Law of Inheritance Act 1867 (SA)

ANNO TRICESIMO PRIM0

No. 29.

An Act for the amendment of the Law of Inheritance.

[Reserved, 19th December, 1867.3

HEREAS it is expedient to amend the Law of Inheritance-. Province of South Austrdia, with the advice and consent of the W Be it therefore Enacted, by the Governor-in-Chief of the	Proamble.
Legislative Council and House of Assembly of the said Province, in this present Parliament a.ssembled, as follows:

owner without devising the same, or which he shall only partially pmo,,e,e, intestate to vest in 1. All lands of which any person shall die seised or possessed as Landsofperaonsdying

personal estate upon probate of such will or letters of administration, meeed owner.

with such will annexed, being .granted, the estate of the deceased

owner, in all'his undevised or partially devised lands, shall vest

in the person to whom such letters of administration or probate

shall

devise, shall pass to and become vested in the personal representative tative for divieioa

of the person so dying, if undevised, absolutely; or, if partially

devised, then subject to such partial devise: and such personal

representative shall hold the said lands, and. the unapplied proceeds S

thereof, in case the same shall be sold, for division or distribution	6 7
in like manner as is now the case with chattel red property; and such lands shall be distributable and disposable in like mqnner as other personal assets without distinction as to order of application in the payment of debts or otherwise: Provided that mortgages, trusts, and equities upon or affecting such lands, shall be as valid and effectual as if the same had descended to the heir-at-law.

2. Immediately upon letters of administration, or in the case of Titleof penonalre- presentative to relate

a partial devise or the deceased owner leaving a will affecting only ,,,of ,,-

31" VICTORIZ, No. 29.

The Idestate Real Estates Distribution A c t. 1 8 6 7.

shall be granted; if undevised absolutely, or if partially devised, then subject to such partial devise; and the title of such per- sonal representative shall relate back to and be deemed to have arisen immediately upon the death of such owner, as if there had been no interval of time between such death and the grant of such letters of administration or probate, as the case may be; and the production of any such letters of administration or probate shall be conclusive evidence that the deceased owner did in fact die, without devising, either wholly or partially, any lands of which he died seised as owner, except as in such letters of administration or probate respectively may be limited or excepted.

Dawor and curtay

abbli~bed. 3. No widow shall be entitled to her dower, nor husband to his

curtesy, out of any la ds which shall pass under an of the provisions

of this Act. 4 =-l ' f l r z 4 - 4

Constructionoiwora 4. In the readinrr and construction of all Acts of Parliament. day on which this Act shall come into operation, subsist and be in force, the word Heirs," so far as relates-to the deceased owners of

personrc

taking undcr thie Act	and all deeds and duocurnents that shall from time to time after thi
to take as assigns.

UOI /Bci l undevised or partially devised lands, shall be taken to mean and

include the person to whom letters of administration of the personall estate or probate of the will of such deceased owner where such will only partially devises his lands, or only affects peraonal estate, shall be granted; and any person who shall take any lands bavirtue - of this Act shall so take as if the same had come to him by will of

owner.

Peraone entitled under	5.	Notwitllstanding anything herein contained any person who, but
will may claim con-

veyance of land, or	for the grant of letters of administration or probate to the personal
payment of proceed8	representative as hereinbefore provided, would have been entitled
d undistributed.	under the will of any deceased owner to any land, or any estate or interest in land, or the proceeds thereof, shall be entitled to a convey-
if the same shall remain unsold, and, if sold, then to an account ot ance of such land, estate, or interest from the personal representative, such sale, and of the distribution of the proceeds thereof, and to re- ceive from him such proceeds, if undistributed, subject to all just dlowances.

Permnal reprellenta- 6. No personal representative: making [any payment, or doing

tive not liable for acts any act bond $de	under or in pursuance of any letters of adminis-
done bondfid6.

tration, or probate as aforesaid, shall be liable for the Bums so paid, or the acts so done by reason of the existence of any will of the deceased owner, or any such will other than that of which probate has been granted, if the existence of such will, or such other will as

the case may be, was unknown to him at the time of such payments

made, or act bvnd cfide done as aforesaid: Provided that nothing herein contained shall affect or prejudice the rights of any person entitled under such will against the person to whom any such pay- ments shall have been made as aforesaid, but the person so entitled shall have the same remedy against the person to wholn such pay-

ment

31" VETORIB, No, 29.

- - -v

The Intestate Real Estates Distrz'butzon Act.-1867. -

ment sha;ll have been made as he would have had against such personal representative if the money had not been distributed under

the provisions of this Act.

