Imperial Acts Adoption Act 1836 No 12a (NSW)

No. VIII.

An Act for adopting certain Acts of Parliament passed in the Third and Fourth Years of the Reign of His present Majesty King William the Fourth in the Administration of Justice in New South Wales in like manner as other Laws of England are applied therein. [12th

August,	1836.]
cer ta in A c t s of Pa r l i amen t were passed in t he th i rd

WH E R E A S and fourth years of t he re ign of H i s present Majesty K i n g

Wi l l i am the F o u r t h in t i tu led respectively " An Act for the amendment

" of the Law relating to Dower" and " An Act for the amendment of

" the Law of Inheritance'" a n d whereas i t is expedient to adopt and

apply t h e said reci ted Ac t s of P a r l i a m e n t in the adminis t ra t ion of j u s ­

t ice in N e w South W a l e s Be i t therefore enacted by H i s Excel lency

t h e Governor of N e w South W a l e s wi th t h e advice of t h e Legislat ive Council thereof Tha t t he said reci ted Acts of Pa r l i amen t and every clause provision and enac tmen t the re in respect ively contained (save and except as hereinaf ter is provided) shall be and the same are and is

4 Q hereby

hereby adopted and directed to be appl ied in the admin is t ra t ion of jus t i ce in t h e said Colony and its Dependencies in l ike m a n n e r as

others Laws of E n g l a n d are the re in applied.

2. A n d whereas it is expedient t h a t t h e said reci ted Ac t s of

P a r l i a m e n t should not commence or t ake effect in t h e Colony of N e w South Wales un t i l t h e first day of J a n u a r y n e x t ensu ing Be i t enacted Tha t t h e said reci ted Ac t s of P a r l i a m e n t shall n o t commence or t ake

effect in t he Colony aforesaid before t h e first day of J a n u a r y in t h e

year one thousand e ight h u n d r e d and th i r ty-seven and t h a t every clause and provision in said reci ted Acts shall from and after t he said first day of J a n u a r y have only t he same force and effect in t he Colony of N e w South Wales as t h e same have had in His Majesty 's K i n g d o m of Eng land from and after t h e thir ty-f i rs t day of December in the year one thousand eight h u n d r e d and th i r ty - th ree and the first day

o f . J a n u a r y in	t he year	one t housand	e ight	hund red	and	th i r ty- four
respectively.

A N N O T E R T I O E T Q U A R T O G U L I E L M I I V . R E G I S .

C A P . CV

An Act for the amendment of the Law relating to Dower.

HE it enacted by the K i n g ' s Most Excel len t t h e advice and consent of t h e Lords Spi r i tua l and Tempora l and

Majesty by and wi th

Commons in th i s present P a r l i a m e n t assembled and by t h e au thor i ty of t h e same Tha t the words and expressions hereinaf ter ment ioned which in the i r ord inary signification have a more confined or a different m e a n i n g shall in t h i s Act except where t h e n a t u r e of t h e provision

or t h e context of t h e Act shal l exclude such cons t ruc t ion be in ter­

p re t ed as follows t h a t is t o say t he word " L a n d " shall ex tend to

m a n o r s advowsons messuages and all o the r he red i taments w h e t h e r corporeal or incorporeal (except such as are no t l iable to dower) and to any share thereof and every word i m p o r t i n g t h e s ingular n u m b e r only shal l ex tend and be applied to several persons or th ings as well as one

person or t h i n g .

2. A n d be it fu r ther enacted Tha t w h e n a h u s b a n d shall die

beneficially ent i t led to any land for a n in teres t which shall no t en t i t l e

his widow to dower out of t he same at law and such in teres t whe the r

wholly equi table or pa r t ly legal or pa r t ly equi tab le shall be an es ta te

of inher i t ance in possession or equal to a n es ta te of inher i tance in possession (other t h a n a n es ta te in jo in tenancy) t h e n his widow shal l be ent i t led in equi ty to dower out of t he same land.

