Real Estate of Intestates Distribution Act of 1862 No 30a (NSW)

102 No. 20. 26° YIC. 1862.

Real Estate o f Intestates Eistribution.

No. XX.

B eal E state An Act to alter the succession to Eeal Estate in

OF I ntestates

D istribution.

cases of Intestacy. [Reserved—20th December,

1862.]

PreamWe. "^HEEEAS it is expedient to alter the law relating to the

succession to real estate in cases of intestacy 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 New South Wales in Parliament assembled and by the authority of the same as follows ;—

Intestate land not	1. Erom and after the passing of this Act all land which Operation of the law relating to real property now in force would upon the death of the owner intestate in respect of such land pass to his heir-at-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.
arpersonaity*°
Land to be included	2. Lands held in trust or by way of mortgage passing under this Act shall be subject to the same trusts and equities as the same would have been subject to if they had 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 application for
in inventory &c.
Curtesy and dower	payment of debts or otherAvise Provided that nothing herein
retained.	contained shall give to any husband on the death of his wife intestate any greater interest in the real estate of his wife or in the produce thereof upon sale than a tenancy for life by the curtesy nor to any ividow a greater interest in the real estate of her husband on his death intestate than the rights she would otherwise have had as dowress thereon And provided also that in case of the sale of any such real estate by virtue of this Act provision shall be made by order of the Court or Judge for securing out of the produce of the sale such payments as shall be equivalent to the right of such husband or wife as tenant by the curtesy or dowress.
A J udge may
make special order	3. I t shall be lawful from time to time for any J udge of the Supreme Court upon the application of the administrator or of any person beneficially interested and after such previous notice to other parties and inquiry as he shall think fit to order and direct the course of proeeeding which shall be taken in regard to the time and mode of sale of sueh land—the letting and management thereof until sale—the application for maintenance or advancement or otherudse 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.
relating thereto.
Judge may order
partition.	4. In any case wherein upon such inquiry the Judge shall be satisfied that a partition of the land would be advantageous to the parties interested therein it shall be laAvful 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 aeting under a decree in equity for partition And the report and final award of the said arbitrators setting forth the particulars of the land allotted to each party interested shall when signed by them and confirmed by the order of a Judge and uLen also registered in the office of the Begistrar General be effectual without the necessity of any further conveyance to vest in each allottee the

land

1862. 26° VIC. No. 20. 103

Heal Estate o f Intestates Eistrihidion.

land so allotted And if such allotment be made subject to the charge of any money payable to any other party interested for equalizing the partition such charge shall take effect according to the terms and 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.

5. I t shall he lawful for the Supreme Court from time to supreme Court may

time to make rules for the ordinary guidance of administrators in

general rules,

relation to real estate administered as personal assets either by insert­ ing the same in letters of administration or promulgating the same in like manner with other general rules affecting the practice of the Court Provided that no such rules shall prejudice or control the effect of any special order to he made by a Judge upon such inquiry as aforesaid in any particular case But provided further that 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 Provided that a cojiy of such rules shall be laid before both Houses of Parliament within one month from the issue thereof if Parliament be then in Session or otherwise within one month after the commencement of the next imsuing Session.

G. The preceding provisions shall be alike applicable to any Same rules to appiy

executor to whom in case of partial intestacy land shall pass under IdnanistraaoT by this Act also to the Curator of Intestate Estates and to any other curator of intestate 1*1 1 J _ * TbStrltlfS.

person luiiillmg a like duty.

7. No executor or admi nistrator shall be required against his Administrator’s trust

own consent to continue the duty of a trustee by managing the withouUus™\Ẑ

property during an enforced suspension of sale but shall be entitled consent.

upon such suspension being ordered to relinquish his trust to such

officer of the Court or other person as the Court or Judge shall

appoint.

8. This Act shall be styled and may be cited as the “ Ileal short title.

Estate of Intestates Distribution Act of 1862” and shall take effect commencement,

from and after the first day of July one thousand eight hundred and

sixty-three.