CHAP. 138. Who may present petition under this Chapter. What petition must state. Governor-inCouncil may appoint commissioner. Notice to owner of land. CHAPTER 138. OF NECESSARY PRIVATE WAYS. 1.-(1.) Every owner or occupier of any mine, mill, quarry, farm, or factory who is desirous of transporting the produce of such mine, mill, quarry, farm or factory to a railway or public way, or to tidal or other waters or elsewhere, and every owner or occupier of any timber lands who desires to enter upon such lands and cut the timber or wood thereon and remove the same to a mill, railway, or public way, or tidal or other waters, or elsewhere, and who is unable to agree for a right of way with the owner or owners of any lands which it is necessary to cross in order to effect such entry or transportation, may present a petition to the Governor-in-Council. (2.) Such petition shall set forth,— (a) the nature of the business which such owner or occupier is desirous of carrying on; (b) a description of the property over which it is sought to obtain a right of way: (c) the width of such right of way; (d) the nature and extent of the right required; (e) the amount which such owner or occupier has offered to pay the owner or owners of the lands sought to be crossed for a right of way across the same, and shall pray that proceedings be taken under this Chapter to enable the petitioner to acquire a right of way across such land. 1898, c. 44, s. 1. 2.-(1.) Upon the presentation of such petition the Governor-in-Council may appoint a commissioner who, for the purposes of the inquiry herein provided, shall have power to summon before him any persons, and to require them to give evidence on oath or affirmation, and to produce such documents and things as such commissioner deems requisite. (2.) Upon such presentation the Provincial Secretary shall forthwith at the expense of the petitioner cause the owner of the land over which it is sought to cbtain a right of way to be served with a copy of such petition, together with a notice that a commissioner appointed by the Governor-in-Council will, at a time and place to be named in such notice, hear the application for such right of way and any objections thereto, and such petition and notice shal be so served not less than twenty days before the day so CHAP. 138. appointed. (3.) If such owner is absent from the province, service on Substituted him of such petition and notice may be made by publishing service. the same in a newspaper published in the county in which such lands lie for at least four issues of such newspaper. 1898, c. 44, s. 2. report. 3.—(1.) At the time and place so named such commis- Hearing and sioner shall hear such application and all objections thereto, and report the evidence taken by him to the Governor-inCouncil. Council may (2.) The Governor-in-Council, if satisfied that the right Governor-inof way sought to be obtained is actually necessary for the purposes for which it is sought and that it is otherwise just and reasonable that the same should be obtained, shall thereupon by Order-in-Council declare that the petitioner shall be entitled to acquire under the provisions of this Chapter a right of way over the lands mentioned in the petition or a part thereof. of to be defined (3.) Such order shall define the boundaries of such right Extent of way way, and shall specify the nature and extent of the right, and whether the right is to be acquired in perpetuity or for a term of years. 1898, c. 44, s. 3. granted through 4. If the commissioner finds on examination that No way to be the proposed right of way runs through any house, building, orchard or garden, he shall, without further enquiry, so report to the Governor-in-Council, and no further proceeding shall take place on such petition. 1898, c. 44, s. 8. Remuneration of 5. The petitioner shall pay such commissioner for his services such sum as is determined by the Governor-in-commissioner. Council, and the Governor-in-Council may make the payment of such sum a condition precedent to the making of the Order-in-Council declaring the petitioner entitled to acquire a right of way. 1898, c. 44, s. 4. pay costs. 6. If the application of the petitioner is refused the petitioner may Governor-in-Council may order such petitioner to pay to be ordered to the owner of the land, to defray the expenses incurred by such owner in opposing the application, such sum as the Governor-in-Council determines. 1898, c. 44, s. 4. made by 7. Before such commissioner is appointed the petitioner Deposit to be shall deposit with the Provincial Secretary the sum of one petitioner. hundred dollars, towards the payment of such commissioner for his services, and of any expenses incurred by the Governor-in-Council in connection with such petition, and of any sum ordered to be paid by the petitioner to the Notice of appointment of arbitrator. CHAP. 138. owner of the lands over which the right of way is sought in case of the application being refused. 1898, c. 44, s. 4. 