estate of the deceased person, which certificate the surrogate registrar shall forward as soon as may be to the clerk. R.S.M. c. 41, s. 42.

41. All such notices shall be filed and kept by the said Applications surrogate registrar. R.S.M. c. 41, s. 43.

to be kept on file.

42. The surrogate registrar shall, with reference to every Duties of such notice, examine all notices of such applications received from the several surrogate clerks, so far as appears to be necessary, to ascertain whether or not application for probate or administration in respect of the estate of the deceased person has been made in more than one Surrogate Court, and he shall communicate with the surrogate clerks as occasion may require in relation to such applications. R.S.M. c. 41, s. 44.

of

ceedings to be

43. If it appears by the certificate of the surrogate regis-double applitrar that application for probate or administration has been cations promade to two or more Surrogate Courts, the judges of such stayed, etc. courts respectively shall stay proceedings therein, leaving the parties to apply to one of the judges of the Court of King's Bench, to give such direction in the matter as to him seems necessary. R.S.M. c. 41, s. 45.

Judge to

marily.

44. On application made to any judge of the Court of decide sumKing's Bench, he shall inquire into the matter in a summary way, and adjudge and determine what Surrogate Court has jurisdiction and shall proceed in the matter. R.S.M. c. 41, s. 46.

45. The judge of the Court of King's Bench may order Costs. costs to be paid by any of the applicants, and the order shall be enforced by the Court of King's Bench. R.S.M. c. 41, s. 47.

sion final

46. The determination of such judge shall be final and Judge's deciconclusive, and so soon as may be after such determination has been made the prothonotary of the Court of King's Bench shall transmit a certified copy thereof to the surrogate clerks of the several Surrogate Courts wherein such applications as aforesaid have been made. R.S.M. c. 41, s. 48.

CAVEATS AND PROCEEDINGS THEREON.

filed with

47. Caveats against the grant of probate or administra- Caveats to be tion may be lodged with the surrogate registrar or with the registrar or clerk of any Surrogate Court; and, subject to any rules or orders heretofore in force or made under this Act, the prac

clerk.

Practice.

Caveat lodged

be sent to

registrar.

tice and procedure under such caveats shall, as nearly as may be, correspond with the practice and procedure under caveats in use on the fifteenth day of July, 1870, in the Court of Probate in England. R.S.M. c. 41, s. 49.

48. Immediately on a caveat being lodged in a Surrowith clerk to gate Court, the clerk of such court shall send a copy thereof to the surrogate registrar to be entered among the caveats lodged with him; and, upon notice of an application being received from the clerk of a Surrogate Court under this Act, the surrogate registrar shall forward to such clerk, as soon as may be, notice of any caveat that has been so lodged as aforesaid touching such application, and such notice shall accompany, or be embodied with, the certificate herein before mentioned in this Act. R.S.M. c. 41, s. 50.

CITING PERSONS INTERESTED IN REALTY.

49. Where proceedings are taken under this Act for proving a will in solemn form, or for revoking the probate of a will on the ground of the invalidity thereof, or where in any other contentious cause or matter under this Act the validity of a will is disputed, unless the will affects only personal estate, the heir or heirs at law, devisees or other persons having or pretending to have any interest in the real estate affected by the will may, subject to the provisions of this Act and rules and orders relating to the Surrogate Courts heretofore in force or hereafter to be made under this Act, be cited to see proceedings or be otherwise summoned, in like manner as the next of kin or others having or pretending to have an interest in the personal estate affected by a will should be cited or summoned, and may be permitted to become parties, subject to such rules and orders and to the discretion of the court; but nothing herein contained shall make it necessary to cite the heirs at law or other person having a pretended interest in the real estate of a deceased person, unless the court, with reference to the circumstances of the case, directs the same to be done. R.S.M. c. 41, s. 51.

Judge may

cause any

TRIAL BY JURY.

50. The judge of a Surrogate Court may order any quesquestion to be tion of fact arising in any proceeding under this Act to tried by jury. be tried by a jury before the judge, and such trial shall take place at some ensuing sitting of a County Court in the judicial or surrogate district, and be conducted in the same manner as other trials by jury in the County Courts; and

the parties shall be entitled to their rights of challenge; and Practice. for all purposes of or auxiliary to the trial of questions of fact by a jury before a judge, and, in respect of new trials, the Surrogate Courts and the judges thereof respectively shall have the same jurisdiction, power and authority in all respects as belongs to the County Courts and the judges thereof for like purposes. R.S.M. c. 41, s. 52.

put in writ

51. When any such question is ordered to be tried by Question to be a jury before the judge, the question shall be reduced into ing. writing in such form as the judge directs, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence. R.S.M. c. 41, s. 53.

Oath of juror

WITNESSES AND EVIDENCE.

summon

52. Every Surrogate Court may require the attendance Court may of any party in person, or of any person whom it may think witnesses. fit to examine or cause to be examined in any suit or other proceeding in respect of matters or causes testamentary, and may examine or cause to be examined upon oath, as the case may require, parties and witnesses by word of mouth, and may, either before or after, or with or without, such examination, cause them or any of them to be examined on interrogatories, or receive their or any of their affidavits, as the case may be; and each of the said courts may by writ of subpoena or subpoena duces tecum, as the case may be, require Subpoenas. such attendance and order any deeds, evidences or writing to be produced before itself or otherwise. R.S.M. c. 41, s. 54.

may order all

produced.

