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in force in Ontario, and equivalent provisions to those in New Brunswick and Nova Scotia have never been enacted in Ontario. The Statute of Ontario of December, 1869, which admits an interested witness to give evidence, says nothing about devises or legacies to witnesses to wills being void. Thus, in the absence of any knowledge, as to what may have been done by the Courts of Upper Canada on this subject, it would appear that on the first point as to the validity or invalidity of a will of freehold, witnessed by one to whose wife or husband a devise or legacy has been left (under the Statute, George II), the question remains open; secondly, if the devise or legacy was to the husband or wife of the witness, it would not be affected at all if the will was sustained; and thirdly, it having been decided that the statute did not apply to personal property, a person directly interested by a legacy to himself, or his wife, in sustaining a will, may be admitted as a witness to prove the will creating the interest without forfeiting or affecting the legacy—a principle inconsistent with the policy of the same Act (Ontario, December, 1869), which, while allowing parties to a cause, or interested in its results, to give testimony in their own favour, yet, in an action brought by or against executors or administrators, excludes the testimony of the survivor, as to what may have been said or done to him by the deceased, whose representatives are the other party to the suit; thus, the testator being dead, a claimant who is a witness to a will of personal property, might prove the document, giving to himself or his wife £500; but in a suit brought by him to recover £5 from the testator's estate, he would not be admissible as a witness to prove that the testator promised to pay him £5.
The 1st Victoria, chapter 26, has been substantially re-enacted in New Brunswick and Nova Scotia; not so in Ontario.
The revocation of a will by a subsequent marriage, and its non-revocation by a change of circumstances, or otherwise, than by a will or codicil duly made, is the same in all three Provinces. In New Brunswick and Nova Scotia, obliterations, interlineations, or alterations made in a will after its execution (except when the words or effect of the will before alteration is not apparent) shall have no effect, unless alteration is executed as required for a will; and no will or codicil which has been revoked is to be revived, otherwise than by a duly executed will or codicil reviving it.
In Ontario no such provisions.
In all three Provinces, a conveyance of a part of an estate made after the execution of a will, is not to affect the operation of the will upon the part not conveyed.
In Ontario and New Brunswick, both with reference to real and personal estate, the will is to be construed as if executed immediately before the death of the testator.
In Nova Scotia the same provision exists, and there is also a clause that executors are to be trustees for the conveyance of real or personal property contracted to be sold, though the same may have been disposed of in the will.
In New Brunswick and Ontario, there is no clause of this latter character. Such a case would be left to the operation of law either by a bill for specific performance, or an action on the contract for damages.
In New Brunswick and Nova Scotia, specific provisions are made, that devises failing, become part of the residuary estate; a devise of freehold to comprehend leasehold, when no freehold existed answering the description in the will; and the provisions with reference to the execution of powers of appointment as to real and personal estate are the same in both Provinces.
In Ontario, none.
In all three Provinces it is provided that devises of real estate without words of limitation, pass the freehold or the entire estate of the testator, unless the contrary clearly appears from the will.
In New Brunswick and Nova Scotia, similar provisions with reference to the lapsing of estates-tail or quasi-entail, in case of the death of the devisee during the lifetime of the testator, leaving inheritable issue, are made, declaring that such devise shall not lapse, but take effect as if the death of the devisee had happened immediately after the death of the testator.
In Ontario, none.
In New Brunswick, there is an express provision that a devise of real estate to a trustee without any express limitation of the estate to be taken by him, and without any remainder over after the trust has been executed, shall vest in the trustee the fee simple or other entire legal estate of the testator, and not an estate determinable after the trust has been satisfied.
In Nova Scotia and Ontario there is no such provision.
In New Brunswick and Nova Scotia, provision is made that a devise to a child, who dies in the lifetime of the testator leaving issue, shall enure to the benefit of the issue.
In Ontario, none.
In New Brunswick and Nova Scotia, provisions are made for the construction of the words in a will.
In Ontario, none.
In the three Provinces, wills affecting lands must be registered; but the term within which a subsequent purohaser may be affected by the non-registration varies in each.
In New Brunswick, if there has been suppression, or concealment, or delay arising from the will being contested, under certain circumstances the term varies from six months to three years.
In Ontario, under the Registry Act, 1868, chapter 20, to affect subsequent purchasers, wills must be registered within twelve months next after the death of the devisor, testator or testatrix, or in case the devisee is disabled from registering the will within the said time, by reason of its being contested, or other inevitable difficulty, without his or her wilful default or neglect, then within twelve months after attainment of the will or probate, or removal of the impediment preventing the registration.
In Nova Scotia there are no exceptions or provisions of this character; but there is a provision, that for the suppression of a will, there shall be a forfeiture of £5 for every month '' the offender shall suppress a will after the lapse of the first thirty days." (Section 28.)
