An Act for amending the Law relating to the Estates of Deceased [23rd October 1872.] WHEREAS is deceased persons by their executors or HEREAS it is expedient to provide for the administration of administrators and otherwise to amend and simplify the laws relating to the administration of such estates and the practice of granting probates and administrations: Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): No. 427. 1. This Act shall come into operation on the first day of 36 VICTORIA, January One thousand eight hundred and seventy-three and may be cited as "The Administration Act 1872." Title and com mencement of First Schedule. 2. The several Acts mentioned in the First Schedule hereto to Act. the extent to which such Acts are in such schedule expressed to be Repeal of Acts. repealed shall be and the same are hereby repealed, except as to freehold lands for the administration whereof a rule has been granted and except as to acts done liabilities incurred privileges acquired appointments rules or orders made and proceedings taken under any of the said Acts. 3. The jurisdiction of the Supreme Court of the colony of Ecclesiastical juVictoria heretofore called "its ecclesiastical jurisdiction" shall be called probate exercised under the name of "its probate jurisdiction," and all jurisdiction. orders rules affidavits and other proceedings therein shall be entitled accordingly. 4. In the construction of this Act unless the context be incon- Interpretation. sistent with the meaning hereby assigned "Court" shall mean the Supreme Court of the colony of Victoria. "Curator" shall mean the curator of the estates of deceased "Master" shall mean Master-in-Equity of the Supreme 5. The court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within the colony of Victoria.(a) Probate or adgranted where ministration may be any person leaves real or personal property in Real estate to vest in executors or administrators. 6. Upon the court granting probate of the will or administra- Victoria. tion of the estate or a rule to administer the estate of any deceased person, all the hereditaments or all the hereditaments then unadministered of such person, whether held by him beneficially or in trust, shall vest as from the death of such person in the executor or administrator to whom such probate or administration or rule shall be granted, as the case may be, for all the estate therein of such person, and if there shall be more than one such executor or administrator shall vest in them as joint tenants.") 7. The real estate of every deceased person shall be assets in the Real estate to be hands of his executor or administrator for the payment of the duties ment of debts. and fees payable under "The Duties on the Estates of Deceased 9 Geo. IV. cap. 33. Persons Statute 1870," and for the payment of his debts in the ordi (a) Persons entitled to administration may (b) This section is prospective only. -Reg. themselves take, but cannot delegate their pri- v. Registrar of Titles, ex parte Grice, 4 A.J.R., ority of claim to the curator or any other person. In re Gallogly, 5 A.J.R., 49. VOL. I. 92. с No. 427. ministrator to s. 2. 36 VICTORIA, nary course of administration; and it shall be lawful for such executor or administrator to sell or mortgage such real estate with Executor or ad- or without a power of sale, and to convey the same to a purchaser in as full and effectual a manner in law as the testator or intestate of such sell or mortgage, executor or administrator could have done in his lifetime. This 9 Geo. IV. cap. 33. section shall apply to any executor or administrator to whom probate or administration or a rule to administer shall have been granted previously to the coming into operation of this Act as to any estate then unadministered. But nothing in this or the preceding section shall divest any real estate out of any administrator of freehold lands appointed previously to the coming into operation of this Act or affect the powers of any such administrator. In suits executor or administrator estate. 8. In all suits in equity concerning the real estate of a deceased to represent real person his executor or administrator shall represent his real estate and the persons interested therein in the same manner and to the same extent as in suits concerning personal estate the executor or administrator represents such estate and the persons interested therein. Real estate to be any will or if no will upon same trusts as if rule been granted. 9. Subject to the provisions of this Act the real estate of every held on trusts of deceased person devising such estate by his will shall be held by the executor or administrator of such person according to the trusts and to administer had dispositions of such will, and any real estate of any person who shall have died after the first day of July One thousand eight hundred and sixty-four intestate as to such estate shall be held upon the same trusts as if a rule had been granted for the administration of such estate under the law heretofore in force. And any real estate of any person who died on or before the first day of July One thousand eight hundred and sixty-four intestate as to such estate, shall be held upon trust for his heir at law. Larkin Drysdale 1 areup. Aust 17-75 136 52 3644275 Executor or ad- and be subject to same duties with tors or a minis trators have Probate to be evidence of wills All specialty and debts to stand in 10. The executor or administrator of any deceased person shall have the same rights and be subject to the same duties with respect to the real estate of such person that executors or administrators heretofore have had or been subject to with respect to personal estate, and shall perform the duties imposed on the administrator of freehold lands by "The Duties on the Estates of Deceased Persons Statute 1870," No. CCCLXXXVIII. 11. The probate of any will or letters of administration with a will annexed granted after the coming into operation of this Act shall be evidence of such will upon all questions concerning real estate in the same manner and to the same extent as heretofore in questions concerning personal estate, and every probate or letters of administration shall in all cases be primâ facie evidence of the death and the date of the death of the testator or intestate. 12. In the administration of the estate of every person who simple contr.et shall die on or after the first day of January One thousand eight hundred and seventy-three no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond deed or other instrument under seal or is otherwise made or constituted a specialty debt, but all the creditors of such person as well specialty as simple contract shall be treated as standing in equal degree and be paid accordingly No. 427. out of the assets of such deceased person, whether such assets are 36 VICTORIA, legal or equitable any statute or law to the contrary notwithstanding: Provided always that this Act shall not prejudice or affect any lien charge or other security which any creditor may hold or be entitled to for payment of his debt. rule to. 13. Whenever the court shall grant a rule to the Curator to Curator, form of administer the estate of any deceased person the same shall be in the form in the Second Schedule hereto. Second Schedule. book of appoint or administrator. 