Attorney-General, in like manner ; saving always, the etl'ect of every limitation in duration or otherwise umler the terms of the grant of any such administration, and saving to every ('o\irt having jurisdietion in this behalf all such right and authority to revoke or iii»m1 any such administration as such Court would have had during thecontinu- ence of a likt; administration granted to a nominee of Her Majesty in case this Act had not l)een passed. 'M V. c. ^I, s. 2 ; .SVc 40 V. c. 4, s. -. 4. It shall not be necessary for the said Attorney-Cieneral for tlu' tinio being applying for or obtaining grants of administration, to the use nr benefit of Her Majesty, to enter into, or cause to be entered into, any bond to the Judge of the Surrogate Court, commonly called an administra- tion bond ; but the Attorney-General for Ontario, for the time I'liiii,', shall, in relation to every such administration, be s\ibject to all the lialnluiM and duties imposed on an administrator by the condition of the bond jirt- scribed by the Itnles and Orders now in force, or hereafter made, undiT " The Snmxjatc Courts Act." 3G V. c. 21, s. 3. 5. Where administration is granted to the .Vttorney-Goneral of Ontiiri" 1 f\ l'( ■n APPENDIX C. — STATUTKS. 42U ij)'4 thucoiiliiiu- klajosty inr.w ■111 for tlu- tinu' to till) M.si' or litori'tl iiit". i»'>y |l !in iulmiiiiitn- [ho tinio l"iii-, Ivlltluiliiiliiluiw ,f tho I'oii'l I'l"^- iinditr this Act, tho Lioutenant-Ciovornor in Cuuiieil may direct tho hiiIo, tithor by ijublic unction or priviito siile, c>t' any rual estiito in Ontario (in- (linling any inturvst in any Htich real uHtati*) to whiuli tho intustatu died entitled ; and the said Attorney-dieneral Hhall thonMipon be anthori/ud to 8y the «'xecution by tho Attorney-Heneral of a conveyance ; and until the fvv. atiiiii of the letters granted, the Attuniey-(ieneral may txcrciso fully all the [lowers vested in him as administrator of the personal estate of tho (Uceased. 40 V. c. 4, s. 4. 7. In any case where administration is taken out nu'ler the provisions of this Act, the Attorney-dieneral may apply to tho Court of Chancery for an order for tlie making of sucli einpiiries as may bo necessary to dutor- iiiine whethei' or not llcr Majesty i.« entitlcMl to any portion of tho real or personal estate of tlie dtjceased on account of the deceased dying intestate ami without heirs or next of kin, or otherwise. Any decree matle upon such enquiry shall, unless rovorscl oii appeal, bi'Jtinal and conclu.sivt'. 40 V. c. 4, s. 5. K. Moneys realized from estates to which tlie .\ttnriU'y-(ieiieral is ad- ministrator under this Act, shall bo kept in a separate account in such iiaiik, or invested in such manner, as the Lieiiti'iiant-liovornor may from time to time appoint, and all moneys which have been unclaimed for ten yoars shall, from time to time, bo paid into the Consolidated Ueve;'.\;o Fund of Ontario. 40 V. c. 4, s. 0. 'J. Any person proving his title to any such moneys shall be entitled to receive the same, with interest at such a rate as tiie Lieutenant-Ciovornor may, having regard to tho rate realized therefrom, from time to time di- rect. 40 V. c. 4, s. 7. 430 suriiooatp: courts. 10. Any one cliiiuiin^ to 1)o ontitlod to uny snch uHtiito, or to any inter- est therein, or to any part of tho iirocuods thereof, may iipply to the Ciurt of Chancery iipon petition for an order y tlie applicant in case the Attorney-Oeuc-ral thinks fit to demand the satne. 4U V. c. 4, s. 8. 11. The Attoniey-CJenerul may deduct from any moneys received on account of any estate all disbursements made by him in resj)ect to anj' iii- ({uiries which he may luive considered it expedient to make before taking out administration, as well as all disbursements otherwise made by him in respect <»f sucli estate. 40 V. c. 4, s. *.». ,»«.■., m ATM'ENDTX D. PRACTICAL DIRECTIONS. Tlif /ulUnriiuj DiifctiDn.i {iii accorihince with (Itf prortivi' nf tlif Kngl'iKfi ('uiirt of Pvobutf), tlnnujh not of Authority an liuli't nf Court in (hiturio, lire, in practice generally folloiird : — KOK DKSCKIItINU TKSTATOIIS (»K rNTKSTATKS AND I'AKTIKS Ari'LYINt; KoU PUOBATK AND ADMINISTRATION. As li gonenil rulo the si^'imtur j i)f i\ testator is to he ailoptocl as his name although it diller from the name written in the heiidinj,' of the will. Ill case 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 ia the more correct of the two, the testator should ho ilescribed hy the name signed, the word " otherwise" followed by the name given to him in the will being added. If the testator's name is wrongly spelt in the will, and the will is signed by his initials or by a mark, he should bo described by his correct name, ti>e word " otherwise'' folh)wed by the name written in the will being aided. If the testator is described in the will as " the elder,' but has ni>t so subscribed, such description is not to ]n' inserted. If the testator is described in the will as " the younger," but does not si) subscribe, he should, notwithstanding, be described as " the younger,'" (If *^ lieri'tiifore the younger," as the case may be. The testator's place of residence, stated in the will or codicil, must form part of his description, and any previous or subsetjuent residence may be added, provided that not more than three places of residence be inserted. When there is oiie executor or executrix if ni. A child " ihe natural and lawful and only eliiid, and only next of kin," <<(• "one of the natural and lawful children and noxt of kin." A brother . . " the natural an or A niece " the lawful niece." ) " only next of kin." if a brother or sister i)e living, and the ni'plicw or niece, hoing the child of a brother oi' sistir of the intestate, who died in his lifi^tiine, a|<|ily for administration, he or she is to l>f de.scnla''! as " one of the persons entitled in distiiiMition t(j the personal estate and ctl'ects of the di'- ceased." A grandpiir-' t, ,'raiidchild, cousin, i^c, is to bo di'scribedas '■ Inw- ful, ' and " one of the luixt <.)f kin,'' or " only next of kin." AIM'KNDIX I). — IMIACTH'AI, DlltlKTIONS. 433 ,11 Ihu uiith^ :iH Is lifi-limt', iii'l'i [l in iiistnlxiti'in llocts »{ till' li*^^* This piuticiiliuity nf (l('Hcii|itiiin is not usml in all civsch, th">ui,'li tlio •frantoe liu as near in kin'lrcd as any i)f those hi-foio ilL-si^'iiatixl, <. 7. an executor being the testator's ^!;reat-;,'ran«lfallu'r is not niiuireil to be so (ieseribed in the oath. I'ersons further reiuovol in relationship than those just nientiunoiJ, i.ij. cousins of ajiy degree, arc also not so de- scribed. orilKK MATTKKS oK HKTAII,. The instructions, E. C. IV of 4th April, \M'> (S .lur. N. S. pt. 1», 2W ; C'oote Hth ed. ll.")!, as to personal applications for grants of probate oj- letteru of administration, are not in force under the general rule of prac- tice in the Surrogate Courts, tiioiigh certain ot thini would, do\d)tless, bo very beneficial. The following matters of di'tail in inaclice in the Uegistries may be no- ticeil, being in accordance with the K. ( '. I'. |iraetice(^). Fillimi itji dniiits.] — All i)r<)bates or letters of administration, or guar- 'lianship, ar.i tilled ni) in the registry. lil( iitilii iif I'iiiii>-<.\-lii cases where tin- t'ourt may deem it necessary it will recjuiri! protjf, in addition to the o.itn of the executor or admin- istrator, of the iilentity of the ^'lece•lsed, or nf tlie p uly applying for tho ■^Tant. Miulciwj Jf'ill. ] — In pro\ ing w ills the executor ami tho commissioner or ntlier person who has ailministered tiie oith will severally itmil. the will ;uid codicils by signing their names upon tlmst! documents. This tunikiiiij is made I'ither under an i- .hibit or without one. Drlitij ti) III' <',<7! ly. If the certificate bo nt»t satisfactory, an alHd.ivit is re(piirod. Will FJiHjrDMal, lit'.] — If there be alterationH in tin- will oi' codicil, and tin se alter;itii>ns are verilied by a refereuc • in the attest. iiioii clause, or ire shown by allidavit to have been ma^ie bi-fon- the fXceution of ilic will or codicil, tho will or cixlicil is engrossed fan, tli<' al .r it ions lieing iniMr- lierated, /. c, wortls interlined or interjiobiii'd, lu'ii.g inserted in the tex', ;iiid words str\ick through l)eiie.' oinittfd, ItUt where no fvideiict' can be given to prove that, tin' aliri-.itions Wi'io made before the e.xeculioii of tin- will or codicil, lU'whini! cvidi-nct! h giMii that tho alterations were madi? afiy the practitioner, and is by him handed to the proper officer for collation. PV'es are charvfed upon this copy for collating it, inchuling the registrar's certiticate in vtiitjcatioii tlureof. rpon tliis copy the follnwini,' liat is endorsed : — " Lot probate of the will pass ua contained in this copy." The will is engrossed in accordance with the copy. //(.•., /•;y../((h(//(.] -As iui incorporated document or paper is to he proved as part ot the will which has incorporated it, such document or paper uuist be i-ngroHKed and registered in its entirety. Ill .such a case tin- will will Iluvo licen previously sworn to as being "con- taiiiiMl in piipcr wriiiiigs luarkeil A. and B. ' Til this there is one exception. If another will, which has been proved, be incorporated, it is not en- j^. . 'ill :iiiM ii;^istered witli the iiicor]>oratini,' will if the executor of each will i.« t!:c ...uiiP persoi!. And tli( ^nme exception applies, as there istlie same ground of privity, in eases where the testator, lieinu' himself the executnr of the incor])iirati'il will, has transmitted /» / rnhiiiDn x\w r.'pri'sentatioii to his own executnr. In each nf these eases an alhdavit of the fact is m.ide by the executor. and is engrowed and registered instejul of a copy of the incorporated will. .S'nn;<(V,'». 1 -In (lie case ■ if an applioatimi fur letters of admiiiistratinn, * ♦ ♦ car(> should he taken by the practitioner that the sureties otrercd by an adnuiiistrator are /•l.•ws are accepted. Ihi^ililv. I't\r motii.i.s, and on which the proposed motion is to be made. After the order has been made, the practitioner ubtains an oflice copy of it, in order to file it wrh the other documents neco.s.sary for ob- taining the grant of probate or administration applied for by liim. iJUfifon,] — Upon citing a person or persons to accept or refuse a grant <.! < ;''(ictitioner will enter a caveat (a). If no appearance be given to the citation, the p.irty citant .vill move the (ourt for the grant If, however, the party cited, or one of the parties; cited, ajipear in order tw take the grant, some practitioner will enter an appearance for him. The solicitor of the party cited then takes out a >hh(//i><(i,s against the iiarty citant, to show cau.se why the grant should not be decreed to hi« Llient. The order having been made, it is in this case, the final order in tlio cause. luiiliiKi ii> Piiisfrute,]—U the party opposing a will or a grant of admin- istration fail to pro.secute his proceedings, (. f/., by not pleading. I'ii'c. . tha I'liuntiir takes out a yiiiinnoiis (see x/i'i) against the defendant to show c,iu.se why the plea should not be tiled at a time limited, iVc. If no obedi- ence lie paid to the sumnionH, the plaintitl' will take out another siim- 'imns against the ch-fondant "to show cause ' why the contentiotis pro- vicdings " slioidd not be disconti'uied. ' An order may be made by the judge thereon to the etiect of the sum- mons and tlirecting the grant to issue. ('«) ViiU (tiiti chapter >rrespi aiding .section, Imp. Stat., may hu citod (''), as indicating the practice, so far as the circumstances of the caao admit, appropriate in the Surrogate Court llegistries, in the absence of any tlirections in the S. ('. I'uiles on the 8ul)ject, as follows ; — " The will or codicil to be deposited must be enclosed in a sealed enve- lope and delivi red to ^>U(' of the registrars of the court at the regi.stry, cither liy the testator himst'If or liy some per.son specially authori,ied by him to deposit the same on his behalf. " The will or codicil so deposited will not bi; delivered up to any per.iou, but nnisi rt-main in the registry until after the testator's death. " /;( i((N' fill' ti.itiiliir hiiiiiilj iliji'i.iils his ti-iU ,ir cinlii'il, ho will bit ro- (piired to sign his name, in the presence of the registrar, to an indorse- ment on the envelope in which tho will or codicil is inclosed, to the ftjUowMig ellect ; — " • This sealed packet contains tlio last will and testament, or coilicil to the last will ami testament, or la^t will .and testament and cotlicil thereto, bearing date respectively [hero state the dates of all the pa|>ers enclosed], of A. IJ., of Ac, whereof (.'. D., of Ac, and E. I'\, of Ac., are aj)pointed e.vecutor.s, and the same are brought into the registry of Her Majesty's Court of I'm- bate {Stirrvjatv t'ourt nf ) by mo for safe custody, there to remain dep./,sn/» to deposit his will or codicil for him, ho will Ix- required to subscribe his name, in presence of an atte.sti'o' witu i i<» au indorsement on the envelope in which the will or codicil is ' nr-]<. - \, to the following elfect : — " ' This sealed packet contains tho last will and testament, or codicil to the last will and testament, or hist \vdl anil testament and i'i\ Coote, 3rd Ed 2-.t) (hj D. & ij. •..>:. APPENDIX D. — PRACTICAL DIRECTIONS. 437 codicil thereto, of me, A. Ti., of itc, whereof C. D. and E. F.. of »S:c., are ajipointed executors, and I autlmri/t' (!. H. to depos- it the same for safe custody in the registry of Jler Majesty's Court of Trohato (.S'u; v(i;/'(/c Cmtrt <>/ ), tlieru to remain deposited until after my decease.' (Signed} A. H. Witness K. L.' The residences of the testator and of tliu exirut«n's, and the date of .signature, should lie set forth in tliis indorse- ment. " The packet containing the will or codicil nntst be accompanied by an allidavit from the attesting witness, to the efl'ect tliat the signatiiro of the testator to the above indorsement, witnessed by the deponont, is in the projier handwriting of such testator, and was by him signed in the depo- nent's presence on the day mentioned in the indorsement, and that the signature K. L. is in the proper handwriting of the deponent." An ath- davit will also be refpiired from the person anthorizi'd to deposit the packet, to the eli'ect tiiat the sealed paekot produced f'lr the purpose of being de[iosited for safe custody in the registry of ller Majesty's Court of Probate (Snrrviniti- Cnurt of ), and on the liack of which the d>;)(onent has signed his name, is at the time of making tlie allidavit precisely in the same state, plight and condition, as wlien received l>y the ileponeiit from the hands of A. H. [the testator), on a day to be mentioned as that on which he received it. " Tlie last-mentioned allidavit is to be sworn before the legistrar to whom the packet containing the will or codicil is delivered. " A minute * * will be lirawn up l>y the registrar, setting forth the production of the packet containing the will or codicil, and th< aflidavits (if any), and when and by whom tlio same were produced, and ♦ * * that the same has been dejiosited in the registry for safe ciistody." i APPE^^D1X E. nl -til' I'll. ' 'ill !