In New Brunswick, there is the same penalty of £5 for any person guilty of suppressing a will, in the Act regulating Courts of Probate; or if the executor does not prove and cause the will to be registered, or renounce his executorship within thirty days after the death of the deceased without just excuse for the default.
In all three Provinces, stealing or fraudulently suppressing or destroying a will is provided for under the head of Crimes.
In Quebec the law respecting Wills is in part laid down in the Civil Code as follows:—
Art. 831. Every person of full age, of sound intellect, and capable of alienating his property, may dispose of it freely by will, without distinction as to its origin or nature, either in favour of his consort or of one or more of his children, or of any other person capable of acquiring and possessing, and without reserve, restriction, or limitation; saving the prohibitions, restrictions, and causes of nullity mentioned in this code, and all dispositions and conditions contrary to public order or good morals.
Art. 184. A wife may make a will without the authorization of her husband.
Art. 842. Wills may be made: 1. In notarial or authentic form; 2. In the form required for holograph wills; 3. In writing and in presence of witnesses, in the form derived from tbe laws of England.
Art. 843. Wills in notarial or authentic form are received before two notaries, or before a notary and two witnesses; the testator, in their presence and with them, signs the will or declares that he cannot do so, after it has been read to him by one of the notaries in presence of the other, or by the noiary in presence of the witnesses. Mention is made in the will of the observance of the formalities.
Art. 844. Authentic wills must be made as originals remaining with the notary. The witnesses must be named and described in the will. They must be of the male sex, of full age, and must not be civilly dead, nor sentenced to an infamous punishment. Aliens may serve as witnesses. The clerks and servants of the notaries cannot. The date and place of its execution must be stated in the will.
Art. 845. A will cannot be executed before notaries who are related or allied to the testator or to each other, in the direct line, or in the degree of brothers, uncles, or nephews. The witnesses, however, may be related or allied to the testator, to the notary, or to one another.
Art. 849. Wills made in Lower Canada, or elsewhere, by military men in active service out of garrison, or by mariners during voyages, on board ship, or in hospital, which would be valid in England as regards their form, are likewise valid in Lower Canada.
Art. 850. Holograph wills must be wholly written and signed by the testator, and require neither notaries nor witnesses. They are subject to no particular form. Deaf mutes who are sufficiently educated, may make holograph wills, in the same manner as other persons who know how to write.
Art. 851. Wills made in the form derived from the laws of England (whether they affect moveable or immoveable property), must be in writing, and signed at the end with the signature or mark of the testator, made by himself or by another person for him in his presence, and under his express direction (which signature is then or subsequently acknowledged by the testator as having been subscribed by him to his will then produced, in presence of at least two competent witnesses together, who attest and sign the will immediately, in presence of the testator and at his request. Females may serve as attesting witnesses, and the rules concerning the competency of witnesses are the same in all other respects as for wills in authentic formArt. 853. In wills made in the last mentioned form, legacies made to any of the witnesses, or to the husband or wife of any such witness, or to any relations of such witness (in the first degree) are void, but do not annul the other provisions of the will. The competency of testamentary executors to serve as witnesses to such wills, is subject to the same rules as in wills in authentic form.
Art. 840. Legacies made in favour of the notaries or witnesses, ot to the wife of any such notary or witness, or to any relation of such notary or witness in the first degree, are void, but do not annul the other provisions of the will. Testamentary executors, who are neither benefitted nor compensated by the will, may serve as witnesses to its execution.
Art. 2098. All acts inter vivos, conveying the ownership of an immoveable, must be registered at length or by memorial. In default of such registration, the title of conveyance cannot be invoked against any third party who has purchased the same property from the same vendor for a valuable consideration and whose title is registered.
Registration has the same effect between two donnees of the same immoveable.
Every conveyance by will of an immoveable must be registered either at length or by memorial with a declaration of the date of the death of the testator.
SECONDLY AS TO INTESTACY.
Real and Personal Estate.
In New Brunswick, the Act regulating Intestate's Estates is extremely short.
21st Vic., cap. 26, as explained by 22 Vic, cap. 25, A.D. 1858 and 1859.
As to Real Estate.
The Real Estate is to be divided equally (regard being had to advancements made before his death by the Intestate, so as to make all equal) amongst the children or their legal representatives, including in the distribution, children of the half-blood, reserving the widow's right as dower.
In case there be no children of the Intestate, then the next of kindred in equal degree and their representatives.
The Personal Estate (1st Vol. Rev. Stat. 283,) is apportioned one-third (J) to widow, residue in equal proportions among children and their representatives (per stirpes). The heir-at-law, notwithstanding an advancement to him of Real Estate by Intestate in his lifetime, shall nevertheless receive an equal share with the other children; but any other child having received any such advancement, shall be entitled only to such equal share, deducting the value of his advancement.
(Memo.) This is the only difference at present existing in favor of the heir-at-law, and probably escaped attention when 21st Vic, cap. 26, was passed.) If there be no children, or legal representatives of them, one-half goes to the widow, the residue equally