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II. And whereas it will be convenient for the inhabitants of this Province to be enabled to obtain Probate of Wills, and Letters of Administration within their several Districts ; Be it enacted by the authority aforesaid, That it shall and may be lawful for the Governor, Lieutenant Governor or person administering the Government in this Province, to institute, and he is hereby authorized to institute by commission under the Great Seal of this Province, in each and every District thereof, a Court for the purpose of granting Probate of Wills, and Letters of Administration of the Goods of Persons dying Intestate, having Personal Estate within the limits of each District respectively, which Courts shall be severally called and known by the names of the Surrogate Court of the Eastern District, the Surrogate Court of the Midland District, the Surrogate Court of the Home District, and the Surrogate Court of the Western District, and also to appoint from time to time, a Surrogate to preside as Judge in each of the said Courts, to hear, give, order, or decree, or pronounce judgment in all questions, causes or suits, that may be brought before him relative to the said matters, and also from time to time, to nominate and appoint a fit and proper person to be Register, and also such officers as may be necessary for the exercise of the jurisdiction to the said Courts belonging, and that each and every of the said Courts shall have full power and authority to issue process and hold cognizance of all matters relative to the granting of the Probate of Wills and Letters of Administration, and to grant Probate of Wills, and commit Letters of Administration of all and singular the goods and effects, rights and credits of persons dying Intestate, within the limits of their respective districts, except in the cases hereinafter mentioned.
Institution of a surrogate court in each district.
III. Provided always, That in all cases where a Testator or Intestate shall die possessed of goods, chattels, or credits to the amount of Five Pounds in any District, other than that in which he usually resided at the time of his decease, or when any Testator or Intestate shall die possessed of goods to tne value of Five Pounds, in two or more several Districts within this Province, the Probate of such Will and Letters of Administration of the goods and ef
Wlien testator or intestate dies possessed ul chattels or credits in different districts, probate of the will and letters of administration
fects of such person shall be granted by the Court of Probate only, and not sh«" be granted by the by any Surrogate Court. court of probate o.
, probate only
IV. And in order to give due authenticity to the acts and proceedings of the said several Courts, Be it enacted by the authority aforesaid, That each of the said Courts be provided with a suitable Seal; that on the Seal of the Court of Probate be inscribed the name of the Province; and on the several Seals of the Surrogate Courts the name of the District over which its juris- t . f
diction extends: and that a particular description of such Seals be respective- creury-sOffice" ly sent to the office of the Secretary of the Province, to be kept among tile Records of the Province. »
Seal nf each of the said courts.
A description where
V. Provided always, That no person shall be entitled or qualified to enter upon or execute the office of Surrogate in any of the Courts so to be established, until after he shall have taken the following oath:
"/, A. B. do solemnly promise and smear, that 1 will honestly and impartially execute the office of according to the best of my hnoidedge and ability.
So Help Me GOD."
Oath of the Surrogate
Oath of the register.
And (hat no person shall be entitled or qualified to act as a Register in any of the said Courts until after he shall have taken the following oath:
"/, A. B. do promise and swear, that I will diligently and faithfully execute the office of and that J will not knowingly permit or suffer any al
teration, obliteration or destruction to be made or done by myself or others, on any Wills or Testamentary Papers committed to my charge. So Help Me GOD."
VI. And be it enacted by the authority aforesaid, That every Will or TesEverywm or. testa- tamentary Paper, which shall be duly proved, approved and insinuated in
or in any Surrogate Court within this Province,
nientary paper to be the Court of Probate,
court,"nduie'traiisr.rip't ^c kept and preserved among the records of the said Court, and that a tranbeeheld^dru"ffidett^ro0 scr,Pt thereof duly authenticated under the Seal of the said Court, shall be Late. '' 1 r° taken and received as the regular Probate of such Will or Testamentary Paper, so far as the same may regard the disposal of any personal estate or effects, in all and every of His Majesty's Courts within this Province, or wherever it may be necessary to produce the same.
Circumstances required to render nuncupative wills good.
Period of lime within which proof of nuncupative wills is admissible.
Preliminary measures to betaken, previous to granting promote of nuncupative wills.
VII. And be it enacted by the authority aforesaid, That from and after the passing of this Act, no Nuncupative Will shall be good, where the estate thereby bequeathed shall exceed, the value of Thirty Pounds, that is not proved by the oaths of three witnesses at the least, that were present at the making thereof, nor unless it be proved that the Testator, at the time of pronouncing the same, did bid the persons present, or some of them,' bear witness that such was his Will, or to that effect, nor unless such Nuncupative Will were made at the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath been resident for the space often days or more next before the making of such Will, except when such person was surprized or taken sick being from his
her own home, and died before he or she returned to the place of his or her dwelling.