* i' AdUITIONAL Fi^RM>, AKAJ'TLK FKoM Mu. CoOTE's CoMMON FoKM PkACTIc'E, 8th El).; AXIt OTHEK KUKMS. No. 50.] AFFIDAVIT OF ATTESTING WITNl'-SS IN PROOF OF THE DIE EXECU- TION OF A wn.L OK ( OI'K IL, D.VTEU AFTEK IHsT DEi E.MHKK. 18715. In Her Majesty '.s Surrogate Court of the County of In the ijiiiiih of, ct'C. I, C. D. of in the ciuiity of make oath [nr .solemnly aflirin], tliat I am one of the subscriLing witnesses to the last will anil testaiiuiit [<»/• codicil, "s tJii rasf mmi /»■] if the .said C. D., late >>( in thecouuty of deceased, the saiu vll [<»• codicil] being now hereunto annexed, bearing date and ♦'.:it the !»ai'l testator evecuted the said will [or codicil] on the day of tlu' dale tiiereof, bj- signing his name at the fout or end thereof [or in the testimonium clause thereof, nr in the attestation clause thereto, f».>i' thi ra.iv uiaij he], as the same now appears thereon, in the presence of me and of the other subscribed witness thereto, both of us being present at the same time, and we theretipon attested and .sub- scribed the .said will [m codicil] in the presence of the said testator. Sworn, &c. (Signed) C. D. N. B. — // thr .•iitjnat'ifi' is in t'stimunium rlmi.it: or ntt'stafioH clnusi, it must be ahoivn in the ajffiilacif (hot thi testator fulhi uite)iil"l the anme as /n'»- Jinal SHjndtun to hi.s will, ruit Coote, 8th Ed. -171. No. 51.] AFFII^AVIT A> TO A TKsT.\TOR's K>fOWLED<*E OF THE i.'OXTBNTs OK HI.S WILi., IN (.WSES OF BLIND <»R OBVIOUSLY ILLITERATE OR IGNORANT TEST.VTORS, Thr fiiUow'iwj (idditionnl cfnusc t,, h^ added to Affidmnt ./ mbticrihiny u-it- ness, dr. : — And I further make oath, that previo\i.sly to the execution of the said will by the said testator, the same was duly read over to him by me ("r APPENDIX E. — FORMS. 431) by E. F. in my presence, or by himself in my presence), aTul he the said deceased at such time seemed thoroughly ti^ understand the same (or had full knowledge of the contents thereof). Sworn, &c. (Signed) C. D. No. 52.] AFFIDAVIT VERIFYING ALTERATIONS IS A WILL (MADE BY A SCB- SCHIREO WITNE.^s). I, C. D. , of make oath and say, that T am one of the attestint; witnesses to the la.st will and testament of the said A. li. , late of deceased, the said will being now hereunto annoxtd and bearing date the day of 13 , and having particularly observed the words interlined between the and lines of tho sheet of the said will, make oath and say as follows : — 1. That the said testator executed the said will on the day of the date thereof by signing his name at the foot or end thereof as the saintj now appears thereon, in the presence of me the said C . D. and of E. V. , the other subscribed witness thereto, both of us being present at the same time, and wu thereupon attested and subscribed the said will in the prcseiioo uf the said testator. 2. And 1 further make oath and 'jay, that the said recited interlineation was written and made in the said will previously to tlie execution thereof. Sworn, «S:c. No. o'6.] AFFIDAVIT A.S TO DEATH OF ATTKSTIN'ti WITNE.S.SE.S. {Xt>,le, dr.) We, C. D., of widow, E. F. of , and H. J. of li.iving severally with care and attention inspected the last will and testa- ment of the said A. B. , late of deceased, the said will b.-ing now hereunto annexed, beginning thus, " " ending thus " ," and tning il^'s .subscribed " A. R," and having also observed the names and additions, K. L. , &c., and M. N., S.c., sot and subscril)ed to the said will t tht fluid testator, juid tlie Huid K. L. and M. N. {{. 1, tlie HKJd K. K. foriiiyHtlf s.-iy, that I knew and was well acipiainted with tlie said A. Ii , wlio died on the day of 18 , at , for niaiiy yrars hi'foie and down to tlii; time of lijs death, and that dnriii" such period | have frei|iieiitlj' seen him wi'itt' and suhscrihe iiia name to writiiii{s, and I have tlierel)y hecoiiie well ae(|uainted witli his manner ami character of iiandwrilini,' and sviltscri|ilioii, and 1 say, that I verily and in my conscience Ik lieve the names A. Ii. snhscrii»ed to the said will as afore- Buid to lie of the trill' and [H'oper handwriting and subscription of tlie said A. I'l. deceasetl. ■I. I, tlie said K. I''., for myself sa}' that I knew and was well ac) : And I further make oath and say, that the estate and etl'ects of the said deceased consist of, &c. [state amount and particulars], Swoni, &c. iiUo depose to No. iiO.] AFFIDAVIT TO LEAD CITATION To E.MIIBIT AX INVENTOKV. f Style, ^- 'cfl ^a % >•' o /, rf Photographic Sciences Corporation A m iV is aforesaid, and upon other grounds, I am desirous (•<■ il.t,iiini!v.x - r ihis Court a citation calling upon the said M. B. to exhii'it iipou .v true and perfect inventory of all and singu- lar the personal estate and i. 'I'ects of the said deceased. Sworn, &c. No. GO.] AFFIDAVIT TO LEAD ( ITATION WIIKKE THE PARTY TO BE CITED KESIDES ABROAD. (Style, dr.) I, C. D., of , make oath and say as follows ; — 1. The said A. B. , late of , deceased, died on the day of , 18 , at aforesaid, intestate, without child or father, leaving E. F., his lawful widow and relict, him surviving. 2. The said E. F. now resides in the Island of Barbadoes, and has no agent or attorney authorized to act for her in this country (a). 3. The said E. P. has not taken upon her as yet the letters of adminis- tration of the personal estate and ellucts of the said deceased. 4. I am the natural and lawful mother, and only next of kin of the said deceaseil. 5. The personal estate and effects of the said deceased consist of &c. (Signed) CD. Sworn, &c. • (a) See Evans v. Burrcll, 28, L. J. R., N. S. p. S3 ; Atkin v. Ford, 3 K;»gg. 194, and in note. APPENDIX E. — FORMS. 445 No. 61.] AFFIDAVIT IN PROOF OF LUNACY. y TO BE CITED (Style, etc.) We, C, D., of surgeon, and E. F. of (nurse at a lunatic asylum), make oath and say respectively as follows : — And I, the said CD., for myself make oath, tliat fortlie space of years now last past, I have attended in my professional capacity E, B. (who is as 1 am informed and believe, the natural and lavvfu'. fat her of the said A. B., late of , deceased), the said E, B. 1)L'ing a jjatient under the care of my follow deponent, the said E. F. , at the asyhnu or house for the reception of lunatics at , aforesaid, and that the said E. B. hath been for many years, and now is a lunatic, and totally incapable of managing himself or his aftairs, or of doing any act whether requiring tliought, judgment or reflection, and is not likely soon to recover the use of his mental faculties. And I, the said E. F., for myself, make oath, that I am a nurse at the said lunatic asylum or house for the reception of lunatics, where the said E. B. hath been for years hist past contined thereat, and has been under my care as a person of unsound mind, and that he is a lunaiic and totally incapable of managing himself or hi^ affairs. Sworn, &c., by the said C. D. ami E. F. befoi-e me. (Signed) C. D. E. F. No. 62.] AFFIDAVIT TO LEAD ORDEH FOR GUARDIAN OF INFANT TAKINO ADMINLSTKATION. {Sttjle cL'c). 1, C. D., of make oath and say as follows : The said A. B. of died at aforesaid, on the day of 18 . intestate, a widower, leaving E. F. his natural and lawful and only child, who is now an infant of six years and upwards, hut under the age of seven years, and who, therefore, as I am advised, is by law incapa- ble of acting in his own name, and of electing a guardian to act on his part and behalf. 2. I am the lawful grandfather and the next of kin of the said infant, ivnd I am ready and willing to undertake the guardianship of the said in- fantfor the purpose of taking letters of administration of the personal estate and effects of the said A. B. , deceased, for the use and beueUt of the said infant, until ho shall attain the ago of twenty-one years. Sworn &c). 446 SURROGATE COURTS. It: 'im : f ! and lawful and only chil- 448 SURROGATE COURTS. if: 1 dren of the said J. K., and aa such are the reaiduary legatees named in the said will as aforesaid : and whereas it further appears by the said affi- davit that G. H. is a legatee named in the will of the said deceased : Now this is to command you, the said J.K., A.B., CD., &c., that withhi days after service hereof on you, inclusive of the day of such service, you do cause an appearance to be entered for you in our said Court, and you the said J. K. accept or refuse as well the probate and execution of the said will as the letters of administration (with the same annexed) of all and singular the personal estate and effects of the said deceased, and you the said A.B., CD., &c., accept or refuse the said letters of adminis- tration (with the said will annexed) of all and singular the personal estate and efTects of the said deceased, or respectively show cause why the said letters of administration (with the said will annexed) of all and singular the personal estate and effects of the said deceased should not be com- mitted and granted to the said G.H. tlie legatee aforesaid. And take n(j- tice, that in default of your so appearing and accepting and extracting the said probate or letters of administration (with the said will annexed), the Judge uf our said court will proceed to grant letters of administration (with the said will annexed) of the personal estate and effects of the said deceased to the said G. H. your absence notwithstanding. Dated at this day of one thousand eight hundred and and in the year of our reign. Citation. J. Smith, Solicitor, Guelph, [L.S.] M. N., Begistrai. No. G7.] CITATION TO ACCEPT OR REFl'jB LETTERS OF ADMINISTRATION. {Style, tLr.) Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith : To E. F., of in the County of Whereas it appears by an affidavit of A. B., of dated the diiy of and filed in the registiy of our said couri, <^i 0. D. , late of died on the day of 18 a bachelor and intestate, leaving E. F, his natural and lawful father : and whereas it further appears by the said affidavit that the said A. B. is a creditor of the said deceased : Now this is to command you, that within eight days after the service hereof on you, inclusive of the day of such service, you do cause an appearance to be entered APPENDIX E. — FORMS. 449 for jow in our said Surrogate Court, and accept or refuse the letters of administration of all and singular the personal estate and eil'ects of the said deceased, or show cause why the same should not be granted by authority of our said court to the said A. B. a cre'Utor of the said deceased. And take notice, that in default of your so appearing and ac- cepting and extracting the said letters of administration, the Judge of our said court will proceed to decree letters of administration of all and singu- lar the personal estate and effects of the said deceased to the said A. B. your absence notwithstanding. Dated, «S;c. Citation. [L.S.] M. N., Registrar. )MiyiSTRATION. No, 68.] CITATION TO ACCEPT OR REFUSE LIMITED -ADMINISTRATION. (Style d-c.) To A. B. , of in the county widow. Whereas it appears by an affidavit of C. D. , sworn on the day of , 18 , and filed in the registry of our said Court, late of , in the County of , deceased, died on the day oi , 18 , at aforesaid, a' widower and intestate, leaving him surviving A.B. , his natural and lawful child and only next of kin, the only person entitled to his personal estate and effects. Xow this is to command you, the said A. B., that within eight days after service hereof on you, inclusive of the Jay of such service, you do cause an appearance to be entered for you in the said registry of our said Surrogate Court, and accept or refuse letters of administration of all and singular the personal estate and effects of the said deceased, or show cause why letters of administration of the personal estate and effects of the said deceased limited so far only as concerns all his right, title, and interest in and to the sum of dollars with interest due, and to become due thereon, secured by an indenture of mortgage bearing date, itc. (short de- ncriptUm of mortgage or other instrument) should not be granted by the authority of our said Surrogate Court to the said C. D. , the sole person entitled to or beneficially interested in the said sum of dollars or to some person to be named by him on his part and behalf. And take notice that in default of your so appearing and accepting and extracting the said letters of administration as aforesaid, the Judge of our said Surrogate Court will proceed to grant letters of administration of the personal estate and effects of the said deceased limited as aforesaid, or under such other limitations as to the Judge aforesaid shall seem meet, your absence notwithstanding. Dated, &c. [L. S. ) M. N., RtgUtrar. C C 450 SURROGATE COURTS. .ill ■ V . f I ; No. 09.] CITATION AGAINST THE NEXT OP KIN (iF ANV) AND ALL PERSONS IN GENERAL TO ACCEPT OR REFUSE ADMINISTRATION. {Style (&c.) To the next of kin, if any, and all other persons in general having, or pretending to have, any interest in the estate and eflects of A.B., lato of , deceased. Whereas it appears by an affidavit of C. D., of , sworn on the day of > 18 , and tiled in the registry of our said Court, that the said A. B. , late of , died on the day of , 38 , at , intestate, a bachelor without parent, brother or sister, uncle or aunt, nephew or niece, cousin german or any other known rela- tive, and that the said C. D. is a creditor of the said deceased. Now this is to command you, that within days after the service hereof, inclusive of the day of such service, yon do cause an appearance to be entered for you in our said Court, and accept or refuse letters (jf ad- ministration of all and singular the personal estate and etfects of the said A.B. deceased, or show cause why the same .should not be granted to the said C. D., a creditor of the said deceased. And take notice, that in de- fault of your so appearing and accepting or extracting the said letters of administration, the Judge of our said Court will proceed o grant letters of administration of the personal estate and etfects of the said deceased to the said C. D,, your absence notwithstanding. Dated, &c. [L.S.] E. F., Eegistrar. No. 70.] CITATION TO EXHIBIT INVENTORY AND ACCOUNT. (Style d'c). Whereas it appears by an affidavit of C. D., sworn on the day of and filed in the registry of our said Surrogate Court of that on the day of 18 , letters of administration of all and sin- gular the personal estate and eflects of E. F., 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 appears by the said attidavit that the said C. D. is a creditor of the said deceased : Now this is to com- mand you, the said A. B., that within eight days after service hereof on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the registry of our said Court, and by virtue of your corporal oath exhibit, bring into and leave in the said registry a true aud 'J 'I'?S APPENDIX E. — FORMS. 