8. Within thirty days after the making of such Orderin-Council, the petitioner shall serve a notice on the owner of the land over which it is sought to acquire a right of way, stating the name of one arbitrator, and requiring such owner to name another arbitrator, for the purpose of assessing the compensation and damages to be paid to the owner of such lands on account of the right of way sought to be acquired, and if such owner refuses or fails to notify the petitioner of the appointment of an arbitrator within ten days after service of such notice a judge of the Supreme Court or of a county court may appoint such arbitrator. 1898, c. 44, s. 5. Third arbitrator, how appointed. Arbitrators to payment of 9. The two arbitrators so appointed shall be notified by the petitioner of their appointment, and shall within twenty days after such notice choose a third arbitrator, and if they fail to choose such third arbitrator within twenty days after such notice to them, such third arbitrator shall be appointed by the Governor-in-Council. 10. Such arbitrators shall without delay proceed to assess the compensation to be paid in respect to the lands over which such right of way is acquired, and for the damages if any occasioned by the acquisition of such right of way, and shall file their award with the Provincial Secretary: 1898, c. 44, s. 6. Right to vest on 11. On payment to such owner of the amount so compensation, awarded a right of way as in the said Order-in-Council defined shall vest in the petitioner. 1898, c. 44, s. 7. Order and award to be registered. Expenses beyond amount of deposit to be paid by petitioner. 12. (1.) A copy of the Order-in-Council and of the award, certified under the hand of the Provincial Secretary, shall be registered in the registry of deeds for the registration district in which is situated the land over which the right of way is acquired. · (2.) The fees for such registration shall be those provided for the registration of deeds, and shall be paid by the petitioner. 13. If the amount deposited by the petitioner with the Provincial Secretary is insufficient for the purposes for which the same is required to be deposited, he shall pay any deficiency before any award is made by the arbitrators. 1898, c. 44, s. 9. TITLE XX. OF THE DESCENT OF PROPERTY. CHAP. 139. CHAPTER 139. OF WILLS. SHORT TITLE. 1. This Chapter may be cited as "The Wills Act." INTERPRETATION. Short title. 2. In this Chapter, unless the context otherwise requires : Interpretation (a) The expression "will" includes a codicil and an "will." appointment by will or by writing in the nature of a will in exercise of a power, and also a disposition by will and testament or devise of the custody and tuition of any child, and any other testamentary disposition; (b) The expression "real property" includes messuages, “Real property." lands, rents and hereditaments, whether of freehold or any other tenure whatsover, and wheresoever situated, and whether corporeal, incorporeal or personal, and any undivided share thereof, and any estate, right or interest, other than a chattel interest, therein; (c) The expression " personal property" includes lease- "Personal hold estates and other chattels real, and also moneys, property." shares of government and other stocks or funds, securities for money not being real property, debts, rights of action, rights, credits, goods, and all other property whatsoever, which by law devolves upon. the executor or administrator, and any share or interest therein; (d) The expression "issue" includes all lawful lineal "Issue." descendants of the ancestor. (e) The expressions "person" and "testator" include a " Person." married woman. R. S., c. 89, s. 34. TESTAMENTARY CAPACITY. 3. Any person may devise, bequeath or dispose of by what may be his will, executed as in this Chapter provided, all real devised. 394 WILLS. [VOL. 2. CHAP. 189. property and all personal property to which he is entitled, either at law or in equity, at the time of his death, and which if not so devised, bequeathed or disposed of would devolve upon his heirs-at-law or representatives. R. S., c. Infant cannot make will. Married woman may appoint executor. Formalities of execution. Signature to will. 89, s. 1. , 4. No will made by any person under the age of twentyone years shall be valid. R. S., c. 89, s. 2. 5. Any married woman may, without her husband's consent, make a will appointing one executor or more to a will whereof she is executrix, or an appointment by will made in pursuance of a power to be executed notwithstanding coverture. R. S., c. 89, s. 3. FORM AND MODE OF EXECUTION. 6. No will shall be valid unless it is in writing and executed in manner hereinafter mentioned, that is to say :It shall be signed at the end or foot thereof by the testator or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary. R. S., c. 89, s. 4. ལ. 7. Every will shall so far only as regards the position of the signature of the testator or of the person signing for him, be deemed to be valid 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 effect by such signature to the writing signed in his will, and no such will shall be affected by the circumstance, (a) that the signature does not follow, or is not immedi- (b) that a blank space intervenes between the con- (d) that the signature is on a side or page, or other |