Gambar halaman
[ocr errors]


[ocr errors][ocr errors][merged small][ocr errors]

preach of them. The short form of covenant to pay taxes includes all taxes, whether parliamentary, municipal or otherwise, whether charged upon the premises or the lessor in respect thereof. The covenant not to cut down timber does not prevent the lessee from cutting timber for necessary repairs, firewood, or for the purpose of clear

The notice to repair must be in writing and left at the premises, and the lessee has after such notice three calendar months to make such repairs. The consent to assign or sub-let must be in writing. The covenant that the lessee will leave the premises in good repair is subject to the exceptions of reasonable wear and tear and damage by fire, while the preceding covenants to repair and repair according to notice are unqualified. Every conveyancer should see that the same qualification is made of these covenants as is made of the covenant to leave in good repair else the lessee may be compelled to rebuild in case the premises be consumed by fire. Every lessee should have a proviso inserted in his lease, that the rent shall in case of destruction by fire cease from and after the happening thereof, otherwise he may be compelled to pay rent during the remainder of the term, although the premises may prove a total loss. The proviso for re-entry by the lessor on non-payment of rent, comes into operation at the end of fifteen days after any of the days on which the rent ought to have been paid, and no demand of such rent is necessary; and for non-performance of cov

" enants, it comes into operation at any time after such breach or non-performance. Although the landlord under this covenant has the right of re-entry, it is, however, necessary for him to bring an action of ejectment to recover possession of the premises, or proceed under the Over-holding Tenancy Act.

If a tenant holds the premises demised beyond his term, he is called an over-holding tenant, and may be proceeded against under the 27 & 28 Vic. cap. 30, (Revised Statute, cap. 107), under the provisions of which Act, the Judge of the County Court where the lands lie has power to

[ocr errors][merged small][merged small][ocr errors][merged small]

deal summarily between the landlord and an over-holding tenant, and where no “colour of right” is shown the Judge will issue process to the sheriff of his county to turn out the over-holding tenant forthwith.

The statutes regulating conveyances by married women seized of or entitled to real estate in their own right in Upper Canada, are 59 Geo. III. cap. 3; 1 Wm. IV. cap. 2 ; 14 & 15 Vic. cap. 115, and 29 Vic. cap. 28, (Revised Statutes, caps. 125, 126 and 127.) According to these statutes, the married woman must be twenty-one years of age and must convey the land by deed executed by her in her proper person or by her attorney duly appointed by power or attorney, jointly with her husband, unless she obtain an order from the Judge permitting her to exocute the deed alone. Revised Statutes, cap. 127.

An important enactment of the session of 1865 is the Act to amend the Law of Property and Trusts in Upper Canada, 29 Vic. cap. 28 (Rev. Stat., cap. 107, s. 35), and among its most useful provisions it provides that trustees, executors, &c., may apply by petition to the Court of Chancery, for opinion, advice, &c., as to the management of Trust Property, adopting the provisions of the Imperial Acts 22 & 23 Vic. cap. 35.

A WILL OF LANDS. The right of testamentary alienation of lands is a matter depending upon Acts of Parliament, viz. 32 Henry VIII. cap. 1 (the Statute of Wills) explained by 34 & 35 Henry VIII. cap. 5, 12 Car. II. cap. 24, and by

- The Wills Act of Ontario." By sect. 10, every person may devise all real and personal estate to which he may be entitled at the time of his death and which otherwise would devolve upon his heir-at-law, or upon his executor or administrator. After-acquired property also will pass. By sect. 11, wills made by persons under 21, are declared invalid. By sect. 9, s. s. 4, “ Person” and “ Testator" are declared to include a married woman, so that as to will since 1st January, 1874, married women are placed

[ocr errors][ocr errors]
[ocr errors]


[merged small][ocr errors][ocr errors][ocr errors][merged small][merged small]

on the same footing as any other person, an evidence of that increasing civilization which tardily recognizes the fact that a married woman is a person. By sect. 5, wills executed after 6th March, 1834, and prior to 1st January, 1874, are valid, if executed in presence of two or more witnesses, who have signed in the presence of each other, although not in the presence of the testator.