14. Upon the receipt of an office copy of the probate of any Entry to be made will or of any letters of administration or of a rule to administer in the register granted to the Curator whereby it shall appear that any person has ment of executor been appointed the executor or administrator of any deceased person, 29 Vict. No. 301 and upon the notification in the Government Gazette of the appoint- s. 73. ment of any succeeding Curator, the Registrar of titles shall on an application in writing of the executor administrator or Curator as the case may be to be registered as proprietor in respect of any land therein described enter in the register book upon the leaf constituted by the grant or certificate of title of such land a memorandum notifying the appointment of such executor administrator or Curator, and the day of the death of the proprietor when the same can be ascertained, and upon such entry being made such executor administrator or curator shall become the transferee and be deemed to be the proprietor of the estate or interest of the deceased proprietor in such land or of such part thereof as shall then remain unadministered and shall hold the same subject to the equities upon which the deceased held the same, but for the purpose of any dealings with such land every such executor administrator or curator shall be deemed to be the absolute proprietor thereof. If in any case probate or administration shall be granted to more persons than one all of them for the time being shall join and concur in every instrument relating to the land. No contribution to the assurance fund under the "Transfer of Land Statute" shall be payable on the registration of such executor administrator or curator. (a) 15. The Governor in Council may appoint one of the clerks in Appointment of the Master-in-Equity's office to be registrar of probates and adminis- registrar. trations and such registrar and every registrar to be appointed under this Act may remove, and upon the death resignation or removal of any such registrar may appoint another person in his stead, and every person so appointed shall be a barrister-at-law or proctor of the Supreme Court of the colony of Victoria of five years standing or a clerk who has had ten years experience in the office of the Master-in-Equity; and the Governor in Council may in case of absence or temporary incapacity of the registrar appoint some fit and proper person to act in his stead, and such person when so acting shall have and exercise all the powers and duties of the registrar; and no registrar shall during the time of his holding such office directly or indirectly practise as a barrister proctor solicitor or attorney or receive or participate in the fees of any other (a) This section is prospective, and applies into operation.-Reg. v. Registrar of Titles, ex only to estates of persons dying after it came parte Grice, 4 A.J.R., 92. 36 VICTORIA person so practising, and every such registrar shall act in the performance of his duties under the directions of the Master. No. 427. Practice of court in its probate jurisdiction. Power to make rules. In estates not exceeding £500 probate or administration to issue as of course. In such estates application for probate or ad be made to registrar of county court. 16. The practice of the court in its probate jurisdiction shall except where otherwise provided by this Act or by the rules to be from time to time made under this Act be regulated so far as the circumstances of the case will admit by the practice of the Supreme Court in its ecclesiastical jurisdiction heretofore in force. 17. It shall be lawful for the judges of the court to make rules for regulating the procedure and practice of the court and the duties of the registrar and generally for carrying the provisions of this Act into effect, and to repeal amend add to or alter any such rules as to them may seem fit. All rules to be made under this Act shall be published in the Government Gazette and shall be laid before both Houses of Parliament within ten days after their being promulgated, or if Parliament be not then sitting within the like time after Parliament shall thereafter assemble for the despatch of business. 18. Probate or administration may upon application to the registrar supported by affidavits upon which for the time being the court would in the opinion of the registrar grant such probate or administration be issued by the registrar as of course in the name and under the seal of the court in all cases where the real and personal property of the testator or intestate as the case may be shall be shown not to exceed five hundred pounds, and every such probate or administration shall be deemed to have been granted by the court: Provided always that the registrar shall not without an order of the court issue probate or administration in any case where a caveat has been lodged, or in any case in which it shall appear to him to be doubtful whether such probate or administration ought to be granted; and whenever the court shall make an order for the grant of probate or administration such probate or administration shall be issued by the registrar in the name and under the seal of the court. 19. In any case within the last preceding section the application may be made to the registrar of any county court who shall ministration may transmit the affidavits in support of the application and any further affidavits which may be required to the registrar, and the registrar if satisfied that such affidavits are sufficient shall issue the probate or administration as the case may be and shall transmit the same to the registrar of the county court who shall deliver such probate or administration to the applicant: Provided always that no probate or administration shall in any case be issued until the duty or fee under the said Act No. CCCLXXXVIII. has been paid as thereby - required. Curator may for a rule to 20. The curator may apply at any time to a judge of the court apply to a judge in chambers for a rule to administer the estate of a deceased person, and such judge shall have jurisdiction to grant a rule in all cases in which such rules have been granted by the court. administer. Curator may pay 21. When an estate of any intestate of which administration balance of estate shall have been granted to the curator shall not exceed One hundred |