intestate.

pounds after payment of debts and such intestate shall have left 36 VICTORIA, any child or children under age, the curator may pay or cause to No. 427. be paid the balance of such estate after payment of the debts of under £100 such intestate to his widow or to any person having the care or to widow of custody of his children without seeing to the application thereof and without incurring any liability in respect of such payment, and shall certify to an account in favor of such widow or other person accordingly.

estate exceeding

22. When an estate of any intestate of which administration curator may inshall have been granted to the curator shall exceed One hundred vest balance of pounds the Curator may cause the balance of such estate after £100 in Victorian pay- Government ment of the debts of such intestate to be invested in the purchase stock. of Victorian Government Stock in the name of the Treasurer, and the interest payable on the stock shall be placed to the credit of "The Intestate Estate Fund," to the account of such estate; and it shall be lawful for the Treasurer from time to time, on the written request of the curator, to sell any or all of the said stock and for that purpose to sign any transfers which may be required and to place the proceeds thereof to the credit of "The Intestate Estates* * Sic. Fund" to the account of the same estate: Provided that no such transfer shall be made until a receiver of revenue appointed in that behalf has certified that he has received the purchase money of the stock so to be transferred.

tered by Curator,

23. Every estate of which administration shall be granted to Duty payable on the Curator shall be liable to pay the duty mentioned in the schedule estates administo the said Act No. CCCLXXXVIII., and such duty shall within one year after the grant of administration be passed to the credit of the consolidated revenue on an account to be certified by the Curator, and shall be calculated upon the balance to the credit of such estate after the satisfaction or allowing for the satisfaction of all debts of which the Curator at that time shall have notice: Provided always that if probate of the will or administration of the estate of any deceased person upon whose estate such duty has been paid shall be at any time afterwards granted no further duty shall be payable

thereon.

Council to fix
Curator's

24. The Governor in Council may from time to time fix the Governor in amount of commission payable to the Curator, but so that the same shall not exceed Two pounds ten shillings per centum on the moneys commission. received by him in respect of any particular estate, and such commission may be a commission varying according to the amount of the particular estate, and may be either in addition to or in substitution for any salary as the Governor in Council shall from time to time determine and may be limited to a maximum amount in the whole.

may be allowed commission.

25. It shall be lawful for the court or the Master to allow out Executors, &c., of the assets of any deceased person to his executor administrator or trustee for the time being, in passing his accounts, such commission or percentage not exceeding Five pounds per centum for his pains and trouble as shall be just and reasonable. No such allowance shall be made to any executor administrator or trustee who shall neglect or omit without a special order of the court or a judge to

36 VICTORIA, pass his accounts (a) pursuant to any general or special rule or order of the court.(6)

No. 427.

Administration bond to be executed

20 & 21 Vict. c. 77 s. 81.

Amount of pe

tration bond.

Ib. s. 82.

26. Every person to whom a grant of administration shall be made shall previous to the issue of such administration execute a bond to the chief 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 by rule direct 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.

27. Such bond shall be in a penalty equal to the amount under nalty in adminis- which the property of the deceased shall be sworn if such amount shall not exceed Five thousand pounds, and shall be in a penalty of Five thousand pounds where such amount shall exceed that sum; but the court 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 it shall think fit direct that more bonds than one shall be given so as to limit the liability of any surety to such amount as the court shall think reasonable, and may in place of such bond accept the security of any incorporated company or guarantee society approved of by the Governor in Council in such form and under such regulations as the judges of the said court shall from time to time by rule direct.

Order may be made to assign the bond.

Ib. s. 83.

Caveat may be lodged.

28. The court may on application made on motion in a summary way, and on being satisfied that the condition of any such bond has been broken, order the registrar to assign the same to some person to be 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 bond.

29. Any person may lodge with the registrar a caveat against any application for probate or administration at any time previous to such probate or administration being granted, and every such caveat shall set forth the name of the person lodging the same, and an address within the city of Melbourne at which notices may be served on him.

(a) Where no suit is pending, the court has no jurisdiction to direct accounts of real estate, devised to trustees before this Act, to be passed before the Master.-In re Rolfe, 5 A.J.R., 92.

(b) The court has a discretion to allow or withhold the commission on a consideration of all the circumstances-allowance is the rule, disallowance the exception. When testator verbally promises commission, the court will allow it.In the will of Pender, 4 A.J.R., 141.

The allowance of commission is discretionary, and the court will be slow to grant remuneration for pains and trouble taken before the coming

into operation of the Act, on the ground that then there was no reason to expect payment, the provisions of 15 Vict., No. 10, s. 16, having practically ceased to be acted on.-In re Rolfe, ubi sup.