53. Whether any suit or other proceeding is or is not The court pending in the court with respect to any probate or admin- papers to be istration, every Surrogate Court may, on motion or petition. or otherwise, in a summary way, order any person to produce and bring before the surrogate clerk, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary, and all deeds, documents, securities, writings relating to securities, contracts and obligations affecting the estate of any deceased person, which may be in the hands, custody or possession, or under the control, of such person. R.S.M. c. 41, s. 55.

be examined

54. If it is not shown that any such paper or writing Persons may mentioned in the last preceding section is in the possession respecting or under the control of such person, but if it appears that knowledge of there are reasonable grounds for believing that any person has knowledge of any such paper or writing, the court may

documents.

Judges, registrar and clerks may administer oaths.

Witnesses to

be examined orally.

Commissions may be issued.

on motion or petition, or otherwise in a summary way, order such person to attend for the purpose of being examined before the surrogate clerk, or in open court, or upon interrogatories, respecting the same, and, if so ordered, to produce and bring in such paper or writing, and the costs of any such motion, petition or other proceeding shall be in the discretion of the court. R.S.M. c. 41, s. 56.

55. The judges, the surrogate registrar, the surrogate clerks and commissioners for taking affidavits in any other courts of the Province shall have full power respectively to administer oaths in matters and causes testamentary, and in all other matters in the Surrogate Courts, to parties desirous of making affidavit or deposition before them respectively. R.S.M. c. 41, s. 57.

56. Subject to the regulations established by the rules and orders heretofore in force or hereafter to be made under this Act, the witnesses and, where necessary, the parties in all contentious matters, where their attendance can be had, shall be examined orally by or before the judge in open court; and, subject to any such regulations as aforesaid, the parties may verify their respective cases by affidavit; but the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open court as aforesaid, and, after such cross-examination, may be re-examined orally in open court, as aforesaid, by or on behalf of the party by whom such affidavit was filed. R.S.M. c. 41, s. 58..

57. Where a witness in any such matter is without the limits of Manitoba, or where by reason of his illness or otherwise the court does not think fit to enforce his attendance in open court, the court may order a commission to issue for his examination on oath, upon interrogatories or Examination otherwise, or, if the witness be within the jurisdiction of the under orders. court, may order his examination on oath, upon interrogatories or otherwise, before any person to be named in such order for the purpose. R.S.M. c. 41, s. 59.

Powers of court in

such cases.

58. All the powers given to the Court of King's Bench by law enabling the said court to issue commissions and make orders for the examination of witnesses in actions depending in such court and to enforce such examination, and all the provisions of law relating to said court for enforcing examinations or otherwise, applicable thereto and to the witnesses examined, shall extend and be applicable to the Surrogate Courts and to the examination of witnesses under the commissions and orders of such courts. R.S.M. c. 41, s. 60.

evidence.

59. The rules of evidence observed in the Court of Rules of King's Bench shall be applicable to, and observed in the trial of, all questions of fact in the Surrogate Courts. R.S.M. c. 41, s. 61.

attendance

60. Every Surrogate Court shall have the like powers, Enforcing jurisdiction and authority for enforcing the attendance of and producand production by persons required by it as aforesaid, and ton. for punishing persons failing, neglecting or refusing to produce deeds, books, documents, testamentary papers, evidences or writings, or refusing to appear or to be sworn or to make affirmation or to give evidence, or guilty of contempt, and, generally, for enforcing all orders and judgments made or given by the court under this Act, or under any other Acts giving jurisdiction to Surrogate Courts, and otherwise in relation to the matters to be inquired into and done by or under the orders made under this Act, as are by law vested in the County Courts, in relation to any suit, judgment summons or matter depending in such courts. R.S.M. c. 41, s. 25.

TRANSFER OF CONTENTIOUS MATTERS TO KING'S BENCH.

61. In every case in which there is contention as to the By consent. grant of probate or administration, and the parties in such case thereto agree, such contention shall be referred to and• determined by the Court of King's Bench, on a case to be prepared; and in such case the Surrogate Court having jurisdiction in such matter shall not grant probate or administration until such contention is terminated and disposed of by judgment or otherwise. R.S.M. c. 41, s. 62.

tion of one

62. Any cause or proceeding in a Surrogate Court in on applicawhich any contention arises as to the grant of probate or party. administration, or in which any disputed question may be raised as to law or facts relating to matters and causes testamentary, shall be removable by any party to such cause or proceeding into the Court of King's Bench, by order of a judge of the said court, to be obtained on a summary application supported by affidavit, of which reasonable notice shall be given to the other parties concerned. R.S.M. c. 41,

s. 63.

impose terms.

upon transfer

63. The judge making such order may impose such terms Judge may as to payment of, or security for, costs, or otherwise, as to him seems fit; but no cause or proceeding shall be so re- Restrictions moved unless it is of such a nature and of such importance as to render it proper that the same should be so removed, nor unless the estate of the deceased be of the value of two thousand dollars at least. R.S.M. c. 41, s. 64.