By sect. 12, since 1st January, 1874, a will to be valid, whether of personalty or realty, must be in writing, signed at the foot or end thereof by the testator, or some one in his presence and by his direction, and such signature must be made or acknowledged by the testator, in presence of two or more witnesses, present at the same time, who shall subscribe the will in the presence of the testator--but no form of attestation shall be necessary. By sect. 14, it is declared that soldiers being in actual military service, and mariners, or seaman being at sea, may dispose of their personal property as before the passing of this Act.

By section 17, gifts to a witness or husband or wife of a witness, are declared invalid, and the will valid.

By sect. 20, wills are declared revoked by marriage with certain exceptions in favour of wills made in the exercise of a power of appointment. And that whenever land shall be devised in a will, it shall be considered that the devisor intended to devise all such estates as he was seized of in the same land, whether fee simple or otherwise, unless it appears upon the face of such will that he intended to devise only an estate for life, or other estate less than he was seized of at the time of making the will. The Statute of Frauds, it may

be observed, requires that the witnesses should be credible. Under the Provincial Act, however, the incompetency of the witnesses at the time of the execution of the will or at any time afterward, is not sufficient to make the will invalid. Creditors also are good witnesses, although the will contains a charge for the payment of debts, and the

[ocr errors][ocr errors]

mere circumstance of being appointed an executor, is no objection to a witness. It may be mentioned, however, that the statute authorizing the devise of lands by married women does not require the witnesses to sign in the presence of the testratrix or of each other. As a will does not take effect until the decease of the testator, it may in the meantime be revoked, and this may be done in various ways, as by marriage, or by burning, tearing or otherwise destroying the same, by the testator or some one in his presence and by his direction, with the intention of revoking the same, and also by any writing executed in the same manner as a will and declaring an intention to revoke, or by a subsequent will or codicil executed as before. By sect. 23, it is declared that no alteration, interlineation, or other alteration, made in

any will after execution, shall have any effect except so far as the words or the effect of the will are not apparent unless the alteration be executed in like manner, as required for the execution of the will. The signatures of the witnesses and testator are well placed if made in the margin or some other part of the will, opposite or near to such alteration, or at the foot or end of, or opposite to a memorandum referring to such alteration, and written at the end or in some other part of the will. Where a codicil is added, it is considered part of the will, and the disposition made by the will is not disturbed further than is necessary to give effect to the codicil. The testator may, if he choose, part with any of the property comprised in his will before his death, and this is called ademption. The failure of a devise by the decease of the devisee in the testator's lifetime, is called a lapse of the devise, and this is not prevented by the lands being given to the devisee and his heirs.

In the construction of wills, the courts have always borne in mind that a testator: may not have had the same opportunity of legal advice in drawing his will as he would have had in executing a deed, and the first maxim of construction accordingly, is that the “intention of the tes


[ocr errors][ocr errors]

tator ought to be observed.” In a deed, on the other hand,
technical words are always used. If a testator devise land
to the person who is heir-at-law, it is provided by 4 Wm.
IV. cap. 1, that such heir takes as devisee and not by

As soon as possible after the testator's death, the will
should be proved in the proper Surrogate Court, and wills
or devises affecting lands should be registered in the
Registry Office where such lands are situated. A will,
however, or probate, if recorded within twelve months
after the death of the testator, will be as valid against
subsequent purchasers as if the same had been recorded
immediately after such death. Further time may be
allowed for registration in certain cases of inability to
record the will by reason of its being contested, or by any
other inevitable difficulty without the devisee's wilful neg-
lect or default, in which case it will be sufficient to register
within 12 months after removal of the impediment. Rev.
Stat. cap. 111, s. 75.

[ocr errors]
[ocr errors]


[ocr errors]

1. Rights of the husband in respect of the lands of his

By the act of marriage at the Common Law the hus-
band and wife become in law one person, and so continue
during the marriage. The wife is, as it were, merged in
the husband, and before the statutes hereafter mentioned
the husband was entitled to the whole of the rents and
profits arising from his wife's lands, and acquired a free-
hold estate therein during the continuance of the marriage.
But property might then, and may still be vested in trus-
tees for the separate use of an intended wife making
provision for her independent of the debts and liabilities
of the husband.

Another consequence of the unity of husband and wife
was the inability of either of them to convey to the other.
But a man might, and still may leave lands to his wife by

« SebelumnyaLanjutkan »