451 perfect inventory of all and singular the personal estate and effects of the aaid deceased, which have at any time since his death come into your hands, possession, or knowledge ; and by virtue of your like oath render a just and true account of your administration thereof. Dated &c., as hef ore. No. n.] {Style dbc.) To A. B., of &c. ABSTRACT OF CITATION'. {For Advertmng .) widow. Take Notice that a citation has issued under the seal of the said Court, dated the day of 18 . whereby you A. B. are cited to ap- pear within days after the publication of this notice, and accept or refuse letters of administration of the personal estate and effects of C. B., late of late your husband deceased, or show cause wl y the same should not be granted to D. B., the natural and lawful sister, and one of the next of kin of the said deceased, with an intimation that in default of your appearance the said letters of administration will be granted to the aaid D. B. Eegistrar. H. &B. of Solicitors. W '■Sill No. 72.] notice of application foe letters of guardianship. {Required by Section 2, Act respecting Guardians.) In the matter of the Guardianship of the Infant Children of C, D., deceased. Application will be made to the Surrogate Court of the County of before the Judge in Chambers at the Court House in after the ex- piration of twenty days from the first publication hereof [by the infants, or) oil behalf of A. B., of «fcc. {state relationship of applicant, if any) for an order appointing the aaid A. B. guardian of E. F. and G. H., infant children of the said A. B., deceased. Dated at this day of A. D. 18 A. B. by X. Y., his Solicitor, dec. : V 452 SURROGATE COURTS. III; ' Si I No. 73.] NOTICE UNDER SECTION 34, S. C. ACT, OF APPLICATION FOR PROBATE. In the Surrogate Court of In the goods of , deceased. Notice is hereby given that that after publication hereof in three succes- sive issues of the Ontario Gazette, the undersigned will make application to the Surrogate Court of the County of , for a grant of letters probate of the will of , late of , formerly of , who died at on or about the day of , liaving at the time of his death no fixed place of abode in the Province of Ontario, but leaving personal estate (or, as the case may he) in the said County of to be adminis- tered, which will bears date the day of , 18 . Dated at , the day of A. B. 1 & > Executors. C. D. ) by E. F. their Solkitor. '4i i I W' No. 74.] NOTICE OF APPLICATION, UNDER SEC. 34, S. C. ACT, FOR LETTERS or ADMINISTRATION. In the Surrogate Court of In the goods of , deceased. Notice is hereby given that, after public.i,tion hereof in three successive issues of the Ontario Gazette, the undersigned will make application to the Surrogate Court of the County of , for a grant of Letters of Admi- nistration of the personal estate and effects, rights and credits of , late of deceased, who died at , on or about intestate, having at the time of his death no fixed place of abode in the Province of Ontario,lbut leaving personal estate {or as the case may be) in the said County of to be administered. Dated at the day of A.D. A. B. Widow of the intestate By C. D. Her solicitor. APPENDIX E. — FORMS. 453 No. 75.] AFFIDAVIT OF SEARCH, AND NON APPEAUANC'E TO CITATION. In the Surrogate Court of the County of Between A. B. Plaintifl*, and C. D. Defendant. In the goods of E. F. deceased. I, G. H. clerk to L. M. of , solicitor for the above nfvmed plain- tiff, make oath and say as follows : — 1 . On the day of , 18 , the said L. M. extracted a citation in the above named suit. 2. On the day of , 18 , I duly and carefully searched in the registry of this court to ascertain whether or not any appearance to the said citation had been entered, either by or on behalf of the above named defendant, and I say that no appearance to the said citation has been entered either by or on behalf of the above named defendant. Sworn, &c. No. 76.] {Style, d;c.) AFFIDAVIT A3 TO THE INSERTION OF ADVERTISEMENTS. I, E. F., of proctor [or solicitor], make oath and say, that I am the proctor [or solicitor] of C. D. the party applying for letters of adminis" tration of the personal estate and effects of the said A. B. , late of deceased : And I further make oath and say, that, acting on behalf of the said CD., I caused an advertisement requesting the relatives (if any) of the said deceased to apply to me to be inserted, once in the Toronto morning newspaper called the to wit, on the day of , and once in the Toronto morning newspaper called the to wit, on the day of , and once in the Toronto evening newspaper called the to wit, on the day of (as by reference to the said newspapers hereunto annexed (a) marked respectfully No. 1, No. 2 and No. 3, will more fully appear), but that no application whatever has been made to me this deponent in consequence of or in answer to the said advertisement, nor have I been able to obtain any information respecting the relatives (if any) of the said deceased. (a) The newspapers themselves or the advertisement as the Judge or Registrar may require. ii:V 454 SURROGATE COURTS. M < hi', ^'f ITie Affidavit of insertion of advertisement for recovery of lost will, may be framed from this, addituj : — No application has been made to me this deponent in consequence nf or in answer to the said advertisements, nor have I been able to obtain any information respecting the original will therein referred to. Sworn, &c. ! / i ! ! ( No. 77.] (Style, dc.) AFFIDAVIT OF REUCT TO LEAD A JOINT GRANT. I, C. D., of widow, make oath and say as follows, to wit : — 1. That the said A. B., late of deceased, died on the day of } 18 , at intestate, leaving me, this deponent, his lawful widow and relict, and E. F., G. H. and I. K., his natural and lawful and only children. 2. That I have been advised that by law and tlie practice of this Honour- able Court, as the lawful widow and relict of the said deceased, I am entitled primarily and by preference to have the letters of administration of the personal estate and effocts of the said deceased granted to myself aione, but I am, notwithstanding the same, consenting 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 personal estate and eflFects of the said deceased. Sworn, «S:c. No. 78.] CONSENT OF THE OTHER NEXT OF KIN TO A GRANT BEIXO MADE JOINTLY TO RELICT AND ONE NEXT OF KIN. (Style, etc.) Whereas A. B., late of , deceased, died on the day of , 18 , at , intestate, leaving C. D. widow, his lawful relict, and E. F., G. H. and I. K., his natural and lawful arJ only children : And whereas the said C. D. is consenting and desirous that the letters of administration of all and singular the personal estate and eflects of the said deceased be committed and granted to her jointly with the said E. F. : Now we the said G. H., of , and I. K., of , do hereby severally declare that we expressly consent that letteis of ad- ministration of all and singular the personal estate and eflects of the said deceased be committed and granted to the said C. D. widow, and E. F. APPENDIX E. — FORMS. 455 jointly. And we do hereby appoint L. M., of , our proctor [solicitor or attorney] to file or cause to be filed thia consent for us in the registry of this Court. In witness whereof we have hereunto set our hands and seals thia day of , 18 . Signed, sealed and delivered "| by the said G.H. audi. K. J in the presence of ' Witness. G. H. I. K. (L.8.) (L.S.) No. 79.] NOMINATION OF A PERSON TO TAKE ADMINISTRATION iOR PCR- POSE OF A SUIT IN CHANCERY. (Style, dr.; Whereas on the day of , 18 , I, the under- signed A. B., of , filed my bill of complaint in the Court of Chancery of Ontario, .against C. D. (since deceased) and others therein (amongst other thin'.rs) setting forth [state brivjhj the acernients of .the hill], and pr.aying relief in the premises as in the said bill is sot forth : And whereas divers proceedings have been hud iu the said suit, but no further proceedings can be had therein until there is a legal personal re- presentative of the said C. D. before the said Court of Chancery : And whereas the said C. D., late of , deceased, died on the day of > 18 , at , intestate, and letters of administration of his personal estate .and effects have not been granted to any pei'son whomsoever, so th.at there is not .any legtil person.al repre- sentative of the said deceased competent to bo made a pjirty to the said suit : Now I, the said A. B., of , the pl.iintifF .aforesaid, do hereby authorize and empower E. F., of , to procure letters of ad- ministrfition of the personal estate and eflects of the said C. D., deceased, limited to the piirpose only to become .and be made a psirty to the afore- said cause or suit depending in the Court of Ch.ancery of Ontiirio, and to .attend, supply, substantiate and confirm the proceedings already had, or that shall or may hereafter be had therein, or in .any ittlier cause or suit which m.ay be commenced in the said court or in any other court between the before-mentioned parties, or .any other parties, toiiching and concern- ing the matters at issue in the said cause or suit, .and until a final decree shall be had and mad« therein, and the said decree carried into execu- tion, and the execution thereof fully completed, to be granted to him as a person for that purpose named by me and on my part and behalf ; and I hereby appoint G. H., of , my proctor [solicitor or attorney] #•. vr-'/ :: 456 SURROGATE COURTS. to file or cause to be filed this nomination for me in the registry of Her Majesty's 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 ") by the said C. D. in the ( presence of Witness. (L.S.) No. 80.] COrSENT TO A LIMITED 0EA:NT FOR PURPOSES OF SUIT IN CHANCERY. (Style, (i-c.) Whereas, on the day of 18 ,A. B.,of filed his bill of complaint in the Court of Chancery for Ontario, against C. D., since de- ceased, and others therein ('amongst other things) setting forth {strtc briefly the ai^rments), and praying relief in the premises, as in the said bill is set forth : And whereas divers proceedings have been had in the said suit, but no further proceedings can be had therein until there is a legal personal rep- resentative of the said C. D. before the said Court of Chancery : And whereas, the said C. D., late of deceased, died on the day of 18 , at a bachelor and intestate, leaving me, the un- dersigned 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 personal estate and efi'octs of the said deceased, limited to the purpose only {instrt words of Umitntion ns in pre- ceding fnrm), may be granted to F. G., of as a person for that purpose named by and on behalf of the said A. 7j. 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 pr''ion "personal estate and effects, rights atwf crediti," — unless by the context it appears unnecessary). 458 SURROGATE COURTS. ', " No. 84.] (Style, d-c.) ADMINISTRATION DE BONIS NON. — GRANT. Be it known that A. B., late of , in the county of , deceased, died on , 18 , at , intestate, and that since his death, to wit, in the month of j 18 , letters of administration, of all and sin- gular his personal estate and efl'ects, were committed and granted by to C. D. [iiisert the Court from irhich the grant ixsiied and the relationship or character of adminidrator'] (which letters of administration now remain of record in ), who after taking such administration upon him inter- meddled in the personal estate and effects of tiie said deceased, and after- wards died, to wit, on leaving part thereof unadministered, and that on the day of > 18 , letters of administration of the said personal estate and effects, so left unadministered, were granted by Her Majesty's said Surrogate Court to , he having been first sworn well and faith- fully to administer the same, by paying the just debts of tlie said ixitestate, and distributing the residue of his estate and effects according to law, and to exhibit a true and perfect inventory of the said personal estate and effects so left unadministered, and to render a just and true account thereof whenever reciuired by law so to do. (Signed) E. F. [L. S.] Eegistrar. No. 85.] LETTERS OF ADMINISTRATION TO ATTORNEY OF INTESTATe's ill ' ■ {For:nal Parts No. 21, ante, and ncifals.) * * * intestate, leaving C. D. , her lawful husband, her sur- viving, who resides at San Francisco, in &c., and hiui at the time of her death a fixed place of abode at , in the said county of , were granted by Her Majesty's Surrogate Court of the to E. F., the law- ful attorney of tlie said C. D. , for the use and benefit of the said C. D. , and until he shall duly apply for and obtain letters of administration of the personal estate and effects of the said deceased to be granted to him, he, the said E.F., having been first sworn faithfully to administer, &c. (conchule as in No, 21.) No. 80.] LIMITED ADMINISTRATION ■WITH WILL ANNEXED. {Formal Farts see JVo. 20, ante, and recitals.) And be it further known, that on the day of letters of administi'ation, with the said will annexed, of all and singular the APPENDIX E. — FORMS. 45^ personal estate, &c., of the said deceased, were granted by Her Majesty's Surrogate Court of the Count of , to E. F., of the of , in the County of , the natural and lawful uncle and next of kin, and the guardian lawfully assigned (or as the case viay 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 (a), he, the said E. F. , having, &c. {concbide as in No. 20. ) No. 87.] {Style, d'c.) SPECIAL AIiMINISTRATION OF THE REST OF THE GOODS OF A MAUKIEI) WOMAN. Be it known, that A. B. , wife of C. D., late of , died on the day of , at , having at the time of her death a fixed place of abode at , in the County of , and having during her coverture with the suid C. D., Ijy virtue of certain powers and authorities vested in her by a certain Indenture of Settlement bearing date the day of , and made between the said C. B. therein described, of , in the County of , gentleman, .if tlie first part, the said deceased, by her then name and description of A. F. , of , in the County of , widow, of the second part, and G. H., of the same place, esc^uire, of the third part, made and executed lier last will and testament, bearing date the day of , and thereof appointed E. F. and G. II. executors. And i!E IT ALSO KNOWN, tliat on the day of , probate of the said will, limited u> the administration of all such personal estate and effects as she, the said deceased, by virtue of the said Indenture, had a right to appoint or disiinse of, and has in and by her said will appointed or disposed of accordingly, but no further or otherwise, was granted by the Surrogate Court ni to tlie said E. F. and G. H,, the executors named in tlie said will. And ue it kiuthei; known, tliat on tlie day of , hitters of administration of the rest of the personal estate and etiects, rights and credits of the said A. B. deceased, were granted by the said Surrogate Court to the said C. B.. tlie lawftiliuisband of the said deceased, he hav- ing been first sworn well and faithfully (((,•* //( Xo. 21, an'f, f/if avnls '^the rest of ^' hviiKj u-s<'/ in ciDtni'i'tiiiii ti-'ith " estate^' {h). ((() If more than (Hie: "until (Hif nf tln-ui sh.ill attiiin the age nf twenty-one years." ib) The various recitals rerjiiired liy S. ( '. Ilulca 11 & 14, ante, p. 77, are intro- duced in the letters of adiiiiiiistratiuii by the wurils: — "Be it known," as in the above Form, I i \k mm .Mv i; 460 SURROGATE COURTS. No. 88.] POWER OF ATTORNEY TO TAKE ADMINISTRATION. Whereas A. B., late of , deceased, died on the day of , 18 , at , intestate, leaving surviving him C. D. his law- ful widow and relict : Now I, the said C. D. , the lawful widow and relict of the said A. B. , at present residing at hereby nominate, constitute and appoint E. F. of to be my lawful attorney for the purpose of obtaining letters of administration of all and singular the personal estate and effects of the said A.B., deceased, to be granted to him by the proper Surrogate Court in the said Province oi Ontario, for my use and benetit, and until I shall duly apply for and obtain letters of administration of the personal estate and effects, rights and credits, of the said deceased to be granted to me ; and I hereby promise to ratify and confirm whatever my said attorney shall lawfully do or cause to be done on the premises. In witness whereof I have hereunto set my hand and seal this day of in the year of our Lord 18 , Signed, sealed and delivered ) [L. S.] in the presence of No. 8l>.] POWER OF ATTORNEY TO TAKE ADMINISTRATION (wILL) (execttors). Whereas A. B., 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 thereof appointed C. D. and E. F. executnr.s : Now we, the said C. D. and E. F., at present residing at do here- by nominate, constitute aiid appoint G. H. of , to be our lawful attorney for the purpose of obtaining letters of administration (with the said will annexed) of all and singular the personal estate and effects, rights and credits, of the said A. B. , deceased, to be granted to him by the pro- per Surrogate Court in the said Province of Ontario, for our use and benetit and until we shall duly apply for and obtain probate of the said will to be granted to us, and we hereby promise (proceed as in last Form). / i No. 90.] POWER OF ATTORNEY To TAKE ADMINISTRATION (WILL) (residuary legatee). Whereas A. B., late of , deceased, died on the day of , 18 , at , having made and duly executed his last will and testament with a codicil thereto, the said will bearing date the day APPENDIX E. — FORMS. 