3 . A n d be it fu r ther enacted T h a t w h e n a husband shal l have

been ent i t led to a r i gh t of en t ry or action in any land and bis widow would be ent i t led to dower out of t h e same if he h a d recovered possession thereof she shall be ent i t led to dower out of t h e same a l though he r husband shall not have recovered possession thereof provided t h a t such dower be sued for or obta ined wi th in t he period dur ing which such r igh t of en t ry or act ion m i g h t be enforced.

4. A n d be it fur ther enacted Tha t no widow shall be ent i t led to dower out of any land which shall have been absolutely disposed of by he r husband in his life t ime or by his will .

5.    A n d be it fur ther enacted Tha t all pa r t i a l es ta tes and interests

and all charges created by any disposit ion or will of a husband and all debts incumbrances cont rac ts and engagements to which his l and shall be subject or l iable shall be valid and effectual as against t h e ria?ht of h is widow to dower.

6,

6. A n d be it fur ther enacted That a widow shall no t be ent i t led to dower out of any l and of he r h u s b a n d w h e n in t h e deed by which such l and was conveyed to h i m or by any deed executed by h im it shall be declared t h a t his widow shall not bo ent i t led to dower out of such land.

7. A n d be it fur ther enacted Tha t a widow shal l no t be ent i t led to dower out of any land of which her husband shall die wholly or par t ia l ly in tes ta te w h e n by t h e will of he r husband duly executed for t h e devise of freehold es ta tes he shall declare his in t en t ion t h a t she shal l no t be ent i t led to dower out of such land or out of any of his land.

8. A n d be it fur ther enacted T h a t t h e r i gh t of a widow to

dower shal l bo subject to any condit ions res t r ic t ions or directions which shal l be declared by the will of he r h u s b a n d duly executed as aforesaid.

9. A n d be it fur ther enacted Tha t where a husband shall devise any land out of which his widow would be ent i t led to dower if t he same were no t so devised or any es ta te or interest there in to or for t he benefit of his widow such widow shall no t be ent i t led to dower out of or in any l and of he r said h u s b a n d unless a cont rary in ten t ion shall be declared by his will .

10. A n d be it fur ther enacted Tha t no gift or bequest m a d e by any husband to be for the, benefit of h is widow of or out of his personal es ta te or of or out of any of his land no t l iable to dower shall defeat or prejudice her r igh t to dower unless a cont ra ry in ten t ion shall be declared by his will.

1 1 . Provided always and be it fur ther enacted That n o t h i n g in

th i s Ac t contained shall p reven t any Cour t of Equ i ty from enforcing any covenant or agreement en te red in to by or on t he p a r t of any husband no t to ba r the r i gh t of h is widow to dower out of his lands or any of them.

12. A n d be it fur ther enacted That no th ing in th is Act conta ined

shall interfere w i th any P u l e of Equi ty or of any Ecclesiastical Cour t by which legacies bequea thed to widows in satisfaction of dower are

ent i t led to pr ior i ty over o ther legacies.

13 . A n d be i t fur ther enac ted Tha t no widow shall hereafter

be ent i t led t o dower ad ostium ecclesicc or dower ex assensu patris.

1 4 A n d be i t fur ther enacted Tha t th is A c t shall no t extend

to t h e dower of any widow who shall have been or shall be mar r ied on or before t h e first day of J a n u a r y one thousand e ight hund red a n d th i r ty-four and shall no t give to any will deed cont rac t engagement or charge executed entered in to or created before t h e said first day of J a n u a r y one t housand eight h u n d r e d and thir ty-four t he effect of defeating or pre judic ing any r igh t to dower.

A N N O

ANNO TERTIO ET QUARTO GULIELMI IV. REGIS.

CAP. CVI.

An Act for the amendment of the Law of Inheritance. [29th

August, 1833.]

