The land transfer laws of Australasia: being the full text with side notes ... online

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cases of intestacy, and to consolidate and amend the law in certain
cases for the payments of debts due by persons deceased out of the real
estate of such persons : Be it therefore enacted by His Excellency the
Governor of Tasmania, by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled, as follows :

1. This Act may be cited as '* The Deceased Persons' Estates Act, Short title

2. This Act shall not come into operation until the first day of October, commenoe-
1874, which date is hereinafter referred to as the commencement of this ™®°* **^ ^^

3. In the construction of this Act, unless the context otherwise ipterpreta-
determines — COURT shall mean the Supreme Court of Tasmania : JUDGE

shall mean a Judge of the said Court : CURATOR shall mean the Curator
of Intestate Estates : ADMINISTRATION and ADMINISTRATOR shall
reepectivelv mean and comprehend Letters of Administration of the estates
of deceased persons, and Administrator whether with or without the will
annexed, and whether granted for general, special, or limited purposes :
PRESCRIBED shall mean prescribed by General Orders or Rules of Court
to be made by the judges as in this Act provided. (N. 3 ; Q. 61-3, 85-1.)

4. From and after the commencement of this Act all land which by the intestate
operation of the law relating to real property now in force would upon the heritable,
death of the owner intestate in respect of such land descend to his heir-at- J^^^J^JJJft
law, shall instead thereof pass to and become vested in his personal "^"® ^
representatives, in like manner as is now the case with chattel real property,

free from all claim to dower on the part of the widow of the intestate, and
from any tenancy by the courtesy, where such would have arisen under the
existing law. {Be McOarthy^ 19 ; Oamphell v. Jarrett^ 142.)

5. Lands held in trust or by way of mortgage passing to the personal Lwd to be
representative of an intestate under this Act shall be subject to the same {SJin^jJJ**
trusts and equities as the same would have been subject to if they had &c.
descended to the heir ; and all other lands so passing shall be included by

the administrator in his inventory and account, and be disposable in like
manner as other personal assets ; without distinction as to order of applica-
tion for payment of debts or otherwise, but such land shall not be aeemed
*' Personal Estate " within the meaning of section two of " The Probate
Duties Act/'

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A Jud|?e 6. It shall be lawful from time to time for a judge, upon the application

•t^Sorder ^^ *^® administrator or of any person beneficially interested, and after such

reiaUng prcvious uoticc (if any) to other parties and inauiry as he thinks fit, to

thereto order and direct the course of proceeding which shall be taken in re^rd to

the time and mode of sale of any land vested in the said administrator

under this Act — the letting and management thereof until sale — the

application for maintenance or advancement or otherwise of shares of

infants — the expediency and mode of effecting a partition if applied for —

and generally in regard to the administration of the property for the

greatest advantage of all persons interested.

Judge mftj 7* in any case wherein upon such inquiry the judge is satisfied that a

order parti- pi^ftitiou of the land would be advantageous to the parties interested therein,
it shall be lawful for such judge to appoint one or more arbitrators to effect
such partition, and to exercise in regard thereto, under his direction and
control, powers similar to those of commissioners acting under a decree in
equity for partition. The report and final award of the said arbitrators,
setting forth the particulars ot the land allotted to each party interested,
shall, when signed by them and confirmed by the order of a judge, and when
also registered in the office of the Kegister of Deeds, be efiectual without
the necessity of any further conveyance to vest in each allottee the land so
allotted. Where such land is held under "The Eeal Property Act" the
report and final award shall be produced to the Eecorder of Titles, who shall
thereupon, without requiring the signature of any memorandum of transfer,
issue certificates of title to each allottee of the land awarded to him upon
payment of the usual fee for a now certificate of titles. If such allotment
18 made subject to the charge of any money payable to any other party
interested for equalizing the partition, such charge shall take effect accord-
ing to the terms aud conditions in regard to time and mode of payment and
otherwise which shall be expressed in such award, without the necessity of
any further instrument being made or executed.
Act to apply g. The provisious of this Act shall apply to any executor to whom in
andoaxator" caso of partial iutcstacy land shall pass under this Act, to the Curator,
and to any other person fulfilling a like duty. (Campbell v. Jarretf^ 142.)