4G1 of ) 18 , and the said codicil bearing date the day of , 18 , and in and by his said will nominated and appointed C. D. and E. F. executors : and whereas the said C. D. and E. F. respectively died in the lifetime of the said deceased : Now 1, G. H. , at present residing at , one of the residuary lega- tees named in the said will, do hereby nominate, constitute and appoint I. K. of my lawful attorney for the purpose of obtaininjf letters of administration (with the said will and codicil annexed) of all and singular {proceed as in last Form mutatis mnfandis). No. 91.] {Style, lie.) OATH FOR D if-E PROBATE. , the son of the said deceased, make oath and say I, C. D., of as follows : — 1. A. B.. late of , deceased, died on the day of , 18 , at , having made and duly executed his last will and testa- ment, bearing date the day of , 18 , and thereof appointed E. F. and me the said CD. executors. 2. On or about the day of , 18 , the said E. F. , one of the said executors, proved the said will in this Honourable Court, power being reserved of making the like grant of probate to me the said C. D., the other executor, when I should apijly for the same (as by the acts and records thereof in the registry appears). 3. I believe the paper writing (o) [proceed as i)i No. 13 atdt p. 102]. (a) The letters probate may be used and marked by deponent. No. 92.] {Style, 18 , was on or about the day of > 18 , granted by this Honourable Court to E. F. 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 paper, &c. {as i)i No. 13 ante). I 462 No. 93.] {Stifle, dbc.) SURROGATE COURTS. OATH ON PROVING THE DRAFT OF A WILL. 1. I, C. D. , of make oath and say, that the aaid A. B. , late of widow, deceased, died at on the day of having made and executed her last will and testament, bearing date the day of and thereof appointed her son, me the deponent, sole executor ; 2. And I further say, that since the death of the said deceased the said will has been lost or so mislaid that it caiuiot now be found : 3. And I further say, that the said will was prepared from the draft thereof now remaining in the registry of this court, and that there is no authentic copy of the said will : 4. And I further say, that on the day of the Judge of this court pronounced for the force and validity of the aaid will as contained in the aaid draft, and decreed probate of the said will to be granted and committed to me as the sole executor tlierein named, limited until the original will or an authentic copy thereof be brought into and left in the registi'y of this court : 6. And I further make oath, that I believe the said paper writing now hereunto annexed and marked by me to contain the true and original draft of the said will of the said testatrix : Tliat I am the sole executor therein named, and that I will well and faitlifully administer the persmial estate and effects of the said testatrix, limited until the said original will or an authentic copy thereof shall bo brouglit into and left in the registry of this Court. [Proceed as in Nnniher 13 to (nt'L] hf'^ '■^h --• 1 i No. 94.] OATH 0\ PROVING A COPY OF A WILL, THE ORIGINAL BEINO LOST. (Style, y me to contain a true copy of the said last will and testament of the said deceased, and that I am tlie sole exe- cutor therein name 1 : [Proceed as in Number 94 to the end.] \^.-i. No. 97.] OATH FOR PROBATE LIMITED TO THE TESTATRIX'S EXECUTORSHIP. {Style, dc.) I, C. B., of , make oath and say, that the said A. B., late of , deceased, died on the day of , at , having during her coverture with the said B. B., in vir- tue of certain powers and authorities given to and vested in her by a cer- tain indenture, bearing date the day of , and made between her the said deceased by her tlien name and description of A. F. , of , of the first part, G. H. , of , of the second part, J. K., of , and L. M, of , of the third part, made and executed her last will and testament, and thereof appointed her son, me the said C. B. , and her brother, N. O. , executors, and that on the day of , probate of the said will, limited so far only as concerned all the right, title and interest of her the said deceased in and to all such personal estate and effects, rights and credits as she the >aid deceased, by virtue of the said indenture, had aright n APPENDIX F. — FORMS. 465 3 ONTARIO xecutod by ) same was Lh r. F. of of a 3t from the there is not d copy, and iceaaed that of the aaid iper writing ■ of the said he sole exe- to appoint or dispose of, and had in and by her said will appointed and disposed of accordingly, but no further or otherwise, was granted by the Court of to me the said C. B. , the said N. O. having re- nounced the probate and execution thereof : And I further make oath and say, that the said A. B. , widow, was the sole executrix of the will of P. Q., deceased, which will, on the day of , she duly proved in the Court of , and that the said P. Q. was the surviving executor of the will of R. S. , late of deceased, which last mentioned will was proved in the said court on the day of by the said P. Q. ; And I further mcke oath and say, that I believe that the paper writing hereunto annexed and marked by me to contain the true and original and last will and testament of the said A. B., deceased, and that 1 will well and faithfully administer the personal estate and eflects, rights andcredita of the said deceased, limited so far as concerns all such personal estate, &c. , as vested in her the said deceased .is the sole executrix of the will of the said P. Q. , deceased, and that 1 will exhibit a true and perfect inven- tory of the said estate and effects, limited as aforesaid, and render a just and true account thereof, &c. {Proceed as in No. 15 ante.) CUTORSHIP. A. B., late > B. , in vir- er by a cer- , and jscription of , of the , of the and thereof executors, he said will, of her the rights and it' .had aright No. 98.] {Style, dx.) I, C. D. , of of 18 OATH FOR PROBATE save and except. , make oath and say, that the said A. B. , late deceased, died at , tm the day of , having made and duly executed his last will and tes< a- ment, bearing date the day of 18 , and therein named his son, me the deponent, executor, save and except as regards all freehold, leasehold, and personal estates, liereditanients, money, securities for money and premises whatsoever vested in hiin upon or for the trusts or purposes of the last will and testament of E. F., lato of , deceased . And I further make oath and say, that I believe the paper ^rriting here- to annexed and marked by me to contain the true and original last will and testament of the said A. B. , deceased, and that I am the executor therein named as aforesaid, and that 1 will faithfully administer the per- sonal estate and eflects of the said testator, save and except so far as re- lates to all (Repeat exception as above) {Continue as in No. 13 ante.) Sworn, &c. DD ??■ liiau li I 466 No. 99. SURROGATE COURTS. OATH FOR PROBATE cwtcrorum. {Style, 18 , probate of the said will , limited so far only as respected the literary pa- pers and documents of the said testator, was by authority of this Court granted to the said E. F. : And I further make oath and say, that I believe the paper writing {Continue as in No, 13 ante, ushig the ivords " the rest of " in coivncdvm vnth the personal estate, dec.) No. 100.] OATH FOB CE8SATE PROBATE, THE EXECUTOR HAVING ATTAINED HIS MAJORITY. {Style ike.) I, C. D., of , make oath and say, that the said A. B., late of , decejvsed, died on the day of ,18 , at , having made and duly executed his last will and testament, bearing date the day of , 18 , and thereof appointed his nephew, me this deponent, sole executor, I being then in my minority, to wit, of the age of years only. And I further make oath and 'say, that on the day of 18 , letters of administration (with the said will annexed) of all and singular the personal estate and effects of the said deceased were granted by this Court to E. F., the natural and lawful mother and next of kin and curatrix or guardian of me, this deponent, for my ise and benefit until I should attain the age of twenty-one years (as by the acts and re- cords now remaining in the registry thereof appears). And I further make oath and say, that since the premises to wit, on the day of ,18 ,1, this deponent, have attained the age of twenty-one years, whereby the said letters of administration, with the said will annexed, have ceased and expired. And I further make oath and say, that I believe the parchment or paper exhibit hereunto annexed, partly written and partly printed and marked by me, to contain, &c. {Proceed as in No. 13 ante.) APPENDIX E. — FORMS. 467 . B. , late ,18 , at :,estament, ein named ;s, and his estate and ,18 , iterary pa- thia Court vriting , coimeetion ra ATTAINED No. 101.] OATH FOR CESSATB PROBATE TO EXECUTOR WHERE ATTORNEY HAS PROVED. (Style a to wit, on ined the age on, with the archment or printed and OATH OF ADMINISTRATOR ^Jcjw/enfe lite. , make oath and say, that tho said A. B. . late of , , having as asserted made , but did not thereof appoint No. 102.] (Style ttc.) I. C. D., of widow, deceased, died on the day of her will, bearing date the -i;;.','i_>i '^^y of any executor. And I further say, that there is now] depending in judgment in the Court of , a certain action , instituted by E. F., the residuary legatee named in the same will, against me, the said C. D., one of the natural and lawful children, and onogof the next of kin of the said deceased, touching and concerning tho validity of the said will : And I further make oath, that the Judge of the Surrogate Court of , did on the day of , after hearing counsel, upon tho consent of the other party to the said aui^. decree letters of administra- tion pending the said suit of all and singular the personal estate and effects, rights and credits, of the said deceased, to be granted to me, thia deponent, (or if the order has been made otherwise, state it as made) : mt-^ 4G8 SURROUATE COURTS. And I further inaku ofith, that I will faithfully adminiBtor the pcraoaal estate and effects, rights and credits, of the said deceased, pending the said action, save distributing the residue thereof, under the directions and con- trol of this (Jourt ; that I will exhibit a true and perfect inventcjry, &c. {Prvcevd as iic No. 15 u)i.te.) [S(: III' ' < If' ! if % r.^ No. 103.] OATU FOR CEHSATK APMINISTIIATION TO NEXT OF KIN ON AT- TAINING UlS MAJOKITY. {Style, dc) I, C. D., of , make oath and say, that A. B., late of died a widower and intestate ; that in the montli of 18 , dece;;sed, , letters of administration of the personal estate and eflects of the said deceased were granted by this Court to E. F., the lawful and next of kin, and curator or guardian lawfully assigned of mo this deponent (then an infant), the natural and lawful and only child, and only next of kin of the said de- ceased, for my use and benefit, and until I should attain the age of twenty- one years : And I further make oath and say, that since the premises, to wit, on the day of ,18 , I, the deponent, have attained the age of twenty-one years, whereby the said letters of administration have ceased and expired. And I further make oath and say, that I am the natural and lawful and only child and only next of kin of the said deceased ; that 1 will faith- fully administer &c. {Proceed as in No. 15). No. 104.] OATH FOR ADMININISTRATION (WILL) TO LEGATEE. m.ake oath and say, that T believe tho paper writiniij {Sttjle, dc.) I, C. D., of hereto annexed and marked by me, to c of deceased, died at on the day of 18 having made and duly executed his last will and testament bearing date the day of 18 and therein appointed I. K, sole executor and residuary legatee, and that the said I. K. hath renounced the probate and execution of the said will and letters of administration with the same annexed of all and singular the personal estate and effects of the said deceased : And I further make oath and say, that the said E.F. under and by virtue of the power vested in him in and by the said indenture of settlement as aforesaid, hath in and by a certain deed of appointment bearing date the day of 18 nominated, constituted and appomted L. M. of and N. O. of to be trustees in the room of the said A. B. , de- ceased, for all the purposes of the said indenture of settlement (as in and by the said last-mentioned deed will more fully appear) : And I further make oath and say, that the said L. M. and N. O. have in and by an instrument under their hands and seals authorized me, this de- ponent, to procure letters of administration of the personal estate and eflects of the said A. B. , deceased, to be granted to me as a person for that purpose named by them and on their part and behalf, limited so far only aa concerns all the right, title and interest of him the said deceased in and APPENDIX E. — FORMS. 475 to the said sum of dollars, &c. , and all dividends and interest due and to become due thereon and for transferring the same into the names of the said L. M. and N. O. , for the purpose of carrying into effect the trusts of the said indenture of settlement of the day of 18 but no further or otherwise ; And I further make oath and say, that I will faithfully administer the personal estate and effects of the said A. B., deceased, limited so far only as concerns all the right, title and interest of him the said deceased in and to the aforesaid sum of dollars, and all dividends and interest due and to become due thereon, and for tnansferring the same into the names of the said L. M. and N. O. , for the purpose of carrying into effect the trusts of the said indenture of the day of 18 but no further or otherwise according to law ; that I will exhibit a true and perfect in- ventory. {As in No. 15 ante.) Note. — The Oath for Administration limited to dealing with Trust Pro- perty may be framed from the last form ; Av"* vide Coote, 553. No. 113.] OATH FOR ADMINISTKATION LIMITED TO A POLICY OF ASSUKANC'E. (Style, (Ice.) I, C. D. of make oath and say, that the said A. B. , l!