BE it enacted by the King's Most Excellent Majesty by and with Commons in this present Parliament assembled and by the authority the advice and consent of the Lords Spiritual and Temporal and

of the same That the words and expressions hereinafter mentioned which in their ordinary signification have a more confined or a different meaning shall in this Act except where the nature of the provision or the context of the Act shall exclude such construction be interpreted as follows that is to say the word " Land" shall extend to manors advowsons messuages and all other hereditaments whether corporeal or incorporeal and whether freehold or copyhold or of any other tenure and whether descendible according to the Common Law or according to the custom of gavelkind or borough English or any other custom and to money to he laid out in the purchase of land and to chattels and other personal property transmissible to heirs and also to any share of the same hereditaments and properties or any of them and to any estate of inheritance or estate for any life or lives or other estate transmissible to heirs and to any possibility right or title of entry or action and any other interest capable of being inherited and whether the same estates possibilities rights titles and interests or any of them shall be in possession reversion remainder or contingency and the words "The Purchaser" shall mean the person who last acquired the land otherwise than by descent or than by any escheat partition or inclosure by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent and the word "Descent" shall mean the title to inherit land by reason of consanguinity as well where the heir shall be an ancestor or collateral relation as where he shall be a child or other issue and the expression "Descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestor and the expression " The Person last entitled to Land " shall extend to the last person who had a right thereto whether he did or did not obtain the possession or the receipt of the rents and profits thereof and the word "Assurance" shall	mean any deed or instrument (other than a will) by which any land	shall be conveyed or transferred at Law or in Equity and every word
importing the singular number only shall extend and be applied to several persons or things as well as one person or thing and every word importing the masculine gender only shall extend and be applied to a female as well as a male.
2. And be it further enacted That in every case descent shall be traced from the purchaser and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require the person last entitled to the land shall for the purposes of this Act be considered to have been the pur­ chaser thereof unless it shall be proved that he inherited the same in which case the person from whom he inherited the same shall be con­ sidered to have been the purchaser unless it shall be proved that lie inherited the same and in like manner the last person from whom the land shall be proved to have been inherited shall in every case be con­ sidered to have been the purchaser unless it shall be proved that he inherited the same.

3. A n d be it fur ther enac ted Tha t when any land shal l have

been devised by any tes ta tor who shall die after t h e thir ty-first day of

December one t housand eight h u n d r e d and th i r ty - th ree to the heir or to t h e person who shal l be t he heir of such tes ta tor such heir shal l be considered to have acquired t h e land as a devisee a n d not by descent and w h e n any l and shall have been l imi ted by any assurance executed after t h e said thir ty-f i rs t day of December one thousand eight h u n d r e d and th i r ty - th ree to the person or to t he heirs of the person who shall thereby have conveyed the same land such person shall be considered to have acquired t h e same as a purchaser by v i r tue of such assurance a n d shal l n o t be considered to be ent i t led there to as his former estate

or p a r t thereof.

4. A n d be it fur ther enacted Tha t when any person shall have acquired any land by purchase u n d e r a l imi ta t ion to t he heirs or to t h e heirs of t he body of any of his ancestors contained in an assurance executed after t he said thir ty-f irs t day of December one thousand eight h u n d r e d a n d th i r ty - th ree or unde r a l imi ta t ion to t h e heirs or to the heirs of t he body of any of his ancestors or unde r any l imi ta t ion hav ing t h e same effect contained in a will of any tes ta tor Avho shall depar t th is life after t he said thir ty-first of December one thousand eight h u n d r e d a n d th i r ty - th ree t h e n and in any such cases such land shall descend and the descent thereof shall be t raced as if t h e ancestor named in such l imi ta t ion h a d been t h e purchaser of such land.

5. A n d be i t fur ther enacted Tha t no b ro the r or sister shall be considered to inher i t immedia te ly from his or her b ro the r or sister b u t every descent from a b ro ther or sister shall be t raced t h r o u g h t he paren t .

6. A n d be i t fur ther enacted Tha t every l ineal ancestor shall be capable of be ing heir to any of his issue a n d in every case where the re shall be no issue of t he purchaser his neares t l ineal ancestor shall be his heir in preference to any person who would have been ent i t led to inher i t c i ther by t r ac ing his descent t h r o u g h such l ineal ancestor or in consequence of t he i r be ing no descendant of such l ineal ancestor so t h a t t h e father shall be preferred to a b ro ther or sister and a more remote l ineal ancestor to any of his issue other t h a n a neare r l ineal ancestor or his issue.

