Preamble. Section 36 of 20 V. c. 5, repealed. Preamble. Court of Pro exercised by the Surrogate Courts. CAP. XCII. An Act further to amend the Law in Upper Canada respecting the Court of Error and Appeal. [Assented to 16th August, 1858.] ER Majesty, by and with the advice and consent of the follows: 1. The thirty-sixth section of the Act passed in the twentieth year of Her Majesty's Reign, intituled, An Act to amend the Laws in Upper Canada, respecting Appeals, and to alter the Constitution of the Court of Error and Appeal, is hereby repealed. An Act to amend the Law in relation to the jurisdiction and procedure of the several Surrogate Courts in Upper Canada, and to simplify and expedite the proceedings in such Courts. W [Assented to 16th August, 1858.] HEREAS it is expedient that all jurisdiction in relation to the grant and revocation of Probate of Wills and Letters of Administration should belong to and be exercised by the several Surrogate Courts in Upper Canada, and that the law in relation to such Surrogate Courts should be amended and the proceedings therein be simplified and expedited: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: 1. The Court of Probate for Upper Canada is hereby abolishbate abolished ed; and all jurisdiction and authority voluntary and contentious and testamen- in relation to matters and causes testamentary, and in relation tary jurisdiction to be to the granting or revoking Probate of wills and letters of administration of the effects of deceased persons having estate or effects in Upper Canada, and all matters arising out of or connected with the grant or revocation of Probate or Administration, shall be exercised in the name of Her Majesty, in the several Surrogate Courts in Upper Canada, and each Surrogate Court shall hold its Sittings in the County Town of each respective County. Sittings of A Surrogate lished in each County with 2. In and for each County in Upper Canada there shall be a Court of Law and Record to be called "The Surrogate Court" of each respective County, over each of which Courts one Judge shall preside; and there shall also be a Registrar, and such Officers Officers as may be necessary for the exercise of the jurisdiction to the said Courts belonging. 3. Every Judge of the said Surrogate Courts appointed after Judges and this Act comes in force, shall, before executing the duties of his Registrars to office, take the following oath before some one authorized by take oath of law to administer the same : office. 66 "I, do solemnly and sincerely promise and swear, Form of Jud"that I will duly and faithfully, and according to the best of ge's oath. 66 my skill and power, execute the office of Judge of the Surrogate Court of the (County or United Counties, as the case "may be) of 66 So help me God." And every Registrar of the said Surrogate Courts shall, before he shall be entitled or qualified to act as Registrar under this Act, take the following Oath before the Judge of the Court, or some other person authorized by law to administer the same : "I, do solemnly and sincerely promise and swear Form of Re"that I will diligently and faithfully execute the office of gistrar's oath. "Registrar of the Surrogate Court of the (County or United "Counties, as the case may be,) of and that I will "not knowingly permit or suffer any alteration, obliteration or "destruction to be made or done by myself or others on any "Wills or testamentary papers, or other documents or papers "committed to my charge. So help me God." : 4. The said Surrogate Courts respectively shall have full Powers and power, jurisdiction and authority to issue process and hold jurisdiction of cognizance of all matters relative to the granting of Probates, and Courts Surrogate committing letters of administration, and to grant Probate of Wills and commit letters of administration of the goods of persons dying intestate, having estate, goods, rights or credits in Upper Canada, and to revoke such Probate of Wills and letters of administration and the said Surrogate Courts, respectively shall have jurisdiction and authority to hear and determine all questions, causes and suits in relation to the matters aforesaid, and to all matters and causes testamentary; and such Courts To have the respectively shall also have the same powers (subject to the same powers provisions herein contained,) and its grants and orders shall as the present have the same effect throughout all Upper Canada, and in rela- bate in certion to the personal estate of deceased persons, as the Court of tain matters, Probate for Upper Canada, and its grants and orders respectively now have in relation to those matters and causes testamentary now within its jurisdiction, and those effects of deceased persons dying possessed of goods and chattels over five pounds in value, in two or more Counties in Upper Canada, and all duties which by Statute or otherwise are imposed on or should be exercised by the said Court of Probate, or the Judge thereof in respect of Probates, Administrations and matters and causes testamentary, and the appointment of Guardians and 20* otherwise, Court of Pro Exception. Terms or times of sit ed. otherwise, shall and may be performed by the said several Surrogate Courts and the Judges thereof, within their respective jurisdictions; Provided that no suits for legacies, or suits for the distribution of residues shall be entertained by any of the said Surrogate Courts. 5. In order that certain stated times may be fixed for hearing and determining matters and causes in contentious cases and ting prescrib- business of a contentious nature in the said Surrogate Courts respectively, there shall be four Terms or times of Sitting in each year for the purposes aforesaid, which shall severally commence on the First Monday in the months of January, April, July and Giving judg- October, and end on the Saturday of the same week; and the Judges of the several Courts may appoint one or more days for the giving of Judgment after Term in the same way as is provided by law in respect to County Courts. ment after term. To what par the grant of Probate or Administra tion shall be long; and effect of Pro 6. The grant of probate or letters of administration shall beticular Courts long to the Surrogate Court for the County in which the testator or intestate had at the time of his death his fixed place of abode : And if the testator or intestate had no fixed place of abode in or resided out of Upper Canada at the time of his death, such grant may be made by the Surrogate Court for any County in which the testator or intestate had personal or real estate at the time of his death; and probate or letters of administration by whatever Court granted shall, unless revoked, have effect over the personal estate of the deceased in all parts of Upper Canada. bate and Administration. Courts to have 7. Each of the said Surrogate Courts shall be provided seals; and ex- with a suitable seal to be approved of by the Governor, and emplifications the Judges of the said Courts may respectively cause the same and copies under such seal from time to time, with the approval of the Governor, to be broto be received ken, altered or renewed; and all Probates, Letters of adminis in evidence, Power to re or witnesses, and to examine them. tration, grants, orders, Letters of guardianship and other instruments and exemplifications, and copies thereof respectively, purporting to be sealed with the seal of any Surrogate Court shall in all Courts and in all parts of Canada, be received in evidence without further proof thereof. 