>te 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 letters of administration of all and singular the personal estate and effects of the said deceased : That in the year 18 , 1 lent the said deceased variouj sums of money, and that by a certain policy of assuraiico bearing date the day of , numbered and under the hand of three of the directors of the Life Assurance Company, the sum of dollars was assured to be paid to the executors, administraturs or assigns of tlie said A. B. , together with such further sum or sums as should liave 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., b':t the same 'vas so effected at tlie instance of mo the said C. D. ; that although the said pnlioy 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 fur my benefit, and the premiums thereon were from the month of > 18 , to the death of the said deceased paid by me ; that I am the sole person equitably entitled to the said policy and to the money received thereby. ^ X4 dill 476 SURROGATE COURTS. but that I am unable to obtain payment thereof for want of a legal por- son.il representative of the said deceased ; that I will faithfully administer to the personal estate and effects of the said deceased, limited so far only as concerns all the right, title, and interest of her the said deceased in and to the aforesaid policy of assurance numbered , in the said Life Assurance Company, and the said sum of dollars secured thereby, and all profits, bonnsea and acciunulation thereon, and all benefit and advantage to be had, received and taken therefrom, but no further or otherwise ; that I will exhibit, &c. (conclude as in Number 15, ante). No. 114.] ORDER FOR ALTERATION IN A GRANT. In Her Majesty's Surrogate Court of, &c. On the day of , in the year of our Lord 18 , In the goods of A. B., late of deceased. Be it known that on the day of , letters of administration of the rest of the personiil estate and etl'ects {or letters probate, ttc. , as the case maij he) of the said deceased were granted to C. D. the lawful husband of the siiid deceased. That in reciting the grant of probate made under certain limitations to E. F. one of the executors of the will of the said deceased, it is erroneously stated that power was herein reserved of granting probate to the other executor therein named \or any other errors to be corrected or matter nccessitati)ig an alteration]. That the name of the executor to whom power was so reserved, was and is as appears by the oath of the said C. D. , to lead the said letters of administration , and that the insertion of the name in the said letters of administration instead of is a clerical error : Whereupon it was ordered chat the said letters of administration bo altered by striking through with a pen the said name , and writing over the same the said name. (Signed) T • No. 115.] ORDER FOR GRANT TO GUARDIAN OF PARTY CITED. In the Surrogate Court of . On the day of In the goods of E. F., late of , deceased. A. B. against C. D. "V READING the instrument of election by , whereby it appears that a citation has issued under seal of this Court, bearing date APPENDIX D. — FORMS. 477 I legal por- ' administer . so far only lased in and le said Life 'ed thereby, benefit and i further or , ante). ministration e, tfcc. , as the fill husband niitations to erroneously the icd or matter •ed, was and said letters in the said listration bo and writing 'KI>. of whereby it tearing date the day of , 18 , at the instance of J. K. , of , alleg- ing himself to be a creditor of the said deceased, citing the said C. D., the residuary legatee named in the last will and testament of the said E. F., deceased, bearing date the day of , 18 , to accept or refuse the letters of administration, with the said will annexed, of the per- sonal estate and eflfects of the said E. F., deceased, or show cause why the said letters of administration, with the said will annexed, of the personal estate and effects of the said deceased, should not be committed and grant- ed to the said , as creditor of the said deceased ; and it further appearing, by the said instrument of election, that the said C. D. is now an infant of the ago of years only, and that L. M. is the lawful grandfather and next of kin of the said infant, and is ready and willing to accept the curation or guardianship of the said infant, for the purpose of appearing to the said citation and accepting the said letters of ad- ministration, with tlie said will annexed, of the personal estate and effects f)f the said E. F. , deceased, as his cux'ator or guardian, and obtaining the said letters of administration, with the said will annexed, to be granted to him as his curator or guardian for Ids use and benefit until he shall attain the age of twenty-one years ; , the Judge of the Court assigned the said L. M. curator or guardian to the said infant for the purpose* aforesaid. No. 116.] ORDER FOR GRANT TO PARTY CITED. In the Surrogate Court of On the day of 18 , W. against C. and B. In the goods of A. B. , deceased. X. Y., the solicitor of D. B., the defendant in this cause, alleged that his party, by a citation issued under seal of this Court on the day of ) 18 , had been duly cited to accept or refuse the letters of administration of all and singular the personal estate and eflects of A. B., late of , deceased, the deceased in this cause, and that his party had entered an appearance to the said citation, and was willing to t,ike upon him the said letters of administration: Wherefore the Judge of , &c. . on his application, ordered that the said letters (jf ad- ministration should issue under seal of this Court to his said party, if en- titled thereto, notwithstanding the caveat entered in the goods of the said deceased, by or on behalf of the plaintilF on his taking out the said cita- tion. 478 SURROGATE COURTS. iW'~- No. 117.] ORDER FOR A GRANT TO BE MADE TO WIDOW AND NEXT OF KIN JOINTLY. In, &C. On tiie day of , 18 . In the goods of A. B. , late of , deceased. Be it known, that on this day personally appeared C. D. of proctor [or solicitor] for E. F. widow, and G. H. , and exhibited an affi- davit of the said E. F. , wherein she deposed that she was consenting and desirous that the said G. H., the eldest son of herself and the above- named deceased, should be joined with her in the letters of administration of the personal estate and effects of the above-named deceased, and the said C. D. also exhibited an instrument under the hands and seals of I. K., L. M. and N. O., who with the said G. H. are the natural and law- ful and only children and only next of kin of the said deceased, and in which instrument the said I. K. , L. M. and N. O. have consented to let- ters ^. administration of all and singular the personal estate and effects of the said deceased being granted to the said E. F., widow of the said G. H. jointly : Whereupon it was ordered that letters of administration of all and sin- gular the personal estate and effects of the said deceased be granted to the said E. F., the lawful widow and relict of the said deceased, and the said G. H. one of the natural and lawful children of the said deceased, jointly. No. 118.] ORDER FOR GRANT ON A SUIT BEING DISMISSED. In, i&c. In the goods of On the A. B. against C. D. day of ,18 deceased. Referring to the order of this Court, made in this cause on the day of > 18 , at the instance of the said A. B., whereby it was ordered that the contentious proceedings in this cause be discontinued, E. F., the solicitor of the said A. B., alleged that the said order was duly served upon the solicitor of the said C. D. on the day of 18 ; and that the said A. B., the plaintiff, is the sole executor named in the last will and testament, bearing date the day of 18 , of G. H., late of the deceased in this cause : Whereupon it is ordered that probate of the said will be granted to the aaid A. B., the plaintiff in this cause, if entitled thereto. APPENDIX E. — FORMS. 479 SIT OP Kllf Ko. 119.] ORDER REVOKING PROBATB. In, &C. In the goods of A. B. , late of , decoaaed. Be it known, that on the day of » 18 , probate of the will of the said A. B., deceased, bearing date the day of , 18 , was granted to C. D., the sole executor therein named : And be it know^, that on the day of > 18 , an aflidavit of the said C. D. was Sled in the registry, of this Court by which it ap- pears that the said deceased made and duly executed a will of a later date, to wit, bearing date the day of j 18 , whereof he appointed E. F. andG. H. executors : And be it known, that on the last-mentioned day H. 1., of , the proctor [or solicitor] of the said CD., on behalf of the said C. D., volun- tarily brought in the said probate : Wherefore it was ordered that the said probate be revoked, and declared null and void to all intents and purposes in law whatsoever. No. 120.] ORDER REVOKING LETTERS OF ADMINISTRATION. In, &C. In the goods of A. B. , late of Be it known, that on the , deceased, day of , 18 letters of ad- ministration of all and singular the personal estate and effects of the said A. B., deceased, were granted to C. D., the lawful second cousin of the said deceased, on the suggestion that the said deceased died intestate, a widower, without child or parent, brother or sister, uncle or aunt, nephew or niece, cousin german or cousin german once removed, and that he the said C. D. was one of the next of kin to the said deceased : And BE IT known, that on the day of , 18 , an affidavit of the said C. D. was filed in the registry of this Court, by which it ap- pears that the said deceased died intestate, a widower, without child or parent, brother or sister, uncle or aunt, nephew or niece only, and not without cousin german or cousin german once removed, as erroneously stated in the said letters of administration : And be it known, that on the last-mentioned day, E. F. of the proctor [or solicitor] of the said C. D. on behalf of the said C. D., volun- tarily brought in the said letters of administration : Wherefore it was ordered that the said letters of administration be re- voked and declared null and void to all intents and purposes in the law whatsoever. 480 SURROGATE COURTS. I No, 121.1 RENUNCIATION OF LETTERS OF ADMINISTRATION BY OUARDIAN OF MINOR AND INFANT. In the Surrogate Court of In the goods of , deceased. Whereas A B., late of .18 , at , deceased, died on the day of , a widower and intestate, leaving C. D., E. F. and G. H. , his natural, lawful and only children, only next of kin, and the only persons entitled in distribution to his personal estate and effects : and whereas the said 0. D. and £. F. are now respectively in their min- ority, to wit, the said C. D. of the age of years and upwards, and the said E. F. of the age of years and upwards, but respectively under the age of twenty-one years, and the said G. H. is now in his in- fancy, to wit, of the age of years only ; and whereas the said C. D. and E. F. , the minors aforesaid, have in and by an instrument under their respective hands expressly elected me, the undersigned J, K, , their law- ful and only next of kin, to be their curator or guirdian for the pxirpose of renouncing in their names, and on their part and behalf, all their right, title and interest in and to the letters of administration of the personal estate and effects of the said deceased : and whereas I have been duly assigned the curator or guardian of the said G. H., the infant aforesaid : Now I, the said J. K., do hereby, as curator or guardian of the said minors and infant, renounce all their right, title and interest in and to the letters of administration of all and singular the personal estate and effects of the said A. B. , deceased. Jn witness, «fcc. {us in No. 25 ante). No. 122.] In, «S;c. RENUNCIATION AND CONSENT. Whereas A. B. , late of , deceased, died on the day of , 18 , at , intestate, a bachelor, leaving me, the »mder- signed C. D., of , his natjiral heir and lawful father, and next of kin : Now I, the said C. D. , do hereby renounce all my right and title in and to the letters of administration of the personal estate and effects, rights and credits, of the said deceased, and I do also hereby consent that letters of administration of the said personal estate and effects, rights and credits, may be granted to E. D. , the natural and lawful brother of the said deceased. In witness, &c. (see last Form). APPENDIX E. — FORMS. 481 RENUNCIATION OF GUARDIANSHIP. No. 123.] In, &c. Whereas, A. B., 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 therein appointed C. D. sole executor and residuary legatee ; and whereas the said C. D. is now a minor of the age of years only ; And whereas, I, the undersigned, E. F. , am the natural and lawful and only next of kin of the said C. D : Now I, the said E. F. , do hereby renounce all my right and title in and to the curation or guardianship of the said minor, and I appoint J. K., of my solicitor or attorney to file or cause to be filed this re- nunciation for me in the registry of this Court. Witness, &c. {See last fvrm) (a). No. 124.] In, &c. RETRACTATION. Whereas, A. B., late of in the county 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 thereof appointed C. D. executor, and me, the undersigned C. F., residu- ary legatee : And whereas, the said 0. D. duly renounced the probate and execution of the said will, and I, the said E. F., also duly renounced let- ters of administration, with the said will annexed, of all and singular the estate and effects, rights and credits of the said deceased : And whereas letters of administration, with the said will annexed, of all and singular the personal estate and effects, rights and credits of the said deceased, were on the day of granted by this Court to G. H., a cred- itor of the said deceased : And whereas, the said G. H., for some time in- termeddled in the personal estate and effects of the said deceased, but is since dead, to wit, on the day of 18 , leaving part thereof unadministered and not fully disposed of : Now I, the said E. F. , do hereby declare, that I retract the renunciation ( f the letters of administration, with the said will annexed, of all and singular the personal estate and effects of the said deceased, so as afore- (a) For other Renunciations vide ante, p. 113. E E 482 SURROGATE COURTS. said by mo horotofore mado, and I horoby iiominato and appoint M. N., of my proctor (solicitor or attornoy), to tilo or cause to bo iilod this retraction for mn in tho Surrogate Court aforesaid. In witness wlioreof 1 have hereunto sot my hand and seal this day of in tlio year 18 . Signed, sealed and delivered in ) the presence of ) No. 126.] OHDER REMOVJNO (JAUSH FROM SUUROOATE COURT TO COURT OF CHANCERY. w M .;. In Chancery In Cjiajibers ERY : ) JKIIS. J (Date.) In the goods of Andrew Morcor, deceased : and Between, &c., (Style of Cause), Upon the application of tho defendaats, and upon reading tlie aftidavit and papers filed, and upon hearing what was alleged by counsel for all par- ties, and it appearing that a disputed question may be raised as to whether the will propounded for proof in the Surrogate Court of the County of York by tho plaintiffs is in fact tho will of the said Andrew Mercer, deceased. And it appearing that the personal estato of the said deceased exceeds two thousiind dollars in value, and that the said cause or proceeding is of such a nature and of such importance as to render it proi^er that the same should be withdrawn from the jurisdiction of the aaid Surrogate Court, to be disposed of by this Court. It is ordered that the «aid cause or proceeding testamentary be with- drawn from the jurisdiction of the said Surrogate Court and removed into this Court ; And that the same be heard, tried and disposed of by this Court, and that the pleadings and proceeding therein do stand in the same plight and condition as the same are in now in said Surrogate Court ; And that the documents, instrimients, affidavits and papers in the said oause or proceeding deposited or tiled in the Surrogate Court be &)rthwith trans- mitted to tho registrar of this Court at Osgoode Hall. (Signed) Geo. S. Holmested, li. a a APPENDIX E. — FORMS. 