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in bankruptcy. But experience shows clearly that as a general rule the value of the estate is the measure of the composition, and creditors expect to receive from their debtors entering into a composition with them as nearly as possible the value of the estate, be it separate or joint, on which they have privileged claims, a small deduction being made for the expenses of realization. If then the rule in matters of bankrupt partnerships that each estate is to pay its own debts by privilege is to be maintained, our law in the matter of composition and discharge requires reform to place it in harmony with the other portions of the Insolvent Act,
As the law at present stands it would seem as if in the cases of insolvent partnerships but two courses are open to the insolvents and their creditors.
lo. To place the creditors of the firm and the separate creditors of the partners on the same footing as regards the composition, the majority of creditors in such case being the requisite majority in number and value of all such creditors regarded but as one masse.*
2o. To treat each partner as individually insolvent, the deed of composition and discharge being entered into between him and the joint creditors and his own separate creditors, all being placed upon the same footing as regards the composition. The said deed not to contain any reconveyance of either estate to the insolvent, but be merely a discharge from his liabilities, the estates to remain in insolvency. In such case, a sale of any or all of the estates might be effected to the insolvent after his discharge under the provisions of §42.
By adopting the course lastly pointed out, the commission of injustice would be avoided and the difficulties now surrounding composition and discharge in matters of partnership be removed.
William H. Kerr.
• Walker vs. Neville, 3 H. & C. 403.
WILLS AND INTESTACY.
The increased intercourse between the different Provinces of the Dominion brought about by Confederation, renders desirable a more general knowledge of the differences between them in the laws regulating the ordinary transactions of life. The business man from Ontario would be very apt to suppose that what he could do and would do in Ontario would under similar circumstances be a rule of conduct for him in Nova Scotia and New Brunswick. The same of the business man from Nova Scotia or New Brunswick in Outario. Called by the pursuits of trade to take up his temporary or permanent residence in one of the provinces other than that in which he had been previously living, it is important to know how the wealth he is accumulating may be disposed of by himself; or if he failed to will it, how tho law would do it for him. There are few things more ruinous to the peace of families than a disputed will; few more conducive to the well-being of a people than a judicious law of intestacy. It is proposed to examine the provisions made in Ontario, New Brunswick, and Nova Scotia in these respects.
FIRST AS TO WILLS.
In New Brunswick, a testator may, by his will, dispose of all property, and rights of property, real and personal, in possession or expectancy, corporeal or incorporeal, contingent or otherwise, to which he is entitled, either in law or equity, at the time of the execution of his will, or to which he may expect to become at 'any time entitled or be entitled to at the time of his death, whether such rights or property have accrued to him before or after the execution of his will.
In Nova Scotia, the same.
In Ontario, there is no provision of this general character, but by the Consolidated Statutes of Upper Canada, chapter 82, section 11, real estate, acquired subsequently to the execution of a will, would pass under a devise conveying such real estate as testator might die possessed of.
In New Brunswick and Nova Scotia, a testator must be twenty-one years of age.
In Ovtario, there is no provision to this effect.
In Nova Scotia, a married woman may, with the consent of her husband testified in writing, make a will of her personal property; a will of real and personal property to which she may be entitled in her own right, or for her separate use, and wills in a representative character. The last three, not in the language of the statute having the husband's assent appended to the clause.
It is presumed there must have been in Nova Scotia some judicial construction upon this section.
In New Brunswick, a married woman's right to make a will is left exactly as it was before passing of the Act, ohapter 110, 1st volume Revised Statutes, 1854, and the husband's assent is therefore requisite, except in case of desertion by her husband, when the right of disposal of property acquired by herself after desertion without his assent, might be presumed from 3rd section, chapter 114, 1st volume Revised Statutes ''of the real and per"sonal property of married women."
On this latter point, however, all doubt has since been removed, and the power greatly extended by Act of 1869, chapter 33rd.
In Ontario, it is specifically enacted that after the 4th May, 1859, a married woman may make a will, in presence of two witnesses—neither of whom is her husband—of her separate property, real and personal, to her children, and failing issue, then to her husband, or as she may see fit, as if sole; but husband's tenancy by the courtesy is not to be affected. Consolidated Statutes, Upper Canada, 794, 22 Vict., chapter 73, section 15.