7. A n d bo i t fur ther enacted and declared Tha t none of t he

m a t e r n a l ancestors of the person from whom the descent is to he t raced no r any of the i r descendants shall be capable of inher i t ing un t i l

all h is pa t e rna l ancestors and the i r descendants shal l have failed and

also t h a t no female pa t e rna l ancestor of such person nor any of her descendants shal l be capable of inher i t ing un t i l al l his male pa te rna l ancestors and the i r descendants shal l have failed and t h a t n o female m a t e r n a l ancestor of such person nor of any of he r descendants shall

be capable of inhe r i t i ng u n t i l all his male m a t e r n a l ancestors and the i r

descendants shall have failed.

8. A n d be i t fur ther enac ted and declared Tha t where the re shall be a failure of male pa te rna l ancestors of t he person from w h o m the descent is to be t raced and the i r descendants the mo the r of his more remote male pa te rna l ancestor or he r descendants shall be the heir or heirs of such person in preference to the mo the r of a less remote male pa te rna l ancestor or her descendants and where there shal l be a failure of male m a t e r n a l ancestors of such person and their descendants t h e mo the r of his more r emote m a l e m a t e r n a l ancestor and her descendants shall be t h e heir or heirs of such person in pre­ ference to t h e m o t h e r of a less remote male ma te rna l ancestor and her descendants .

9. A n d be it fur ther enacted Tha t any person re la ted to t h e person from w h o m the descent is to he t raced by the half blood shall be capable of be ing his he i r a n d t h e place in which any such relat ion by t h e half blood shall s tand in t he order of inher i tance so as to be ent i t led to inher i t shall be nex t after any re la t ion in t h e same degree of t h e whole blood and his issue where t he common ancestor shall he a male and n e x t after t he common ancestor where such common ances­ to r shall be a female so t h a t the b ro the r of t he half blood on t h e p a r t of t h e father shall inher i t nex t after t h e sisters of t he whole blood on the pa r t of t h e father and the i r issue and the b ro the r of t h e half blood

on the p a r t of t h e m o t h e r shal l inher i t n e x t after t he mother .

10. A n d be i t fur ther enacted Tha t when t h e person from w h o m

the descent of any l and is to be t raced shal l have had any relat ion who hav ing been a t t a in ted shall have died before such descent shall have t a k e n place t h e n such a t t a inde r shall no t p reven t any person

from inhe r i t i ng such land who would have been capable of inher i t ing

t h e same b y t r ac ing his descent t h r o u g h such re la t ion if he had no t been a t t a in ted unless such land shall have escheated in consequence of such a t t a inde r before t h e first day of J a n u a r y one t housand e ight

h u n d r e d and th i r tv-four .

1 1 . A n d be it fur ther enacted Tha t th is A c t shall no t extend

to any descent which shal l t ake place on t h e dea th of any person who shal l die before; t h e said first day of J a n u a r y one t h o u s a n d eight

h u n d r e d and thir ty-four .

12. A n d be it fur ther enacted Tha t where any assurance executed before the said first day of J a n u a r y one t housand e ight h u n d r e d and th i r ty- four or the will of any person AVIIO shal l die before t h e same first day of J a n u a r y one thousand e ight h u n d r e d and th i r ty - four shall conta in any l imi ta t ion or gift t o t he he i r or heirs of any person unde r which the person or persons answer ing the description of heir shall be ent i t led to an es ta te by purchase t h e n the person or persons who would have; answered such description of heir if th is Ac t h a d not been made; shall become ent i t led by v i r tue of such l imi ta t ion or gift whe ther t he person named as ancestor shall or shall no t be l iv ing on or a l ter the said first day of J a n u a r y one thousand

e igh t h u n d r e d and thir ty-four .

No . I X .