483 nt M. N., I tilod this day TO COUUT the aftidavit 1 for all par- ;o whether County of ow Mercer, the said said cause to render it ;tion of the iry be with- nioved into 1 of by this in the same Court ; And e said oause iwith trana- MKSTED, 11. a c. No. 126.] WARKAJTT TO AnORNEy-aENKRA.L TO TAKE ADMINISTRA- TION («). ONTARIO. By His Excellency tile Honourable William Pearco Howland, Companion of the Most Honourable Order of tlio liath, Lieutenant-Governor of the Province of Ontario, &c., &c. , itc. To the IlonounMe Adam Crouhy Attonicy-Gaieral for the Province of On- tario : Whereas, Andrew Mercer, formerly of the City of Toronto, died on or about the thirteenth day oi June, in the year of our Lord one thousand eight hundred and seventy-one unmarried, intestate, without lawful issue, heirs or next of kin, but possessed of personal estate and eflects ; Now BE IT KNOWN, that I, the said William Pearco Howland, by virtue of the authority in me reposed as Lieutenant-Governor of the Province of Ontario, acting for and on behalf of Her Majesty the Queen, hereby nominate and appoint you, the said Adam Crooks, as Her Majesty's Attor- ney-General for the said J'rovince, in your name, and as such Attoniuy- Generaljto apply for, take and assume tlie administration, ( j/oii and yuur successors in oJ)ic,tement of their accounts, and the nature of the securities (if any) held by them : and in default thereof, and immediately after the said day of , the assets of the said , deceased, will be distributed amongst the parties entitled thereto, having regard only to claims of which notice shall have been given as above re- quired : And this notice being given under the provisions of the Revised Statutes of Ontario, chap. 107, sec. 34, the administrator will not be liable for the said assets, or any part thereof to any person of whose claim notice shall not have been received by him or his said solicitors at the time of Buch distribution. S. &W., CD., Solicitors. Adminidrator. (a) Where an inventory is filed in Common Form Business upon taking a Grant of Probate or Administra'ton, the f^Uuwing will bo found a con- venient form iniless a more detailed statemert should be ordered by tlie Judge : — No. 128.] INVENTORY OP THE PERSONAL ESTATE AND EFFECTS OF , DECEASED. In Her Majesty's Surrogate Court of the County of In the goods of Prioe of i . . , ,, , Stocks. jAotual Value. % , r 'u A,* 73 K 4 i fash in the honae and at the bankers . . Household ;.,'oo(ls, linen, weiiriiiL,' iiiiimrel, books, plivte, jew- els, carria^'es, horses, &c. , valued at Stocks or funds of f'anaila transferalile in Ontario, viz.: — iJividends thereon Foreiirn stoeks or funds tran.sferaMe in Ontario, viz.: Dividend tlieroon Lf . hold property : — ' ahie per annum (;ro\ind rent mi do. per annum Length of unexiiired term. Kents of real or leasehold property due at the death of the dece.ased. Rents of leasehold property due since the de!\th <;f the de- ceased. a cts. S ets. (a) An Kxecutor's Notice may be framed from tlii.s. APPENDIX E. — FORMS. 485 ire of the mediately deceased, ng regard above re- e Kevised )t be liable aim notice he time of rator. (o) \ taking a nd a ci>n- !red by the OF , Actual Value. CtS. Price of Stocks. Actual Valueu Proprietary shares or debentures of public companies, viz. : Dividends or interests thereon $ cts. $ cts. Money out on mortgage and other secuiities Interest thereon Book debts Bonds and bills Notes Interest thereon Real estate contracted to be sold Personal estate and effects left by the will under some autho- rity enabling the deceased to dispose of the same as he or she might think fit (a) Stock in trade, farming stock and implements of husbandry, valued at Other personal property not comprised under the foregoing heads, viz.:— (No Deductions to be made on account of Debts owing by Decca.sed.) No. 129.] judge's appointment to examine, audit and pass ac- counts OF EXECUTOR, OH &C. In the Surrogate Court of In the goods of , deceased. I appoint tlio day of , at o'clock, in the noon, at my Chambers in the Court House in the of , for the p\)rpose of examining, auditing, and passing the accounts of as executor (or administrator, iVc), of the estate of , deceased, now filed , and to fix the compensation to be allowed to him out of the s^Id estate for his care, pains, trouble and time expended in or about his executorship (or as the case tnay hv). At which tiuio let all par- ties interested attend. Dated at, &c. Jud^je Surrogate Court. (a) Tills was only to be inserted where the testator died after Imp. Stat. 23 Vic, c. 16. Vida Coote, 3rd Ed. 400; 8 Jur. N. 8. P. II. p. 207. 486 SURROGATE COURTS. No, 130.] EXAMPLE OP executor's OK ADMINISTRATOR'S ACCOUNT. ■H ^tf t -^ 1 In the Surrogat 6 Court of . In the goods of , deceased. This account marked A. was produced and shown to A. B., C. D. and E. F. {or as the case may he), and is the account referred to in their affidavit Bwom this day of > Before me {officer before vihom sworn). RECEIPTS. DISBURSEMENTS. S a Names of On what 'hi Names of y^, ^^at 'i-- 53 persons irom •g*^ whom ^ _> received. account received. o 2J - =2==' it 5^ ■M 'S s's . -M W — IS d c« U O 05 a "^ ^ Q2i <^ ^ft <;g . 18- Sc. 18- 1 S c. 1 Cash Found in 1 Jas. Stone . . Undertaker's house bill for fu- neral 2 Thelmp.Bk. Balance at bankers . . . 2 Ed. Coke... Solicitor's bill for probate 3 Half -year's? (or adminis- dividend on tration) gi2,000,flijer cent. Domi- 3 Dr. Adams. . 'A debt due to, nion stock him for me- due dical atten-! i dance j 4 Jno. Jones. .Half-year's \ 1 rent f)f free- 4 Jas. Burns.. Bond debt of hold due . . . * 1,000 and 8 25 for in- 5 i An J. Mercer Bond debt of terest there- ^500an(l in- on from — terest from to — to . .5 Jno. Upper.; Legacy under 6 Jas. Taylor. . Half year's rent of lease- hold house due will (or dis- tributive share) 6 Publisher of; 7 <■ Proceeds of real estate .. .^..w ' paper Advertising contracted imder Pro- to be sold. . pert}' and Trusts Act notice to creditors to send in claims | 1 1 APPENDIX E. — FORMS. 487 SPECIFIC LF.GACtES LEFT BY THE TESTATOR. 1. To his widow Jane , all his household furniture {foUoivim the v-ords of the will). 2. To his son John , the testator's gold watoh, and horses and caiTiage (folloiving the words of the iviU). NoTE.-Particulars or Explanations of any item may be given in separate sheets annexed, and referred to in the account. rs. 1 i fhat \ e paid awed. 1 fl aker's or fu- S c. >r'8 bill )robate Iminis- •") due to 'or nie- atten- B lebt of DO and for in- ttliere- oni — under or dis- utive :) ising r I'ro- ' and tH Act e to tors nd in IS No. 131.] EXAMPLE OF BILL OF COSTS— IN COMMOX FORM BUSINESS. For Probate ichen Personalty sicorn under $1200.00. ^^^^- , . Atty's fees. Disbt's. Consulting fee g^ qq Preparing all necessary papers and proofs, and pass- ing Probate 2 00 Fees paid in Reqistni. To the Crown: ^ •' On Application §0 50 On Certificate of Surrogate Clerk 50 On Grant \ qq To the Judge : *^ *^ On Grant of Probate 2 00 {If property derolving is over ^2, 000.00, see Schedule to Act.) On fiat for Probate q 5q " " Inventory (if ordered) 50 To the Registrar : Receiving and entering Application, and transmitting Notice to Surrogate Clerk... 50 Receiving and entering Certificate Surro- gate Clerk Q IQ Fee on Pajjers, Aftidavits, ttc J 00 On grant of Probate and entering 1 00 Recording will, say 10 folios, 10c. per folio 1 00 Letters Probate and Seal 50 Transcript of Will annexed to Probate,10 fo. 1 00 Certified copy for Surrogate Clerk ] 50 if^ t: .hi ' 488 SURROGATE COURTS. s 1880. Atty'sfees. Disb'ts, Notice of Grant to Surrogate Clerk 25 Postages (say) 10 (If property devolving is over $1,200.00, see Schedule to Act.) G 95 Bill of Costs 50 $3 50 $11 96 Note.— Bills of Costs in cases in which the personalty exceeds 81200.00, and on obtaining Letters of Administration, or Arlministration with will annexed, or Let- ters of Guardiansnip, and in cases of Limited or other Special Grants, may readily be formed from the foregoing and the Tables and Schedules of Fees, ante. PETITION FOE PROBATE OF MILITAKY WILL, OR WILL OP A MARINER AT SEA. No. 132.] Unto the Surrogate Court of The petition of A. B., of the merchant of , in the County of Humbly Sheweth, That C. D., who last dwelt in , in said County of , died at , on the day of &c. , , possessed of goods and estate remaining to be administered, leaving a widow , and his only heirs at law and next of kin the persona whose names, residence, and relationship to the deceased are as follows, viz., &c., &c. ; that said C. D., at the time of his death, was a mariner at sea, on board the ship , in the course of a voyage from to (or, was a soldier jn actual service in the regiment, &c.) ; That while on such voyage (or, in such actual service) said deceased made a nuncupative will, in the presence and hear- ing of E. F. and G. H., of, &c., whereby he disposed of his wages and other personal estate in the manner following (or, as is fully set forth in the paper hereto annexed). Your petitioner therefore prays that said nuncupative will may bo proved and allowed, and letters probate, or letters of administration, with the will annexed, may bo granted to your petitioner as executor, or &c. APPENDIX E. — FORMS. 489 6 95 No. 133.] DECLARATION OF TRANSMIS.SION UNDER THE " ACT RBLATING TO BANKS AJ4D BANKING," 34 VIC. CH. 5 STATS. CANADA. I, A. B. (or v:c) of Do declare that one Andrew Mercer, late of the deceased, who departed this life on or about the day of intestate (if so) was at the time of his death entitled to certain shares in the capital stock of the Bank of standing in his name on the books of said bank, and letters of administration of all and singular the personal estate and effects, rights and credits (or, and letters probate of the will) of the said A. M. deceased, having been on the day of granted io me by Her Majesty's Surrogate Court of the County of the right to said shares and to all interest and dividends thereon, has by virtue of said let- ters of administration (or, by virtue of said will) become transmitted to me, and I am entitled to receive the same as administrator of said estate (or, as such executor as aforesaid). In witness whereof I have hereunto set my hand at tho of this day of A.D. 18 . Acknowledged by the said A. B. at the of in the I County of this day of A.D. 18 . Before me, [L.S.] A. B. A Notary Public for Ontario. FORMS OF JURAT. No. 133a.] If one deponent only : — Sworn at on the day of If more than one deponent : — Sworn by the said and each deponent) at A.D. 18 , Before me, (give the Cliridian and sitrnames of on the day of A.D. 18 , Before me, If the deponent be a marksman, or is blind or illiterate : — Sworn by the said at on tho day of A.D. 18 , this affidavit having been first read over to him (or her), who seemed perfectly to understand tho same, and made his (or her) mark thereto in my presence, Before me, 490 SURROGATE COURTS. If the deponent be unacquainted with the English language : — Sworn by the said at on the day of A.D. 18 , by interpretation into the language by C. D. of who had previously sworn that ho was well acquainted with both lan- guages, and faithfully to interpret. {The interpreter should sign his name on the a''' lavit for the pxirpise of identification.) N.B. — In all cases of affirmation the exact words prescribed by the statute applicable to the particular case must be used, and none other will be received. The persons permitted to affirm by R. S. 0. c. 02, s. 12, must first make the following declaration and affirmation : — "I, A. B., do f'^ ''nly, sincerely, and truly declare and affirm that I am one of ba t v" called Quakers, Menonists, Tunkers, or Unitas Fratrum, or Mo- < .r- \as the case may be); and the affirmation will commence : — " I (A. B.), do sole nly, ■ > ^-ely, and truly affirm and declare," &c. ; And the jurat must correspond, ICi t 'i • ff'i No. 134.] DOMINION GOVERNMENT SAVINGS BANK — MISSING PASS- BOOK OF A DECEASED DEPOSITOR — DECLARATION OF EXECUTORS, ADMIN- ISTRATORS, &C. of do hereby solemnly declare that have been ap- pointed to the estate of the late of ; that believe was a depositor in the Government Savings Bcank at and hereby declare that after due and diligent search the pass-book issued by the of the said bank cannot be found {here state facts, if any, re- latinq to the loss of hook), therefore as such , do hereby surrender all claim to any balance recorded in the said pass-book, and declare that the estate has no further claim in respect thereof except as to the amount recorded in the books of the said branch, and hereby testify con- sent that any balance in the said savings bank shall be managed in accord- ance with the Act 34 V. c. 0, and the regulations of the bank established in accordance therewith, and make this solemn declaration, conscien- tiously believing the same to be true, and by virtue of the Act passed in APPENDIX E, — FORMS. 491 the thirty-seventh year of Her Majesty's reign, intituled "An Act for the Suppression of Voluntary and Extra Judicial Oaths." Solemnly declared before me, at ) {Persondedaring to sifjn here), the of , in the of and Province of this day of 18 . (Juihjey J. P. , or Notary's signature > N. R.— Above declaratinn, to be made before any .Tiiil} No. 138.] Will, iiispohin fkiisonal estate, in favour OF testator's daughter, a married woman, for her SEPARATE CHE. This is the last Will and TE.STAMBNTof mo (testatar^siiame, residence, aud itl : — David UuiiNs, Ksc^i rm;, 170(1. DoNAMt McLkan, " (iKANT Powell " William Ilti-BURN, " Skokeii lluoi'OII, " RoitKKT E. r.lHNs, " .Si:.ki;k LJiiuLiiii, '• 18(H>. 1«14. I8;j8. 18^4. 184«. 1847. Ri-ijiifnirx:— Alex. RuKys, EsiiPiuR. IMlLE.S McDoXELL, JosIII'A WlLLt'OCKH W. W. Haldwin, 8ri;i'UE.\ Hkwahd, James FiTz(iinii().v, OhaHLE.S FiTzf JiHltON, SUUROOATE COURT, HOME DISTRICT, II'PER CANADA. William Willcoiks, EsyuiitE, ... RoHKlil' I'VLKWJ.V, " W. \y. I5a LDWIN, JoH.V GoDKUEV Sl'KAitfiE, " William Hime Blake, " Samuel Realev Hakuisun, " Judijes under thr Sunoijutv Courts Act :— TiiK CoiNTY Coiar J 1800 1813 1810 1830 1841 1845 UDiiES. ((') Vi'lc (inti; 1). 