This section is retrospective and applies to the estates of persons dying as well before as since December 1872. The personal representative of the deceased only may be allowed commission; but an executor of such personal representative has no claim.-In re McEwan, 5 A.J.R., 90.

Where a caveat

grant order nisi.

30. In every case in which a caveat shall be lodged the court 36 VICTORIA, may, upon motion on behalf of the person applying for probate or No. 427. administration supported by affidavits upon which if there had been no caveat probate or administration would have been granted, make lodged court may an order nisi for the grant of probate or administration to the person applying, and every such order shall name a time for showing cause against the same, and the court may enlarge such order from time to time.

nisi.

31. Every such order nisi and every order enlarging the same service of order shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.

does not appear.

32. If upon the day named in the order nisi or upon the day to proceeding which such order shall have been enlarged the caveator do not where caveator appear such order nisi may be made absolute upon an affidavit of service, but if the caveator appear the hearing shall be conducted in the same manner as nearly as may be as upon a trial at law (a) and the order nisi may be made absolute or discharged with or without costs as may be just, and if the court shall so direct such costs may be paid out of the estate.

nisi.

33. Upon the hearing of any order nisi the parties shall be at Evidence on liberty, subject to regulations to be made by such rules as aforesaid, hearing of order to verify their respective cases in whole or in part by affidavit, but 20 & 21 Vict. so that the deponent in every such affidavit shall on the application c. 77 s. 31. of the opposite party be subject to be cross-examined by or on behalf of such opposite party orally in open court, and after such crossexamination may be re-examined orally in open court by or on behalf of the party by whom such affidavit filed.

jury.

34. If any question of fact shall arise in any proceeding under Questions of fact this Act the court may if it shall think fit cause the same to be tried to be tried by a by a jury before the court itself or before any judge of the court, and the same shall be tried in the same manner as an issue under section six of the " Equity Practice Statute 1865."

lodged by curator

35. In any case in which a caveat is lodged by the Curator the where caveat court may if it thinks fit order costs to be paid to the said Curator court may order out of the estate whether the rule nisi be discharged or not.

payment of costs out of estate.

where executor

36. In any case where the executor named in a will shall neglect Proceeding or refuse to prove the same or renounce probate thereof within six neglect to prove weeks from the death of the testator the court may upon the will. application of any person interested in the estate or of the curator or of any creditor of the testator grant an order nisi calling upon the executor to show cause why probate of the said will should not be granted to such executor, or in the alternative why administration with such will annexed should not be granted to the applicant, and upon affidavit of service of such order if the executor do not appear or upon cause being shown it shall be lawful. for the court to make such order thereon for the administration of the estate and to make such order as to costs as shall appear just.

(a) As to the right to begin on the hearing of the rule nisi, see In re Evans, 5 A.J.R., 63.

36 VICTORIA, No. 427.

ministrator to file

37. If any executor or administrator shall have heretofore failed or shall fail to file a statement as required by the seventh section of Court may order the said Act No. CCCLXXXVIII., the court may on the application executor or ad- of the Master or of counsel instructed by him order that such statement re- executor or administrator do file such statement within a time to be quired by Act 388. named in such order, and may enforce such order as orders are now enforced by the Supreme Court in its equitable jurisdiction, and may make such order as to costs as shall seem just.

curator of the estates of deceased persons shall be administrator of all and singular the property of O.P. deceased [with the will of the said O.P. annexed].

An Act to Consolidate the Law relating to Aliens.

[9th May 1865.]

E it 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:

1. This Act shall come into operation on the first day of June Title of Act. in the year of our Lord One thousand eight hundred and sixty-five; and shall be called and may be cited as "The Aliens Statute 1865."

2. The Acts mentioned in the First Schedule hereto to the Repeal of Acts. extent to which the same are therein expressed to be repealed shall First Schedule. be and the same are hereby repealed; but nothing herein contained shall (except as hereinafter expressly mentioned) affect any act or thing lawfully done or any right acquired or any letters of naturalization granted or any memorial certificate enrolment or copy made or signed under or by the authority of either of the said Acts before the coming into operation of this Act; and all acts and things lawfully done and all rights conferred under or by virtue of either of the Acts repealed by the Act in the First Schedule hereto lastly mentioned and existing at the time of the coming into operation of the said last-mentioned Act shall be deemed to have continued and to have had and to have the like force and effect as if the said last-mentioned Act and this Act had not been passed.

hold real and per

3. Notwithstanding any law or usage to the contrary, every alien Allen friends may friend resident in Victoria may inherit or otherwise take by represen-sonal property.