Adminiitra. 9. No oxecutor or administrator shall be re(juired against his own

^t to bJ* consent to continue the duty of a trustee by managing the property during
pr<Jojf«<* an enforced suspension of sale, but shall be entitled, upon such suspension
mt^o oon. |jg-jjg ordered, to relinquish his trust to such Officer of the Court or other

?erson as the Court or a Judge thereof appoints. {Outhbertson v. StocatHf
44 ; ea parte Pennington, 217.)
Tranraiia. 10, Whenever any land or any interest therein held under the provi-

SSeorTSSe "^^^^ ^^ ^^® ^®*^ Property Act is transmitted in consequence of the intestaiT-
on death of of the registered proprietor thereof, letters of administration, or the order
proprietor ^£ ^.^^ Court authorising the Curator to administer the real and personal
estate of the deceased proprietor of such estate or interest, or the real
estate only of the proprietor of such estate or interest, as the case may be,
accompanied by an application in writing from the administrator or Curator
claiming to be registered as proprietor in respect of such estate or interest.
Will or pro. ^^^ ^® produced to the Eecorder of Titles, who shall thereupon enter in
bate, or the Register Book and on the instrument evidencing title to the estate or
i^^is^tra- interest transmitted the date of the letters of administration or order of the
otcooHio' ^^^"^ ^^ aforesaid, the date and hour of the production of the same to him,
be produced the date of the death of such proprietor, when the same can be ascertained.

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with such other particulars as he may deem necessary ; and upon such entry
being made the administrator, or Curator, as the case may be, shall be
deemed to be the registered proprietor of such land or interest therein ; and
the Recorder of Titles shall note the fact of such registration by memo-
randum under his hand on the letters of administration, or other order so
produced to him as aforesaid. (Be Oraig, 76. N. 78 ; V. 66-105.)

11. Whenever any letters of administration are issued under which the Lettertof
administrator claims to deal with any land (other than land held under the ?^niff^^ng
provisions of The Real Property Act), such letters of administration shall iiwdtobe
be registered in the office of the Registrar of Deeds within six calendar "^^***'^
months^from the date thereof. The memorial of such letters of administra-
tion shall contain the name and the description of the intestate, the name

and description of the administrator, the date of the letters of administration
and a short description of the real property intended to be affected as nearly
as the same can be ascertained, and shall be signed by the administrator,
and shall be indexed as though the administrator were the sole devisee of
all the real property of the intestate under a will made by the deceased.
And a like memorial shall be registered by the Curator in respect of any
land with which he may claim to deal under the provisions of this Act, and
which is not held under The Real Property Act.

12. The real estate of every deceased person shall in all cases be assets Eeaiesute
in the hands of his executor or administrator for the payment of his debts for^he'p!'"-
in the ordinary course of administration and also for the payment of funeral ment of '^'
and testamentary expenses ; and it shall be lawful for such executor or **^^'"
administrator to sell such real estate, or a sufficient part thereof, or to mort- Real estata
gage the same with or without a power of sale, and to convey, assign, or bJTexMator
transfer the same to a purchaser in as full, ample, and effectual a manner as ^^J^™*"'''
the testator of such executor or the intestate of such administrator could

have done in his lifetime. The power hereinbefore conferred upon an noYtown
executor to sell or mortgage real estate of his testator shall not be exercised without
by any executor contrary to the provisions of the will of the testator, except jadge"*^
for the purpose of paying debts due by the testator, and then only with the
sanction of a Judge, which sanction it shall be lawful for but not incumbent
upon a Judge to give, upon application to be made in chambers upon a
petition or summons in such manner and form as may be prescribed, and
upon such notice and terms as such Judge may direct. (Saunders v. Cahot^
15 ; Camphell v. Jarrett, 142.)