11. F P u > I IE }{ IXDEX OF FORMS. FORMS Al'PENDKf) TO S. 0. RULK^i OF 1858. Administration Bond " Jiond for Ailministnitois with W^U annexed Affidavit of Execution <>f Will by sllbscril)in^' witnesses " of Handwritinf; " of .In.stilicatiuu by sureties . " of Plight, and (.'onditiuii, and Findiny " of Search for Will " of Time of Death and place of abode of Testator or intes- tate rt AOR 104 10(i 101 110 107 117 luo Afhdavit of V'aliie of Property devolving, and of Personal Estate and Etfects 100 Application for tiraiit, in cnninion form, where Executor or Re.siilu- ary Li^gatee has renounced Probate or Administration with Will annexed Applic;ition for (Jrant of Administration . . " " " with the Will annexed, in common form, where no Executors appointed Applicati(m for Letters of Guardianship by one of the next of kin of infant children of deceased widower Application for Probate, in common form, by a sole Eiocutor Bond on Appeal to Court of Appeal Bond to bo 1,'iven l>y (iuardian Books to be kept by Uoi,'iHtrars, and b)' Snrroi,'ate Clerk Application Book, Otlico of Snrrogate Clerk Caveat Boi >k ... Caveat Book, Ottice of Siirroi,'ate Clerk Grant Houk Grant Book, Odico of Surrogate Clerk Process Book Ilegister Book Non-contentiou3 Business Bi)ok Guardian IJook , Guardian Book, Office of Surrogate Clerk !t4 02 l.^.S •»I IL'O KJ5 127 I'JS 12'.! 120 123 124 P2l i:j7 138 Caveat. 118 iCi Id ■ }U 500 INDEX OF FORMS. In ill Notice to be transmitted to the Surrogate Clerk, of application for tirant where Executor or Residuary Legatee has renounced. ... 97 Notice to be transmitted to the Surrogate Clerk, of application for Letters of (Juardiaiishii) 134 Notice to be transmitted to the Surrogate Clerk, of application for probate to sole E.xecutor 96 Oath of .\dministrators 103 " .Administrator witli will 102 '• Executor 102 Probate 108 Ucuuiiciation of Administration 1 14 " of Probate and Administration with the Will annexed. 113 Subpc.Mia, in common form to bring in script 115 Warning to Caveat 1 19 ADDITIONAL FORMS. (ArPENDi.v E.) Abstract of Citati.in 451 Administration I}*)nd (54lh section of S, C. Act) 457 INDEX OF FORMS. 501 I'ACE V . 120 . 110 113- 08 t. . IID the ion 9i> for . . . 97 for . . . 134 for • • • 06 103 ■ • • lOi 102 . 108 . 114 tod. 113 . 115 . 110 . 451 . 457 PAGE Administration Bund de Bonis Non 457 Adiniiiistnitiun do Bonis Non. — Grant 4.18 Administrator's Notice to Creditors 483 Adoption of Infants or Minora. F " to lead alteratiim in (irant 44(» '• to lead .Subp(Hua to a solicitor to bring in script 447 " of iSearch, and non-appearance to citation 4.53 " as to the insertiS5 Dominion (Jovernnicnt Siivinifs Bank— niissint; pass book of a Do- cuasud Depositor — (looliiratnui of Exceptors, Administrators, itc. 4'.)0 Exaiiiiiio of l]xuciitor's or Administrator's account -isti Judge's appointniont to oxainino, audit and pass accounts of Executor or iV c 48r» Jurat, forms of 48'J rnvt'iitory of tlio IVrsotial lOstato and EU'octs of dccoased 484 LettiTS i)f Admiuisiratiou to Attonn'y of Iutc.st;itc"s husliand, tlio latter l)cing out of tlio juvii^ Oath for .Administration iimiteil to Trust I'roperly (viz., to Transfer- rin'.; it) 47I) Oath for Administration to .Attorney of lutcstati-'s Husband, Widow, Father, or olhei- i'er.sou entitled 472 Oath for .\dministraiion (Will) to Iie'_'atee 4<)S Oath for Ci.ssate .Administration to Next of Kin on attaining his Ma- jority. 4G8 Oath for Cessate I'rohate, the Kxe'cutor having attained his Majority. 1(W> Oath for Cessate I'lobate to Executor where Vttoriuv has Proved. 4r.7 4t;i 4<1<'> Oath for i'ldliate limited to tlie Testatrix's Executorship 4(i4 Oath for Probate smr iuid. un/'t 4fl5 Oath for Dotible I'robate Oath for I'robate ciilvn^i- Hill. Oath of Administrator pvinli'iiti HI, 4t)7 Oath of an .Vttorneyof an I'ixi^eutor (on taking administration with Will) 400 Oath of E.vecutor, former Probate luiving been llcvoked 401 485 48'.) . , 4.")8 458 ^\iit • • • 4ri5 ... 451 . . . 452 trii 45'J 47:' liiW, ,. 472 . . K18 Mii- .. Itl8 .lity. ion . . 4t'.7 . . 4t;i . . 4tit; .. 4(i4 .. 4(;5 .. 4(17 with ... 4t;o ... 4tn IXni'lX OF FOIIMS, oO.*? < );iUi i)f f Jiiiir.liiui or To.stfuncntiiry (jltianlian iuliiiini.sti.'rint; for tlio iiso (if ii Minor oi- Iiifiint, »)• ('oimiiittoo or Next of Kin ;i(liniiii.stcrin;; for lilt! use of :i li,ili:itic .171 ( tjitli oil I'roviiiif ii (-opy of ;i Will, tlic ()ri'.;in.'il licin.; Lost 402 Oiitli on Pros iiiji ii Copy of a Will transmittcij to Ontario, tin; (tri'^inal In iiiL{ in cxistonci! t'lsowlicre 4ri4 O.itli on I'rovin-,' tlio Draft of a Will 4t;2 Oafli oil I'loviiii,' the Suhntaiico or Contciits of a Will 4i'>.'{ Order f<»r a (Iraiit to he iiia Older for (irant lo I'arty Citeil 477 Onler lltMiiovin;^ Caii.so from Siirro;;ale Court to Court of ('liaiiinry . . 48'_' < (nliir llevokiny TiOtter.s'() Power of .Attoriu^y to take .\iliiiiiii.sir.itioii CWill) (K.xec'.itors) 4(»0 Power of Attorney to taki- .\iliiiinistration (\\ ill) (Kcsidiiaiy Lei^ateo) 400 Ivemmuiatioii and (.'on.sent 122 lieiiiineiation of ( Jnardianship 4^1 It'iiiineiatioii of Letti'i.s of Adinini.stration hy ( iii.iiiliaii of .Minor and I nfaiit 480 Retractation l.sl Special .Vdniinistrafiim of the lli'st of tlie (lood.s of a Married Woman. 4.'"il) ^^'al•l•ant to Attorney-Ceneral to take .\diiiinistration 4815 WILliS, Short Forms of, witli .\ttestatioii Claii.si' showiiiLj cum)iliance witli the Will.>< .\ct of Ontario as to K.\eciition 4'.t;5 KoKMs IN roNTi'.Nrior-; r.i si.\i:ss. No. I. Citation to see Will Proved WXt II. Citation to hrii'L; in Proliato :t'.lG ] n. Citation to luiiiu; in .\dmiiiistral ion .'!'.>7 IV. Citation to see I'loeeediiiL's :5!»8 V. Pr,e(i|)e for Citation IJ'.tS VI. l''orm of .Apiiearanee \\\)\\ V|[. Declaration WW VIll. Dcchualion in an Interest Caiiuo 4(XI f '3 504 INDKX OF FORMS. PAfJE IX. Form of Deumrrer 400 X. Plo.i 400 XI. I 'lea in an Interest Cause 401 Xn. Atliilavit of Scripts 401 XIII. The Lssne 402 X l\. Notice as to Mode of Trial 402 XV. Record 40;{ XVI. Record in case of Parties cited not appearing 4015 XVII. Form of Question to the Jury 404 XA'III. Subptena ad Testificandum 404 XIX. Subpi ena duces Tecum 404 XX. Prrecipe for Subpoena ad Testiticandum 40."! XXI. Pra-ciiu for Subpo-na duces Tecum 405 XXII. X'otice to admit Documents 40.") XXIII. Sub|M(na to a Witness to be E.xamined toucliing a Testamentary Paper of which he is supposed to have knowledge . . • 4()ti XXIV. Pr;ecipe for SubjKena to a Witness to bring in Script. 407 XX V^. Pr.'ecipe f()r Subpiena (XXIII. supra) 407 XXVI. Entry in the Piecord of a Verdict 4(»7 XXV^II. Entry in the Record of a Judgment 40K XXVIII. Inventory 408 XXIX. Petition 40!» XXX. Answer 401» XXXI. Notice of Appeal 40!) XXXIII. Motion Paper 410 XXXIV. Order on Motion for Mode of Trial 410 N,f: IJL-.! PAGE . 400 . 400 . 40] . 401 . 402 . 402 . 4o;$ . 40:5 . 404 . 404 . 404 . 405 , 405 .. 405 l'« a d to , , . 400 rip t. 407 . . 407 .. 407 . . 40« .. 408 ■ • • . 40! t .. 40'.t ., 400 . 410 . 410 GEXEPvAL IXDEX. Abatemknt, ;](»8. Abodk of Testiiior or Intcstiite. Sre Fixed Pi.ai;i; ok Aiioni; ; Domhii.k. AasKNCK from Ontario of person entitled, ;}!>, 240. AccoiNTs, luiditini,' (ind pas.sini,', 152, ;527. suit for, by Guardian oi Infants, 08, ;}58. Addition and place of abode stated in aiKdavit, 81. in notice of application to Surrogate Clerk, 82. AuMiNisTKATiox, interpretation, 15. wliere deceased resided in Ontario, o7. where deceased resided out of Ontario, 07. order in which ^'ranted, 210. to Witlow, 20;{, 211. to Husband, 209. to Next of Kin, 203. to Creditors, 223. toTru.stees, 212, 210. to Official Assignee of deceased Bankrupt, 225. to the Attorney-General for Crown, 210. nominee of Judge, 228. n(jt to person buying up debt, 225. not to co-partner, co-trustee, or joint-assignee, 220. ad r(>Ui(i, 80. for lost will, 24;}. of citation, IJIO. Akkiiiavits to lead grant, 3G, 37, 38, 7G. when taken, 75. lii'foro whom sworn, 30, 80. Iiy blind or illiterate person, 81. made out of Untai'io, 41!>. jurat, iSU, 4.S1). out of date, 31)0. Aki'irmatiox, 4i)0. Na' Affidavit. Ai.LoWANX'K to Executors, Sic, lo'J. Altkhations in wills, 180, Iti'J, 1!)1, 105, 4L'(>, verification of, 100, 101.'. not made by testator or by iiis directions, 195. in grants, 140, 285, 435. engrossing, 133. Amenomknt of Application, 70. of ideadings, 348. Ai'i'KAi, to Court of Appeal, 14, 35, 84, 358, 301. in matters of Gaardiansliip, 71. A I'l-KAUANCK of testamentary ))aper, 181, 183. Ai'i'EAKANC'K in suit, 79, 342, 344, 385. to si:t forth interest, 304. default of, 385, Al'I'lJCATION I'-OR PrOKATK OR A OMINLSTllATION, 74. through sulieitor, ttc, 75. by jietirion, 7<). amendment of, 7<"» to be numbered, 82. notice of in Ontario Gazettt', 37. guardianship, public notice of, 07. to Svirrogate Clerk, 40. tiled and examined by, 41. Ari'oi.vr.MF.N'Ts by will, how exercised, 424. Ai'PHKNTit'Efsnu' tif infants and minors, tiO. A.SSIUNEE. Src AOMlMSTltATION. Attaciimiont for contempt, 30, 350, 357. Attaim)i;i{, 207. 210. Atioun't-vs, .ipplication through, 74. fees to, 80, 132, 141. L'Vi GENERAL INDEX. 507 Attorney-General. adnuiiistration to, for use of Crown, 219, 427. liability of, 428. may apply to Chanceiy, 428, Attorney under power of Attorney, grant to, 40, 2(il, 20."^. Banks. /SVc Savings Banks, 148. certificate of grant rtMiuiretl by, wlien, l.'iO. Beneficial Tnteuest, 204, 224. Blind ok Illitehatk I'eusons, alliilavits of, 81, 108. lioiia N<)t(il)iU<(, 23, 00. Bonk, adiuini-stration, 51, 80, 230. " witli will iinnexed, 47. teniporarj' administratiun, DO. one surety whuru property under £50, 80. dividing liabilities of siu'ciies, 51. two sureties, 80. in limited or special aduiinistrations, 80. on appeal, 84. increasing amount of estate, 280. > sureties, responsible persons, 434. by non-residents, 232. not recj^uired from Attorney-General, 427. guardianship, ()8. assignment of (ni condition broken, 52. Books ani» Ue(M)ki)S ok former Court of Probate, GO. Building Societies, 147. c^kterorum g rants, 200. CArA<'iTY, testauicntary, 170. Causes, voluntary and contentious, 22. interpretation clause, 10. Caveats, 10, 42, 78, 79, 131, 307, 312, 341, 384. practice as to, 42. entering, 78, 79. numbering, endorsing, and entering notices ui, by Surrogate Clerk, 87. warning of, 79, 342. " at address of person cntcriiig, 70. to expire in 3 months, but renewable, 78. against guardianship, 41. subducting, 430. Certificate, oflicial, of grants, 45, 05, 150, 151. a i W' Iw f 'iV: ','■ m^ ; k w k I, 508 r.KXKllAL INDKX. CJiANcKiiY, jtirisiliction as to wills, 12, 2'-'. reiuoviil of cauHoa to, 33. powurs oil reinovul, 35. final order or decree transmitted to Rei,'i3trar of Surrogate Court, 35. if aiiplioatioii to more than one HiuTo;,'ate (.'oiirt, 41. records of former dourt of I'roUato, (>(). copy of j^rant by former Court of I'robati', 417. (claimants of estate administered by the Attoruey-fJoncral may apply to, 430. Chatikls, 24. (See Efkki'Ts. CitAi.v of transmission of Executorship, 173 >'f, scij. how broken, 277. Citation to accept or refuse ^'''^nt, 31», 78, 3U«). suits commenced by, 342, 384. order of judge for, 7H. attidavit to lead, 78, 343. to next of kin, 30. to heir at law, 43. to exhibit inventory and account, 185, 325. served by advertisement, 70. abstract of, I8;>. creditor must cite, 22(5. caveat entered on issuing, 435. Codicils, 187. ]iruvcd with Will, 171. discovered aubseciuently to probate, 173. probate of. limited, ttc, 245. CoEKcio.N of Testator, 121, 100, 250. C(>Ui Court, 35. may apply I Contentious Bi'sinkss. provisions of Surrogate Courts Act, Ki, 22, 23, 33, 34. jiractice, 3(i, 32'.(. how CDmnu'iicc'd, 3!>1. fonnor (.'ourt of I'rnluitu, r.('. :>30. referred to Sui)erior Courts by cousont, 33. removal to Court of Chancery, 33. Forms. (Sic I.ndkx ot" Fok.ms.) CoNVKiisioN, e(Hiital)h', \'u. C'oi'V of Deed i)rove(l, 201. lo3t\Viil proved, '.»2, !»;;, io:5. Will, authentic, jjroved, 32, 172. oHicial may he obtained from Uej;istrar, 45. CoUPouATioN, grant to Syndic, 171, 208. Cosr.s, statutory pi'iivisions, .")3, 5(j. ta.\ation of, DO, iiSl, ;'>'.I3. of compulsory proceedings to get will lodged in Registry, 2!>. in suits. Cm. 15. , 3(J!>, 412. proving Will in Solemn Form, 41, .'370. security for, 34, 380. of citation, 391. of removal to Cliancery, 34. out of estate, 58, 370. " general rules, 371. " doubtful (luestions of law, 370. County Courts, powers as to examinations iV.c., applicable to Surrogate Courts, 32. like powers to Surrogate Courts as to enforcing orders, 20. trials by jur}', same manner, 20. CoUKT OK I'hohatk, U[)i)er Cana SriMuxiATi;.) Cousin, Administration to, 77. CUEUITOIIS. Administration to, 82. 83, 87, 88, 107. wishes of, 2(l0, 278, 279. Cuos.s-Examination on attidavits, 31, 307. Crown, when interested, 05, 00, (»7. bounty of, 219, 221. (.St>e AxrORNK.Y-GKNKKAI..) Date of Will or Codicil sni>p]ied, 1^189. i! 510 (iFNF.HAr, lNT)i:X. I'f. fit'.' hi' Dkaf ami Dumb T«'8tiit(.r, 1!>H. Ukatii, proof of, part of proof to load Grant, 177, 315. (liiti! of, >,'ivoii in tho Osifli, UMl. I)rL'suni[)tivi!, proof of, 'M7). date of prumimed, ;}17. I>< llmiH Xon. (Hm Administration), 270. r)K<'i-.\UATi<>.v in a .suit. tiling,' and di'livery of, 34(), ;t85. party to declare or plead, 3!)4. Dkchke, how enforced, 2(i, 'Mi. Dkkh, proved as part of a Will, KJO, I!1S. no power to compel production of, 201. referred to in a Will, 181, 184. Dkkbnuants who may be in suit for proving Will in .s'demn form, ^37, Dbkailt of Plaintitr or Defendant, iJ.S. of appearance, .'i44. Delay of three years iu makin;^ applic.ition to bo accjuntod for, 433. Demirkek, 347. setting down, SoO. Dki'osition of witness proved as a will, 244. DErosiroRV for wills of living persons, 20, 43(i. Dei'o.sits in Saviii^-s Banks, 148. Derivative Intere.st.s, grant to persons having, 217, 280, Directions for diMcribing testati'r and others, 432. Dis.ketion of Court, 48, 204, 211, 227. Di.sTiNt'TioN between co-executors and co-administrators, 217. DlsTRiBUTKtN of lutcstato estates. 23, 214, 228. of separate property of married women, 229. persons entitled in, to be cited, 77. table of, 220. Divorced Woman, Oath for proving will of, IGO. Divers Clalmants as next of kin, 21G. Documents. {See Production.) pow^er of Court to enforce production of, 29, 386, 388. notice to admit, 388. Domicile of Testator or Intestate, 24, 37, 288. inferrible from descripticjii, 288. may bo disproved, 296. fixed place of abode iu Ontario, 37. " " out of " 37. Double Probate, 172. Draft Will, Probate of, 243. Duplicate Will, 171. flKNKIlAL rNf>KX. 51 1 Diintnfc Ahnthtiii, luluiiuiatriiti.ni, ;)!), 'SA'2, 2U]. EKi'Kirs, L"J. Emjhossmknt of Wills vocaticin, 1!):{. rcHtoriiii,' worilM t^nised, 1i)4. ESTATK. S>r PkUSONAI. PkoI'KKTV. of intostfitos vestffl in jii(l;,a', 144. " without known ri'Iativos. .Sf.-c Crown. of 8niall"\.iliio, ()4. ' EviuKNcE, It'tlors prnhiite anrl administration roccivod in, IG, 17, 417. rules of, statntory provisions, 'M. in suppnrt or cliuidation of a will, 17.'{. parol, of till! original words of a le'^'acy, llt.'J. in suits, 3;{, ;t."»7. Jnode of takiuL^ in Con. R., ;?!. rim riir,' examination, IM, ',W.