ANNO VICESIMO PRIMO GEORGII III. REGIS. 1781. Governor. At the General Assembly of His Majesty's Island of SAINT JOHN, begun and holden at CHARLOTTETOWN, the Eighth day of October, Anno Domini 1779, in the Nineteenth year W. PATTERSON, of the Reign of our Sovereign Lord GEORGE the Third, by the Grace of God, of Great Britain, France and Ireland, T. DESBRISAT, King, Defender of the Faith: President of And from thence continued, by several prorogations, to the w. BERRY, thirteenth day of February 1781, and in the twenty-first Speaker. year of His said Majesty's reign; being the fourth Session of the third General Assembly convened in the said Island. CAP. I. An Act to explain and amend an Act passed in the twentieth Repealed by 4 W. 4, c. 11 year of His present Majesty's reign, intituled "An Act to regulate the Salmon, Salmon Trout and Eel Fishery." CAP. II. Repealed by 6 Vic. c. 26, which An Act relating to Wills, Legacies and Executors, and for the settlement and distribution of the Estates of Intestates. Act came into operation on the 1st Jan'y. 1844. Any person may by last ment, devise lands, &c. E it enacted, by the Governor, Council, and Assembly, to give and devise, by his or her last Will and Testament, in Will and Testa- writing, and subscribed by the party so giving and devising, or by some other person in his or her presence, and by his or her express directions and authority, and attested and subscribed, in the presence of the devisor, by three or more credible witnesses, any lands, tenements, or hereditaments, whereof he or she shall, at the time of his or her so giving or devising the same by such will, be lawfully seized, either of a sole Estate in fee simple, or of any Estate in coparcenary, or in common, in fee simple, in possession, reversion, or remainder, as much as in him or her of right is to the said lands, tenements and hereditaments, or in like manner to devise any rents or profits out of the same at his or her pleasure: provided nevertheless, that Wills made for any lands, tenements or hereditaments, or of any rents or profits out of the same, by any feme covert, or person within the age of twenty-one years, idiot, or of unsound mind, shall not be good in law. Feme Coverts, Minors, &c. excepted. No devise in II. And be it further enacted, That no devise in writing, writing to be of any lands, tenements or hereditaments, shall be revocable, revocable, except by another otherwise than by some other Will or codicil, also in writing, Will or Codicil, subscribed in the presence of three or more witnesses. also in writing. No nuncupative Will to be deemed valid, except proved by the oath of three witnesses, &c. No testimony to be received to prove such Will, except, &c. Letters testa III. Be it further enacted, by the authority aforesaid, That from and after the publication hereof, no nuncupative Will shall be good, where the Estate thereby bequeathed may exceed the value of thirty pounds, except the same be proved by the oath of three witnesses, who were present at the making thereof, and unless it be proved, that the testator, at the time of pronouncing the same, desired the persons present to bear witness that such was his will, or words to that effect; and unless, also such nuncupative Will shall have been made during the time of the last sickness of the deceased. IV. And be it further enacted, That after the expiration of six months from the pronouncing the testamentary words, no testimony shall be received to prove any nuncupative Will, except the said testimony shall have been committed to writing within six days next after making the said Will. V. And be it further enacted, That no letters testamentary or probate of any nuncupative Will shall pass the seal of any not to pass any Court, till the expiration of fourteen days at least next after mentary, &c. tator's decease, the death of the testator; nor shall any nuncupative Will be Court till 14 at any time received to be proved, unless process hath first days after tesissued to cite or call in the relict, or next of kin to the deceased, &c. to the end that they may contest the same if they see cause: and all such witnesses as ought to be deemed to be good and competent witnesses in trials at law, shall be deemed good witnesses to prove any nuncupative Will or any thing relative thereto. No Will in wripersonal estato to be altered by word of mouth only, unless committed to writing in the lifetime of the their being appointed, to prove Will knowing of within 30 days, on penalty of VI. And be it further enacted, That no Will in writing, concerning any personal Estate, shall be repealed or revoked, nor shall any clause, devise or bequest therein be altered or changed by words or will (by word of mouth only), except the same be, in the life of the testator, committed to writing, and after the writing thereof, read unto the testator, and allowed by him, and proved to have been so done by three witnesses. testator. VII. And be it further enacted, by the authority aforesaid, Executors That if any executor or executors of the Will of any person deceased, knowing of their being so named and appointed, shall not, within thirty days next after the death of the testator, or his, her or their appointment being made known to him, her or them respectively, cause such Will to be proved and recorded in the Register's Office, or present the Will and give in a written declaration of his, her or their refusal of the executorship, every executor so neglecting his or her duty in that behalf (without just excuse made and accepted for such delay), shall forfeit the sum of five pounds every month from and after the expiration of the said thirty days, until he, she or they shall have caused probate of such Will to be made, or have presented the same in the manner above appointed each and every such forfeiture to be had and recovered by Application of action of debt in the Supreme Court of Judicature of this forfeiture. Island, at the suit of any of the heirs or creditors who shall or may prove, to the satisfaction of said Court, that any injury has accrued to him, her or them respectively by the said delay, and to and for the proper use of him, her or them, who shall inform and sue for the same: and upon any such refusal of the said executor or executors, the Judge shall order and commit administration of the Estate of the deceased, with the Will annexed, unto the widow, or next of kin to the deceased; and in case of their refusal, to one or more of the principal creditors, as he shall or may think fit. VIII. And be it further enacted, That if any person or persons shall be found guilty of suppressing any Will