The mode of the execution of wills in New Brunswick and Nova Scotia is the same. They must be in writing, executed by the testator at the foot thereof, or his signature thereto acknowledged by him in the presence of two witnesses, present at the same time, and'attesting in his presence and the presence of each other; but in New Brunswick, there is a further provision that though not signed at the foot thereof, its execution shall be deemed good, if it be apparent, from the will and position of the signature, or from the evidence of the witnesses thereto, that testator intended it as his last will.
In Ontario, there is no general statute as in Nova Scotia and New Brunswick, with reference to wills; but in the Consolidated Statutes, Upper Canada, chapter 82, section 13, it is provided that any -wills affecting lands, executed after 6th March, 1834, in the presence of and attested by two witnesses, shall be as valid as If in the presence of three, and attested by three, and it is sufficient if such witnesses subscribe in presence of each other, though not in the presence of the testator; in this latter respect differing from the laws of the other Provinces as well as from the law of England.
The Imperial Act of 7th, William IV. and 1st, Victoria, chapter 26, in amendment of the law with respect to wills, puts an end to the power existing under the pre-existing law, which infants male at 14, and infants female at 12, had of disposing by will of personal property (vide Jarman) ; but as this Statute does not operate in Canada, and there is no local Act on the subject, the law in this respect, in Ontario, differs from the law in New Brunswick and Nova Scotia.
In New Brunswick and Nova Scotia, soldiers in service and seamen at sea may dispose of their personal estate as before, and in Ontario, by section 83, chapter 16, the Act regulating Surrogate Courts, the same provision is made with reference to soldiers and seamen, with addition that no nuncupative will made after that Act came in force should be good (5th December, 1859); this latter provision was not necessary in New Brunswick and Nova Scotia, as it was there enacted that all wills should be in writing, saving the exception just named.
In New Brunswick and Nova Scotia, wills executed as provided under their Statutes, are valid without publication.
In Ontario, there is no such statutory provision. (Memo. It has been held in England that it is not necessary—though Hardwick, Chancellor, had previously decided that it was—of freehold lands. Vide Jarman, 1st volume, 74.)
In New Brunswick and Nova Scotia, incompetency of witnesses (by reason of interest arising from devise or legacy) to the execution of the will has been removed. The will is not thereby rendered invalid or incapable of proof. The witnesses are admitted, and, if proved, the will is declared valid; but the devise or legacy is made void, even if it be to the husband or wife of witness.
In Ontario, there is no statutory provision of this character (the Act, chapter 13, 1869, of the Ontario Legislation to amend the Law considered below); and while the Imperial Act 25th George II., chapter 6, which makes void the devise or legacy to the witness himself is in operation in Ontario, the 1st Victoria, chapter 26, extending the same consequence to a devise to the wife or husband of the witness, is not.
In New Brunsirick, creditors, whose debts are by the will charged upon the estate, are not incompetent as witnesses.
In Nova Scotia, similar provision.
In Ontario, none, but would come in under George II., chapter 6.
In New Brunswidc, no witness is rendered incompetent by reason of his being declared executor.
In Nova Scotia, the same.
In Ontario, no similar provision.
In both New Brunswick and Nova Scotia, objections as to the competency of witnesses in all legal proceedings (and, therefore, necessarily in the proof of wills) arising from interest or crime have long been removed by the Acts allowing parties to a cause to be witnesses; but those Acts in no way affect the provisions in the Acts relating to wills which declare legacies and devises to such parties void.
In Ontario, the law on this subject is apparently in a somewhat anomalous position. There are no such provisions relating to wills in any of the statutes which refer to wills, and it may be a question whether under the Act passed by the Ontario Legislature in December, 1869, entitled: "An Act to amend the Law of Evidence in Civil Cases," which removes the incompetency of witnesses arising from crime or interest, the difficulty of the question would be removed.
Under the English Law as prevailing before 1st Victoria, chapter 26, whether a will of freehold estate attested by a witness whose wife or husband had an interest in the will as devisee or legatee, would be invalid or not, was to some degree uncertain, though if the devise or legacy had been to the witness himself, under 25th George II, chapter 6, the doubt as to the invalidity is removed, because it clearly makes him competent, and declares the devise or legacy void. The Statute, 1st Victoria, chapter 26, repealed the 25th George II, chapter 6, except as to the Colonies in America, extended the removal of the incompetency of the witness, and the forfeiture of the devise wid legacy to the husband or wife of the witness as well as to the witness himself, and to personal estate as well as to real estate (it having been decided that the 25th George II, chapter 6, did not extend to wills of personal estate), but the 1st Victoria, chapter 26, is not