'7. The Supreme Court, in its Equitable Jurisdiction may from supreme court m q make special ordera ar

time to time, upon the petition of the personal representative, to of

or any person beneficially interested, and after such previous notice u n d e v ~ d	h d a.
as may be prescribed by the rule$ of the Court in that behalf,
and upon such inquiry as it shall think fit, order and direct the
course of proceeding which shall be taken in regard to the time and mode of sale of any lands passing under this Act, the letting and management thereof until sale, the application for maintenance or advancement or otherwise of shares or interests of infants, the expediency a d mode of effecting a partition, if applied for, and generally in regard to the administration of the property for the greateet advantage of all persons interested.

8, In any case wherein upon such inquiry the Court shall be court order

satisfied that a partition of the land would be advantageous to the Partition.

parties interested therein, the Court may appoint one or more arbi-

trators to effect such partition, and to exercise in regard thereto,

under its direction and contro1,~powers similar to those of Commis-

sioners acting under a decree In Equity for partition; And upon

the report and final award of the said arbitrators setting forth the

particulars of the land allotted to each party interested, the personal

representative shall convey or transfer the same according.

9. No personal representative shall be required, against his own Personal rs~rseen-

consent, to continue the duty of a trustee by managing the property continue to tative not required to

during an enforced suspension of sale, but shall be entitled, upon agaimthisown

such suspension being ordered, to relinquish his trust to such officer consent.

of the Court or any other person as the Court shall app,oint.

the provisions of this Act, shall enter into the like bond, and make bond. k g. 10. Every personal representative, to whom lands shall pass under ~~~~~~'~b

and exhibit the like accoints in reference to such lands, akd shall be

liable to the like penalties for neglect as may for the time being be

required to be entered into, made, or exhibited by, or as may be enforced against any person to whom letters of administration of the

personal estate of any person dying intestate is granted by the said

Court in its Testamentary Causes Jurisdiction: Provided that in

the case of an administrator one bond shall be sufficient as to both

real and personal property, but the penalty thereof shall be double

the amount under which both the real and personal property of the

deceased shall be sworn, unless the Court or a Judge shall otherwise

order.

11. The said Court, in its Testamentary Causes Jurisdiction, or any so* C

two of the Judges thereof, whereof the Chief Justice shall be one,

hall have power from time to time to make such rules and regu- lations for the ordinary guidance of personal representatives in rela-

tion

31" VICTORIB, No. 29.

p--. ------.-A-

The Intestate Real Estates Distributim Act.1867.

tion to lands passing under this Act, and for prescribing the forms of probates or letters of administration when the same are intended to pass lands under the provisions hereof, and for regulating the prac- tice to be observed in obtaining the grant of any such probate or letters of administ~ation, and the form of and amount for which any such personal representatives are to give bond, and generally for carrying the provisions of this Act into effect as to the said Court or Judges shall appear expedient, all which rules and regulations shall bc made and promulgated, and shall have the same force and effect, and may be revoked or amended in the like manner as other rules and regulations affecting the practice and procedure of the said Court in its Testamentary Causes Jurisdiction.

lnterpmtation or	12. In the construction of this Act, unless the context shall be inconsistent with the meaning hereby assigned-"Lands" shall mean and extend to messuages, lands, tenements, rents, and here- ditaments, and whether corporeal or incorporeal, and to any share, estate, and interest in them, or any of them, whether the same shall be freehold or chattel interest; and to any possibility, right, or title of entry or action, whether the same shall be in possession, rever- sion, remainder, or contingency: U Owner" shall mean any person seised or possessed of, or entitled to any beneficial eestate or interest in lands as before defined, whether legal or equitable, which he had, or would were he of full age have had power to dispose of by will, and which but for this Act would go to his heir-at-law, or his executor or administrator.
WIUIII~
Commencement of	13. This Act shall take effect from a day to be fixcd by thc Governor by Proclamation in the Goverfiment Gazette, such day to be not less than three nor more than six calendar months from the day upon which notice of IIcr Majesty's approval of the same shall be published in the said Gazette.
dot,

8hort title.	14. This Act may be cited and referred to for all purposes as
The Intestate Real Estates Distribution Act, 1867."

I hcreby reserve this Act for the signification of the Queen's

pleasure thereon.

D. DALY, Governor,

C -- . -

Adelaide : Printed by authority, by W. C. Cox, Goyernment ~ r i & ~ ~ ~ i o t o r b ~ ~ u a r e.