VJH. And be it furtIter enacted by the autlwrity aforesaid, That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any Will Nuncupative, except the said testimony or the substance thereof were committed to writing within six days after making the said Will.
IX. And be it further enacted by the authority aforesaid, That no Letters Testamentary, or Probate of any Nuncupative Will shall pass the Seal of any Court till fourteen days at the least after the decease of the Testator be fully expired, nor shall any Nuncupative Will be at any time received to be proved unless process have first issued to call in the Widow or next of Kindred of the deceased, to the end that they may contest the same, if they shall be so advised. v
Proof to be adduced of the demise of an intestate.
X. And be it enacted by the authority aforesaid, That no Letters of Administration shall bo granted by the Court of Probate, or by any Surrogate Court, of the goods, chattels or credits of any person represented as having died Intestate, until due proof be made before the said Judge or Surrogate, to his satisfaction, that such person is dead, and died Intestate.
XI. And be it further enacted by the authority aforesaid, That when application is made for Letters of Administration of the goods, chattels and credits of any person dying Intestate, by any person or persons not entitled to the same as next of Kin to the Intestate, the Judge of the Court of Probate, or Surrogate to whom such application shall be made, shall before the granting of the Administration, issue a citation to the next of Kin to the Intestate, summoning him or her to appear, and shew cause, if any they have, why the Administration should not be granted to the person or persons so applying, which citation shall be served upon the next ot Kin to the Intestate, residing within this Province, and if the next of Kin, nor any person of tiie Kindred of the Intestate shall happen to reside in this Province, then a copy of such citation shall be affixed up in some public place in the town where the Intestate did reside at the time of his or her death, at least ten weeks before the return thereof, and incasesnch Intestate did not reside within this Province at the time of his or her death,then a copy of the citation shall be published in the Upper-Canada Gazette, once in every month during the space of eight months before the returu thereof. Provided always, That in case the person next of Kin usually residing within this Province, and regularly entitled to Administer, should happen to be absent from the Province, it shall and may be lawful for the Judge of Probate or Surrogate, within the limits of his District, to grant a temporary Administration to the next of Kin who shall be in the Province, of the Intestate, during a limited time, or to be revoked upon the return and application of sucff nearest of Kin as aforesaid, and for that purpose to take sufficient Bonds from the party to whom such temporary Administration shall have been granted, for the surrender of such Letters of Administration, and to account for the same, in manner herein after to be mentioned.
XII. And be it further enacted by the authority aforesaid, That the Judge of Probate, and every Surrogate in his several District, shall and may upon their respective granting and committing Letters of Administration of the goods pf persons dying Intestate, take sufficient Bonds of the respective person or persons to whom any Administration is to be committed, with two or more able Sureties, respccfbeing had to the value of the estate, in the name of the Governor, Lieutenant Governor or person administering the government of the said Province, or with the condition in form and manner following, mutatis mutandis:
"The condition of this obligation is such, that if the within bounden A. B. Administrator of all and singular the goods, chattels and credits of C. D. deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come into the hands, possession or knowledge of him, the said A. B. or info the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited into.the registry of Court, on or before the day of next ensuing, and the same
goodSj chattels and credits, and all other the goods, chattels and credits of the said deceased, at the time of his or her death, which at any time after shall come into the hands or*po3session of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly Administer according to law, and further do make or cause to be made, a true and just account of his said Administration, at or before the day of .
and all the rest and residue of the" said goods, chattels and credits, which shall be found remaining upon the said administrator's account, the same being first examined and allowed by the Judge of the Court, for the time being, shall deliver and pay unto such person or persons respectively, as the said Judge by his decree or sentence, conformably to the provisions in a certain Act of Parliament, intituled, "An Act for the better settling Intestate Estates," and passed in the twenty-second and twenty-third year of the reign of Charles II. and also in a certain Act passed in the first year of King James II. contained, shall limit and appoint, and if it shall hereafter appear, that any last Will or Testament was made by the deceased, and the executor or executors therein named do exhibit the same unto the said court, making request to have it allowed and approved accordingly, if the said A. B. within bounden, being thereunto required, do render and deliver the said Letters of Administration (approbation of such Testament being first had and made) in the said Court, then this obligation to be void and of none effect, or else to remain in full force and virtue" which Bonds are hereby declared and enactsnch bonds pieada- e j to be good and binding to all intents and purposes, and pleadable in any Courts of Justice.
Method of making distribution of the proceeds of an intestate's estate.
After the term of one year.
Security to be given the administrator against demands which may arise after distribution.