^. of parties, witnesses, Ac, 28. to identify testamentary papers, 100. oominiasion to take, lU. aftirniiii!,' aUerations in a will, 10(1. to rebut suspicious appearances on will, 190. See Proof. Examination f)f persons as to testamentary papers, 20. of witnesses, commission for, 31, 32. Exclusion of words from probate, KiO, 101, lOG. of subscription of non-attesting witness, 189. ExECHTioN of will or eodieil, 170, 184. re, 27, 35. in part concurrent with that of Court of Chanceiy, 13. JuKV, jjowers of Court to try by, 26. ti.iding of, entered on the Record, 389. heir at law entitled to, 355. Chancery, Court of, may cause (juestiona to be triad by, 35. Justification by Sureties, 40, 51. Jus Hdbentium Grants, 253. to guardian of infants, 78, 253. Kin. Si-e Next of Kin. Knowledge. Si'e Testator's Knowledge. , Lkoacv, administration (will) to assignee of, 233. restoration of, 193. Legatee, administration (will) to, 233. administration (will) ilc bonis non, 278. universal, 218, 273. Sfe Residuary Lkgatrb. Lrttbrs ok Administration. See Administration. Lbttrrh Probate. See Probate. LiFB Assurance, limited grant as to, 178, 253. 515 I m 516 GENERAL INDEX. Limited Grants, 39, 78, 242. to particular property, 248. to trust property, 249. will of feme coverte, 246, 247. form of limitation, 248, 251. to guardians, 257. to committee of lunatic, 259. to attorney of executors, 261. to a creditor, 261. form, 262. to attorney of residuary legatee, 263. pendente lite, 263. ad litem, 266. save and except, 268. eateronim, 269. special circumstances, 270. persons entitled to general, not permitted to take, 77. during widowhood, 246. List of Grants sent to Surrogate Clerk, 21, 88. Lunacy proved by affidavit, 260. Lunatics, grants for use and benefit of, 259. grants for use of, de bonis non, 273. See Special Circumstances. Lost Wills, 197. probate of, 243. Maintenance of Infants, 72, 73. Mariners, probate of wills of, 161, 166, 424. Markino will, when proved, 78, 279, 433. nr the original grant, 279. Marksman, illiterate person, 186. Marriaoe, presumption iu favour of validity of, 209, Married Woman, principal or surety, 208. will of, by virtue of a power, 181. living separate, 169, 212. cestui que trust, 239. Minors, guardianship, 65. incapable of making will, 176, 423. grants for use and benefit of, 253. renouncing, 322. cited, 308. passed over, 257. electing their next of kin, 258. a stranger or distant relative, 258. i GENERAL INDEX. Minors (continued), court not concluded by choice of, 258. may refuse to elect next of kin, 258. Mode or Execution, 184. Money, payment out of Court, 382. MoRTOAOK, interpretation, 423. Mother, administration to, 21G. Motions, 29. practice. Con. B., 365, 435. Nbphew, administration to, 210, 218. Nbw Tbiai,, 27, 358, 388. Next Frieno, infants may elect, 78, 257. Next of Kin, to be cited, when, 307. administration to, 203. administration de bonis non to, 27fi. to the husband of, 208. legal representative of, 217. joined with widow, 237. preference of, inter se, 205, 216. administration to, until a will bo found, 24(5. absolute grant to, where the widow is a lunatic, 20 1. of minors and infants, entitled to their guardianship, 257, 258. may renounce it, 258, 322. of lunatic, grants to, 200. Niece, administration to, 210. Nominee of majority of interests, administration to, 200. next of kin, 275. giiardian, 252. Non-Atte.stino Witness' subscription excluded from Probate, 189. Notary Vvruc, declaration of transmission sworn before, 150. affidavit sworn before out oi Ontai'io, 419, 420. Nqtariai. Copy of deed proved, 201. Notice of Applications for grants to Surrogate Clork, 40, 70. of application for letters of guardianship, <)7. to Attorney Cjleneral, 220. by party opposing will, of non-production of witnesses, 395. of intention to uso letters probate, etc., on trial, 417. to admit documents, 388. of setting down cause, 350, 387. of trial, 387. to creditor to send in claims, 328. Nuncupative Will. (See Soldier, Mariner.) effect of Wills Act, 163. 517 i " 518 GENERAL INDEX. Oaths of executors and administrators to be in writing, 77. before whom swurn, 30. of administrator, so worded as to clear oflf prior interests, 77. to lead grant, when may be taken, 70. recitals, special or limited grants, 77. Objection to proposed administrsitor, grounds of, 239. Obliterations, 180, 100. (See Alterations.) OFFirE Copy. (iSVe Copy.) OFKiriAL AssioNF.E,^of bankrupt, administration to, 225. Official Certificatk, (.sVe Copy), 45. Omission, supplied in wills, 101. Orders and Decrees, how enforced, 26, 366. to be noted by Rej^istrar, 83. Order for production of iiiBtrunients or writings testamentary, 29, 857. Orders, general rules and, of 1858, 74. Order of judge, citation to issue on, 78. 1/ ' Particulars of papers propounded, 346. Payments under revoked grants, validity of, 49. indeiuiiity to persons making, 58. Parol evidence t») show the original w' Bond.) Pencil writing, 346. Fimlfnte Litr, Administration, 44, 263. Personal estate, interpretation (Wills Act), 423. probates relate to, 156. mortgages, ships,' Ac. , 25. life insurance, 178, 263. of intestates, vested in the judge, 144. distribution of. {See Distribution.) devolving, 25, 163. Personal Representative, 144. Persons having derivative interest, 217. dying in it i acre, 220. dying without known relations. {Sec Administration.) Petition, application by (S. C. R. 5), 76. proceeding by, in Con. B. , 366, 390. quentions to be heard on, 367, 390. answer to, 390. 77. 29, 867. 1 erased or GENERAL INDEX. 519 Plaintiffs, who may be, in proving a will in solemn form, 333. Plea, tiling and delivery of, 386. amendment of, 348, 386. Pleadings, 385. time for filing, 346. amendment of, 348, 38C, general rules as to, 350. irrevelant matter atnick out, 350, form, in interest cause, 361. Pleas, various, 347. Post Office Address, 79, 385. Postea, 389. Power reserved to an executor to prove a will, 172. of attorney to take grant, 40, 261, 263. Practical Directions, 431. Practice of Surrogate Courts, how governed, I. general statutory rules, 23, 36, 42, 46. in common form. {See Rules.) according to practice of Court of Probate in England, when, 30. in contentious business, 329. in proving execution of wills, 179. Practitioners of the Surrogate Courts, 55, 75. Preference of next of kin, inter se, 205, 216. of residuary legatees, 313. of creditors, 200, 240. of guardian, 224. Prerogative Court practice, 1, 10. Presumption of law against alterations in wills, 192. in favour of alterations before Wills .\ct, 195. in favour of validity of marriage, 209. in favour of sanity, 177. Presumptive proof of death, 315. Prior Rights, Oath Sec. so worded as to clear off, 70. Priori Petenti, grant to, 206, 23(), 241. Priority, rights of among claimants for grant, 313. Probate, Court of. (^'ee Court.) general, 155, 170. not to issue until seven days from death, 76. to all the executors, 170. to one executor on the renunciation of the other, 170. refused to /erne executrix, her husband dissenting, 172. to an executrix during life or widowhood, 175, 243. double, 172, 434. 520 GENERAL INDEX. •f. 1 Probate (continued), of an earlier will, 173. of a codicil separate, 173. of an original will, 155, 171. of an authentic copy of a will, 172, 284. of a copy of a lost will or codicil, 197, 243. effect of, 60. of substance or contents of lost will or codicil, 244. of a draft will, 243. of an affidavit of scripts, 244. of a deposition of a witness, or an extract therefrom, 244. of a more authentic copy of a will, 284. of wills made before 1st January 1874, 182. of wills of soldiers and mariners, 161. of foreign wills, 289. of a translation of a foreign will, 295. after the termination of suits, 359. of a blank, 193. words excluded from, 196. subscription of non-attesting witness excluded from, 189. exemplification of, 291. Probate, Cessate, to a substituted executor, 283. to an executor on becoming sane, 284. on attaining his majority, or returning to Ontario, 283, 284. after a grant made to his attorney, 283, 284. of the original will, after probate of copy, 283, 284. after administration i^eiidente lite, 283, 284. Probate limited to administer a particular estate, 246, 248. of a codicil limited, until lost will be found, 245. of a will of a feme coverte, 248. of will without litigated codicil, 172. to appointing an executor of goods, ni autre droit, 248. of authentic copy of will or exemplification, 172. Probate, save and except, 268. ccBterorum, 269. Probate in Solemn Form, 331. requisite for obtaining, 332. generally irrevocable, 333. Procedure in a suit of proving a will in Solemn Form, 341. in non-contentious business, 75. Production of Deeds, &c., 29, 356. of will by Registrar on trial, 21. of testamentary papers, how enforced, 29, 78, 367. GENERAL INDEX. Proof, adminicular of a will, 37, 176. of will in solemn form 36, 43, 337. when applicant not next of kin, 37, 39. Proofs, to lead grant, 36. in detail of wills, 176. Property in county left by deceased, founds jurisdiction, 25, 37. affidavit of, 231. See Real E.state. Propouni) a will, parties cited to, 336. Proving a will. {See Probate.) Proxie-s. 368. 521 Quebec, exemplifications from, 294. Q - ESTioNs TO THE J URY, Con. B. , 26, 355. See Jury. Real E.state, interpretation, 422. grant by Surrogate Court of county in which deceased had, 25 will aflFecting, heirs, Ac, may be cited, 43, 157, 389. value of, to be included in bond, wlieu, 47. Receivers, 14. Recitals in oaths and letters, 77. Record, Surrogate Court, a Court' of, 16. in contentious business, 356, 387. finding of the jury or decision of the Judge entered on, 389. Records of former Court of Probate, 60. Reference to Superior Courts, 33. Reference, incorporation of papers by. See Incorporation. Registering will under Registiy Act, 17, 292. Registrar of Surrogate Court.s, 10. duties, 20, 21, 80. fees to, 54. death, resignation or removal of, 19. of county of York, 10. oath of office, 19. office in Court House, 20. office to be depository of wills of living persons, 20. may prepare application, affidavits, 82. duties as to estates of small value, 62. office hours, 81. communications to, from Surrogate Clerk, 89. Rehearing a Cause. Con. B., 358. Relations, persons dying without known, 219, 307, 428. m M\ 522 OENERAL INDEX. Removal of cause to Court of Chancery. *Vi Chancery, 33, 86. of guardian, 71. Renunciation, 320. by executors and others, 50, 320. executor forfeits becinest by, 50. prior to limited administration, 77. by nonappearance to a citation, 311, 323. notice of, to Surrogate Clerk, 80. Replication. filin(4 and delivery of, 347. Representative, personal necessity for, 144. of widow or next of kin, 217. Republication of will by codicil, 184. See Revival. Reservation of power to executor to prove, 172. Residence of infant in county, gxiardian, (>">. Residuary Legatee. definition of, 233. preference of, inter .•<.■, 234, 239. grant to, 217, 233, 234. personal representative of, 233, 234. assignee of (by voluntary assignment), 235. Residuary Leoatkk for Lifk, grant to, See also ADMiNisiHATioN (Will) nin, how shown, 218, 219. Stamps, fees paid in, 53. SxATirxB-s (Ontario), Act respecting Surrogate Courts, 15. Act respecting guardians of infanta, 05. Proof of wills in actions and suits, 417. Proofs of proceedings in Provincial and Coluuial Courts, 418. Foreign judgments, 419. The Wills Act ofOntario, 421. Respecting administration by the Crown of estates[uf intestates in cer- tain cases, 427. Imperial, pnnnirn. Stay ok Pkockekinos, 41, 3G8. on appeal, S~k SuBPcKNA, or Subpcena Duces Tecum, 28, 29, 388. to bring in script, 115. Subscription of non-attesting witness excluded from probate, 189. Su(;cK.ssioN, 144. of office of administrator by Attorney-General, 428. SuaoESTioN on record, 48, 308. Suit, commencement of, 331 . failing to prosecute, 435. Summons taken out by party cited, 311. after appearance, 311. Summonses, rule as to, 308, 393. Supplemental, or second grants, 283. Sureties. {See Bond.) SURROOATE ClKRK, 18. an otticer of the Court of Chancery, 1 0. duties of. 40, 41, 42, 86, 87, 132. list of grants to be transmitted to, 21, 40, 84, 88. returns to be made to, 21, 05. notices to, 82. office hours, 86. Surrogate Court.s Act, 15. SuRROQATE CouRTH, establishment of, 12, 16. courts of law and record, 16. OENEKAL INDEX. 625 70. i:8. atoa in cer- 189. 8URRO Validity of, will disputed, 43. probate, evidence of, when, 16, 17, tried in Surrogate Courts, 330, 331. I! t ! 526 GKNKRAL INDEX. m ' Eg. J . riff WIK' Vaiidity {rontinnvi]), of payinonts imdor revoked grants, 49. of marriaye, 20!). Vauianck hotiveen application and afUdavits, TO. Void and voidable grants, 25. WxiiNiNii TO Caveat. See Cavkat. Widow, administration to, 203, 211. jointly, with next of kin, 2.37. excluded from administration, 211. of unsound mind, 212. WiFK of felon, administration of eft'ects of, 210. Will, interpretation, 15, 422. cliuracturi.stics of, 177. atte.station, 17!>, 1H2, 188, 423, 493. execution sworn to, 182, 185, 423. probate of. (.S'lc I'kobatk.) duplicate, 171. sent abroad for examination of witnesses, 32. codicils proved with, 171. proved without a iiiiyated codicil, 172. proved alone, when codicil has been lost, 244. authentic copy of, proved, 172. probate of, curlier, 173. marked with insanity, passed over, 177. shown by atlidavit to be invalid, passed over, 189. marked when sworn, 78, 279, 434. evidence in support of, when rc([uiretl, 173. alterations, how enj,'ro3sed, 433. other papers, &c., incorporated with, 198, copy of will proved, 172. contents of, proved, 244. draft of, i)roved, 243. substance of, proved, 244. of /cmc luivfiii', 248. otlicial copy may be oV)tained, 45. proof of, in actions and suits (8tat. ), 417. of wife of felon convict, 210. papers incoq)orated by refe'.ence. {See Incorporation.) Bubptuna to produce on trial, 21, 417. delivery out of Registry, 21. of living person. (.sVe Drpo.sitouy.) of Soldiers or Mariners, 101. foreign, how proved, 289. made before 1st January, 1874, 182. GENERAL INDEX. 527 Wills Act of Ontario— power to dispose of property by will (Sec. 10), 423. Will of person under twenty-one years invalid (Sec. 11), 423. to be in writing (Sec. 12), 423. execution of, 423. attestation, 423. position of signature, 423. appointment by, in exerci.se of power (Sec. 13), 424. of Soldier or Mariner (Sec. 14), 424. publication, other, not required (Sec. 15), 424. incompetency oi attesting witne.s3, not to invalidate (Sec. 10), 424. devise or l)e(piest to attesting witness void (Sec. 17), 425. creditor admitted a witness notwithstanding charge (Sec. 18), 425. executor not inccmipetent as witnesj (Sec. ID), 425. revoked by marriage (Sec. 20), 425. not by i.rcsumption of intention, alterati<.n in circumstances (Sec 21), 425. ^ how revoked, viz., by codicil, &c. (Sec. 22), 425. obliteration, interlineation, or otiier alteration (Sec. 23), 42(5 revoked Wills, how revived (Sec. 24), 420. operates as to testator's interest at time of his death (Sec. 25) 42C sjteaks from death (Sec. 20), 420. ' WiTNE.s.sKS, attendance of, 2!», 857. allowance to, 410. Subscription of non-attesting, excluded, 189. negativing executiim, 18!). interested, 183, 424, 425. WlTNKS.SK-S ANO EvUIENCE, 28, 2f/. examined (trally in open Court, 24. commission for examination of, 31, 32. subscribing, to swear to execution, 70, 179, 182. absence of to be accounted for, (J ltd See E v ID E M ■ K. ) Words, atrocious, <.tren3ive, or libellous, excluded from probate, 160, or figures restored, 192. YoKK, County of, special provisions as to appointment of Registrar. 19 terms of Court, 28. o i • suits pending in Court of Probate transferred to, 330h.