13. In any action at law or suit in equity where, according to the Probat<^ or
existing practice, it would be necessary to produce and prove an original will l^^H^fJ
in order to establish a devise or other testamentary disposition of or affect- denco of the
ing real estate, it shall be lawful for tho party intending to establish in roncenJSig*
proof such devise or other testamentary disposition to give to the opposite *"*»* **^^»
party, ten days at least before the trial or other proceeding in which the tSr^iidity
said proof is mtended to be adduced, notice that he intends at the said trial °a{*Sn]^8uJ'
or otner proceeding to give in evidence as proof of the devise or other
testamentary disposition the probate of the said will or the letters of adminis-
tration with the will annexed, or a copy thereof stamped with the seal of

the Court, and in every such case such probate or letter of administration
or copy thereof respectively, stamped as aforesaid, shall be sufficient
evidence of such will and of its validity and contents, notwithstanding
the same may not have been proved in solemn form, or have been
otherwise declared valid in a contentious cause or matter unless the

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party receiving such notice shall, within four days after such receipt
give notice that he disputes the validity of such devise or other teste-
mentary disposition ; and every prohate or letters of administration shall
in all cases be primd facie evidence of the death, and the date of the
death, of the testator or intestate. (Saundert v. Oahoty 15 ; Pannan t.
Fannan, 16, 18 ; McArtney v. Ketterson, 17 ; re McCarthy, 19. Q. 84-6.)

M^i^iSfa. ^^* '^^ *^*^® ^^ *°^ administrator or curator to the land to be
tnaorto\ administered, and to the rents and profits thereof, shall, upon his appoint-
btck to^e° ™®°*> relate back to, and be deemed to have arisen upon, the death of the
death oi the owncr of Buch land, as if there had been no interval of time between such
"""^^^ death and appointment. (Q. 78-14, 16 ; V. 66-74, 14-74.)

ttatw under ^^* Evory administrator or curator in whom any land may become

this Act to vested under this Act shall be deemed a trustee within the meaning of
n*troTt™^^ any law now or hereafter to be in force relating to trusts and trustees, so
within far as the same concerns the application of income for or towards the
rustee cts nj^intenauce or education of an infant, and the accumulation and invest-
ment of the residue, and the application of the accumulations. (Pannan v.
Pannan, 18 ; re McCarthy, 19.)
Sr^Unl^th- 1®« ^^ *^y deed, will, or instrument (which would be capable according

outwordaofto any law now in force ot transferring the fee-simple of real estate)
pwlrfee*"'^ cxecutcd after the commencement of this Act, no words of limitation shall
be necessary in order to pass the fee-simple of any land thereby affected to
be dealt with ; but every such deed, will, or instrument eliall be construed
to pass the whole estate of the grantor or testator, unless a contrary inten-
tion appears on the face of such deed, will, or instrument. (Neil v. Lindsay,
94 ; re Woods, 95.)
menrof wiu l'» ^^^^^ pcrsou who, after the commencement of this Act, retains or

a miade- couceals auv wiU or codicil, or aids or abets in such retention or conceal-
meanour ment, with luteut to defraud any person, shall be guilty of a misdemeanour,
and being convicted thereof shall be liable to be imprisoned for any period
not exceeding two years ; and shall also be liable to an action for damages
at the suit of the persons defrauded or those claiming under them for any
loss sustained by them, or either or any of them, in consequence of sucn
retention or concealment ; but no prosecution for any such offence shall be
commenced without the sanction of the Attorney-Greneral, and no such
sanction shall be given without such previous notice of the application for
leave to prosecute to the person intended to be prosecuted, as the Attorney-
General directs. (Chisholm v. Capper, 86 ; Campbell v. Jarrett, 142.)

int^te**^ 18. The Curator shall have the like authority to apply to the Supreme

Estatee may Court or a Judge thereof for an order to manage and administer real estate,

order to' or real and perional estate, as he now has with relation to personal estate ;

"tat?** '**^ ^^^ *^® Supreme Court or a Judge shall, under the like circumstances, make

** the like order authorising the Curator to manage and administer the real

estate of any deceased person, or the real and personal estate of any

deceased person, as the said Court or a Judge is now empowered to make

for the collection, management, and administration of personal estate ; and

thereupon all land which by the operation of the law relating to real

property now in force would, upon the death of the owner intestate, in

respect of such land descend to his heir-at-law, shall instead pass to and

become vested in such Curator in like manner as is now the case with chattel

real property, but subject to any order which may from time to time be

made by the Supreme Court or one of the Judges.