XIII. And be it further enacted by the authority afwesaid, That it shall and may be lawful for the said Jude;e of Probate and Surrogate respectively, and they are hereby enabled to call by citation under the seal of their several Courts, such Administrators to account^ for and touching the goods of any person dying Intestate within their several jurisdictions, and upon hearing, and due consideration thereof, to order and make just and equal distribution of what remaineth clear, after all debts, funeral and just expences of every sort, first allowed and deducted, according to the provisions in the said Statutes herein before mentioned, contained. Provided always, to the end that a due regard be had to creditors, that no such distribution of the goods of any person dying Intestate be made, until after one year be fully expired, after the Intestate's death: and that such and every one, to whom any distribution and share shall be allotted, shall give Bonds with sufficient Sureties, in the said Courts, that if any debt or debts truly owing by the Intestate, shall be afterwards sued for and recovered, or otherwise made to appear, that then and in every such case, he or she shall respectively refund and pay back to the Administrator, his or her rateable part of such debt or debts, and of the costs of suit, and charges of the Administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said Administrator to pay and satisfy the said debt or debts, so discovered after the distribution made as aforesaid.
Process of the said courts respectively, in cases of dinobedience or contempt.
XIV. And in order to enforce, when it shall be necessary, due respect and obedience to the process, orders, sentence or decree of the said Courts, in all matters within their cognizance, Be it enacted by the authority aforesaid, That it shall and may be lawful for the said Judge of the Court of Probate, and his Surrogates within their respective Districts, and they are hereby authorized upon application made and supported by certificate from the Register or proper officer, of any neglect of, or disobedience to the regular process order or sentence of the Court, or upon any cemplaint to be verified upon oath, by any Apparitor, officer, or other person, of any wilful contempt or resistance
sistance to the regular processor sentence of the said Courts or any of them, or to the service thereof, to proceed against the parties, so withstanding, disobeying or offending, by attachment to be directed to the Sheriff of the District, who is hereby authorized and required (o execute the same; and in case the Sheriff return that the party is not found in his District, that the said Courts and each of them may issue a proclamation directed to the Sheriff of the District, which he is hereby authorized and required to make, that the said party do on his allegiance personally appear in the said Court, on a day in the said proclamation to be named; and in case the Sheriff return that the party is not found, and he do appear at the time and place as commanded, that the said Courts and each of them may proceed to a sequestration of the personal effects, goods and chattels of the said party in contempt, to be directed to certain persons to detain and keep the same, until the said contempt be cleared or the Court make order to the contrary.
XV. And be it further enacted by the. authority aforesaid, That in all cases where any Administration shall be granted with a Will annexed, either by the Judge of the Court of Probate in this Province, or by any Surrogate of any District of this Province, such Letters shall contain an express provision or condition that the Will of the deceased; in such Testament expressed, shall be observed and performed, and for such purpose that Bonds with two or more able and sufficient Sureties, shall be taken of the respective person or persons to whom such Administration shall be committed, in such M penalties as to the Judge or Surrogate shall appear reasonable, respect being had to the value of the estate of the said Testator, which condition may be as follows: "The condition of this obligation is such, that if the above bounden , Administrator (or Administratrix, as the case may be,) of all and singular the goods, chattels and credits of the said , deceased, with the Will of the said , annexed, and not administered by (as the case may be) do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said , deceased, which shall have come to the hands, possession or knowledge of the said , or into the hands and possession of any other person for the said , and the same so made do exhibit or cause to be exhibited (where such Bond shall be taken by the Judge of the Court of Probate) into the Registry of the Court of Probate of this Province, or into the Office of the Surrogate of the District of . at or before the expiration of six calendar months from the date of the above written obligation, and the same goods, chattels and credits, and all other goods, chattels and credits of the said deceased, at the time of his or her death, which at any time after shall come into the hands and possession of the said , or into the hands and possession of any other person or persons for the said , do well and truly administer according to the directions and true intentions of the Testator or Testatrix, (as the case may be) expressed in the Will to the Letters of Administration granted to the said , annexed, as the law directs, and further when thereunto lawfally required, do make or cause to be made a true and just account of Administration, then this obligation to be void and of none effect, or else to remain in full force and virtue." Which Bonds shall be of the same force and effect and may be prosecuted upon "the like occasions, and for the purposes and in the same manner as the Bonds taken upon the granting of Administrations of persons dying Intestate, hereinbefore set forth.
Sequestration ol'iim personal estate.
In administration granted with a will annexed, il shall be expressly conditioned, tlmt aucfa will shall be performed.
Form and condition of bond to tie entered into iu snob case.