and Testament, such person or persons shall be subject and liable to the same penalty as is directed in and by this Act for persons neglecting to prove any last will and testament. IX. And be it further enacted, That where any certain £5 for every month's delay. Mode of reco very. Penalty for sup pressing Wills. Legacies ascer able at common law. legacy is or shall be bequeathed and given by any person in tained, recover- his or her last Will and Testament, as also where any residuary or uncertain legacy is, or shall, by the account of any executor, be reduced to a certainty; in those cases, every such legacy and legacies may be sued for and recovered at common law; any law, custom, or usage to the contrary notwithstanding. Executors to exhibit an in ventory of the deceased, within three months after probate, estate of the on pain of £5 for each month's neglect. X. And be it further enacted, That henceforth every Executor named in any Will, and taking upon himself that charge, by proving such Will within the space of three months next after the probate thereof, (or at such further or longer time as the Judge of Probate shall think proper to allow, or the circumstances of the Estate may require,) shall exhibit in the Register's Office, upon oath, a full and true inventory of the whole estate of the deceased, so far as the same has then come to his hands and knowledge, on pain of forfeiting his office of executorship, together with the sum of five pounds for every month's neglect thereof, as is by law provided for not presenting a Will, and to be recovered in like manner: provided nevertheless, that in Wills where, after the payment of debts, and of any certain particular legacy or legacies, the residue or remainder of the Estate is bequeathed generally to any one or more persons, other than the executors themselves; in every in like manner such case an inventory of the estate is hereby required to be presented on oath as aforesaid, and the executors shall be liable to account as administrators are by law obliged to do: and any executor, being a residuary legatee, may bring his action Residuary lega of account against his co-executor or executors of the estate of tee may bring action of acthe testator in their hands, and may also sue for and recover count against his equal and ratable part thereof; and any residuary legatee executors. may have the like remedy against the executors. Executors liable to account as Administra tors. XI. And be it further enacted, That when and so often as it shall happen than any person dies intestate, upon the application of the widow, or next of kin, within thirty days after the death of such intestate, the said Judge of the probate shall Administration grant letters of administration to such widow or next of kin : and in case they neglect applying within the said thirty days, upon first citing such widow, or next of kin, and their refusing to accept the same, such Judge of Probate shall grant administration to such person or persons as he shall or may judge fit-creditors being always considered as having a preferable right to persons in no wise interested in the affairs of the deceased: and to whomsoever the said Judge shall grant administration, according to the regulations and directions contained n this Act, he shall oblige him, her or them to give bond, with sufficient sureties, in the manner as is directed by the Statute of the twenty-second and twenty-third years of the reign of Charles the Second, chapter the tenth, intituled An tates of intes tates. Aot for the better settling Intestates Estates; and shall and may proceed to call such Administrators to account for and touching the goods of the intestates; and upon due hearing and consideration thereof (all just debts and funeral expenses being first allowed), the said Judge shall, and he is hereby fully empowered to order and make a just distribution of the and distribusurplusage, or remaining goods and estate, as well real as per- tion of the essonal, in manner following: that is to say-one third part of the personal estate to belong to and vest in the wife of the intestate for ever, besides her dower in the houses and lands during life, where such wife shall not be otherwise endowed before marriage: and the said Judge having appointed Guardians, in manner as hereafter shall or may be by law directed, shall then, out of all the residue of such real and personal estate, distribute two shares, or a double portion, to the eldest son then surviving (where there is no issue of the first-born, or of any other elder son); and the remainder of such residue equally to and among his other children, and such as shall or may legally represent them: provided, that children advanced by settlement or portions, not equal to the other shares, shall vanced by have so much of the surplusage as may make the estate of all settlement. to be equal, except the eldest son then surviving (where there is no issue of the first-born, or of any other elder son), who shall have two shares, or a double portion of the whole. XII. And be it further enacted, That each estate wherewith such child or children shall have been advanced in the lifetime of the intestate, shall be accounted for upon the oath of such child or children, before such Judge of Probate of Wills and for granting letters of administration, or by other evidence to the satisfaction of the Judge; and in case of refusal to account upon oath, such child or children so refusing shall be debarred of any share in the estate of the intestate. Children ad Children adlifetime of the intestate, to account there vanced in the for on oath. XIII. And be it further enacted, That the division of lands Division of or tenements shall be made by five capable freeholders, upon lands. oath, or by any three of them, to be for that purpose appointed and sworn by the Judge: provided always, that if all the parties interested in such lands or tenements, being of lawful age, shall by deed agree to a division, such agreement, the same being acknowledged by the parties thereto before the Judge, and being entered on record in the Probate Office, shall be deemed a legal and valid partition and settlement of such estates, as effectually, to all intents and purposes whatsoever, as if the same had been divided and settled by writ of partition, and shall be received and allowed in evidence on any trial against the parties so interested in the said lands and tenements: provided nevertheless, that where any estate in houses and lands cannot be divided among all the children, without great prejudice to the whole, the said Judge may, on of estates in lands which houses and |