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19. Nothing in this Act shall be deemed to render Her Majesty or the Limiution
Curator liable to any action, suit, or to proceeding, or to any claim or **^ ^^^^^J
demand whatsoever, tor omitting to apply for an order to administer goods

or freehold land, or for omitting to collect, recover, or convert into money
the goods or any real estate of any deceased person, or for omitting to
demand and receive, or to enforce payment of, toe rents and profits of any
real estate of any deceased person. {Mudgway and Davy v. Buick, 1 ; re
O'Brien, 34.)


20. Every clause in the several Acts mentioned in the Schedule (1) c^i7 viot.
hereto, shall be construed to extend to and include real as well as personal 25\^t?Vo.
estate as fully in all respects as if the words "real estate*' had been J^jj»ppi7
expressly mentioned therein. Mtata

21. The Curator shall be entitled to the like commission and fees for Cantor's
the management and administration of real estate under this Act as he is foi*S*wj^Jl.
now by law entitled to for the collection, management, and administration n»«nt of re«i
of personal estate. {Sbunders v. Gahotj 16 ; Pannan v. Fanncm, 16.) ~**^

22. A Judge of the Supreme Court may grant probate of a will or One Judge
letters of administration of the estate of an intestate as fully and effectually SJSbS? or
as the full Couit now has power to do, anything contained in any law or J*fK".*>^
charter to the contrary notwithstanding. tion ""*'*'

23. Every person to whom a grant of administration is made shall, Administm-
previously to the issue of such administration, execute a bond to the Chief be executed*
Justice of the said Court to enure for the benefit of the Chief Justice

for the time being, with two sureties conditioned for duly collecting,
getting in, and administering the real and personal estate of the deceased,
which bond shall be in such form as the Judges of the said Court shall
prescribe, and in the meantime shall be in the form heretofore in use :
Provided that it shall not be necessary for the Curator, or for any person
obtaining administration to the use or for the benefit of Her Majesty, to
execute any such bond. {Saunders v. Cahot, 16 ; Fannan v. Fannan^ 16 ;
McArtney v. Kesterson, 17.)

24. Such bond shall be in a penalty equal to the amount under which Amonnt of
the property of the deceased shall be sworn if such amount shall not exceed JSSJ-lJiit^
five thousand pounds, and shall be in a penalty of five thousand pounds tion bond
where such amount shall exceed that sum ; but a Ju:lge may in any case
dispense with one or both of the sureties, or direct that such penalty shall

be reduced in amount, and may also, if he thinks fit, direct that more bonds
than one shall be given so as to limit the liability of any surety to such
amount as he thinks reasonable, and may in place of such bond accept the
security of any incorporated company or guarantee society approved of by
the Governor m Council in such Ibrm and under such regulations as may be

25. The Court may on application made on motion in a summary way, order may
and on being satisfied that the condition of any such bond has been broken, ***,"*^.®i,^
order the Registrar of the Court to assign the same to some per»on to be SSnST
named in such order, and such person, his executors or administrators, shall
thereupon be entitled to sue upon the said bond in his or their own name

or names as if the same had been originally given to him, and shall be
entitled to recover thereon as trustee for all persons interested the full
amount recoverable in respect of any breach of the condition of the said

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Execntort. 26. It shall be lawful for the Court or a Judge to allow out of the

SioiSdw)m. assets of any deceased person to bis executor, administrator, or trustee for
misaion the time being, in passing his accounts, such commission or percentage, not
exceeding five pounds per centum, for his pa^ns and trouble As shall be just
and reasonable. No such allowance shall be made to any executor, admin-
istrator, or trustee who neglects or omits without a special order of the
Court or a Judge to pass nis accounts pursuant to any general or special
rule or order of the Court.

iVojijioM 27. The provisions contained in the 22nd, 23rd, 24th, 25th, and 26th

Bubsututed Sectious of this Act shall be substituted for and read and taken in lieu of

ofjSuce* the provisions as to probates and administrations contained in the Charter

of Justice granted by His late Majesty King William the Fourth on the

4th day of March, 1831, as far as the provisions of this Act are inconsistent

with the provisions of such Charter, but not further or otherwise.