8. The said Surrogate Courts respectively may require quire attend the attendance of any party in person or of any person whom ance of parties it may think 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 or affirmation, 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 or solemn affirmations, 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 such attendance and order As to production of Deeds and Instruments, &c. to to be produced before itself or otherwise any Deeds, evidences or writings. force their vested in 9. Every Surrogate Court shall have the like powers, juris- Powers of diction and authority for enforcing the attendance of persons Courts to enrequired by it as aforesaid, and for punishing persons failing, orders and deneglecting or refusing to produce deeds, evidences or writings, crees, to be sior refusing to appear or be sworn or make affirmation or to milar to those give evidence, or guilty of contempt, and generally for enforcing County Courts all orders, decrees and judgments made or given by the Court for like purunder this Act, or under any other Acts giving jurisdiction to poses. Surrogate Courts and otherwise in relation to the matters to be enquired into and done by or under the orders made under this Act, as are by law vested in the said County Courts, as Courts of law and as Courts having equitable jurisdiction, for such purposes in relation to any suit or matter depending in such Courts. respect to the Instruments. 10. Every Surrogate Court may, on motion or petition or Orders and otherwise in a summary way, whether any suit or other pro- proceedings in ceeding shall or shall not be pending in the Court with respect production of to any probate or administration, order any person to produce Instruments and bring before the Registrar of the Court or otherwise, as the purporting to be testamenCourt may direct, any paper or writing being or purporting to tary. be testamentary, which may be shown to be in the possession or under the control of such person: and if it be not shown Examination that any such paper or writing is in the possession or under of persons the control of such person, but it shall appear that there are touching such reasonable grounds for believing that he has knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined before the Registrar or in open Court or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing as he would have been subject to in case he had been a party to a suit in the Court, and had made such default; and the costs of any such motion, petition or other proceeding, shall be in the discretion of the Court. Commission administer 11. The Judges and Registrars of the said Surrogate Judges, ReCourts respectively, shall have full power to administer oaths gistrars and in matters and causes testamentary and in all other matters in ers in Q. B. any of the said Courts; and Commissioners for taking affida- and C. P., to vits in either of the Superior Courts of Common Law in have power to Upper Canada, shall also have full power respectively to administer oaths in all matters and causes testamentary and in all other matters in the said Courts to parties desirous of making affidavit or deposition before them respectively. Any person who shall wilfully give false evidence, or who shall wilfully swear or oaths. False swear affirm falsely in any affidavit or deposition before any of the ing to be per- said Surrogate Courts, or before any Judge or Registrar thereof, jury. or before any Commissioner as aforesaid, shall be liable to the penalties and consequences of wilful and corrupt perjury. Penalty for same in evi 12. If any person forges the signature of any Judge or Reforging or gistrar of a Surrogate Court, or of any Commissioner for taking counterfeiting affidavits as aforesaid, or forges or counterfeits any Seal of a seal or signature of officers, Surrogate Court, or knowingly uses or concurs in using any or tendering such forged or counterfeit signature or seal, or tenders in evidence any document with a false or counterfeit signature of such Judge, Registrar or Commissioner, or with a false or counterfeit seal, knowing the same signature or seal to be false or counterfeit, such person shall be guilty of felony and liable to be imprisoned in the Provincial Penitentiary for any term not exceeding seven years. dence. Practice of the Courts, general rule as to. Rules and orders to be made for regulating the procedure of the Courts, and by whom. Amendment of such rules. Mode of tak in contentious 13. The Practice of the said several Surrogate Courts shall, except where otherwise provided by this Act or by the Rules or Orders to be from time to time made under this Act, be, so far as the circumstances of the case will admit, according to the Practice in Her Majesty's Court of Probate in England. 14. And to the intent and end that the Procedure and Practice of the said several Surrogate Courts may be of the most simple and expeditious character, it shall be lawful for the Governor at any time after the passing of this Act, to appoint one of the Judges of the Superior Courts of Common Law at Toronto, one of the Judges of the Court of Chancery, and one County Court Judge in Upper Canada, to frame General Rules and Orders in relation to the provisions of this Act, and the said Judges or any two of them are authorized and empowered to make Rules and Orders to take effect when this Act shall come into operation for regulating the Procedure and Practice of the said Surrogate Courts and in relation to their jurisdiction and proceedings under this Act,—and for regulating the duties of the Surrogate Clerk,--the duties of the several Surrogate Court Registrars and other officers of such Courts,-and for determining what shall be deemed contentious and what non contentious business, and (subject to the express provisions of this Act) for regulating the manner of appealing from the decisions of the said Surrogate Courts, and generally for carrying the provisions of this Act into full and beneficial effect; and after this Act shall come into force, it shall be lawful for the said Judges, or any two of them, from time to time, ro repeal, amend, add to or alter any such Rules and Orders as to them shall seem fit. 15. Subject to the regulations to be established by such ing evidence Rules and Örders as aforesaid, the witnesses, and where necesmatters. sary, the parties in all contentious matters where their attendance can be had, shall be examined orally by or before the Judge |