DeTitMof 28. When any person dies seized of or entitled to any estate or interest

n^'tfoUim i^ any land or other nereditaments which shall at the time of his death be

nTo^nuw**' charged with the payment of any sum or sums of money by way of mort-

oot o?^. gSLgBf and such person shall not, by his will or deed, or other document,

BooaiMMts gj^y^ signified any contrary or other intention, the devisee to whom such

land or hereditaments shall be devised shall not be entitled to have the

mortgage debt discharged or satisfied out of the personal estate or any

other real estate of such person, but the land or hereditaments so charged

shall, as between the different persons claiming through or under the

deceased person, be primarily liable to the payment of all mortgage debts

with whicn the same shall be charged, every part thereof, according to its

value, bearing a proportionate part of the mortgage debts charged on the

whole thereof ; but nothing herein contained shall afPect or diminish any

Not to ftffeot right of the mortgagee of such lands or hereditaments to obtain full pay-

2^^j ment or satisfaction of his mortgage debt, either out of the personal estate

under any of the persou SO dying as aforesaid or otherwise; and nothing herein

mSlie^fore Contained shall affect the rights of any person claiming under or by virtue

Slit Decern, of any will, deed, or document made before the 31st day of December, 1858.

ber, 1868 (^SaundcTS V. Cchot, 15 ; re McCarthy, 19.)

in^conatra. 29. In the Construction of the will of any person who may have died

^eTi?*' after the thirty-first day of December, 1869, a general direction that the
dirM^Uon for debts or that all the debts of the testator shall be paid out of his personal
SeGs'ont^of estate shall not be deemed to be a declaration of an intention contrary to
^^tuTii'' or other than the rule established by the last preceding section, unless such
elude mort- Contrary or other intention shall be further declared by words, expressly or
SfM^Buct ^y necessary implication, referring to all or some of the testator's debts or
intention ex. debt charged byway of mortgage on any part of his real estate. (McAriney
gj;^ V. Kesferson, 17 ; Bank of Victoria v. Eatclings, 52.)

intdrprotA- 30. In the Construction of the last two preceding sections, the word

••mortel^ " Mortgage " shall be deemed to extend to any lien for unpaid purchase
money upon any lands or hereditaments purchased by a testator.

All epeciaitj 3L In the administration of the estate of every person who died on or

"ntaS?** *^^ *^® ^"* ^*7 ^^ January, one thousand eight hundred and seventy -one,
debt»of no debt or liability of such person shall be entitled to any priority or
^JJ^JTlo preference by reaaon merely that the same is secured by or arises under a
■^ iffrtft bond, deed, or other instrument under seal, or is otherwise made or consti-
equal degree ^^ ^ Specialty debt, but all the creditors of such person, as well specialty-

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as simple contract, shall be treated as standing in equal degree, and be paid
accordingly out of the assets of such deceased person, whether such assets
are legal or equitable, any statute or other law to the contrary notwithstand-
ing ; but this provision shall not prejudice or affect any lien, charge, or
other security which any creditor may hold or be entitled to for the payment
of his debt.

32. It shall be lawful for the judges of the court from time to time to gapreme
make, and from time to time to revoke and alter, general rules and orders f^me ""^
touching and concerning applications to the court or a judge under this f^^
Act, and the conduct and despatch of all business, matters, and things to be

done in relation thereto, and for the fees and charges to be paid and allowed
in reference to all such business; and to make rules for the ordinary
guidance of administrators in relation to real estate administered as personal
assets, either by inserting the same in letters of administration, or promul-
gating the same in like manner with other general rules affecting the
practice of the court. No such rules shall prejudice or control the effect of
any special order to be made by a judge upon such inquiry as aforesaid in
any particular case. Every such special order shall be subject to control or
revision by the full court on appeal thereto by the administrator or any
other party interested. A copy of all such rules shall be published in the
Gazette and laid before both Houses of Parliament within one month from
the making thereof if Parliament is then in session, and if Parliament be not
then sitting vdthin one month after the commencement of the next ensuing
session, and any rules so made shall be judicially noticed. (N. 134 ; Z. 198 ;
Q. 01, 107 ; V. 66, 162.)

33. From and after the commencement of this Act the Acts set forth BepMi
in the Schedule (2) shall be and the same are hereby repealed, except as to
acts done, liabilities incurred, privileges acquired, and proceedings taken

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 53 of 83)